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How amazing to see everyone here tonight and how unsurprising for tonight.

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Our speaker is, of course, the wonderful record.

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You're always asking me if it was usual to have this kind of turnout.

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And I said, Actually, I've not seen where we had to have an overflow room to accommodate the crowds.

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And then I paused and said, Yeah, no, there's just been once I could think of.

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But it wasn't in this building. It was an exam schools. And that was where we had, as it said.

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Thank you. Audience. That was a really good forum.

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But what does this tell you about the charismatic Palestinian that really knows how to pack the house?

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So do Erekat is, as you all know, an associate professor at the University of Rutgers.

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I was about to say from law, but she recently correct me to say in Africana studies.

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But of course. Okay. Thank you.

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But of course, is a internationally recognised scholar in international law and humanitarian law and human rights law and refugee law.

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So the law is never very far from what Norah Erekat works on.

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You got it. I got it.

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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.

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Okay. You know, my worry is, am I going to lose a connection with the boardroom if I now shift to your slide presentation?

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Can we can share? Yes. There's a usb-c to usb-c to Usb-c from doors.

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This, I don't think a USB port. Know I sent it to you.

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It's been sent to station. And actually, I've just been waiting.

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So I guess equality of all Palestinians is interesting.

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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.

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We're not going to cut this short. Associate professor of Africana studies at Rutgers University.

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Norah has emerged as one of the most powerful and courageous voices of Palestinian Americans, of Palestinians, of the world,

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of Palestinians, which has gained her a global following, which I think is witnessed in the turnout we see here with us tonight.

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She's author of Justice for Some Law and the Question of Palestine in 2019 and edited with our former student and colleague Moin.

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Rabbani applauded state the UN initiative at New Palestinian functions in 2013, But it doesn't do justice to the work.

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The thought, the life, the engagement of Noor Erekat.

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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.

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But will you join me in an unreasonable. I can't thank you enough for having me.

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I can't thank you enough for your audience and mostly for being committed, committed to raising the question of Palestine,

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not as a question, but as an imperative and as a struggle for liberation without equivocation.

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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.

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But to add to that, as we think about, well, what next and how and why?

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And I think, you know, in the beginning for any of the junior scholars in here, in the beginning,

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my approach of thinking about knowledge production as an emancipatory project

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was not always celebrated or encouraged because it diminished my objectivity.

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And yet I want to assure you that don't let anyone bully you from doing precisely that,

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because these inquiries are implicated in all of our collective liberation.

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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.

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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,

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and then move into a discussion about why I think the Court ultimately will not be able to resolve our most pressing questions.

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The idea that we might, you know, for example, get the the ruling that we want at the merit stage might not happen.

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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.

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I'll just read up more the longer we do.

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Why should we try? Can we try one last time?

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Okay. So I am assuming, though, that I've got to use the memory stick on this laptop.

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I think I think we need to give it up one time for Palestinian stubbornness.

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For Nadia. I got to wonder.

49
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You were with someone.

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I do. Okay. On January 26, 2024,

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the International Court of Justice issued its ruling on South Africa's historic

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petition charging Israel genocide and or the failure to prevent genocide,

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and a request for provisional measures issued only two weeks after the oral arguments demonstrated his urgency.

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The decision is precedent setting in several regards.

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Though much has been said about what the panel did not do by failing to order a cessation of hostilities.

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What it did do was incredibly significant, just pulling up the two primary articles of approving genocide as a matter of law,

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which is the combination of specific intent and specific acts to destroy a people in whole or in part.

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So as to the first it established before we get anywhere.

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The court established South Africa's standing for prima facie jurisdiction,

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despite the Israeli argument that they had no standing because no dispute existed under Article nine of the Genocide Convention.

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Secondly, the court affirmed that the statements made by Israeli military and political

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leaders indicate specific intent to destroy the people in whole or in part.

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Mind you, this is quite significant. They actually quote Galant and Herzog, not guns.

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But they do go on and Herzog in the final decision.

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And this is so significant because the Israeli legal team insisted that the the statements that were made amongst the

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military and political echelon were either insignificant fringe or had no direct relationship to operations on the ground.

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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,

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which are tantamount to genocide or genocidal acts.

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They recognise that these four out of the five is documented by several U.N. agencies describing unshared destruction and suffering

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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,

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that the continuation of Israel's campaign poses the risk of irreparable injury of the Palestinian people.

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In so doing, the court rejected every one of Israel's arguments, every single one.

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And we cannot emphasise this enough, especially as the opposition right,

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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.

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And why I'm emphasising that we have to emphasise what is important for us.

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Right. But most significantly, they rejected Israel's primary argument that this is a legitimate form of self-defence.

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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.

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So this is huge. All right, well, why does it matter?

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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.

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At the time that the Nuremberg trials are happening, or the international military tribunals that are trying.

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Political and military leaders who orchestrated annihilation of Jewish people in the show up at that time it wasn't legislated,

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and so it was considered as one of many crimes against humanity, but crimes against humanity on its own,

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as distinct crime against humanity refers to what happens in wartime,

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with exception of a recent international tribunal decision in Yugoslavia that recognised it as customary law of happening in peacetime.

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But insofar as conceived, it happens in wartime and it is constituted of a systematic attack against civilians.

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What is the difference? As I mentioned, genocide happens in wartime and peacetime.

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And secondly, it's not merely an attack against civilians, but it is an attack against a particular group of people based on racial,

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ethnical, national, religious grounds to the exclusion of a political group.

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Why is that important? We also see that Israel has insisted that it is not attacking people as a group, it is attacking Hamas.

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The conflation that they make with the people is deliberate not only to justify their ongoing atrocities,

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but in order to insist that this is political targeting which is not proscribed.

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Right. It wouldn't be proscribed as genocidal. The ICJ.

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Significantly recognise the Palestinians as a people, and so they also rejected that argument.

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All right. So as a result of this, the provisional measures order that Israel, quote,

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ensure with immediate effect that its military does not commit mass killings of civilians,

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engage in activities intended to prevent births in the group,

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caused serious bodily or mental harm to members of the group or create conditions

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intended to bring about the destruction of the group in whole or in part,

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as well as to punish incitement to genocide within Israeli society, across all echelons, as put by the South African legal team.

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The ICJ ordered a cease fire and everything but me.

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Israel must reinstate the unimpeded flow of food, medicine and shelter.

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It must refrain from bombing safe zones.

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It must refrain from destroying hospitals and residential areas, not conduct field executions or mass displacements.

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Either Israel must conduct its war altogether differently, or it must cease its operation.

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So why then not demand a cease fire? Why not demand a cease fire if the court was willing to go this far?

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I can tell you, having looked at the decision as well as the five separate opinions, nobody addresses this, according to Judge Vanzetti.

