How amazing to see everyone here tonight and how unsurprising for tonight.
Our speaker is, of course, the wonderful record.
You're always asking me if it was usual to have this kind of turnout.
And I said, Actually, I've not seen where we had to have an overflow room to accommodate the crowds.
And then I paused and said, Yeah, no, there's just been once I could think of.
But it wasn't in this building. It was an exam schools. And that was where we had, as it said.
Thank you. Audience. That was a really good forum.
But what does this tell you about the charismatic Palestinian that really knows how to pack the house?
So do Erekat is, as you all know, an associate professor at the University of Rutgers.
I was about to say from law, but she recently correct me to say in Africana studies.
But of course. Okay. Thank you.
But of course, is a internationally recognised scholar in international law and humanitarian law and human rights law and refugee law.
So the law is never very far from what Norah Erekat works on.
You got it. I got it.
In terms of your career or in terms of, you know, I'm not sure I don't I don't have my career yet either, but I think the slides are in the inbox.
Okay. You know, my worry is, am I going to lose a connection with the boardroom if I now shift to your slide presentation?
Can we can share? Yes. There's a usb-c to usb-c to Usb-c from doors.
This, I don't think a USB port. Know I sent it to you.
It's been sent to station. And actually, I've just been waiting.
So I guess equality of all Palestinians is interesting.
That's what I do agree with the government here a moment ago. But we do have the rest of the evening, so don't worry.
We're not going to cut this short. Associate professor of Africana studies at Rutgers University.
Norah has emerged as one of the most powerful and courageous voices of Palestinian Americans, of Palestinians, of the world,
of Palestinians, which has gained her a global following, which I think is witnessed in the turnout we see here with us tonight.
She's author of Justice for Some Law and the Question of Palestine in 2019 and edited with our former student and colleague Moin.
Rabbani applauded state the UN initiative at New Palestinian functions in 2013, But it doesn't do justice to the work.
The thought, the life, the engagement of Noor Erekat.
I probably can't do that. And so rather than take more of your time, I'm going to let Norah do that by her example.
But will you join me in an unreasonable. I can't thank you enough for having me.
I can't thank you enough for your audience and mostly for being committed, committed to raising the question of Palestine,
not as a question, but as an imperative and as a struggle for liberation without equivocation.
So anything that I'm doing now in the realm of knowledge production and academic inquiry, I'm not meaning to take away from that.
But to add to that, as we think about, well, what next and how and why?
And I think, you know, in the beginning for any of the junior scholars in here, in the beginning,
my approach of thinking about knowledge production as an emancipatory project
was not always celebrated or encouraged because it diminished my objectivity.
And yet I want to assure you that don't let anyone bully you from doing precisely that,
because these inquiries are implicated in all of our collective liberation.
And so with that, my what I want to address is I think what most people have been thinking about in terms of the ICJ decision.
So I'll go with, you know, think about the ICJ recent ruling with you to help think about what it is and what it's not,
and then move into a discussion about why I think the Court ultimately will not be able to resolve our most pressing questions.
The idea that we might, you know, for example, get the the ruling that we want at the merit stage might not happen.
So how is it that we're going to think about that? Oh, and look, we might have to listen if we don't have slides.
I'll just read up more the longer we do.
Why should we try? Can we try one last time?
Okay. So I am assuming, though, that I've got to use the memory stick on this laptop.
I think I think we need to give it up one time for Palestinian stubbornness.
For Nadia. I got to wonder.
You were with someone.
I do. Okay. On January 26, 2024,
the International Court of Justice issued its ruling on South Africa's historic
petition charging Israel genocide and or the failure to prevent genocide,
and a request for provisional measures issued only two weeks after the oral arguments demonstrated his urgency.
The decision is precedent setting in several regards.
Though much has been said about what the panel did not do by failing to order a cessation of hostilities.
What it did do was incredibly significant, just pulling up the two primary articles of approving genocide as a matter of law,
which is the combination of specific intent and specific acts to destroy a people in whole or in part.
So as to the first it established before we get anywhere.
The court established South Africa's standing for prima facie jurisdiction,
despite the Israeli argument that they had no standing because no dispute existed under Article nine of the Genocide Convention.
Secondly, the court affirmed that the statements made by Israeli military and political
leaders indicate specific intent to destroy the people in whole or in part.
Mind you, this is quite significant. They actually quote Galant and Herzog, not guns.
But they do go on and Herzog in the final decision.
And this is so significant because the Israeli legal team insisted that the the statements that were made amongst the
military and political echelon were either insignificant fringe or had no direct relationship to operations on the ground.
All right. Thirdly, the court recognised that the acts and these are the four of the five acts enumerated in Article two of the Genocide Convention,
which are tantamount to genocide or genocidal acts.
They recognise that these four out of the five is documented by several U.N. agencies describing unshared destruction and suffering
as plausibly fitting within the pattern of conduct of genocide and agreed agreed by a high number of 15 to 2 and 16 to 1,
that the continuation of Israel's campaign poses the risk of irreparable injury of the Palestinian people.
In so doing, the court rejected every one of Israel's arguments, every single one.
And we cannot emphasise this enough, especially as the opposition right,
has insisted that this is their victory and know that what they're doing is strategic legal work to turn their loss into a victory.
And why I'm emphasising that we have to emphasise what is important for us.
Right. But most significantly, they rejected Israel's primary argument that this is a legitimate form of self-defence.
In fact there's a passing mention of self-defence and thank you in one of the in in the decision itself, but no serious engagement with it.
So this is huge. All right, well, why does it matter?
It matters because genocide originally thinking about it's legislated as a as its own crime in 1948 that can exist in wartime and peacetime.
At the time that the Nuremberg trials are happening, or the international military tribunals that are trying.
