All Posts By Jeff Handmaker

Misleading narratives distort antisemitism discourses

Posted on 0 min read
Ferguson is Palestine

Bigotry, in all its forms, is steadily rising. Clearly, being non-racist is not enough; we need to be anti-racist to be able to combat race-related bigotry once and for all. This principle should indeed apply to all forms of bigotry, including antisemitism. However, as this article explains, misleading narratives in the documentary film Viral: Antisemitism in Four Mutations distort our understanding, and even serve as a cover, for other forms of intolerance, which can move us closer to bigotry instead of further away from it.

Ferguson is Palestine
© George Latuff, Middle East Monitor.

Anti-black racism, antisemitism, Islamophobia and other forms of bigotry are on the rise in Europe and elsewhere in the world, according to annual reports of the European Commission Against Racism and Intolerance. As a result, people are rising up in protest through #BlackLivesMatter and other movements. The global outcry and calls for change following the police killing of George Floyd vividly reveals just how prevalent racism still is. Yet, it is also clear how some organizations purporting to challenge such hate crimes can use an anti-racist message as “cover” for other forms of bigotry and intolerance, as a recent documentary has also done.

Antisemitism in films and documentaries

In cinematography, antisemitism, like other forms of bigotry, often has been afforded special attention. As a Jewish youth growing up in my congregation, I watched many of these movies dealing with antisemitism—from classics such as Ben-Hur (1959) to the more recent Schindler’s List (1993). One of the most recent and acclaimed documentaries I saw was the bold 2009 film Defamation by Israeli film-maker Yoav Shamir. I was therefore curious about how antisemitism was dealt with in the recently released documentary Viral: Antisemitism in Four Mutations by the American film-maker Andrew Goldberg. However, I felt very dispirited after watching it. Rather than meaningfully addressing the very real problem of antisemitism in the world, this documentary reproduces misleading narratives that distort discourses on antisemitism.

In this article, I will explain how the film-maker argues that there is a moral equivalence between four different forms or “mutations” of antisemitism and what’s wrong with this conceptualization of it.

Four “mutations” of antisemitism

Viral: Antisemitism in Four Mutations attempts to show how four different examples of antisemitism manifest in present-day society and the “logics” that purportedly drive antisemitism. The documentary is intended to provide what the film-maker regards as an honest view of antisemitism, but is so unbalanced that it ends up having the opposite effect.

In Part I of the movie, the focus is on the Far Right in the USA. After very moving, personal testimonies by victims of various violent antisemitic attacks, the documentary turns to an interview with a Mr. Walker, who is running for the state legislature in North Carolina. Walker insists that “God likes whites more than blacks”, argues that black persons and Muslims are the same, and finally reproduces a typical antisemitic conspiracy trope that “the Jew was created to destroy white Christian nations”. George Will, a prize-winning Washington Post columnist, then sums up the perverse “logic” behind antisemitism: “In a healthy society that has problems, people ask ‘what did we do to cause this’? In an unhealthy society that has problems, they say ‘who did this to us’? And the Jews are always a candidate.”

In Part II, the focus is on a smear campaign by the right-wing, nationalist president of Hungary, Victor Orban, aimed at the liberal Hungarian-American businessman and philanthropist George Soros. Classic antisemitic tropes are invoked, presenting clear examples of antisemitism through the use of grotesque cartoons and photoshopped images of Soros with exaggerated Judaic features. Moreover, the Hungarian media juxtaposes images of Muslims entering the country against accusations that they are “inundating your culture” and, moreover, are part of a “Soros plan”. Posters, billboards and television ads all reinforce these patently antisemitic and Islamophobic messages.

I am disgusted. However, something crucial is missing. While examples of antisemitism by Orban and others in his government are well established, paradoxically, as one interviewed professor notes, Orban does not want to be accused of antisemitism. Indeed, “he wants to pose with ‘them’—he even wears the hat”. Why is it, then, that Orban, his political party and the Hungarian government crudely reproduce antisemitic tropes while simultaneously object to being called antisemitic? The film-maker doesn’t address this crucial issue at all, also avoiding Orban’s very public cultivation of diplomatic ties with the State of Israel.

