Hedi Viterbo, Problematizing Law, Rights, and Childhood in Israel/Palestine (University of Cambridge Press, 2021).
Jadaliyya (J): What made you write this book?
Hedi Viterbo (HV): Public and academic debates on Israel/Palestine suffer from two fundamental flaws, both of which this book sets out to tackle. First, such debates tend to rest on misguided assumptions about law, human rights, and childhood. And second, these debates brim with ignorance, misunderstanding, and misrepresentation of the facts on the ground.
Regarding the former issue, there are various misguided assumptions. One is that Israel flouts international legal and human rights norms, including those concerning “children”. Another assumption is that Israel “robs” Palestinians of their childhood. Yet another is that law and human rights offer the remedies for Israel’s wrongs. And another assumption is that “children” and “adults” are naturally distinct groups with inherently different characteristics and needs.
This book, while heavily critical of Israel’s conduct, also poses a radical challenge to these and other prevailing narratives. It lays bare how Israel neither simply erodes childhood nor disregards legal and human rights norms. Instead, Israeli authorities have pursued a more sophisticated course of action: deploying law, rights, and the category “childhood” in general—and increasingly embracing international child rights law in particular—to entrench, perfect, and launder Israel’s oppressive control regime. Law and rights have thus aided Israel in its efforts to subjugate Palestinian minds, bodies, and interactions; to confine Palestinians to a legally enshrined model of childhood that works to their detriment; to discipline older Palestinians through their young; to conceal and justify state violence; to portray abusive soldiers as children deserving of compassion; and to expand the Zionist settlement project while dispossessing Palestinians. Much of this, supposedly, has been done in the name of “the child’s best interests”.
Also on trial in this book, along with the Israeli state, are its liberal human rights critics—NGOs (both local and international), UN bodies, and scholars. Not only have such critics repeatedly failed to recognize how the child rights framework ends up harming Palestinians, but they have also, in multiple ways, contributed to this harm. Several characteristics of the human rights community are to blame, including its questionable conception of childhood; its uncritical embrace of international law; its recurrent emulation of the Israeli depiction of Palestinians as a security risk; its need to keep donors and lay audiences interested in local issues that are both complex and contentious; and, on occasion, its assessment of human rights violations in isolation from their structural causes.
As I have noted, if the first flaw of debates on Israel/Palestine is their misguided assumptions (about law, human rights, and childhood), then the second flaw concerns their ignorance, misunderstanding, and misrepresentation of the facts on the ground. One reason for this is that official Israeli sources, as well as human rights reports, often contain significant inaccuracies and misstatements, which are then cited and perpetuated by academics and the media. This book thus reveals how state documents are often inconsistent not only with compelling evidence about Israel’s conduct, but also with one another. Similarly, human rights publications evince repeated misunderstandings, and hence misrepresentations, of Israeli law, as well as of the voices of the young Palestinians they claim to represent. This book aims not only to set the record straight, but also to shed new light on how such knowledge-governing forces shape dominant discourses.
Another reason for such misunderstandings is the dearth of research on Israeli military law. Israel’s control over the West Bank and Gaza Strip has been the subject of extensive scholarship. And yet, this literature has focused on international law and the Israeli supreme court, while paying very little attention to the military courts in which Israel prosecutes thousands of Palestinians—hundreds of whom are below the age of 18—every year. One possible explanation for this gap is the inaccessibility to the public of most Israeli military judgments. Another is the ill-informed perception in mainstream Zionist discourse of Israeli military courts as somehow external to “normal” Israeli law. This book is based on my analysis of the hundreds of Israeli military judgments and statutes I have obtained over the years, as well as various other sources. This research, I believe, is unprecedented both in scope and in its theoretically informed approach, and it yields findings that refute and complicate claims by both Israel and its critics.
J: What particular topics, issues, and literatures does the book address?
HV: Drawing on cross-disciplinary literature, as well as hundreds of previously unexamined sources (many of which are not publicly available), this book critically examines practices and discourses of law and human rights, in and beyond Israel/Palestine. It investigates how, and to what effect, these practices and discourses conceptualize, shape, weaponize, and deploy the category “childhood”.
The inquiry unfolds within a multitude of contexts, including: Israel’s mass prosecution, incarceration, surveillance, abuse, and killing of Palestinians; restrictions on Palestinians’ movement and food consumption; the severing of Palestinian family ties; Israeli rules of engagement; the use of human shields; military hazing; trials of Israeli soldiers; the Israeli legal system’s handling of settlers who throw stones or participate in legally proscribed protests; and the multiple roles human rights actors play across these settings, including as legal argument-makers, as disseminators of child-related imagery and truth claims, and as providers of legal counsel.