Political and military leaders who orchestrated annihilation of Jewish people in the show up at that time it wasn't legislated,
and so it was considered as one of many crimes against humanity, but crimes against humanity on its own,
as distinct crime against humanity refers to what happens in wartime,
with exception of a recent international tribunal decision in Yugoslavia that recognised it as customary law of happening in peacetime.
But insofar as conceived, it happens in wartime and it is constituted of a systematic attack against civilians.
What is the difference? As I mentioned, genocide happens in wartime and peacetime.
And secondly, it's not merely an attack against civilians, but it is an attack against a particular group of people based on racial,
ethnical, national, religious grounds to the exclusion of a political group.
Why is that important? We also see that Israel has insisted that it is not attacking people as a group, it is attacking Hamas.
The conflation that they make with the people is deliberate not only to justify their ongoing atrocities,
but in order to insist that this is political targeting which is not proscribed.
Right. It wouldn't be proscribed as genocidal. The ICJ.
Significantly recognise the Palestinians as a people, and so they also rejected that argument.
All right. So as a result of this, the provisional measures order that Israel, quote,
ensure with immediate effect that its military does not commit mass killings of civilians,
engage in activities intended to prevent births in the group,
caused serious bodily or mental harm to members of the group or create conditions
intended to bring about the destruction of the group in whole or in part,
as well as to punish incitement to genocide within Israeli society, across all echelons, as put by the South African legal team.
The ICJ ordered a cease fire and everything but me.
Israel must reinstate the unimpeded flow of food, medicine and shelter.
It must refrain from bombing safe zones.
It must refrain from destroying hospitals and residential areas, not conduct field executions or mass displacements.
Either Israel must conduct its war altogether differently, or it must cease its operation.
So why then not demand a cease fire? Why not demand a cease fire if the court was willing to go this far?
I can tell you, having looked at the decision as well as the five separate opinions, nobody addresses this, according to Judge Vanzetti.
We get a sense that he's he was different from the rest of the court and would have ordered a cease fire.
According to Judge Nulty, who represents Germany.
He didn't even agree that this was a plausible genocide, but agreed to the provisional measures because of what was happening.
So what we know about why the ICJ didn't order a cease fire is only conjecture.
So let me give you my ideas about why. Possibly.
But this is not I can't tell you. No one can help except for the ICJ why they did this.
But this is what I do know from the material that we have. Number one, it actually fits with jurisprudential precedent.
This case is most like the case of the Gambia versus Myanmar.
Right. Where in that situation, The Gambia.
On behalf of the world and itself in compliance with the Genocide Convention, brings a case against Myanmar for the genocide of the Rohingya people.
Right. A genocide that begins also in a moment of what was described as an attack in late October 2016 against 30 Burmese police stations.
That then, you know, results in 2017 in this mass expulsion there.
The court did not call for a cease fire either. Now people then often bring up.
But what about the Ukraine versus Russia? Completely different fact pattern.
Completely. Ukraine did not. Nobody prosecuted Russia for genocide in that case.
In that case, it was about the genocide convention.
But Ukraine was challenging Russia's invocation that Ukraine was committing genocide against Russian nationals in two of the regions.
And therefore and justified its intervention on that basis.
Russia justified its intervention in Ukraine upon the basis of stemming the genocide against Russians.
So the Ukraine, when it brings its case, is saying this is not true.
The court found the Ukraine and and demanded a cessation of hostilities.
So the fact patterns are completely different there. What else?
I think that the court also didn't want to address the issue of self-defence, and I'll show you why that's going to be tricky.
And it's probably kicking the can down the road. There is going to be an advisory opinion about prolonged military occupation,
the suppression of the Palestinian right to self-determination in the Palestinian territories on February 19.
Where I think the question of self-defence will emerge once again.
It hasn't emerged since 2004 within the ICJ, which I'll discuss shortly, but I think they want to avoid what they can.
Courts don't want to answer more questions than they have to,
and here's the only question they had to answer is whether or not it was plausible
based on intent and acts and impacts that Israel was committing genocide.
Right. Why would any other question? That's another reason it may, as many people have said,
not wanted to impose a one sided call for a ceasefire where Hamas as a non-state actor wouldn't be bound by it.
I'm the least compelled by this by this conjecture only because the ICJ actually did call for Hamas to release all hostages,
which meant that they did recognise Hamas, perhaps not under the Genocide Convention, but under each other international humanitarian law,
which meant that they could have established a workaround if they were willing to establish a workaround.
So recognised Hamas has a duty and responsibility and capacity to do something like release the hostages by not been compelled.
They also to cease operations. Conjecture.
This is all conjecture. Or, as others have said, that in seeking to achieve the greatest amount of agreement,
what we see is a tremendous agreement 15 to 2 and 6 to 1 on all of the provisional measures that this was a compromise.
Right. But all of this is conjecture. But what we can say is, is what we know, that this changes the landscape completely.
We have now shifted the grounds that we have been standing on.
All countries are now on notice that there is a plausible genocide.
And even if there isn't one, there could be one, and they have the duty to prevent it.
Right. Regardless, even if the ICJ went further than we wanted them to go, they went so far as to say something about Zionism,
but they do it so far as to comment about the legality of Zionism.
And I don't know. The Convention for the Elimination of All Forms of Racial Discrimination,
perhaps that that that the effect of the order would not have been that different.
It still remains a tool. The court itself has no course of authority, not in this case, not in any other cases.
That remains our job. That remains our job.
So it means that this is a tool to be used within our national governments to urge them to push for cease fire,
to further politically isolate Israel and the United States as being outliers on the international stage
in order to pursue universal jurisdiction in the prosecution of accused war criminals in national courts,
to impose weapons, sanctions, to end diplomatic relationships.