Further omissions are apparent in Part III of the film, which purports to focus on antisemitism among the “Far Left” in the United Kingdom. There is no mention of antisemitism within the Conservative Party. The focus is squarely on the Labour Party. The accusation is that Labour’s alleged antisemitism problem is due to “left-wing extremists” who condemn capitalism, criticize Israel and therefore by definition are antisemitic. This is both highly unconvincing and inflammatory, reinforced by interviews with embittered former Labour members who are also vocal supporters of Israel (and neo-liberal economic policies), such as former Labour leader Tony Blair.

Totally unaddressed are what these so-called “left-wing extremists” criticize, namely Israel’s discriminatory and brutal policies against Palestinians that have been labelled as an “apartheid regime”. While maintaining its thin claims against “leftists”, the film-maker fails entirely to engage with the many critics of these claims, such as Jamie Stern Weiner or Mehdi Hasan. Or with a comprehensive report on distorted media coverage of the Labour Party by Dr. Justin Scholsberg of Birkbeck College and journalist Laura Laker. Or with the book Bad News for Labour: Antisemitism, The Party and Public Belief by award-winning journalists and academics Greg Philo, Mike Berry, Justin Scholsberg, Antony Lerman and David Miller. To name but a few.

Part IV focuses exclusively on what the filmmaker describes as “Islamic radicalism” in France. The primary perpetrators of antisemitism, it is claimed, are “Islamic extremists”. Brief reference is made to what is described as “France’s colonial experiment”, which led to hundreds of thousands of Muslims to move to France. The implication is that those suffering from “post-colonialism” have a problem. Rather than acknowledge the country’s expansive Islamophobia, the film-maker plays directly into it, asserting that, based on “surveys”, one-third of Muslims in France are antisemitic, as compared with ten percent of non-Muslims. The suggestion that Muslims are far-more inclined than anyone else to hate Jews is both unsubstantiated, based on anecdotal examples and utterly fails to address the historical context of both antisemitism and Islamophobia.

 Time for a serious discussion about antisemitism

As the film does reveal, there is clearly a problem of antisemitism (as well as Islamophobia, racism and other forms of bigotry and intolerance), deserving of a serious discussion. However, the film is so filled with distortions that it doesn’t help to really understand, let alone combat this problem.

The film’s fatal flaw, noted elsewhere by Michelle Goldberg, is its conflation of criticisms of Israel and antisemitism. Indeed, this becomes a conspiracy theory of its own that “people hate Israel because they simultaneously hate the Jews, capitalism, and Western democracy”. Moreover, by interspersing credible examples of antisemitism with highly questionable examples, the selective treatment of these four “mutations” and the drawing of a moral equivalence between them critically undermine the very important goal of addressing antisemitism.

The need for critical reflection

The global fight against bigotry must be taken seriously. Hence, a serious and balanced documentary about antisemitism would be something different entirely. It would acknowledge the context of antisemitism as being part of a broader pattern of hatred, intolerance and discrimination affecting many persecuted groups. It would include constructive criticism of the film-maker’s assumptions. And finally, it would not make simplistic and distorted assumptions that critics of Israel’s expansionist, colonial and discriminatory regime are de facto antisemitic.

Jeff Handmaker

About the author:

Jeff Handmaker is a senior researcher at the International Institute of Social Studies (ISS) and focuses on legal mobilisation.

He is a regular author for Bliss. Read all his posts here. 