Broader contexts—local and global—are considered throughout the book. Locally, I shed new light on the Israeli control regime, its transformation over time, and its under-researched features, including: its use of childhood, uncertainty, and visual images as modes of governance; its commonalities with its critics; its interconnected modes of violence against different populations in different territories; its heavy reliance on law; and its hierarchization of different types of evidence. Beyond the local context, I highlight underexamined pitfalls and characteristics of policies, laws, and social attitudes, both internationally and within various countries, while drawing comparisons and connections with Israel/Palestine. These policies, laws, and attitudes (past and present) span a wide range of issues, key among which are those concerning the (mis)treatment of colonized peoples, racialized minorities, and noncitizens; the social and legal status of young people; and armed conflict and counterinsurgency. This simultaneous contextualization, at both the local and global levels, yields insights beyond this book’s primary focus.
Also discussed throughout the book are wide-ranging forms of Palestinian resistance: exiting enclosed territories, in violation of Israel’s movement restrictions, by misrepresenting one’s age; developing critical political consciousness while in Israeli prisons; smuggling sperm from prison in defiance of Israel’s ban on conjugal visits; using stones as weapons and thus destabilizing the power imbalance; committing to returning to what is deemed the stolen homeland; self-empowerment through protest; and using cameras and visual imagery to expose state violence. In addition, I demonstrate that young Jewish settlers have been at the forefront of political activism and, when detained, have refused to disclose their ages and identities. To adequately contextualize these actions, the book also engages with a broad array of both Palestinian and settler sources.
J: How does this book connect to and/or depart from your previous work?
HV: This book is the culmination of fourteen years of research on childhood and state violence, in and beyond Israel/Palestine. As such, it draws on some of my previous work on these themes. For example, a central issue discussed in Chapter 4 is what I call “generational segregation”. In a 2017 article, I brought to light parallels and connections between the large-scale removal of Indigenous “children” in the United States, Canada, and Australia, and the increased generational segregation of Palestinians in Israeli prisons. The following year, I published an article that contextualized this state practice within Israel’s broader divide-and-rule apparatus, while in a more recent piece I also looked at the ongoing generational segregation of Uyghurs in China’s north-west Xinjiang region.
Another theme, examined in Chapter 6, is the constitutive role of in/visibility and visual images in relation to state violence. In 2014, I published an article investigating this issue regarding three countries—the United States, Syria, and Israel/Palestine—and a few years later I wrote another piece, which also brought into the equation the United Kingdom’s use of torture.
Finally, the six chapters I wrote for my previous (co-authored) book sought to shed new light on law’s intimate relationship with Israeli state violence.
Certain parts of my new book synthesize, update, and further develop insights from this earlier work.
J: Who do you hope will read this book, and what sort of impact would you like it to have?
HV: This book is designed for a broad audience. On the one hand, its arguments and findings would be of interest to researchers, activists, and others who already have some knowledge of the issues it discusses. On the other hand, the book requires no prior knowledge. Accordingly, its first two chapters go to great lengths to lay the theoretical, methodological, legal, and political foundations for the analysis provided.
Rather than rehashing familiar tropes, this book aims to offer a unique perspective from which alternative avenues for thinking and acting can be developed. It unsettles and disrupts common yet problematic assumptions about each of its topics—law, human rights, childhood, and state violence—about the problems each of them presents, and about the solutions to these problems, in and beyond the Israel/Palestine context.
