The Law in Light of Israel’s Massacres in Palestine: The Death of a Liberal Illusion

2024-01-18    |   

The Law in Light of Israel’s Massacres in Palestine: The Death of a Liberal Illusion
By Raed Charaf

Israel’s enormous crimes against Palestinians since October 7 will have many consequences. They include one distinct consequence that, though it may be overshadowed by the humanitarian disasters we are witnessing in Gaza’s destroyed neighborhoods, is important for better understanding the coming world and will probably become even more important in coming years. This exceptional consequence is the destruction of the law’s legitimacy as a tool for averting the most heinous crimes against humans.

Of course, several comments could be directed at this preliminary conclusion, which may seem naïve. Critical legal approaches long ago dispelled any hope of a justice imposed by law in general or international law in particular by exposing the hypocrisy of Western legal discourse on humanitarian law and fundamental rights. This discourse has long been marred by a large gap between words and texts, on one hand, and the reality of Western practices on the ground – especially in the Global South, in Palestine, and against Palestinians – on the other. Even legal experts who are optimistic about the law’s ability to protect rights have, for a considerable time, had their faith weakened by the multitude and enormity of Israel’s systematic transgressions on international law and Palestinians’ fundamental rights since 1948. These crimes have come in the form of occupation, colonialism, repeated ethnic cleansing, assassinations, land seizure, detentions without trial, torture, and – of course – the system of religious and ethnic apartheid that has now become an internationally documented fact.

However, documenting violations of law or rights is not enough to declare them ended. In the past, most Western powers and their elites at least superficially condemned Israel’s frequent violations (albeit usually without putting any end to them) or pretended not to see them while frequently citing the principles of international and humanitarian law. The law’s status as a frame of reference in discourse and narratives, even if it was not subsequently actually applied, remained the rule in recent decades. Fundamental rights, in their various forms, still constituted the paramount principle and the common denominator of political discourse deemed acceptable in the international and domestic arena in the West. However, the (albeit ineffective) referential authority of rights discourse, which was constructed upon the ruins of the world in 1945 to prevent any repetition of the fascist atrocities, especially against European Jews, is today collapsing before our eyes in the West. This collapse will have grave consequences for the inhabitants of Arab countries who cling to the rule of law as a sought-after political vision.


From the Usual Liberal Hypocrisy to Justifying Genocide: The Break in Western Discourse and Its Effects

As soon as Hamas’ October 7 attacks against Israel had ended, Western leaders almost unanimously engaged in a significant and unprecedented break with rights discourse. Whereas the critical approach to law has usually condemned the gap between discourse and practice, since that date we have witnessed a breakdown in the discourse itself, which seems to have become entirely liberated from the legal, rights-based, and moral constraints that Western elites previously had to observe when addressing Israeli transgressions. This rhetorical shift opened the door for these figures to engage in unparalleled justification of the destruction of Palestinian lives and society without making any effort to explain it.

The marginalization of the law from the discourse exposed the colonial leanings of Western stances, which – as we can now see – the idealistic rights-based approaches in the 20th century failed to tame or curb. Today, everything is permissible to a Westerner, especially if the goal is to preserve the hegemony and nonaccountability of the greatest colonial tool in the Middle East, namely Israel. The famous Western hypocrisy – the lip service that Western racist evil had to pay to rights discourse during past decades – collapsed over just a few days in 2023. The dominant discourse in the West recovered the violent, arrogant spirit that distinguished Western colonialism in the 19th century, unleashing an unprecedented effort to justify crimes against humanity, which are now deemed acceptable as long as they serve Western hegemony via its tool and partner Israel and their victims are not White. All this is occurring under the nose of the impotent International Criminal Court, which no longer even pretends to care about justice in Palestine, as demonstrated by the asymmetric and unbalanced statements by its prosecutor, Karim Ahmad Khan, in the media.