Countering attempts to undermine the rule of law through lawfare in Suriname by Jeff Handmaker

Posted on 5 min read

In November 2019, an all-women panel of judges presiding over a decade-long court martial in Suriname convicted Desiré Delano Bouterse, the country’s current president, for international crimes that include torture and extra-judicial executions. While legal mobilisation can legitimately be used to bring about justice, Bouterse and his supporters have used lawfare to try to prevent his trial from proceeding. The trial eventually took place and Bouterse was sentenced to 20 years in prison, while some of his co-accused were acquitted. Bouterse remains in office following the judgement, and it now remains to be seen whether legal mobilisation will triumph over ongoing attempts to use lawfare to undermine the rule of law.

The December Murders

Apart from its historic significance, the case against Bouterse and his co-accused for international crimes is a vivid illustration of the use of lawfare and legal mobilisation, both of which I have been following closely as an independent trial observer and as a researcher generally. The case concerns events that took place in December 1982, referred to by many as the so-called December Murders, at the time when Bouterse served as a commander in the Suriname army after having participated in a military coup. Various accounts of the events reported that 16 men, a combination of civilians and soldiers, all of whom were openly critical of Bouterse, were arrested in the middle of the night, brought to a military base at Fort Zeelandia (dating back to the colonial era), lined up against a wall, and shot. The bodies were brought to a local hospital for investigation, where it became evident that the men who perished had not only been executed without a trial, but had also been tortured.

A trade unionist who managed to survive the incident, Fred Derby, later filed an official statement about what had happened in 1982, which became a crucial part of the evidence presented once the court martial was established in 2007. Three years later, in 2010, despite the ongoing trial, Bouterse was elected president, a position he subsequently used to hinder the trial’s development.

At the time the court handed down its judgement in November 2019, which had been twelve years in the making, Bouterse was abroad on a trade mission in China. He returned to Suriname a few days later, perhaps after obtaining confirmation that a warrant for his arrest had not been issued, receiving a large and enthusiastic welcome at the airport from his supporters. Statements made through his lawyer questioning the legitimacy of the court’s judgement, and which undermine the rule of law, have been published in the local media.

Using lawfare to bend the law in one’s favour

As head of a trial observation mission appointed by the International Commission of Jurists (ICJ) in Geneva, I have been following this trial closely since May 2012. The case has revealed several examples of lawfare, whereby numerous law-based manoeuvres on the part of Bouterse himself, as well as his legal representative, his appointed officials, and members of his political party in the legislature have sought to undermine the rule of law in Suriname, and, more specifically, to stop the trial from taking place.

The court martial took over a decade to issue its judgement, during which period there was extensive use of lawfare to either delay or completely shut down the trial. These included legislating an Act of Amnesty (later declared by the court to be unconstitutional), ordering the prosecutor to suspend the trial, and otherwise seeking to interfere with the prosecution process through replacing the Minister of Justice. Neither of these lawfare efforts were successful and the court’s judgement stands.

The case has also revealed many examples of legal mobilisation, whereby various actors have played different roles to counter the use of lawfare and uphold the rule of law. The families of those who were murdered have continually campaigned to have Bouterse and his accomplices brought before an independent criminal tribunal. During the trial itself, international organisations such as the ICJ have called for the respect of international fair trial standards, and journalists (mostly local) have consistently sought to ensure that the case was correctly reported. In all instances, rigorous attention to the correctness of law-based arguments were a prominent feature during the trial that spanned several years; this proved to be an effective strategy, aimed at preserving the fair and equal application of justice and the rule of law in Suriname, values that are widely shared in the country following hundreds of years of colonial rule.

Reactions to the trial

While several prominent news outlets, including several in the Netherlands, as well as the Associated Press, Al Jazeera, the New York Times, and the BBC briefly reported on the judgement, the trial itself has not enjoyed much attention outside of Suriname. Inside Suriname, however, there have been extensive reactions from various actors who have been closely involved in the case, either seeking to uphold or undermine the rule of law.