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We get a sense that he's he was different from the rest of the court and would have ordered a cease fire.

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According to Judge Nulty, who represents Germany.

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He didn't even agree that this was a plausible genocide, but agreed to the provisional measures because of what was happening.

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So what we know about why the ICJ didn't order a cease fire is only conjecture.

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So let me give you my ideas about why. Possibly.

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But this is not I can't tell you. No one can help except for the ICJ why they did this.

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But this is what I do know from the material that we have. Number one, it actually fits with jurisprudential precedent.

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This case is most like the case of the Gambia versus Myanmar.

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Right. Where in that situation, The Gambia.

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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.

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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.

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That then, you know, results in 2017 in this mass expulsion there.

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The court did not call for a cease fire either. Now people then often bring up.

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But what about the Ukraine versus Russia? Completely different fact pattern.

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Completely. Ukraine did not. Nobody prosecuted Russia for genocide in that case.

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In that case, it was about the genocide convention.

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But Ukraine was challenging Russia's invocation that Ukraine was committing genocide against Russian nationals in two of the regions.

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And therefore and justified its intervention on that basis.

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Russia justified its intervention in Ukraine upon the basis of stemming the genocide against Russians.

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So the Ukraine, when it brings its case, is saying this is not true.

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The court found the Ukraine and and demanded a cessation of hostilities.

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So the fact patterns are completely different there. What else?

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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.

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And it's probably kicking the can down the road. There is going to be an advisory opinion about prolonged military occupation,

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the suppression of the Palestinian right to self-determination in the Palestinian territories on February 19.

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Where I think the question of self-defence will emerge once again.

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It hasn't emerged since 2004 within the ICJ, which I'll discuss shortly, but I think they want to avoid what they can.

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Courts don't want to answer more questions than they have to,

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and here's the only question they had to answer is whether or not it was plausible

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based on intent and acts and impacts that Israel was committing genocide.

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Right. Why would any other question? That's another reason it may, as many people have said,

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not wanted to impose a one sided call for a ceasefire where Hamas as a non-state actor wouldn't be bound by it.

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I'm the least compelled by this by this conjecture only because the ICJ actually did call for Hamas to release all hostages,

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which meant that they did recognise Hamas, perhaps not under the Genocide Convention, but under each other international humanitarian law,

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which meant that they could have established a workaround if they were willing to establish a workaround.

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So recognised Hamas has a duty and responsibility and capacity to do something like release the hostages by not been compelled.

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They also to cease operations. Conjecture.

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This is all conjecture. Or, as others have said, that in seeking to achieve the greatest amount of agreement,

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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.

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Right. But all of this is conjecture. But what we can say is, is what we know, that this changes the landscape completely.

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We have now shifted the grounds that we have been standing on.

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All countries are now on notice that there is a plausible genocide.

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And even if there isn't one, there could be one, and they have the duty to prevent it.

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Right. Regardless, even if the ICJ went further than we wanted them to go, they went so far as to say something about Zionism,

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but they do it so far as to comment about the legality of Zionism.

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And I don't know. The Convention for the Elimination of All Forms of Racial Discrimination,

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perhaps that that that the effect of the order would not have been that different.

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It still remains a tool. The court itself has no course of authority, not in this case, not in any other cases.

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That remains our job. That remains our job.

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So it means that this is a tool to be used within our national governments to urge them to push for cease fire,

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to further politically isolate Israel and the United States as being outliers on the international stage

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in order to pursue universal jurisdiction in the prosecution of accused war criminals in national courts,

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to impose weapons, sanctions, to end diplomatic relationships.

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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

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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.

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Right. And also why we see on the same day an accusation against honour as a politics of punishment and deflection.

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All right. So that's just setting us up.

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Moving forward, I think it's going to be very hard. As a legal matter.

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This was a very low standard. Honestly, if the ICJ didn't come to this conclusion, this would have been, you know, outright betrayal.

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International law was on trial here because this is such a low standard.

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Right. That's not what we were worried about, so to speak.

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What is a matter of concern is the next stage of review at the merits, which is a higher standard there.

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The court is going to look for either a smoking gun, a plan that says exterminate the Palestinians once and for all,

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right, which Israel has tried to mitigate by saying we give them warnings, we allow humanitarian passage.

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We are planning for the day after all of those things that would thwart against the idea that this is an extraordinary plan.

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That's also deliberate. Right. Absent smoking gun,

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then the court's level of review has to be one that the fact that they intend to destroy part

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of and whole or in part a protected group can only be inferred from a pattern of conduct.

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That is the only reasonable inference that can be drawn therefrom.

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So if the court finds that there's other reason that Israel did this, even if they are war crimes and crimes against humanity.

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But it's not the deliberate destruction of a group. They will find that there are other violations, but not genocide.

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Okay. All right, So let me move on.

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I don't know how you all follow along to the Israeli argument that they following

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this is thought the South African intervention was historic in and of itself.

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It was a victory. It took the international stage.

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I don't think the ICJ has ever had that many people watching in life, you know, on a live stream.

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And their popularity went way up, too. But they've got to make the case.

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And they didn't speak for Palestinians. The Palestinians, they spoke with them.

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It was clear that they were lifting up a Palestinian intellectual and political tradition when they name 75 years of settler colonisation,

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when they name apartheid, when they name the ongoing Nakba, absolutely historic in and of itself.

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And one of the tenants of movement lawyering, which I can answer questions about,

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but is you want to you want to be able to create a platform for the survivors to share their stories that and,

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and you want to use it as a way to expose contradictions.

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It's not always with the outcome that we're going to see. And so here, I think South Africa did a fabulous job.

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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.

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I see this just as somebody who, you know, I admit when the Israelis have a really astute legal argument.

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Right. I have spent a lot of my time and my scholarship responding to it and engaging with it.

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And unfortunately, the Israeli argument was embarrassing.

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It was a lot of propaganda speak sprinkled with legal argumentation.

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It was not taken seriously. This forum or the South African allegations, they did not respond to them at all.

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They accused South Africa of being a lawyer, but it continued a lot of propaganda talking points.

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Let me address two of those talking points which have no relationship to law and

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then move to their legal arguments that we can distil and respond to those.

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So the two arguments that I think are part of this framework are ones that take the canonisation of the shot,

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the deliberate elimination and attempt to destroy Jewish people in during the Second World War.

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Taking that example as the canon against which all other forms of genocide must meet, that that becomes the metric in that spirit.

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Right. The first accusation was that this case was blood libel.

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How can you accuse how can you accuse the archetypal victims of genocide, of committing genocide?

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Right. And here I want to point out, there is one thing to say, and the same goes for apartheid.

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It might emerge in a particular location, but once it's legislated in international law, now it has universal application.