This disappearance of the rights constraint in relation to Palestine – the cost of which is tens of thousands of Palestinian victims – constitutes another fall in the standing of Palestinian life in the Western perspective. The first fall occurred several decades ago, when the Palestinian issue (i.e. the fundamental collective right of Palestinians to reclaim their lands stolen by Israel since 1948 and subsequently establish one multireligious, democratic state in Palestine) was depoliticized and transformed into a question of the personal rights of Palestinians as mere individuals.

As for the second fall – the one resulting from the transformation of Western discourse today – it has stripped the rights dimension from the Palestinian issue, turning it into a purely humanitarian one. Palestinians no longer even enjoy such rights, and American, German, and French leaders need only send them some food and medicine, which Israel blocks anyway, in order to claim that they are protecting Palestinians’ lives. In practice, the West is treating Palestinians like livestock to be provided with some food pending their slaughter. This treatment is fully in line with the “human animals” perspective adopted by their best allies, the Israelis, who are now expressing the sentiment harbored by a portion of the Western elite growing larger every year.

Finally, shedding the rights-based constraint has permitted two intellectual and media trends that have already been condemned during the past several months. Firstly, the marginalization of the law made it possible to ignore Israel’s responsibility for a past rife with violations, crimes, and transgressions by separating the October 7 attacks from any legal or historical context, as though they did not follow decades of Israeli ethnic cleansing, occupation, colonialism, blockade, and massacres. One example of such a massacre is the 2018 March of Return in Gaza, which resulted in thousands of Palestinian civilian casualties without evoking any mentionable condemnation from Western elites. Secondly, this abandonment of rights principles has also guaranteed Israel impunity in the future by sanctifying the right of defense, which has been inflated so much that it no longer means anything but complete liberation from any constraint on the use of violence. Others have shown how this “right” has no legal basis when exercised by an occupying and colonizing power against actions carried out against it by occupied and colonized people, even if these actions are sometimes individually condemnable. The collapse of the (albeit already fragile) rights-based constraint on the discourse of Western elites exposed a face of the West that disgusts most inhabitants of the Global South. How can we interpret this shocking collapse within the discourse dominant in the West?


The Other Face of the Collapse of the Rights Discourse on Palestine: Islamophobia Delivers the Coup De Grace to Western Liberalism

How did we shift so quickly from a discourse that, even if it was not always sincere, was ostensibly rights-based to openly encouraging genocide? To understand this collapse of rights as a frame of reference for the discourse of Western governments and elites, we must link it to another collapse that occurred on the other side of the Mediterranean Sea – namely the collapse of the system for protecting rights, freedoms, and equality within Western countries themselves. When French, British, and German politicians so crudely scorn Palestinians’ collective and individual rights by flouting international and humanitarian law, they do so primarily in front of an electorate that is leaning increasingly toward the far right, as evidenced by the most recent French, German, and Italian elections, the changes within the American Republican Party, and Brexit. These leaders are engaging with societies in which growing majorities now consider the philosophy of fundamental rights an obstacle to their political aspirations of supremacy over other – especially Islamic – civilizations.

For example, we cannot understand the flagrant unconditional support that French President Emmanuel Macron has provided to Israel, even after the Israeli bombing became clearly genocidal, without linking it to the slide of the French executive branch and all constituents of its parliamentary majority, as well as most French voters, toward the far right in relation both to foreigners, migrants, and people from other religions and races, and to all marginalized minorities in the French political sphere. The collapse of the language of Palestinian rights is accompanied by a corresponding collapse in the rights of people in the West who are marginalized or different, especially non-White people and Muslims. The rising racism is one and the same, whether it discriminates against Muslims or Arabs in Paris or Berlin, or trivializes Palestinian lives in Gaza. The relationship between the two faces of this racism allows us to understand the unprecedented, enthusiastic Western support for killing Palestinian children by the thousands. Why are Europeans and Americans so enthusiastic about Israel’s massacres when they usually pay little attention to foreign policy, international relations, and their issues? The answer is that, in 2023, the face of the Palestinian man or woman has become the face onto which racist Western currents project all their hatred of Arabs and Muslims in the domestic context. Disdaining Palestinians has become the easiest way to express rising Islamophobia. Subsequently, we understand how the hateful and racist ideology of the Israeli government, which discriminates racially and ethnically even among its own citizens, has found itself in complete alignment with the dominant Western governmental and elite discourse, and with the latent hate of a rising majority of Western elites now quick to provide this support to Israel in its crimes. For these elites, such crimes could represent dreams of imposing repression still unachievable north of the Mediterranean (but for how long? And who will wake the West from its escalating racist nightmares?).