Betty de Goede, a leader/founder of the Organisation for Justice and Peace (OJP) in Suriname, which represents many families of those who were killed in December 1982, observed at an inter-denominational service organised by the OJP that the rule of law held much value to the people of Suriname, and hence “the judgement (against Bouterse) cannot be ignored”. At the same service, Soeshila Baldew-Malhoe, a prominent Hindu theologian in Suriname, was more strident, declaring that while “Bouterse had no respect for the rule of law” he was warned that

… people must know that every action has consequences. Mr. Bouterse should have known then that the truth would one day come to light … it gives a good feeling to know that the rule of law is alive… everything depends on the rule of law, and when justice is given, everyone must adhere to it, regardless of the person’s social position.

Ignoring potential repercussions against them, the legal community in Suriname has been active and outspoken, including attorney Gerold Sewcharan, who represented Edgar Ritfield, one of Bouterse’s co-accused. Ritfield was one of those acquitted by the court, and characterised Bouterse as a “convicted felon”.

However, a warrant for Bouterse’s arrest has yet to be issued, and in the meantime, there have been efforts to politicise the judgement and undermine the judiciary. One of the main opposition parties, the “Democratic Alternative” (DA), published an Open Letter to the president, calling on him to resign. This has, however, not caused Bouterse to reconsider his decision to remain in power, nor has he lost credibility within the political party he chairs, the NDP, which has condemned the judgement as being “politically motivated”. Whatever happens next, it is certain that many more people, both in Suriname and abroad, will be following the outcome with considerable interest and anticipation.

Image Credit: sunsju on Flickr

JeffHandmakerISS
About the author:

Jeff Handmaker is a senior researcher at the International Institute of Social Studies (ISS) and focuses on legal mobilisation.

He is a regular author for Bliss. Read all his posts here. 

 

 

Legal mobilization to end impunity for international crimes by Jeff Handmaker

Posted on 4 min read

In 2014, on the 20th of July, the Israeli military targeted and bombed a home in a refugee camp in Gaza, killing several family members of Saad Ziada, including his mother and three brothers. Since this day, Mr. Ziada, a Dutch citizen and resident of the Netherlands, has persistently been seeking justice through legal mobilization. Ziada’s search for justice reveals the immense challenges faced by individuals and organizations seeking to hold individuals accountable for international crimes through different forms of legal mobilization.

It hasn’t been an easy journey. Ziada’s family were some of the 2000 killed, overwhelmingly civilians, during this large-scale Israeli military operation, which was extensively documented by United Nations investigators as well as representatives of Palestinian, Israeli and international human rights organizations. Numerous reports, including extensive dossiers that have been submitted to the International Criminal Court in The Hague as part of a preliminary examination, allege that international crimes were committed during Israel’s 2014 military operation.

Holding individuals accountable who were allegedly responsible in either Gaza or Israel has been a non-starter. The Israeli government has not even acknowledged that crimes took place, let alone pursued investigations against the alleged individuals responsible for those crimes. Ziada has therefore been compelled to seek justice elsewhere.

The most common response to any crime committed by an individual is prosecution in the country where the crimes took place. Obviously, this is an unrealistic prospect in a country that is led by a government unwilling to even acknowledge that such crimes took place. But international crimes have a special character.

International crimes are described in the preamble of the Rome Statute that established the International Criminal Court as “unimaginable atrocities that deeply shock the conscience of humanity”. Accordingly, multiple alternatives to prosecute international crimes have gradually emerged on the basis of what is described as “universal jurisdiction”. These alternatives include prosecution by the International Criminal Court or other specialized tribunal and prosecution in a “third country” that may have little to no association with the crime committed or the nationality of the alleged perpetrator.

The person who is prosecuted for international crimes doesn’t even need to have committed the alleged crimes themselves. For example, the Netherlands prosecuted the Dutch businessman Guus Kouwenhoven in relation to his complicity in war crimes committed in Liberia. In 2017, the Dutch Court of Appeal found Kouwenhoven to be criminally liable for his complicity in these crimes.

Alongside criminal jurisdiction, there is the possibility to sue an individual who is alleged to have committed an international crime for damages in a civil court. This is currently the basis of the case that has been brought to the Dutch District Court in The Hague by Ziada. The case is being brought against two Israeli military commanders who were believed to have ordered the bombing, including the former General Chief of Staff of the Israeli military, Benny Gantz, who has been campaigning to become president of Israel.

