The Rise and Fall of Human Rights

Cynicism and Politics in Occupied Palestine

By Lori Allen

Stanford University Press

Copyright © 2013 Board of Trustees of the Leland Stanford Junior University
All rights reserved.
ISBN: 978-0-8047-8470-2

Contents

Foreword Mark Goodale……………………………………………..xiAcknowledgments……………………………………………………xvIntroduction………………………………………………………11 The First Human Rights NGO: Al-Haq’s Faith in Evidence……………….332 The Beginning of the Decline: International Aid and the Production of
Bad Faith…………………………………………………………653 Teaching Human Rights: Citizens and Security Men in Training………….994 Making Up the Face of the State: Human Rights in the Creation of
Political Authority………………………………………………..1315 Nationalizing Human Rights: The Political Ethics of Hamas…………….157Conclusion………………………………………………………..185Notes…………………………………………………………….197Abbreviations and Glossary………………………………………….213Bibliography………………………………………………………215Index…………………………………………………………….251

Excerpt

CHAPTER 1

The First Human Rights NGOAl-Haq’s Faith in Evidence

IN 1979, twelve years into the occupation of the West Bank, Gaza Strip, andEast Jerusalem, Israel was successfully pursuing its expansionist strategies(which are ongoing)—confiscating Palestinian land, building Jewish-onlysettlements, controlling the Palestinian economy, and denying Palestiniansmost of their political and civil rights. Unlike today, however, at that point Israelwas still able to maintain a facade of “benevolent” occupier, despite the fact thathuman rights violations, from torture to detention without trial, were a dailyoccurrence. For Palestinians, however, the occupation meant arbitrary rule by aforeign military, and lack of civil, political, and human rights. Then, as today, humiliationsand harassment at the hands of Israeli soldiers were a feature of dailylife, leaving people in a constant state of insecurity and uncertainty. Among themany abuses that underwrote Israel’s occupation was the widespread use of tortureagainst Palestinian political detainees in Israeli prisons, where inhumaneconditions were the norm. Excessive and sometimes lethal force was used toquell demonstrations (see, for example, UNGA 1971, 1976). Attacks by settlerswere rarely investigated. West Bank residents, including suspected political activistsand city mayors, were deported, in contravention of the Fourth GenevaConvention (Kretzmer 2002:187), which “prohibits individual or mass forcibletransfer within and beyond the borders of the occupied territory” (Article 49).Demolition of the homes of prisoners’ and suspects’ families was used as a formof collective punishment. In addition, a range of occupation policies inhibitedPalestinian infrastructure and business development and tied the Palestinianeconomy to Israel’s in conditions highly unfavorable to the former.

Although some international organizations and Western government officialsknew about Israel’s abuses, and even though Palestinian newspapersconsistently covered UN activities related to Palestine (Rangwala 2002), Israel’sviolations were not widely acknowledged in the West. The occupation’s humiliations,harassment, and brutalities were a daily experience for Palestinianresidents of the occupied territory, but most Palestinians believed that the restof the world did not care, believe, or even know about their situation, takingas truth Israel’s claim to be “the only democracy in the Middle East” (see also Shehadeh1984:viii). Indeed, Israel was for many outsiders still a “symbol ofhuman decency,” as the New York Times labeled the country as late as the mid-1980s(quoted in Chomsky 1999:79).

It was frustration at the contradiction between Israel’s self-representationand Palestinians’ lived realities that brought three people together in 1979 to establishthe first Palestinian human rights organization (HRO), Al-Haq. CharlesShamas, a Lebanese-American graduate of Yale, was a behavioral scientist andbusiness entrepreneur; Raja Shehadeh studied philosophy in Beirut and hadtrained in London as a lawyer; and Jonathan Kuttab, also a lawyer, had emigratedwith his family to the United States from Jerusalem when he was a teenager. Onething that brought this innovative trinity together in an effort to reframe theterms of the debate over Israel’s occupation was a shared respect for, and hope in,the power of law, logic, and rationality. They believed that law could expose theinconsistencies and disrupt the image of Israel as a law-abiding democracy. Theyalso had an assertive faith in facts and logic, which fueled their earnest optimismthat they could confront the occupation successfully through law.

In an interview, Kuttab said to me that he “had a tremendous interest inunderstanding how the Israelis could possibly claim and even believe that theywere a democratic country; that they were progressive, modern, liberal, evenWestern; and at the same time they were carrying out really horrible, fascistpolicies toward the Palestinians that were as despotic as those of any MiddleEastern country.” Shehadeh described the mission of Al-Haq as “working forpromotion of rule of law and keeping correct records of Israeli violations andaddressing them.” According to Joost Hiltermann, sociologist and early researcherat the organization, “there was a faith in the rule of law as somethingthat would resonate with a wider public anywhere in the world.”