Of course, this arrogant, structural racism in the West is not the only reason behind the giddy support for Israel’s war crimes and crimes against humanity. Other reasons explaining this deviation may exist in some countries. Examples include the power of Israeli lobbies in the United States and the German elite’s complicated relationship with the “Jewish question”. However, the Western – and especially European – domestic change explains a significant part of these developments, which are now producing unprecedented legal effects inside European countries. One example is the general government-imposed ban on demonstrations for, and solidarity with, Palestine in France. This measure is today considered normal but was politically unimaginable just a decade ago in a country that has preached democracy and human rights to other countries for at least two centuries.

Although the administrative courts intervened to limit the effects of this exceptional decision, their rulings contain the seeds for future control over the form and conditions of solidarity with Palestine, which will always have to prove its compatibility with the priority of supporting the narrative of the Israeli occupation and settlement project. Another example is the German bills that impose recognition of Israel (despite all its violations of international laws and rights) as a condition for obtaining German citizenship (bills that some German states have adopted), as well as the repressive hysteria that has afflicted the German elite. One final example is the increasing transgressions on freedom of expression in American universities, which – under pressure from donors and the political class – are increasingly clamping down on professors and students who publicize their support for Palestinians. In a surrealist scene, the presidents of three major universities were interrogated by Congress about “tolerating” the presence of a pro-Palestinian movement, as though the freedom of expression that Americans have conventionally held sacred is no longer an issue worth pondering.

In the heart of Western capitals, we are witnessing mass transgressions on fundamental freedoms, such as freedom of expression and freedom of thought, that have become a “normal” part of the political landscape, just as stances calling for and justifying the killing of children and genocide in Palestine have become normalized. This exceptional deterioration of the rights discourse within Western countries concerns not only the Palestinian issue but also larger segments of their populations with regard to various issues, as demonstrated by the issues of police brutality in France and acts of hostility against Muslims in Germany. It is a slide that portends a worsening regression in the system of rights and freedoms on all levels, both domestically and internationally. This raises the question: How can we preserve this protective system when its traditional Western guardians are on a dangerous path threatening to permanently topple it at the expense of those who need it most?


After the Delegitimization of Rights Discourse: Difficult Challenges Facing Arab Rights-Defenders

All the above forces us to explore potential future developments in the Arab region. These developments can be summarized with two points, each of which may warrant future intellectual efforts. Firstly, in coming years, Arab regimes will exploit this delegitimization of the protective rights system to clamp down on every movement, group, or activist that uses rights-based language and methods in a manner that threatens their interests and political, security, and economic domination. We must not underestimate the ability of these regimes to capitalize on the West’s hypocrisy on rights in order to achieve domestic gains at the expense of their opponents and anyone who tries to establish democratic systems that respect rights and the law. The traditional hypocrisy of Western regimes is paralleled only by the hypocrisy of Arab regimes, foremost among them the Lebanese regime and its leaders. Today these leaders eagerly condemn Israel’s violations of rights and the law, but tomorrow they will not hesitate to use the demise of rights language under Israeli and Western strikes to trivialize the rights-based arguments made by their domestic opponents, perhaps as a precursor to marginalizing and suppressing them more vigorously and ruthlessly than before.