This is a tool which is why Israel and the United States have existed that have tried to take away that power to say failure
to call for a ceasefire and all the headlines that ran and so on and so forth in order to diminish the power of this.
Right. And also why we see on the same day an accusation against honour as a politics of punishment and deflection.
All right. So that's just setting us up.
Moving forward, I think it's going to be very hard. As a legal matter.
This was a very low standard. Honestly, if the ICJ didn't come to this conclusion, this would have been, you know, outright betrayal.
International law was on trial here because this is such a low standard.
Right. That's not what we were worried about, so to speak.
What is a matter of concern is the next stage of review at the merits, which is a higher standard there.
The court is going to look for either a smoking gun, a plan that says exterminate the Palestinians once and for all,
right, which Israel has tried to mitigate by saying we give them warnings, we allow humanitarian passage.
We are planning for the day after all of those things that would thwart against the idea that this is an extraordinary plan.
That's also deliberate. Right. Absent smoking gun,
then the court's level of review has to be one that the fact that they intend to destroy part
of and whole or in part a protected group can only be inferred from a pattern of conduct.
That is the only reasonable inference that can be drawn therefrom.
So if the court finds that there's other reason that Israel did this, even if they are war crimes and crimes against humanity.
But it's not the deliberate destruction of a group. They will find that there are other violations, but not genocide.
Okay. All right, So let me move on.
I don't know how you all follow along to the Israeli argument that they following
this is thought the South African intervention was historic in and of itself.
It was a victory. It took the international stage.
I don't think the ICJ has ever had that many people watching in life, you know, on a live stream.
And their popularity went way up, too. But they've got to make the case.
And they didn't speak for Palestinians. The Palestinians, they spoke with them.
It was clear that they were lifting up a Palestinian intellectual and political tradition when they name 75 years of settler colonisation,
when they name apartheid, when they name the ongoing Nakba, absolutely historic in and of itself.
And one of the tenants of movement lawyering, which I can answer questions about,
but is you want to you want to be able to create a platform for the survivors to share their stories that and,
and you want to use it as a way to expose contradictions.
It's not always with the outcome that we're going to see. And so here, I think South Africa did a fabulous job.
The next day, the Israeli team didn't do such a great job. And I don't say that obviously, because I have I have a, you know, interest in this.
I see this just as somebody who, you know, I admit when the Israelis have a really astute legal argument.
Right. I have spent a lot of my time and my scholarship responding to it and engaging with it.
And unfortunately, the Israeli argument was embarrassing.
It was a lot of propaganda speak sprinkled with legal argumentation.
It was not taken seriously. This forum or the South African allegations, they did not respond to them at all.
They accused South Africa of being a lawyer, but it continued a lot of propaganda talking points.
Let me address two of those talking points which have no relationship to law and
then move to their legal arguments that we can distil and respond to those.
So the two arguments that I think are part of this framework are ones that take the canonisation of the shot,
the deliberate elimination and attempt to destroy Jewish people in during the Second World War.
Taking that example as the canon against which all other forms of genocide must meet, that that becomes the metric in that spirit.
Right. The first accusation was that this case was blood libel.
How can you accuse how can you accuse the archetypal victims of genocide, of committing genocide?
Right. And here I want to point out, there is one thing to say, and the same goes for apartheid.
It might emerge in a particular location, but once it's legislated in international law, now it has universal application.
Right. And so that example isn't really binding.
It's actually irrelevant. The court is not looking to.
They sure are. They're looking to this definition and their own jurisprudence.
Which is especially relevant because of the critique that we might have about international law to begin with,
of why is genocide not prescribed until 1948 anyway?
That was not the first genocide. Ask ask the people who have been subject to genocide across colonial geographies.
What they have been subject to, which is why so many people in seeing Palestine know that they are also descendants
and survivors of these kinds of atrocities that have not been recognised.
Right. And so part of the controversy here is also that because genocide, in the words of Professor William Schabas, is the crime of all crimes,
there's a great gatekeeping and zero lead and limits of banning have said gatekeeping of who can use the word and who can't.
Right now that the Global South can use the word.
Right. Then this becomes the risk and inflammatory.
So let's just put that to the side. The other arguments drawn similarly from that legacy is what unfortunately,
we've heard a lot of commentators like Piers Morgan say, you guys, that's your guy.
You know what we heard Piers Morgan said?
We also have seen horrible I don't know if we saw this in the States,
these horrible billboards that went up from jubilant BBC.com that said if Israel wanted to commit genocide,
it would suggesting that the number of Palestinians killed is actually not that high because
of Israel's nuclear capacity and military advanced weapons could have killed much more.
But precisely because it wasn't genocide, they didn't. Okay.
No, absolutely not. Not you do not have genocide is about the destruction of a people in whole or in part.
It's not about their annihilation that we revisit after the fact.
Right. The purpose of the genocide convention is not merely to punish it, but to prevent it, but to prevent it.
Precisely why you see here enumerated this condition of deliberately inflicting conditions of
life calculated to bring about the Palestinian groups physical destruction in whole or in part.
This is when you're not even if it's not even mass killings. Mass killings is only one of the five acts that are enumerated.
And so why is this third one so relevant? Number one, we see it in jurisprudence in Rwanda,
where the International Criminal Tribunal on Rwanda lifts this up to basically
say that this was tantamount to genocide because of a depravation of food,
humanitarian aid, so on and so forth, things that we've seen in mass in mass in the past three and a half months in Gaza.
Right. But the second reason is that it's so important and I you know, this is, I guess, nerdy,
but also quite relevant, this is verbatim one of the elements of apartheid under the 1973 apartheid convention.
And it demonstrates the intertwining of racism and genocide, that they are a continuum of one another.
As MLK Jr said, if I do not have the right to sit at a counter and to have equal dignity, why would my life be worth the same?