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Right. And so that example isn't really binding.

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It's actually irrelevant. The court is not looking to.

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They sure are. They're looking to this definition and their own jurisprudence.

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Which is especially relevant because of the critique that we might have about international law to begin with,

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of why is genocide not prescribed until 1948 anyway?

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That was not the first genocide. Ask ask the people who have been subject to genocide across colonial geographies.

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What they have been subject to, which is why so many people in seeing Palestine know that they are also descendants

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and survivors of these kinds of atrocities that have not been recognised.

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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,

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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.

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Right now that the Global South can use the word.

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Right. Then this becomes the risk and inflammatory.

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So let's just put that to the side. The other arguments drawn similarly from that legacy is what unfortunately,

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we've heard a lot of commentators like Piers Morgan say, you guys, that's your guy.

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You know what we heard Piers Morgan said?

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We also have seen horrible I don't know if we saw this in the States,

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these horrible billboards that went up from jubilant BBC.com that said if Israel wanted to commit genocide,

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it would suggesting that the number of Palestinians killed is actually not that high because

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of Israel's nuclear capacity and military advanced weapons could have killed much more.

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But precisely because it wasn't genocide, they didn't. Okay.

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No, absolutely not. Not you do not have genocide is about the destruction of a people in whole or in part.

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It's not about their annihilation that we revisit after the fact.

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Right. The purpose of the genocide convention is not merely to punish it, but to prevent it, but to prevent it.

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Precisely why you see here enumerated this condition of deliberately inflicting conditions of

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life calculated to bring about the Palestinian groups physical destruction in whole or in part.

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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.

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And so why is this third one so relevant? Number one, we see it in jurisprudence in Rwanda,

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where the International Criminal Tribunal on Rwanda lifts this up to basically

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say that this was tantamount to genocide because of a depravation of food,

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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.

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Right. But the second reason is that it's so important and I you know, this is, I guess, nerdy,

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but also quite relevant, this is verbatim one of the elements of apartheid under the 1973 apartheid convention.

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And it demonstrates the intertwining of racism and genocide, that they are a continuum of one another.

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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?

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And this was also echoed in the 1951 submission to the United Nations by the Civil Rights Committee, accusing the United States of genocide.

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That basically said it's not just the South where lynching of black people is is taking place with impunity.

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It's the failure of federal government to actually punish and it's the failure of the federal

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government to enact the 14th Amendment and to ensure due process and equal protection under the law.

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Obviously, in response to that 1951 submission, its authors, William Patterson, Paul Robeson, were punished and accused of communism.

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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.

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Okay. That was the the those were the non-legal arguments.

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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.

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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.

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Right, which is there's a difference. They targeted for what they did.

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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.

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There may be other motives, and this is just an ugly war, a really ugly war filled with crimes.

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Right. And I think that the Israeli team will admit to the crimes to keep this genocide accusation.

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Number two, if the tar and this is just war theory, right.

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If the target is legitimate, then all means of eliminating that target or achieving it are also legitimate.

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So I want to take both of these arguments one by one. I'll respond to them.

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Right. In order to show you. How bankrupt they are. But here's the problem.

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I am mobilising the Nakba in order to respond to these arguments in order to dismantle them.

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The Court The ICJ. I'm not even getting into the ICC.

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If you want to ask some questions about the ICC. Please do.

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I didn't think it would be worth your time because it's just so biased and so good about me.

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Q&A Yea, yea yea Q&A. But even here.

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Right. I don't think that the court is necessarily going to be able to answer the questions in the way that

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I'm going to answer them specifically because of the way that the Nakba has been invisible life.

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In the framework of international law, Right?

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It's never it's never proscribed as a crime. And in fact, it's normalised.

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It's normalised in the subsequent acceptance of Israel on the 1949 armistice line.

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So there's a normalisation of that that makes it very difficult to demonstrate a continuum that could be considered by the court.

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So how do we get around that if this is legal work that's happening?

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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.

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So let me answer the first one. Israel is not targeting Palestinians for who they are, but for what they did.

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Let's just start by what the evidence tells us. It did not.

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That presumption is is refuted by the evidence.

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27,000 Palestinians are killed. I hate sharing that number because it normalises the scale of mass destruction.

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Right. I would rather stand and share with you the story of each person killed in order to value life.

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There's a there's a desensitisation that happens.

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But for the sake of argument, forgive me here if I can have your grace.

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But 27,000 Palestinians killed at a rate of 117 a day, 40% of them are children.

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40% of them are children who and something like an average of ten children a day have one or more limbs amputated.

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That is literally the destruction of a future. Of an entire future generation.

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So, you know, new words have been created to describe the scale of of destruction, epistemic side down a side scholastic side.

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Right. And I'm just going to put, you know, quote one of my favourites.

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Professor, she didn't say who writes.

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Any honest observer of this war understands that the target of Israeli force and its U.S. supplied weapons is the Palestinian civilian.

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Hamas combatants are the collateral damage. All right.

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Israel does not dispute these numbers, but wants to cast this as Hamas's responsibility for shielding or even if they were targeted,

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they were targeted in the course of an otherwise legitimate war.

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So the collateral damage. I'll get to these in the second part of arguments on legitimate warfare.

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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.

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They keep insisting that these Palestinians support Hamas.

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And I just want to point out and I've had to I got, you know,

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denied media platforms because I said this in the pre-interview to producers when I when they wanted

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to ask me about the difference between Hamas and Palestinians and would Palestinians work for Hamas.

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And I, I just don't I refused to answer such a racist question.

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Right. Your political fight does not deny or grant you civilian immunity.

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That is a status based on whether or not you're participating in hostilities.

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You can think whatever you want.

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Nobody asks that about those Israelis who are supporting the most fascist right wing government about, you know, are you are you legitimate target?

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Nobody would ask that. It's ludicrous. So why are we asking that in this situation?

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It has no bearing in in morality or law or otherwise.

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But the reason Israel is doing that is also one, obviously, to make it permissible.

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Right. But as a legal tactic, it wants to collapse this as a political group rather than as a national group.

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Okay. But as I said, the ICJ recognised the Palestinians as a group.

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So I think that that point is likely.

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But let me go into the historical securitisation of Palestinians where they have been securitised well before the establishment of Hamas in 1987.

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Precisely for who they are and not for any military threat that they have posed.

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Where do we see this first? We know that Israel has constructed the native population as inherently terrorists.

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Presumed guilty by virtue of its refusal to disappear or surrender their claim to sovereignty.

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Thus, Palestinians are racialised as dangerous, not because of how they may individually harm Israelis,

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but because their national existence challenges Israel's settler sovereignty.

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I should say Israel's Zionist settler sovereignty.