Contrary to those who would condemn the human rights system for disablingcollective action (W. Brown 2004:461), or dismiss it as “a false ideologicaluniversality, which masks and legitimizes a concrete politics of Westernimperialism, military interventions and neo-colonialism” (Zizek n.d.), the conceptof human rights helped motivate a novel form of collective action andbecame a constitutive element of Palestinian nationalist politics. Human rightsand international humanitarian law were sources of creativity and even couragefor some people living under occupation.

The problem of how to make themselves audible and visible has been acentral stumbling block of Palestinian nationalism, which has always operatedin a context of competition with Israelis, who have been involved in theirown struggles for legitimacy. After the dispossession and dispersal effected bythe war of 1947–1948 and the resulting transformation of Palestinians into arefugee population, Palestinians were without any territorial or institutionalplatform from which to express their national aspirations. Israel focused onstifling any expression of Palestinian identity (even banning the colors of thePalestinian flag and nationalist songs) and preventing the development of anyinfrastructure for the coalescing of collective organization, including amongPalestinians who became citizens of the state. By scratching away at the occupation’swhitewash that painted Israel’s domination as beneficial to the colonizedPalestinians, Al-Haq revealed the gritty truths of the occupier’s brutalities.

Al-Haq’s approach was logical, orderly, and methodical, which the organization’sfounders perceived to be the way to put right a system of occupation thatwas built on illogical notions and arbitrary rule. With painstaking attention tofact-finding methodology and a deep faith in the language of reason and law,Al-Haq produced meticulous documentation of rights violations that wouldchallenge the reigning Israeli narrative of their supposedly benevolent occupation.Al-Haq’s founders established these principles that would continue to undergirdthe organization’s work throughout the subsequent decades up to today.

Palestine’s occupiers had fastidiously underwritten their structure of colonialdomination and their powers of Palestinian dispossession with an edificeof military rules and an entire legal system (Hajjar 2005; Kretzmer 2002;Shamir 1990). Palestinian human rights activists responded in the same language,a universal language that they perceived could be a source of neutralauthority transcending national and political boundaries.

Although human rights activism is now a recognized sphere of activity bothin Palestine and globally, when Al-Haq was established in 1979 its terms wereobscure, its proponents mostly unknown. To be sure, human rights discoursewas evident in certain elite spheres. For example, in his speech to the UN GeneralAssembly in 1974, Yasir Arafat invoked the Universal Declaration ofHuman Rights several times and mentioned Israeli violations of human rightsand of the Geneva Conventions (UNGA 1974). Israeli human rights lawyerFelicia Langer has been arguing Palestinian cases in the Israeli courts since the1970s (see Langer 1995), but it was Al-Haq that helped establish human rightsas a general discursive framework, an institutionalized form of activity, and anovel mode of political appeal in Palestine.

How were the lines around this arena of debate, these forms of knowledgeclaims, engraved? How did rights and their violations come to be newsworthytopics in the mainstream media, in Palestine and elsewhere, and with what consequencefor the nature of political debate in the Palestinian-Israeli conflict?

The development of human rights as a field of knowledge production inPalestine was a contested process involving cultural assumptions about expertsand expertise, about intention and motive. In seeking to produce informationabout rights violations that was credible in a highly charged political context,Al-Haq introduced into the Israeli-Palestinian conflict a specific methodology.AlHaq’s methods—collection of affidavits, production of a database ofviolations, eyewitness reporting, unemotional testimonials, forensic pathology—becamepart of the typical approach for Palestinian HROs that came after it.

Impressions into Proof, Truth, and Credibility

With all of these methods, Al-Haq was trying to argue, to Israel and eventuallyto the world, that Palestinians deserved the rights, protections, and respectthat are supposed to follow from inhabiting the basic status of “human.”Hannah Arendt’s description of the stateless person, penned in the wake oftwo world wars, fits the Palestinian situation well: a “human being in general—withouta profession, without a citizenship, without an opinion, withouta deed by which to identify or specify himself—and different in general, representingnothing but his own absolutely unique individuality which, deprivedof expression within and action upon a common world, loses all significance”(Arendt 1994:302). As a colonized people generally seen through a colonialistframework as irrational, Palestinians were compelled to go to the extremes ofobjectivity. The standards of objectivity at play in Al-Haq’s human rights workwas not the sort of rhetorical politics evident in formulations of journalistic”objectivity” that demand a supposed “balance between the two sides” (Bishara2012), or the criteria adopted by Human Rights Watch (HRW) that requiresreports condemning Palestinians and Israelis in a tit-for-tat cycle (Rabbani2009a). Al-Haq’s methodology involved multiple techniques for producingdisinterested knowledge specifically and for revealing “objective evidence” by”rationalizing” both their information and themselves as subjects through thestatistical and legalistic idioms of law and human rights.

The structural problems that Palestinians faced shaped the particular wayin which Al-Haq developed the practice of human rights advocacy. The founders’position as Palestinians struggling against occupation by a state that enjoyedconsiderable international credibility and sympathy was a key factor, butit was also a locally specific framework of nationalist values and the resonantsocial category of “nationalist activist” that allowed the human rights approachto flourish in Palestine.