And this was also echoed in the 1951 submission to the United Nations by the Civil Rights Committee, accusing the United States of genocide.
That basically said it's not just the South where lynching of black people is is taking place with impunity.
It's the failure of federal government to actually punish and it's the failure of the federal
government to enact the 14th Amendment and to ensure due process and equal protection under the law.
Obviously, in response to that 1951 submission, its authors, William Patterson, Paul Robeson, were punished and accused of communism.
And we don't see it taking centre stage, which speaks again to the way that we're excluding so many forms of genocide by the powerful.
Okay. That was the the those were the non-legal arguments.
What about the legal argument? So I would take this up to two points that I want to think about, one that I'll summarise for Israel.
They didn't say it this way. I think at this point, number one, Palestinians are not targeted for who they are, but for what they did.
Right, which is there's a difference. They targeted for what they did.
That's an intent to destroy a Sudanese for who they are. That's an intent to destroy the people they targeted for what they did.
There may be other motives, and this is just an ugly war, a really ugly war filled with crimes.
Right. And I think that the Israeli team will admit to the crimes to keep this genocide accusation.
Number two, if the tar and this is just war theory, right.
If the target is legitimate, then all means of eliminating that target or achieving it are also legitimate.
So I want to take both of these arguments one by one. I'll respond to them.
Right. In order to show you. How bankrupt they are. But here's the problem.
I am mobilising the Nakba in order to respond to these arguments in order to dismantle them.
The Court The ICJ. I'm not even getting into the ICC.
If you want to ask some questions about the ICC. Please do.
I didn't think it would be worth your time because it's just so biased and so good about me.
Q&A Yea, yea yea Q&A. But even here.
Right. I don't think that the court is necessarily going to be able to answer the questions in the way that
I'm going to answer them specifically because of the way that the Nakba has been invisible life.
In the framework of international law, Right?
It's never it's never proscribed as a crime. And in fact, it's normalised.
It's normalised in the subsequent acceptance of Israel on the 1949 armistice line.
So there's a normalisation of that that makes it very difficult to demonstrate a continuum that could be considered by the court.
So how do we get around that if this is legal work that's happening?
I don't think that it's legal work that it's going to suffice. I think that it's going to take the work that we're doing together loudly and publicly.
So let me answer the first one. Israel is not targeting Palestinians for who they are, but for what they did.
Let's just start by what the evidence tells us. It did not.
That presumption is is refuted by the evidence.
27,000 Palestinians are killed. I hate sharing that number because it normalises the scale of mass destruction.
Right. I would rather stand and share with you the story of each person killed in order to value life.
There's a there's a desensitisation that happens.
But for the sake of argument, forgive me here if I can have your grace.
But 27,000 Palestinians killed at a rate of 117 a day, 40% of them are children.
40% of them are children who and something like an average of ten children a day have one or more limbs amputated.
That is literally the destruction of a future. Of an entire future generation.
So, you know, new words have been created to describe the scale of of destruction, epistemic side down a side scholastic side.
Right. And I'm just going to put, you know, quote one of my favourites.
Professor, she didn't say who writes.
Any honest observer of this war understands that the target of Israeli force and its U.S. supplied weapons is the Palestinian civilian.
Hamas combatants are the collateral damage. All right.
Israel does not dispute these numbers, but wants to cast this as Hamas's responsibility for shielding or even if they were targeted,
they were targeted in the course of an otherwise legitimate war.
So the collateral damage. I'll get to these in the second part of arguments on legitimate warfare.
But let me just start on the first and say, you know, address one of the things that Israel has to this and that I mentioned already.
They keep insisting that these Palestinians support Hamas.
And I just want to point out and I've had to I got, you know,
denied media platforms because I said this in the pre-interview to producers when I when they wanted
to ask me about the difference between Hamas and Palestinians and would Palestinians work for Hamas.
And I, I just don't I refused to answer such a racist question.
Right. Your political fight does not deny or grant you civilian immunity.
That is a status based on whether or not you're participating in hostilities.
You can think whatever you want.
Nobody asks that about those Israelis who are supporting the most fascist right wing government about, you know, are you are you legitimate target?
Nobody would ask that. It's ludicrous. So why are we asking that in this situation?
It has no bearing in in morality or law or otherwise.
But the reason Israel is doing that is also one, obviously, to make it permissible.
Right. But as a legal tactic, it wants to collapse this as a political group rather than as a national group.
Okay. But as I said, the ICJ recognised the Palestinians as a group.
So I think that that point is likely.
But let me go into the historical securitisation of Palestinians where they have been securitised well before the establishment of Hamas in 1987.
Precisely for who they are and not for any military threat that they have posed.
Where do we see this first? We know that Israel has constructed the native population as inherently terrorists.
Presumed guilty by virtue of its refusal to disappear or surrender their claim to sovereignty.
Thus, Palestinians are racialised as dangerous, not because of how they may individually harm Israelis,
but because their national existence challenges Israel's settler sovereignty.
I should say Israel's Zionist settler sovereignty.
Consider, for example, that the right of return of Palestinian refugees this is familiar to you is often constructed as a demographic threat.
A time bomb of life and death. Right.
This is where that racial construction is happening, not because of a threat they pose, but because their existence is the challenge.
All right. The use of violence and the logic of collective punishment against Palestinians under
has underpinned Israel's military strategy in the founding years of the Israeli state.
Even in cases where they posed no military threat. So I'll show you here and this is obviously before this is by before Israel was established.
This is March 1948. We see the articulation of plans that many of you are familiar with.
Why am I showing this to you? Look at the language here where we understand that there's an imperative to destroy villages.
Right? Especially those that are difficult to control.
This is not about threats emerging. They're difficult to control.