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Consider, for example, that the right of return of Palestinian refugees this is familiar to you is often constructed as a demographic threat.

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A time bomb of life and death. Right.

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This is where that racial construction is happening, not because of a threat they pose, but because their existence is the challenge.

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All right. The use of violence and the logic of collective punishment against Palestinians under

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has underpinned Israel's military strategy in the founding years of the Israeli state.

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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.

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This is March 1948. We see the articulation of plans that many of you are familiar with.

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Why am I showing this to you? Look at the language here where we understand that there's an imperative to destroy villages.

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Right? Especially those that are difficult to control.

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This is not about threats emerging. They're difficult to control.

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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.

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But the civilian population that has been securitised in this way,

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even in the founding years of the state, has always framed this offensive use of arms as defensive force.

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Right. Okay. So this logic of framing this as a defensive operation is also informing this current moment.

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Right. Later, upon its establishment,

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Israel adopted written emergency regulations and applied them exclusively to the native population for the sake of expanding its territorial holdings,

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in fact. So this is, you know, the British apply emergency rule that they're applying in Kenya and Malay and India and Jamaica.

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They apply it to the Palestinians during the Great Revolt, 1936 to 1939.

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Upon its establishment, Israel adopts these these emergency regulations almost verbatim, but applies them exclusively to the Palestinians.

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Right. A year afterwards. Right. They deem those Palestinians that remain as a possible threat.

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So they need to be policed, their movement control.

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They don't have, obviously, freedom of speech. They're not citizens until later or granted citizenship and so later.

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But upon review by a military commission in 1949, the military commission came back to Ben-Gurion and said they posed no threat.

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This is actually a subdued population and don't pose a military threat.

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Ben-Gurion insisted that they maintain the emergency regulation for the sake of expanding Zionist settler enterprise.

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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,

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and this emergency regime was imposed on the Palestinians, racialised them as a security threat.

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Those Palestinians that remain for 18 years, which rationalises them as an exception.

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Right. And treats them outside of the law even while seeing them, but forever as an exception,

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even after 18 years in 1966, when emergency when martial law is ended,

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emergency rule has remained, and then martial law shifts onto the West Bank, the Palestinians in the West Bank and Gaza.

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In the early 2000, the securitisation of Palestinians now becomes and scorned within military and police rules of engagement.

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So military hostilities and rules of engagement. Since the second Intifada,

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Israel began to develop legal technologies that would allow it to use a greater amount of force against the population and occupy.

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A cornerstone of this technology is what I refer to as the shrinking civilian.

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So Palestinians aren't getting smaller, but the idea is that who counts as a civilian gets smaller.

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How do you do that in the language of war? There's been two fronts for this.

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Happy to answer during Q&A. Let me give you two examples.

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One, I kind of mentioned to you, right, which was in 2006 in a lawsuit from the Public Committee Against Torture in Israel,

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against the government of Israel that basically challenged the Israeli army to shoot to kill of who they were targeting of Palestinians,

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especially in Gaza. And the court there was thinking about who is a direct participant in hostilities in irregular combat.

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Right. Normally we know who a combatant and a civilian are because of their status.

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There are conventional armies, but an irregular war that we don't know that as clearly there are laws to regulate.

355
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How can we engage in that battle?

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One of them is to permit the killing and the targeting of civilians insofar as they directly participate in hostilities.

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The language of it is that they are legitimate targets for the time that they

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are carrying arms and are no longer targets when they set those arms down.

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Well, in 2006, the Israeli Supreme Court decided that, nope, that's not true in this case,

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because Palestinian militants have a continuous combat function, that laying down the arms is just rest before they pick them up again,

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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,

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even if they're surrounded by by a tremendous amount of other civilians who are known to be civilians.

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A second form of that technology happens in a different plane, not in the hostilities framework, but in the rules of engagement from.

364
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Right.

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Now, this is confusing, too, because Israeli police and the Israeli military oftentimes are stemming a trend in stemming from the same function,

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especially in an occupation setting. And that one, that blurring line is happening deliberately so that we aren't.

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00:39:07,610 --> 00:39:12,040
And why does that matter in in a hostilities setting? Your rules of engagement are different.

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You can shoot to kill. You can use lethal force in a in a in a police setting or in a peacetime setting.

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Even under occupation and especially under occupation, you have to use lethal force as a last resort.

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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.

371
00:39:33,920 --> 00:39:36,770
Well, during the Great March of Return in 2018,

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the Israeli military engaged in lethal force and shot 95% of its casualties that were protesting against the militarised perimeter of Gaza.

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95% of them were shot directly above the waist. They were shooting to kill in that case.

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And in that in that determination, the Israeli high court determined that, in fact, the marches were a new tactic in Hamas's arsenal.

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And so that anybody that was participating was participating with Hamas.

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They don't rule out that they're civilians who are participating in the largest mass civilian demonstration almost of our 20th century.

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There were 30 to 40000 protesters at that perimeter.

378
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Weekly, weekly, when they say, where are your Gandhis?

379
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You're not paying attention to them.

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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.

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00:40:38,450 --> 00:40:42,470
Well, the court there determined that there might have been civilians, but they were an exception.

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And so we see there a blurring of the lines of hostilities and and police time use of force that

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also shrinks basically gives rise to the shooting to kill of Palestinians that we're seeing today.

384
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And I can talk more about the actual laws and how they do that in 2015.

385
00:41:02,520 --> 00:41:06,089
In the course of the night, what's known as the night intifada and so on and so forth. No,

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00:41:06,090 --> 00:41:10,950
this what I'm trying to explain to you is that there is a legal technology that's being

387
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used here in order to basically justify the number of Palestinian civilians killed.

388
00:41:14,740 --> 00:41:19,860
That's why they don't deny it. They're just challenging whether or not they should be counted as civilians and therefore

389
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would adjust our proportionality assessment of whether or not it's disproportionate.

390
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Would a court consider this?

391
00:41:25,770 --> 00:41:33,270
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.

392
00:41:34,050 --> 00:41:34,440
Okay.

393
00:41:35,130 --> 00:41:44,250
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.

394
00:41:44,460 --> 00:41:53,160
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?

395
00:41:53,520 --> 00:41:58,320
I couldn't have sounded more American in that moment, Kyra. I just heard it.

396
00:41:59,080 --> 00:42:10,440
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,

397
00:42:10,680 --> 00:42:18,450
no armed attack by a non-state actor actually constituted an armed attack within the U.N. charter definition of Article 51,

398
00:42:18,780 --> 00:42:21,720
which justifies the use of force in self-defence in response.

399
00:42:22,020 --> 00:42:27,870
But this in in 2001, the U.N. Security Council actually adopts two Security Council resolutions,

400
00:42:27,870 --> 00:42:33,750
1368 1373 that recognises that non-state actors can be responsible for an armed attack.