The second development, which is linked to the first, directly concerns all those domestic opponents of repressive and corrupt Arab regimes who will face the wave of domestic repression created by the winds of the current Israeli violations. These rights-defenders may find themselves prisoners of a rights language that they trained upon and long practiced while its moral validity has become more questioned than ever before. If so, this language will place them in a fragile political position liable to be marginalized. Today, it may be tempting to react in a knee-jerk manner by tossing the entire rights-based approach into the same garbage bin that we would like to toss Western political hypocrisy. However, such a reaction would have disastrous effects on all vulnerable people in our countries in the future.

Therefore, we must inevitably face an extremely difficult task: to save what can be saved of this rights discourse, and to develop it into one more compatible with the moral aspirations that we desire(large parts of which the Western elite have now abandoned) and are more capable of confronting the machinery of repression and inequality under which we live. If this goal was, before October 2023, merely an intellectual challenge or indulgence tackled by some legal experts and critical and relativist theorists, it is now an urgent political and moral imperative for all legal folk and activists in Arab countries. This includes Lebanon, which seeks an international and domestic political future not governed solely by crushing power relations. But how can we free the rights and freedoms framework from the quagmire of hate in which Western elites have submerged it?

Undoubtedly, this rescue operation has several dimensions that we must simultaneously approach. Firstly, there is an intellectual dimension: we must appropriate and develop critical approaches to the philosophy of European Enlightenment, which initially gave birth to rights language. Many before us have demonstrated the White, patriarchal, Christian, and colonial legacy of this philosophy, so it is no surprise if it gave rise to the atrocities of the world wars in Europe or justifies the massacres in Gaza today. There have been past attempts in our regions to develop a rights language rooted in other places, such as Islamic Law. However, we must also look toward various paths that began being developed some years ago but not all Arab rights-defenders have taken seriously, with all their analytical dimensions. We could draw such paths from postcolonial thought in order to deconstruct the dominant rights narrative that we still teach in our law and humanities facilities, not all of which have broken free of their colonial origins.

Secondly, the challenges awaiting us have a legal dimension. We must rethink the legal basis for rights and freedoms and develop it without relying uncritically on “liberal” Western constitutions as a frame of reference and without sanctifying the jurisprudence of Western high courts or international conventions, which are sometimes replete with a Western spirit, if not in their texts then in their application. The goal is not, of course, to dispose of Western sources but to scale them down, as decolonial humanities have done for some time. However, many legalists have not yet taken this difficult road. Moreover, we must do all this without slipping either into extreme critical approaches that pay no serious attention to law to the point of trivializing it or into relativist approaches that sometimes advocate minimal protection for rights on the pretext of rejecting Western hegemony, which is something we cannot accept. Our rejection of Western political hypocrisy cannot be translated into less protection for our vulnerable people and minorities. This is an extremely difficult and sensitive task into which there is no room to delve here.

Finally, there is a practical dimension, which may be the least intellectually demanding but is the most difficult organizationally and politically. How can we preserve our capabilities in political rights-based work on the ground while breaking free from Western funding and support networks, to which many rights organizations have grown addicted (even if they have fully retained their intellectual and political independence) in the absence of prospects for domestic public or private funding without political strings attached? These organizations’ survival and ability to operate remain tied to Western capacities, some of which have – since October 7 – proved to be hostage to the Western-Israeli narrative and hegemonic interests, with all that entails in terms of rights violations for us. However, refusing Western funding only to throw ourselves into the embrace of domestic political funding will not be a satisfactory solution, except perhaps for domestic financiers undoubtedly excited about the current developments.

These are all difficult political, moral, and legal challenges and conundrums with which Palestine is now confronting us. We have no choice but to address and overcome them in order to ensure justice for Palestinians on their land and in their state, as well as for Arabs in their various countries, today, tomorrow, and in the days following liberation.


This article is an edited translation from Arabic.

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