Right. And if there are armed forces in those villages, then they must be wiped out and the population expelled outside the borders of the state.
But the civilian population that has been securitised in this way,
even in the founding years of the state, has always framed this offensive use of arms as defensive force.
Right. Okay. So this logic of framing this as a defensive operation is also informing this current moment.
Right. Later, upon its establishment,
Israel adopted written emergency regulations and applied them exclusively to the native population for the sake of expanding its territorial holdings,
in fact. So this is, you know, the British apply emergency rule that they're applying in Kenya and Malay and India and Jamaica.
They apply it to the Palestinians during the Great Revolt, 1936 to 1939.
Upon its establishment, Israel adopts these these emergency regulations almost verbatim, but applies them exclusively to the Palestinians.
Right. A year afterwards. Right. They deem those Palestinians that remain as a possible threat.
So they need to be policed, their movement control.
They don't have, obviously, freedom of speech. They're not citizens until later or granted citizenship and so later.
But upon review by a military commission in 1949, the military commission came back to Ben-Gurion and said they posed no threat.
This is actually a subdued population and don't pose a military threat.
Ben-Gurion insisted that they maintain the emergency regulation for the sake of expanding Zionist settler enterprise.
I don't think I have. He says, quote, The military regime came into existence to protect the right of Jewish settlements in all part of the state,
and this emergency regime was imposed on the Palestinians, racialised them as a security threat.
Those Palestinians that remain for 18 years, which rationalises them as an exception.
Right. And treats them outside of the law even while seeing them, but forever as an exception,
even after 18 years in 1966, when emergency when martial law is ended,
emergency rule has remained, and then martial law shifts onto the West Bank, the Palestinians in the West Bank and Gaza.
In the early 2000, the securitisation of Palestinians now becomes and scorned within military and police rules of engagement.
So military hostilities and rules of engagement. Since the second Intifada,
Israel began to develop legal technologies that would allow it to use a greater amount of force against the population and occupy.
A cornerstone of this technology is what I refer to as the shrinking civilian.
So Palestinians aren't getting smaller, but the idea is that who counts as a civilian gets smaller.
How do you do that in the language of war? There's been two fronts for this.
Happy to answer during Q&A. Let me give you two examples.
One, I kind of mentioned to you, right, which was in 2006 in a lawsuit from the Public Committee Against Torture in Israel,
against the government of Israel that basically challenged the Israeli army to shoot to kill of who they were targeting of Palestinians,
especially in Gaza. And the court there was thinking about who is a direct participant in hostilities in irregular combat.
Right. Normally we know who a combatant and a civilian are because of their status.
There are conventional armies, but an irregular war that we don't know that as clearly there are laws to regulate.
How can we engage in that battle?
One of them is to permit the killing and the targeting of civilians insofar as they directly participate in hostilities.
The language of it is that they are legitimate targets for the time that they
are carrying arms and are no longer targets when they set those arms down.
Well, in 2006, the Israeli Supreme Court decided that, nope, that's not true in this case,
because Palestinian militants have a continuous combat function, that laying down the arms is just rest before they pick them up again,
which makes them targets at all time, even when they're not in in any kind of combat, even when they sleep in their homes with their family,
even if they're surrounded by by a tremendous amount of other civilians who are known to be civilians.
A second form of that technology happens in a different plane, not in the hostilities framework, but in the rules of engagement from.
Right.
Now, this is confusing, too, because Israeli police and the Israeli military oftentimes are stemming a trend in stemming from the same function,
especially in an occupation setting. And that one, that blurring line is happening deliberately so that we aren't.
And why does that matter in in a hostilities setting? Your rules of engagement are different.
You can shoot to kill. You can use lethal force in a in a in a police setting or in a peacetime setting.
Even under occupation and especially under occupation, you have to use lethal force as a last resort.
So you shoot the ground, you shoot under the knee, you shoot below the waist before you shoot above the waist and the neck in the head.
Well, during the Great March of Return in 2018,
the Israeli military engaged in lethal force and shot 95% of its casualties that were protesting against the militarised perimeter of Gaza.
95% of them were shot directly above the waist. They were shooting to kill in that case.
And in that in that determination, the Israeli high court determined that, in fact, the marches were a new tactic in Hamas's arsenal.
And so that anybody that was participating was participating with Hamas.
They don't rule out that they're civilians who are participating in the largest mass civilian demonstration almost of our 20th century.
There were 30 to 40000 protesters at that perimeter.
Weekly, weekly, when they say, where are your Gandhis?
You're not paying attention to them.
They're being shot down like birds instead of lifted up as our heroes for how to maintain dignity of life and continue to insist on liberation.
Well, the court there determined that there might have been civilians, but they were an exception.
And so we see there a blurring of the lines of hostilities and and police time use of force that
also shrinks basically gives rise to the shooting to kill of Palestinians that we're seeing today.
And I can talk more about the actual laws and how they do that in 2015.
In the course of the night, what's known as the night intifada and so on and so forth. No,
this what I'm trying to explain to you is that there is a legal technology that's being
used here in order to basically justify the number of Palestinian civilians killed.
That's why they don't deny it. They're just challenging whether or not they should be counted as civilians and therefore
would adjust our proportionality assessment of whether or not it's disproportionate.
Would a court consider this?
They would have to consider far more than what's happening in Gaza since October 7th, which is the way the court began its deliberations.
Okay.
Similarly, let's think about the idea of what we're also told under just war theory, if the attack is legitimate, all means of warfare are legitimate.
Right. First, and why does Israel make this argument through drawing from the example of Israel's response to Al Qaida's attack on the United States?
I couldn't have sounded more American in that moment, Kyra. I just heard it.