Excerpt from the book (from Chapter 1, pp. 3–4, 14, 17–19, 22–23, 37–39, 41–42)
Israeli authorities and their human rights critics … [share] a common conception of law …, and it is one that requires reconsideration. This is the notion that law, or at least specific legal norms and mechanisms, constitute a logical and scientific-like apparatus, that they are relatively autonomous and apolitical, significantly impartial and just (or at least a lesser evil), and embodied in specialized institutions, texts, and individuals. Over the past two centuries, this view has been roundly criticized from various angles … Building on and contributing to a rich body of critical scholarship, I set out to deconstruct and challenge these conceptions of law through, and in relation to, the materials and issues I will be examining. …
As laid bare in this [book] …, both law and rights lend themselves to divergent uses, including those operating in the service of state domination and violence. Further, rights and law, partly due to their reliance on abstractions and generalizations, are frequently applied without sufficient sensitivity to the context at hand. Child law (the sum of legal mechanisms relating directly to those defined as children) and child rights are premised on a specific abstraction: a supposedly universal and natural model of childhood, which in reality often marginalizes young people, legitimizes harshness toward older people, and suppresses valuable forms of life and thought. Combined, the malleability of law and rights, their problematic conceptualization of childhood, and their context-insensitivity often beget harm to disempowered communities, young and old alike. …
Doubtless, human rights can help highlight and confront certain instances of inequality, exclusion, and oppression. However, in their current institutional and ideational configuration, they tend to focus on technical violations and remedial solutions, without systematically exposing—let alone challenging—the root political and economic causes of injustice. In the process, intentionally or not, they can end up marginalizing more radical emancipatory discourses … In large part, this state of affairs stems from, and contributes to, the legalism of human rights. It is predominantly in legal terms that the dominant human rights discourse of today, and the associated human rights scholarship, frame harm and solutions. …
Drawing on cross-disciplinary literature, this book also takes as its point of departure that neither “children” nor “adults” are merely preexisting groups to be served, regulated, or governed by law and human rights. Rather, each is in large part a socially manufactured category, one that is delineated, reinforced, challenged, and weaponized by historically and geographically contingent forces. Key among these forces are practices and discourses relating to law and human rights, whose role in shaping the meaning, nature, effects, and uses of childhood is a central concern of this book. …
In a marked departure from most of the existing legal and human rights literature, I analyze childhood from a social constructionist perspective. Such a viewpoint … rejects any idea that childhood rests on some pregiven … nature and contends that notions of childhood … are a way of looking, a category of thought, a representation. … In line with this perspective, I generally avoid using the … categories “children” and “adults” in this book, opting instead for phrases such as “young people” and “those over the age of majority” respectively. …
Further, … I systematically demonstrate how child law is no less concerned with … “adults” [including] not only those directly responsible for young people—parents, teachers, social workers, and so forth—but also countless others without such direct responsibility. I thus reveal the Israeli judiciary’s attempt to use the punishment of Palestinians under the age of majority as a deterrent to older Palestinians (Chapters 3 and 6), as well as Israel’s efforts to limit the influence of imprisoned Palestinians aged 18 and over by separating them from their younger counterparts (Chapter 4). …
[Moreover], the legal and social category “childhood” is not applied exclusively to those legally defined as “children”. Instead, childhood connotes behaviors and personality traits, elicits particular emotions and moral judgments, warrants certain modes of control, and … draws spatiotemporal boundaries, thereby making itself readily applicable to people of all ages. One manifestation of these issues I examine in this book is infantilization—the portrayal or treatment of adults, in the legal sense of the word, as children. Specifically, I lay bare the infantilization of two political players: soldiers and the Israeli legal system. The former, as I argue in Chapter 7, have been repeatedly characterized as children or childish, including in those rare cases where soldiers were convicted of abusing or killing young Palestinians. The latter, as I explain in Chapter 8, has been likened to a child for its purported rigidity toward settler youth. …
This book is largely based on my analysis of hundreds of [sources] … collected between the years 2007 and 2020, whose authors are the Israeli legal system and its human rights critics, local and international. Hardly any of these documents have thus far been studied, and many of them are not in the public domain. … The documents under scrutiny can be divided into three main groups. The first consists of human rights publications … The second, analyzed in Chapters 6–8, contains materials concerning Israelis in conflict with Israeli law … [including both settlers and soldiers]. …
The third and largest group of Israeli legal materials concerns Palestinians in conflict with Israeli law … [including] hundreds of military law documents: judgments and statutes. Though Israeli military judgments are not formally secret, one of the challenges for researchers is that most of them are not publicly accessible. … [Recent] military court of appeals judgments [are available in an] … Israeli online commercial legal database …, where I found relevant cases through several keyword searches over the past few years. However, earlier decisions by the military court of appeals usually remain unpublished …, [as do] first-instance judgments, which … constitute the overwhelming majority of military court decisions. …
[Following] two years of attempts to get hold of unpublished military court decisions, I gained from the military court administration access to several dozen unpublished military cases … Under surveillance by specially assigned soldiers, I was allowed to read some of the requested cases at the Ofer military court, located near the city of Ramallah in the West Bank. … [Later], I gained access to the so-called archive (a small and cluttered portable cabin) of the Salem military court, on the West Bank’s northern border. … In Chapter 2, I provide the findings of a quantitative analysis of … 155 files [concerning Palestinian under-18s, which I found in the Salem military court archive] … At the same time, unlike the proclivity of some quantitative researchers to reduce representativeness to numbers and size, my quantitative analysis of the 155 military court files does not profess to be any more representative of “reality” than the non-quantitative analysis of other materials (including hundreds of other military court decisions). …
Also informing this book are observations I made while attending hearings at the Ofer military court, as well as my other experiences at both Ofer and Salem military courts. … [By combining these different methods, this book aims] to offer a rich and hopefully reflexive interpretation of the materials at hand.
Note: The book’s 49-page introductory chapter is freely available to read here.