All three of Al-Haq’s founders were educated abroad and gravitated towardwhat they saw in law as an objective standard against which Israeli practicescould be measured and, ultimately, condemned and stopped. Shehadeh thoughttheir work “could reveal to the world the true nature of the occupation while promotingamong Palestinian society an appreciation for the principles of the rule oflaw” (2002:138). Shehadeh had returned from his law studies in England in 1976,”brimming with ideas of how things should be, enthusiastic about advocatingprinciples of fairness, justice, and human rights” (Shehadeh 2008:36), his self-described”blind faith in reason” already deeply ingrained (Shehadeh 1984:66). Byholding Israel to its word, calling on it to live up to its obligations as a state thatadhered to the rule of law and human rights standards, Al-Haq sought to revealthe violations and injustices that were inherent to Israel’s occupation.

Shamas was inspired by the “Aristotelian tradition that thought you couldput your finger on, reconstruct, or represent what the essence of somethingwas, using rational discourse.” Rather than making identity claims to “coerceour way to liberation,” he saw their task as being one of “reasoning” with the internationalorder according to its normative content, embodied in internationalhumanitarian and human rights law. “Rationality” has long been a categoryused to justify colonial efforts to discredit and denigrate the colonized, whosesupposed irrational passions required the civilizing discipline of the liberalWest. Al-Haq’s goal was to subvert that colonial logic, and the long history oforientalism that has obscured and distorted the facts of the Palestinians’ case.Abiding by these principles of objective proof, and with the eventual help of internationalsupporters, including jurists, American Civil Liberties Union activists,and human rights professionals from the United States, Israel, and Europe,Al-Haq came to be recognized as a credible source of human rights informationin the occupied Palestinian territory (Hajjar 2005:65).

For Kuttab, who was a history major before studying law, the tools of historiographyalso came into play in Al-Haq’s practices of information gatheringand documentation. There was for him a confluence between “seeking truth”and working for rights. “Always present in my mind, and those of my colleagues,”he said, “were the value of corroboration, declarations against interest,a skeptical perspective, a constant awareness of the perspectives and biases ofwitnesses as we labored to approach objectivity and seek truth in a murky politicalsituation.”

The three men also shared a keen awareness of how Israel itself had used thelaw to bolster its regime of control. Kuttab, who had studied Hebrew and had aJerusalem identity card, became a member of the Israeli Bar Association and inthe process learned how the law can be a mask, offering a procedural disguisefor political projects (also Parker 2003:46; Shehadeh 1984:50). Kuttab learnedhow Israel “uses law as an instrument of illegality” to expand and entrenchthe occupation by simply making new regulations in order to decree occupationpractices legal and official (also Weill 2007:418–419; Hajjar 2001:23). Thisapproach to law, Kuttab explained to me, was based in the “positivist school,”meaning that “it doesn’t necessarily have anything to do with justice or withfairness.” In the positivist tradition, law is not necessarily that which upholdsmorality (Green 2003; Hart 1994:185–186), but rather is seen as possessing”an objective binding force” imposed by the state (Pollis 1987:588; see alsoShestack 1998:209). An “ethic of ‘illegalism'” is how Israeli political scientistEhud Sprinzak characterized it (Gorenberg 2006:45).

Scrutiny of Israeli practices in light of international humanitarian law(IHL), which is meant to regulate military occupation, bears out Kuttab’s observations.Israel’s Supreme Court, for example, ratified the sealing and destructionof Palestinian homes, thereby institutionalizing the practice androutinizing this exercise of legal power (Bisharat 1995:374). The government’spractice of declaring Palestinian land to be “state land” has led to Israel’s seizureof 16 percent of the West Bank (B’Tselem 2010). Another example is theLandau Commission report, issued by an official governmental commissionappointed to examine interrogation methods. The Israeli government declaredas permissible “moderate physical pressure,” thereby redefining and legalizingwhat many experts would call torture or, as Human Rights Watch/Middle Eastreferred to it, “the bureaucratization of torture” (1994:55). The Supreme Courtthus lent its “symbolic capital to the military occupation” in order to legitimizethe military’s practices of control (Gordon 2008:32).

Al-Haq’s first major publication, The West Bank and the Rule of Law (Kuttaband Shehadeh 1980), presented a detailed analysis of precisely how Israel establishedlaws in the occupied territory of the West Bank to facilitate Jewishsettlement there, which the book notes is a violation of international law (8).One of the bases of Al-Haq’s early argumentation was the contention that Israelwas bound by international law, and specifically by the Fourth Geneva Convention,in its treatment of Palestinians in the occupied territory. (Israel hascontinued to argue otherwise.) In responding to Israel in its own legalisticlanguage, Al-Haq “represented the first organized effort to engage law as a formof resistance” in Palestine (Hajjar 2005:62). Shehadeh’s memoirs from that periodtestify to the fear he had of Israeli recriminations for publishing their book(Shehadeh 1984:62–65). The legal system underpinning the military occupationhad been unchallenged until then, and Shehadeh’s anxiety points to howgroundbreaking this kind of publication was at the time.
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