Sorry. But they basically draw on the precedent of the U.S. response to Al Qaida's attack in 2001, where up until that moment,
no armed attack by a non-state actor actually constituted an armed attack within the U.N. charter definition of Article 51,
which justifies the use of force in self-defence in response.
But this in in 2001, the U.N. Security Council actually adopts two Security Council resolutions,
1368 1373 that recognises that non-state actors can be responsible for an armed attack.
Therefore, is the U.S. to me, the United States can use ARM for self-defence against them.
But who did they use it against? The authorisation for the use of military force within Congress is against the plan.
Is that because they're targeting the foreign entity that either is unwilling or unable right to stem this insecurity or this threat?
Well, that is majorly different than Israel's claims against the Palestinians in the Gaza Strip.
Israel, as a matter of law, does not have the right to use force under Article 50 or this.
Just as the precedent that we're not looking up. But this is from under a matter of law.
The ICJ said in 2004 that Israel does not have the right to use military force against the territory that it occupies.
Specifically because the threat that emerges from within the territory is Israel's responsibility.
It assert it invoked use ad bellum or the right to use force under Article 51 in 1967,
which is why we recognise that as an occupying power historically of the Sinai, the Golan Heights, the West Bank and Gaza.
Right, because of that. And now we shift into a different framework of the regulation of hostilities no longer.
Now an opportunity to invoke the right to use force.
And I've said as much that any threat that emerges is your responsibility and so rejected this argument.
Okay. But because Israel now I'm going to get into the legal work of also Israel's legal work of
what it does with its argumentation to escape these strictures and how we've gotten this far.
All right. So Israel denies it is the occupying power of the West Bank in Gaza, even though it claims the rule of occupying power.
How and why it wants the land without the people. It wants the land without the people.
But under a strict adherence to occupation law, it has a duty to maintain the territorial,
juridical and political and social status quo and a direct prohibition on civilian settlements in territory that it occupies,
because that would undermine that status quo. Right. They have a duty to maintain it.
And so the reversion of peace time and a version of status status quo ante.
Are we good so far? All right. Israel argues and this was actually an interesting legal argument,
the missing reversionary argument which argues that there is no sovereign to which to return these territories.
Gaza. Egypt never claimed sovereignty over Gaza and only Britain and Pakistan ever recognised Jordan's claims to sovereignty in the West Bank.
And Palestinians don't exist who have a right to sovereignty.
So there's nobody to return these lands to. But because we're such a liberal democracy in this barbaric landscape,
we're going to apply occupation law, as a matter of fact, but not as a matter of law.
Which enabled it to have the status of an object to make legitimate its presence in the West Bank and Gaza,
while also not adhering to occupation law, but cherry picking from it instead.
Here we see a continuation of what I'm going to argue henceforth, which is Israel's invocation of exception in law.
This is a framework known as sui generis. Unlike anything other heads nodding.
Are you law nerds? All right.
That's Latin for meaning, unlike any other. What it means is that the fact pattern is so unique.
Because what is law? It's a series of facts. And the lawyers argue about what precedent and what analogy applies.
But if you're saying that your facts are so unique, no one's ever had to contend with them.
There is no analogy or precedent. You have the right to create new law.
And so Israel has used that to say that the territories are sui generis, not occupied.
Their dispute, it continues to build under this framework, specifically, again,
in the second intifada, when we see Israel shift from a framework of occupation.
To warfare. All out warfare. Its military lawyers.
This was an invention of military lawyers,
declared that the Palestinian uprising and the second intifada was more than civil disturbance regulated by law enforcement.
Non-lethal use of force. Okay, that's what that means. But not tantamount to an armed conflict either against a nation sovereign known as
international armed conflict or against a local population under its jurisdiction,
tantamount to civil war, also known as non-international armed conflict.
This is really key. These frameworks basically are established in 1977 and flesh out Common Article three
of the 1949 Geneva Conventions that recognise that there was irregular combat,
noting that the majority of wars fought since the Second World War have been between not between two states and conventional warfare,
but between states and non-state actors. The international community, led by the Non-Aligned Movement, legislated this new body of law,
the Additional Protocol, the 1977, specifically for this purpose.
This is not a unique fact pattern. This is not a unique fact pattern.
It was, but it has been rejected. The U.S. and Israel remain outstanding objectors to the additional protocols, Right.
Recognising everybody from the ANC to the SWAPO and beyond as terrorists, the Viet Cong and so on and so forth.
So at least they're consistent under this argument because Israel's saying no one's ever faced this is more than a this isn't a civil disturbance.
We can't just, you know, shoot them down with water hoses and mass arrests.
But it isn't. But it isn't a war because they're not going to recognise them as a nascent sovereign
right or an embryonic sovereign with the right to use this force on behalf of a people,
not for individual gain. So they create a new category called Armed Conflict short of War.
Israel says this is sui generis.
This is an armed conflict, short of war, that gives us the right to use an expanded amount of force against the population that cannot fight back,
even if the Palestinians target military installations exclusively.
It's still terroristic. It's illegitimate altogether.
And they don't want to recognise that even though they want the land,
they don't want to recognise it as a civil war because they would have to recognise Palestinians as non-voting members of their,
you know, very democratic society. And they obviously don't recognise them as sovereigns because the Palestinians cannot exist.
That would dispute Zionist thought. Okay. All right. So then upon Israel's unilateral disengagement in 2005 from Gaza, when it removed 9000 settlers,
the military infrastructure, the settlement infrastructure, Israel declared yet another exception.
Now, Gaza was sui generis. Gaza was neither independent with the right to control its borders, its commerce, its airspace,
its subterranean aquifers, its naval, its naval waters and so on, or have a standing army.
Right. Nor did it remain under occupation, where Israel's duties continued.
Instead, Israel argued that Gaza was a hostile entity.