401
00:42:33,960 --> 00:42:40,860
Therefore, is the U.S. to me, the United States can use ARM for self-defence against them.

402
00:42:41,160 --> 00:42:46,860
But who did they use it against? The authorisation for the use of military force within Congress is against the plan.

403
00:42:46,860 --> 00:42:57,930
Is that because they're targeting the foreign entity that either is unwilling or unable right to stem this insecurity or this threat?

404
00:42:58,350 --> 00:43:04,770
Well, that is majorly different than Israel's claims against the Palestinians in the Gaza Strip.

405
00:43:05,190 --> 00:43:13,170
Israel, as a matter of law, does not have the right to use force under Article 50 or this.

406
00:43:15,020 --> 00:43:18,920
Just as the precedent that we're not looking up. But this is from under a matter of law.

407
00:43:18,950 --> 00:43:27,230
The ICJ said in 2004 that Israel does not have the right to use military force against the territory that it occupies.

408
00:43:27,500 --> 00:43:32,900
Specifically because the threat that emerges from within the territory is Israel's responsibility.

409
00:43:33,830 --> 00:43:40,910
It assert it invoked use ad bellum or the right to use force under Article 51 in 1967,

410
00:43:41,420 --> 00:43:49,550
which is why we recognise that as an occupying power historically of the Sinai, the Golan Heights, the West Bank and Gaza.

411
00:43:49,850 --> 00:43:56,090
Right, because of that. And now we shift into a different framework of the regulation of hostilities no longer.

412
00:43:56,210 --> 00:43:59,240
Now an opportunity to invoke the right to use force.

413
00:44:01,300 --> 00:44:08,110
And I've said as much that any threat that emerges is your responsibility and so rejected this argument.

414
00:44:08,260 --> 00:44:15,700
Okay. But because Israel now I'm going to get into the legal work of also Israel's legal work of

415
00:44:15,700 --> 00:44:19,570
what it does with its argumentation to escape these strictures and how we've gotten this far.

416
00:44:19,990 --> 00:44:28,490
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.

417
00:44:28,510 --> 00:44:33,790
How and why it wants the land without the people. It wants the land without the people.

418
00:44:34,150 --> 00:44:39,880
But under a strict adherence to occupation law, it has a duty to maintain the territorial,

419
00:44:40,120 --> 00:44:47,589
juridical and political and social status quo and a direct prohibition on civilian settlements in territory that it occupies,

420
00:44:47,590 --> 00:44:51,370
because that would undermine that status quo. Right. They have a duty to maintain it.

421
00:44:51,520 --> 00:44:56,140
And so the reversion of peace time and a version of status status quo ante.

422
00:44:56,830 --> 00:45:04,330
Are we good so far? All right. Israel argues and this was actually an interesting legal argument,

423
00:45:04,810 --> 00:45:11,860
the missing reversionary argument which argues that there is no sovereign to which to return these territories.

424
00:45:12,520 --> 00:45:22,630
Gaza. Egypt never claimed sovereignty over Gaza and only Britain and Pakistan ever recognised Jordan's claims to sovereignty in the West Bank.

425
00:45:22,960 --> 00:45:26,800
And Palestinians don't exist who have a right to sovereignty.

426
00:45:27,010 --> 00:45:34,930
So there's nobody to return these lands to. But because we're such a liberal democracy in this barbaric landscape,

427
00:45:35,320 --> 00:45:40,390
we're going to apply occupation law, as a matter of fact, but not as a matter of law.

428
00:45:41,510 --> 00:45:48,950
Which enabled it to have the status of an object to make legitimate its presence in the West Bank and Gaza,

429
00:45:49,100 --> 00:45:53,330
while also not adhering to occupation law, but cherry picking from it instead.

430
00:45:55,520 --> 00:46:05,060
Here we see a continuation of what I'm going to argue henceforth, which is Israel's invocation of exception in law.

431
00:46:05,450 --> 00:46:10,279
This is a framework known as sui generis. Unlike anything other heads nodding.

432
00:46:10,280 --> 00:46:13,280
Are you law nerds? All right.

433
00:46:13,610 --> 00:46:19,820
That's Latin for meaning, unlike any other. What it means is that the fact pattern is so unique.

434
00:46:20,420 --> 00:46:25,670
Because what is law? It's a series of facts. And the lawyers argue about what precedent and what analogy applies.

435
00:46:25,940 --> 00:46:30,920
But if you're saying that your facts are so unique, no one's ever had to contend with them.

436
00:46:31,130 --> 00:46:36,080
There is no analogy or precedent. You have the right to create new law.

437
00:46:37,180 --> 00:46:43,000
And so Israel has used that to say that the territories are sui generis, not occupied.

438
00:46:43,110 --> 00:46:49,120
Their dispute, it continues to build under this framework, specifically, again,

439
00:46:49,120 --> 00:46:53,890
in the second intifada, when we see Israel shift from a framework of occupation.

440
00:46:54,780 --> 00:47:00,000
To warfare. All out warfare. Its military lawyers.

441
00:47:00,010 --> 00:47:01,590
This was an invention of military lawyers,

442
00:47:01,770 --> 00:47:09,120
declared that the Palestinian uprising and the second intifada was more than civil disturbance regulated by law enforcement.

443
00:47:09,570 --> 00:47:17,549
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

444
00:47:17,550 --> 00:47:21,750
international armed conflict or against a local population under its jurisdiction,

445
00:47:21,750 --> 00:47:25,530
tantamount to civil war, also known as non-international armed conflict.

446
00:47:25,980 --> 00:47:34,139
This is really key. These frameworks basically are established in 1977 and flesh out Common Article three

447
00:47:34,140 --> 00:47:38,430
of the 1949 Geneva Conventions that recognise that there was irregular combat,

448
00:47:38,700 --> 00:47:45,960
noting that the majority of wars fought since the Second World War have been between not between two states and conventional warfare,

449
00:47:46,170 --> 00:47:53,370
but between states and non-state actors. The international community, led by the Non-Aligned Movement, legislated this new body of law,

450
00:47:53,400 --> 00:47:58,260
the Additional Protocol, the 1977, specifically for this purpose.

451
00:47:58,740 --> 00:48:03,090
This is not a unique fact pattern. This is not a unique fact pattern.

452
00:48:03,810 --> 00:48:10,379
It was, but it has been rejected. The U.S. and Israel remain outstanding objectors to the additional protocols, Right.

453
00:48:10,380 --> 00:48:17,520
Recognising everybody from the ANC to the SWAPO and beyond as terrorists, the Viet Cong and so on and so forth.

454
00:48:18,000 --> 00:48:29,579
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.