They made it up. They made it up. It would be neither independent nor would it be occupied, notably in 2014.
And it sticks out with the International Criminal Court also rules on this and rejects this using the framework
of effective control to say that Gaza remains occupied territory and Israel remains an occupying power.
All that to say that as an occupying power, Israel doesn't have the right to self-defence and law.
What I'm being very specific here is a distinction between self-defence and law in self-defence,
in the vernacular, similar to how you might call somebody negligent if they,
you know, got on a wrong flight and didn't check, you know, their actual deeds in practice, but not an actual law as as a as a matter of law.
Right. Those are two different standard. Israel doesn't have the right to self-defence as a matter of law.
Okay. So to say that it can now police Palestinians as it does under occupation law, administrative detention,
curfews, lack of freedom of movement, No, no freedom of assembly or speech, and so on and so forth,
as well as the right to use lethal force in the form of extrajudicial assassinations, blockades,
Shooting to kill is basically giving Israel this expansive amount of a right to state violence to maintain its colonial holdings, period.
All right. So but Israel will say, but what do you want us to do?
How do we respond to this? Obviously, this and other occupation.
Obviously, obviously, this is a failure of the international community that we are even here.
But let's just say that they are going to respond. They must respond.
They have to respond on behalf of protecting their their citizens.
Sure. But even when it does so, it's still regulated by international humanitarian law on the principles of distinction and proportionality.
Now, here the problem is, as I just narrated to you, Israel has changed the laws of war.
And so even and Professor Luigi Daniele has written about this, that even in its current military operations,
Israel doesn't even leapfrog over an assessment of of distinction.
Do you know what that is? Distinction puts a duty upon a belligerent in order to distinguish between civilian and combatant targets.
Right. All right. Proportionality assesses whether the force used was proportionate to the military advantage desired.
Okay. So you can't drop a nuclear bomb in order to target, for example, a general.
That's disproportionate. Right.
But you also can't talk to you can't target civilians in order, you know, in excessive numbers without making the distinction.
Right. What Israel is doing is it's getting over its distinction,
saying it doesn't have a duty to distinguish between the civilians and the combatants because of Hamas as human shields.
And only doing a proportionality assessment and arguing that it's that it's imperative of decimating Hamas is so granted,
the military advantage is so grand that it actually justifies this use of force.
So it is not excessive. Okay. How are we going to get around this in a court of law?
So I'm worried that we probably will not be able to unless we expand the court's imagination and the fact that it can draw from.
And so here I'm you know, I want us to think about something I describe as Macbeth piece.
Neck of a piece P.A. So if you know what the number is and you know what pieces this sounds like, it doesn't add up.
I can be a little bit glib. Kind of like Zadie Smith. So when you walk into my math equation.
So even absent the red lines that have imposed on Israel in order to achieve its military operation after three and a half months of this campaign,
they're nowhere closer to achieving. They're no closer to achieving it.
Israel has said that it wants to decimate Hamas,
that it wants to extract its its soldier captives as security captives, as well as a rescue of civilian hostages.
And it wants to turn the Palestinian population against Hamas in rebellion.
Those are the three stated military goals. But after these three and a half months, we know that Hamas's capacity has not been diminished.
They're still shooting rockets from the middle of Gaza City. And from intelligence reports, only 20 to 30% of its ranks have actually been killed.
We also know that the only the only civilians that have been released have been released
as a result of diplomacy and diplomacy that did not even need this amount of force,
because Hamas has said from the second day we're ready to release the civilian hostages.
Okay. And we also know, according to intelligence reports, that the Palestinians are nowhere near to rebellion against Hamas.
To the contrary, they've now, even if they hated Hamas, support them.
Hamas's popularity has grown in the Arab world. And this intelligence report by the United States indicates that Hamas popularity has grown
all over the world so far from achieving its military advantage without any red lines.
We see that Israel has not come close to any of them.
So then we have to think, then what is it trying to do?
If it's not to achieve those goals, then why this excessive use of force?
Well, I think what we raise is the presumption of Israel wanting to establish an active peace, which I'll get to here.
It's the removal of explicitly the removal of all Palestinians in Gaza to achieve sustainable security.
So you remove all the Palestinians, there's never going to be a threat. They're not going to be Hamas.
They're not going to be, as you had been arguing about jihad, they're not going to be,
but they're not going to be anything because they won't be there to pose a future threat to Israel.
Necklaces. Or. Or the.
The goal of this meeting Hamas is so large, as I said,
that it justifies the this these atrocities and possibly the removal of 2.2 million Palestinians.
And this has historical precedents. It was even admitted by all these after the former Shin Bet director and national security member who said,
quote, We are now ruling out a Gaza Nakba, Gaza in 2023.
That's how it will end. This logic says that the proximity of Gaza inhabited by 2.3 million Palestinians,
two thirds of whom are refugees seeking to return to their original homes in present day,
Israel makes the entirety of Gaza and its population, civilian and otherwise, a threat that needs to be removed or permanently subdued.
Accordingly, Israel has insisted that to achieve its military purpose of sustainable self-defence,
it should not be subject to red lines of combat and its within its sovereign right to remove the Palestinian population and prevent their return.
This goal has been captured in the public three times to date.
A leaked document dated October 13th and penned by an Israeli government research agency, detailed such removal as yielding, quote, positive,
long term and long term strategic outcomes for Israel and other document document penned by the
Institute for National Security and Zionist Strategy with relation to the Interior Ministry,
explained that this moment presented, quote, a unique and rare opportunity to evacuate the whole Gaza in coordination with the Egyptian government.
And most recently, we saw a far right coalition of Israeli ministers convened an entitled conference titled Settlements Bring Security and Victory.
Not only that, but in the West Bank as well. So it is setting the precedent here to continue this massive expulsion in the West Bank also.