455
00:48:29,580 --> 00:48:36,000
We can't just, you know, shoot them down with water hoses and mass arrests.

456
00:48:36,960 --> 00:48:42,990
But it isn't. But it isn't a war because they're not going to recognise them as a nascent sovereign

457
00:48:43,170 --> 00:48:46,680
right or an embryonic sovereign with the right to use this force on behalf of a people,

458
00:48:46,950 --> 00:48:54,240
not for individual gain. So they create a new category called Armed Conflict short of War.

459
00:48:55,440 --> 00:48:57,540
Israel says this is sui generis.

460
00:48:58,620 --> 00:49:07,470
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,

461
00:49:07,770 --> 00:49:12,750
even if the Palestinians target military installations exclusively.

462
00:49:12,930 --> 00:49:16,140
It's still terroristic. It's illegitimate altogether.

463
00:49:17,340 --> 00:49:19,380
And they don't want to recognise that even though they want the land,

464
00:49:19,680 --> 00:49:24,180
they don't want to recognise it as a civil war because they would have to recognise Palestinians as non-voting members of their,

465
00:49:24,540 --> 00:49:31,629
you know, very democratic society. And they obviously don't recognise them as sovereigns because the Palestinians cannot exist.

466
00:49:31,630 --> 00:49:41,640
That would dispute Zionist thought. Okay. All right. So then upon Israel's unilateral disengagement in 2005 from Gaza, when it removed 9000 settlers,

467
00:49:41,880 --> 00:49:46,920
the military infrastructure, the settlement infrastructure, Israel declared yet another exception.

468
00:49:47,610 --> 00:49:56,429
Now, Gaza was sui generis. Gaza was neither independent with the right to control its borders, its commerce, its airspace,

469
00:49:56,430 --> 00:50:05,580
its subterranean aquifers, its naval, its naval waters and so on, or have a standing army.

470
00:50:05,910 --> 00:50:11,250
Right. Nor did it remain under occupation, where Israel's duties continued.

471
00:50:11,610 --> 00:50:15,300
Instead, Israel argued that Gaza was a hostile entity.

472
00:50:16,080 --> 00:50:25,290
They made it up. They made it up. It would be neither independent nor would it be occupied, notably in 2014.

473
00:50:25,470 --> 00:50:30,450
And it sticks out with the International Criminal Court also rules on this and rejects this using the framework

474
00:50:30,450 --> 00:50:36,330
of effective control to say that Gaza remains occupied territory and Israel remains an occupying power.

475
00:50:37,200 --> 00:50:43,409
All that to say that as an occupying power, Israel doesn't have the right to self-defence and law.

476
00:50:43,410 --> 00:50:49,950
What I'm being very specific here is a distinction between self-defence and law in self-defence,

477
00:50:49,950 --> 00:50:54,570
in the vernacular, similar to how you might call somebody negligent if they,

478
00:50:54,690 --> 00:51:03,300
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.

479
00:51:03,400 --> 00:51:07,200
Right. Those are two different standard. Israel doesn't have the right to self-defence as a matter of law.

480
00:51:08,270 --> 00:51:18,169
Okay. So to say that it can now police Palestinians as it does under occupation law, administrative detention,

481
00:51:18,170 --> 00:51:26,780
curfews, lack of freedom of movement, No, no freedom of assembly or speech, and so on and so forth,

482
00:51:26,780 --> 00:51:33,740
as well as the right to use lethal force in the form of extrajudicial assassinations, blockades,

483
00:51:33,980 --> 00:51:45,590
Shooting to kill is basically giving Israel this expansive amount of a right to state violence to maintain its colonial holdings, period.

484
00:51:46,550 --> 00:51:50,570
All right. So but Israel will say, but what do you want us to do?

485
00:51:50,600 --> 00:51:53,600
How do we respond to this? Obviously, this and other occupation.

486
00:51:54,170 --> 00:51:59,840
Obviously, obviously, this is a failure of the international community that we are even here.

487
00:52:00,050 --> 00:52:03,140
But let's just say that they are going to respond. They must respond.

488
00:52:03,140 --> 00:52:06,980
They have to respond on behalf of protecting their their citizens.

489
00:52:07,340 --> 00:52:14,990
Sure. But even when it does so, it's still regulated by international humanitarian law on the principles of distinction and proportionality.

490
00:52:15,380 --> 00:52:19,730
Now, here the problem is, as I just narrated to you, Israel has changed the laws of war.

491
00:52:20,720 --> 00:52:27,200
And so even and Professor Luigi Daniele has written about this, that even in its current military operations,

492
00:52:27,200 --> 00:52:31,800
Israel doesn't even leapfrog over an assessment of of distinction.

493
00:52:31,820 --> 00:52:40,160
Do you know what that is? Distinction puts a duty upon a belligerent in order to distinguish between civilian and combatant targets.

494
00:52:41,120 --> 00:52:48,680
Right. All right. Proportionality assesses whether the force used was proportionate to the military advantage desired.

495
00:52:50,090 --> 00:52:55,090
Okay. So you can't drop a nuclear bomb in order to target, for example, a general.

496
00:52:55,100 --> 00:52:56,700
That's disproportionate. Right.

497
00:52:57,230 --> 00:53:07,220
But you also can't talk to you can't target civilians in order, you know, in excessive numbers without making the distinction.

498
00:53:07,730 --> 00:53:10,670
Right. What Israel is doing is it's getting over its distinction,

499
00:53:11,030 --> 00:53:15,260
saying it doesn't have a duty to distinguish between the civilians and the combatants because of Hamas as human shields.

500
00:53:15,650 --> 00:53:23,360
And only doing a proportionality assessment and arguing that it's that it's imperative of decimating Hamas is so granted,

501
00:53:23,360 --> 00:53:28,009
the military advantage is so grand that it actually justifies this use of force.

502
00:53:28,010 --> 00:53:32,940
So it is not excessive. Okay. How are we going to get around this in a court of law?

503
00:53:33,330 --> 00:53:42,630
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.

504
00:53:42,930 --> 00:53:48,870
And so here I'm you know, I want us to think about something I describe as Macbeth piece.

505
00:53:50,390 --> 00:53:56,930
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.

506
00:53:58,810 --> 00:54:06,520
I can be a little bit glib. Kind of like Zadie Smith. So when you walk into my math equation.

507
00:54:06,970 --> 00:54:14,290
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,

508
00:54:14,290 --> 00:54:18,100
they're nowhere closer to achieving. They're no closer to achieving it.

509
00:54:18,370 --> 00:54:20,410
Israel has said that it wants to decimate Hamas,

510
00:54:20,680 --> 00:54:29,560
that it wants to extract its its soldier captives as security captives, as well as a rescue of civilian hostages.