All right. All right. This has historical precedents. This is the Ayalon plan.
Giora Eland is a retired major general who served as the head of Israel's National Security Council between 2004 and 26.
In the early 2000 period, the second Intifada made the cost of occupation too high.
This plan, which was basically to hollow out Gaza and transfer the Palestinians to the Sinai, competed against unilateral disengagement as a plan.
Obviously, you see them pursue unilateral disengagement, but this stayed on the table.
And what is manifesting today, we are so we can see this.
We saw this is the first line, why they had them.
Then we see them move Palestinians across these quarters that they drew like ping pong balls through Khan Yunis.
And now they have declared that the next target is Rafah and the very, very self.
There is no safe border. All of it is a target.
Palestinians are being pushed closer and closer under tremendous pressure, tremendous pressure, seeking themselves to leave in order to survive.
Okay. We're witnessing an effort featuring the removal,
exclusion and colonial settlement framed as necessary for Israel's durable security as an exclusive design and sovereign.
The recent ICJ decision. Right. That concludes if this is possibly genocide, pushes back against Israel's bid.
They want to make this sui generis right. They've no one's ever had to deal with this before.
Who they've been under. They've been under siege. An attack from the Arabs and the Palestinians.
And they can't get a moment of peace. And that's all that they want. And no other country has faced this challenge.
This is a bid for exception. Right. And that bid for exception follows in the legacy that I've described to you,
but also in the establishment of the Palestine mandate in the aftermath of the First World War,
when Britain designated Palestine as a state of European Jewish settlement in 1917.
It did so in the Balfour Declaration, which was incorporated into the mandate verbatim as preamble to a text in 1922.
It classified the mandate explicitly as sui generis.
Absolving Israel, absolving the mandatory powers, the PMC, the Permanent Mandate Commission, from actually adhering to the League of Nations mandate.
Right under Article 22, which gave a tremendous amount of rights or not a tremendous I know that's a lot,
but give substantial rights to the native populations that sought self-determination.
But they designated Palestine as sui generis. It's exceptional because it was a site of Jewish settlement.
It would not be given the same support tutelage in order to establish a
government to have actual representation in order to move towards independence.
And so it's treated as distinct and accepted as a form of exception from the time of 1917, even in 1947, at the time of, you know,
181 and its proposal one in one was one of three different proposals that were presented to the U.N. Special Committee on Palestine.
One was a federal state, one was, you know, two states in the partition of 181 and one was a binational state.
Well, what was clear amongst those who voted for 181 is that it actually didn't follow law,
that it was a contravention of standing law and the right of people to self-determination.
But that that that could be made an exception in the face of the need to resettle Jewish refugees,
a crisis created in the aftermath of the Second World War, the Shah specifically.
All right. So today, the exception that is demanded is an exception to the prohibition of what we recognise as genocide.
And we recognise that if you don't want to call it genocide, we recognise as criminal as the network, the right.
But the problem is that and here we see this, even, you know, this recognition of what's happening.
But these controversies are unlikely to be resolved in a court of law, especially in a court that understands itself.
It understands General Assembly Resolution 1814 partition as controlling law.
It understands Security Council Resolution 242 as controlling all these laws which the Palestinians
themselves recognise right in their Declaration of Independence in 1988 Naturalise and normalise the Nakba.
So how it's become an exception as a matter of law.
So for us to draw these connections, which we can see the securitisation of Palestinians vis a vis use of offensive force as a defensive framework,
the subjugation, the removal of Palestinians in the name of establishing sovereignty.
We can demonstrate that as a pattern and a context, right.
But if that pattern and conduct has been normalised and seen as an exception for the good of establishing Israel,
then how does the law get beyond that in order to reach it in this moment of deliberation?
If we do not find a smoking gun. That says the goal is to exterminate Palestinians, period.
Right. Lots of conjecture here. Obviously, Israel is its worst enemy since the ICJ decision.
They only ramped up their violence. And so, you know, as we were speaking earlier, Professor Rogan, you've indicated things that might,
you know, might seem that there can be in control, will become out of control.
So a lot of contingency that we don't know.
But as it stands now, as it stands now, I recognise this by Israel as a bid for an exception to genocide in the name of its self-defence.
As it has made an exception for distinguishing Palestine from all other classes.
Class mandates an exception to recognising Gaza and the West Bank as occupied as a matter of
law as an exception to recognising Palestinian armed force as the force used on behalf of the
nascent sovereign as an exception to recognising Gaza as either occupied or independent as
an exception in a shoot to kill policy of Palestinians who no longer have civilian status.
All right. And so much of this is that the ability to adequately scrutinise the than the strict securitisation
of housing in that context becomes very difficult because of the illusion of the net effect.
And I would encourage you to read the Bradbury's article on recognising an international law.
He published that in the Nation in the Harvard Law Review, after accepting it, refused to publish it because of fear of retribution.
Which brings me to my last point.
Actually, that's a perfect segway because regardless of how we name this and what the court is saying and what law has to say about this,
and mind you, this is why I, I read why I find the law to be very disempowering.
I don't want people to rely on the law. Right.
That deliberation is depoliticised.
And his thoughts and these stories, I think it's going to take incidents that we can examine very narrowly and only apply jurisprudence.
What you say outside of the courtroom is not being accounted for.
All right. It's what the court has said.
So it's why in, you know, the war on Bosnia that lasted two years, watching this for a minute, the massacre is recognised as genocide, for example.
Right. We're not likely to be satisfied by these outcomes.
All right. And why insist that we use the law as a tool?
Use the law as a tool without any fidelity to its flaws.
Power. To the extent that it can serve an emancipatory function,
it does so in reflection of that power and has to be used in a sophisticated servant of political movement.