511
00:54:29,800 --> 00:54:34,570
And it wants to turn the Palestinian population against Hamas in rebellion.

512
00:54:34,990 --> 00:54:41,890
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.

513
00:54:42,250 --> 00:54:49,420
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.

514
00:54:50,630 --> 00:54:56,900
We also know that the only the only civilians that have been released have been released

515
00:54:56,900 --> 00:55:02,360
as a result of diplomacy and diplomacy that did not even need this amount of force,

516
00:55:02,360 --> 00:55:06,050
because Hamas has said from the second day we're ready to release the civilian hostages.

517
00:55:06,830 --> 00:55:13,550
Okay. And we also know, according to intelligence reports, that the Palestinians are nowhere near to rebellion against Hamas.

518
00:55:13,760 --> 00:55:16,850
To the contrary, they've now, even if they hated Hamas, support them.

519
00:55:17,660 --> 00:55:23,840
Hamas's popularity has grown in the Arab world. And this intelligence report by the United States indicates that Hamas popularity has grown

520
00:55:23,840 --> 00:55:30,320
all over the world so far from achieving its military advantage without any red lines.

521
00:55:30,500 --> 00:55:33,980
We see that Israel has not come close to any of them.

522
00:55:34,340 --> 00:55:37,370
So then we have to think, then what is it trying to do?

523
00:55:37,880 --> 00:55:43,790
If it's not to achieve those goals, then why this excessive use of force?

524
00:55:44,060 --> 00:55:51,379
Well, I think what we raise is the presumption of Israel wanting to establish an active peace, which I'll get to here.

525
00:55:51,380 --> 00:55:57,680
It's the removal of explicitly the removal of all Palestinians in Gaza to achieve sustainable security.

526
00:55:58,190 --> 00:56:02,200
So you remove all the Palestinians, there's never going to be a threat. They're not going to be Hamas.

527
00:56:02,200 --> 00:56:05,330
They're not going to be, as you had been arguing about jihad, they're not going to be,

528
00:56:05,510 --> 00:56:10,430
but they're not going to be anything because they won't be there to pose a future threat to Israel.

529
00:56:11,190 --> 00:56:15,549
Necklaces. Or. Or the.

530
00:56:15,550 --> 00:56:18,270
The goal of this meeting Hamas is so large, as I said,

531
00:56:18,270 --> 00:56:24,750
that it justifies the this these atrocities and possibly the removal of 2.2 million Palestinians.

532
00:56:25,230 --> 00:56:32,520
And this has historical precedents. It was even admitted by all these after the former Shin Bet director and national security member who said,

533
00:56:32,520 --> 00:56:36,920
quote, We are now ruling out a Gaza Nakba, Gaza in 2023.

534
00:56:36,930 --> 00:56:44,850
That's how it will end. This logic says that the proximity of Gaza inhabited by 2.3 million Palestinians,

535
00:56:44,850 --> 00:56:49,709
two thirds of whom are refugees seeking to return to their original homes in present day,

536
00:56:49,710 --> 00:56:59,100
Israel makes the entirety of Gaza and its population, civilian and otherwise, a threat that needs to be removed or permanently subdued.

537
00:56:59,580 --> 00:57:03,990
Accordingly, Israel has insisted that to achieve its military purpose of sustainable self-defence,

538
00:57:04,320 --> 00:57:10,950
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.

539
00:57:12,210 --> 00:57:15,390
This goal has been captured in the public three times to date.

540
00:57:15,810 --> 00:57:22,950
A leaked document dated October 13th and penned by an Israeli government research agency, detailed such removal as yielding, quote, positive,

541
00:57:22,950 --> 00:57:31,500
long term and long term strategic outcomes for Israel and other document document penned by the

542
00:57:31,920 --> 00:57:36,390
Institute for National Security and Zionist Strategy with relation to the Interior Ministry,

543
00:57:36,570 --> 00:57:45,300
explained that this moment presented, quote, a unique and rare opportunity to evacuate the whole Gaza in coordination with the Egyptian government.

544
00:57:45,570 --> 00:57:56,550
And most recently, we saw a far right coalition of Israeli ministers convened an entitled conference titled Settlements Bring Security and Victory.

545
00:57:57,240 --> 00:58:05,670
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.

546
00:58:06,030 --> 00:58:10,210
All right. All right. This has historical precedents. This is the Ayalon plan.

547
00:58:10,680 --> 00:58:17,040
Giora Eland is a retired major general who served as the head of Israel's National Security Council between 2004 and 26.

548
00:58:17,400 --> 00:58:23,070
In the early 2000 period, the second Intifada made the cost of occupation too high.

549
00:58:23,340 --> 00:58:31,950
This plan, which was basically to hollow out Gaza and transfer the Palestinians to the Sinai, competed against unilateral disengagement as a plan.

550
00:58:32,310 --> 00:58:36,209
Obviously, you see them pursue unilateral disengagement, but this stayed on the table.

551
00:58:36,210 --> 00:58:41,070
And what is manifesting today, we are so we can see this.

552
00:58:41,250 --> 00:58:43,650
We saw this is the first line, why they had them.

553
00:58:44,490 --> 00:58:53,430
Then we see them move Palestinians across these quarters that they drew like ping pong balls through Khan Yunis.

554
00:58:53,430 --> 00:58:57,240
And now they have declared that the next target is Rafah and the very, very self.

555
00:58:57,690 --> 00:59:00,510
There is no safe border. All of it is a target.

556
00:59:00,840 --> 00:59:10,530
Palestinians are being pushed closer and closer under tremendous pressure, tremendous pressure, seeking themselves to leave in order to survive.

557
00:59:11,430 --> 00:59:16,020
Okay. We're witnessing an effort featuring the removal,

558
00:59:16,020 --> 00:59:22,770
exclusion and colonial settlement framed as necessary for Israel's durable security as an exclusive design and sovereign.

559
00:59:23,100 --> 00:59:29,580
The recent ICJ decision. Right. That concludes if this is possibly genocide, pushes back against Israel's bid.

560
00:59:29,760 --> 00:59:34,830
They want to make this sui generis right. They've no one's ever had to deal with this before.

561
00:59:35,100 --> 00:59:40,020
Who they've been under. They've been under siege. An attack from the Arabs and the Palestinians.

562
00:59:40,020 --> 00:59:46,800
And they can't get a moment of peace. And that's all that they want. And no other country has faced this challenge.

563
00:59:47,430 --> 00:59:53,759
This is a bid for exception. Right. And that bid for exception follows in the legacy that I've described to you,

564
00:59:53,760 --> 00:59:58,560
but also in the establishment of the Palestine mandate in the aftermath of the First World War,

565
00:59:59,010 --> 01:00:04,500
when Britain designated Palestine as a state of European Jewish settlement in 1917.

566
01:00:05,340 --> 01:00:13,080
It did so in the Balfour Declaration, which was incorporated into the mandate verbatim as preamble to a text in 1922.

567
01:00:13,320 --> 01:00:17,490
It classified the mandate explicitly as sui generis.

568
01:00:19,760 --> 01:00:29,450
Absolving Israel, absolving the mandatory powers, the PMC, the Permanent Mandate Commission, from actually adhering to the League of Nations mandate.

569
01:00:29,690 --> 01:00:35,630
Right under Article 22, which gave a tremendous amount of rights or not a tremendous I know that's a lot,

570
01:00:35,870 --> 01:00:41,390
but give substantial rights to the native populations that sought self-determination.

571
01:00:41,630 --> 01:00:47,330
But they designated Palestine as sui generis. It's exceptional because it was a site of Jewish settlement.

572
01:00:47,540 --> 01:00:52,279
It would not be given the same support tutelage in order to establish a

573
01:00:52,280 --> 01:00:57,890
government to have actual representation in order to move towards independence.

574
01:00:58,560 --> 01:01:08,400
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,

575
01:01:08,580 --> 01:01:16,290
181 and its proposal one in one was one of three different proposals that were presented to the U.N. Special Committee on Palestine.

576
01:01:16,650 --> 01:01:23,100
One was a federal state, one was, you know, two states in the partition of 181 and one was a binational state.

577
01:01:23,280 --> 01:01:29,070
Well, what was clear amongst those who voted for 181 is that it actually didn't follow law,

578
01:01:29,790 --> 01:01:33,720
that it was a contravention of standing law and the right of people to self-determination.

579
01:01:33,960 --> 01:01:40,370
But that that that could be made an exception in the face of the need to resettle Jewish refugees,

580
01:01:40,830 --> 01:01:46,470
a crisis created in the aftermath of the Second World War, the Shah specifically.

581
01:01:47,250 --> 01:01:54,840
All right. So today, the exception that is demanded is an exception to the prohibition of what we recognise as genocide.

582
01:01:55,950 --> 01:02:01,350
And we recognise that if you don't want to call it genocide, we recognise as criminal as the network, the right.

583
01:02:02,040 --> 01:02:08,940
But the problem is that and here we see this, even, you know, this recognition of what's happening.

584
01:02:09,840 --> 01:02:17,550
But these controversies are unlikely to be resolved in a court of law, especially in a court that understands itself.

585
01:02:17,640 --> 01:02:23,190
It understands General Assembly Resolution 1814 partition as controlling law.

586
01:02:23,370 --> 01:02:29,489
It understands Security Council Resolution 242 as controlling all these laws which the Palestinians

587
01:02:29,490 --> 01:02:37,650
themselves recognise right in their Declaration of Independence in 1988 Naturalise and normalise the Nakba.

588
01:02:38,690 --> 01:02:42,620
So how it's become an exception as a matter of law.

589
01:02:42,950 --> 01:02:51,140
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,

590
01:02:51,420 --> 01:02:56,900
the subjugation, the removal of Palestinians in the name of establishing sovereignty.

591
01:02:57,050 --> 01:03:00,320
We can demonstrate that as a pattern and a context, right.

592
01:03:00,590 --> 01:03:08,870
But if that pattern and conduct has been normalised and seen as an exception for the good of establishing Israel,

593
01:03:09,410 --> 01:03:13,490
then how does the law get beyond that in order to reach it in this moment of deliberation?

594
01:03:13,520 --> 01:03:18,630
If we do not find a smoking gun. That says the goal is to exterminate Palestinians, period.

595
01:03:19,680 --> 01:03:25,920
Right. Lots of conjecture here. Obviously, Israel is its worst enemy since the ICJ decision.

596
01:03:26,310 --> 01:03:35,760
They only ramped up their violence. And so, you know, as we were speaking earlier, Professor Rogan, you've indicated things that might,

597
01:03:36,120 --> 01:03:39,320
you know, might seem that there can be in control, will become out of control.

598
01:03:39,330 --> 01:03:41,580
So a lot of contingency that we don't know.

599
01:03:41,940 --> 01:03:52,650
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.

600
01:03:53,680 --> 01:03:58,240
As it has made an exception for distinguishing Palestine from all other classes.

601
01:03:58,330 --> 01:04:03,489
Class mandates an exception to recognising Gaza and the West Bank as occupied as a matter of

602
01:04:03,490 --> 01:04:08,889
law as an exception to recognising Palestinian armed force as the force used on behalf of the

603
01:04:08,890 --> 01:04:14,709
nascent sovereign as an exception to recognising Gaza as either occupied or independent as

604
01:04:14,710 --> 01:04:19,630
an exception in a shoot to kill policy of Palestinians who no longer have civilian status.

605
01:04:22,380 --> 01:04:30,060
All right. And so much of this is that the ability to adequately scrutinise the than the strict securitisation

606
01:04:30,060 --> 01:04:35,220
of housing in that context becomes very difficult because of the illusion of the net effect.

607
01:04:35,430 --> 01:04:40,920
And I would encourage you to read the Bradbury's article on recognising an international law.

608
01:04:40,950 --> 01:04:46,410
He published that in the Nation in the Harvard Law Review, after accepting it, refused to publish it because of fear of retribution.

609
01:04:47,640 --> 01:04:48,990
Which brings me to my last point.

610
01:04:48,990 --> 01:04:57,000
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,

611
01:04:57,000 --> 01:05:03,870
and mind you, this is why I, I read why I find the law to be very disempowering.

612
01:05:04,500 --> 01:05:07,800
I don't want people to rely on the law. Right.

613
01:05:08,100 --> 01:05:10,350
That deliberation is depoliticised.

614
01:05:10,350 --> 01:05:19,350
And his thoughts and these stories, I think it's going to take incidents that we can examine very narrowly and only apply jurisprudence.

615
01:05:19,350 --> 01:05:22,950
What you say outside of the courtroom is not being accounted for.

616
01:05:23,280 --> 01:05:24,840
All right. It's what the court has said.

617
01:05:25,740 --> 01:05:34,320
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.

618
01:05:34,830 --> 01:05:38,740
Right. We're not likely to be satisfied by these outcomes.

619
01:05:39,300 --> 01:05:42,900
All right. And why insist that we use the law as a tool?

620
01:05:44,100 --> 01:05:47,790
Use the law as a tool without any fidelity to its flaws.

621
01:05:47,790 --> 01:05:52,680
Power. To the extent that it can serve an emancipatory function,

622
01:05:52,890 --> 01:05:59,340
it does so in reflection of that power and has to be used in a sophisticated servant of political movement.