Universal jurisdiction received significant attention in our 2019 book Mobilising International Law for ‘Global Justice’, particularly in a chapter by Aisling O’ Sullivan. O’Sullivan argued how the struggle for ending impunity for international crimes is locked in a struggle between two competing approaches: on the one hand, there is a desire to hold individuals accountable for the most heinous of crimes; on the other, there is a desire to maintain order between nations which can be disrupted by these kinds of criminal trials. What further complicates matters are the different power positions between states and the tendency to give “deference to the interests of powerful states” (p. 180).

Universal jurisdiction was also the topic of a seminar that I co-organized in 2010 with Professor Liesbeth Zegveld, the outcome of which was contained in an ISS Working Paper. One of the key observations at this seminar was that “while some governments show a willingness to prosecute these crimes, others see this as a ‘problem’ and even advising their nationals / soldiers not to travel abroad” (p. 14).

What we observed then as a “relatively new area of the law” (p. 15) is now gaining currency, particularly in the courts of the Netherlands. Zegveld, who is also a prominent human rights lawyer, has represented several individuals and groups who have been seeking justice for international crimes committed against them and their loved ones. This includes the family of three men, including Rizo Mustafic, an electrician, who were killed during a massacre in the town of Srebrenica in Bosnia-Herzegovnia by Serbian military forces in 1995. A Dutch military contingent was part of a United Nations military force stationed in Srebrenica at the time and was said to have mostly stood by while the massacre took place. In September 2013, the Dutch Supreme Court confirmed that the Dutch military commanders were partly responsible for not taking sufficient action to try and prevent the massacre.

Apart from the obvious political sensitivities involved in holding individuals accountable for international crimes, these kinds of cases are incredibly complex, not least the challenges of gathering evidence to prove what happened. There are also various cultural and other challenges associated with international criminal justice, particularly through international criminal tribunals, which I have discussed in other academic work.

Zegveld represents Ziada in the case that will be heard on 17th September, 2019. Will the outcome of this particular case of legal mobilization further advance the struggle against impunity for international crimes? There can be little doubt that international lawyers, human rights groups and concerned individuals around the world will be awaiting the outcome of this hearing with great anticipation.

Image Credit: Palestine Justice Campaign

JeffHandmakerISS
About the author:

Jeff Handmaker is a senior researcher at the International Institute of Social Studies (ISS) and focuses on legal mobilisation.

He is a regular author for Bliss. Read all his posts here. 

 

 

Confronting Apartheid Through Critical Discussion by Ana María Arbeláez Trujillo and Jeff Handmaker

Posted on 6 min read

The history of apartheid in South Africa is generally well-known. Yet, apartheid is not exclusive to that country. According to international law, and on various social grounds, Israel too may be viewed as maintaining an apartheid regime. What does apartheid mean and how has the international community confronted both South African and contemporary regimes of apartheid? This article takes up this discussion, reflecting on a recent event organised at the ISS.

On 11th April 2019, ISS hosted an event  to critically discuss the concept of apartheid and its application. Inspired by the work of known South African legal scholar Professor John Dugard, who addressed this event, he and other panellists went beyond the legal-historical origins of apartheid in South Africa and explored its relevance to the longstanding impasse between Israel and the Palestinians.[i]

Beyond the legal foundations of apartheid in South Africa and it becoming a crime in international law, the panelists explored the social impact of apartheid as separate development and how civic organizations and governments have resisted or maintained this situation.

Apartheid under international law

According to international law, the crime of apartheid, as defined by article 7 of the Rome Statute of the International Criminal Court, is a crime against humanity. It consists of:

inhumane acts (…) committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.

The origins of this crime can be traced to the racialized legal regime established in South Africa from 1948 to 1990, although its definition is not restricted to that particular case. To the contrary, it is now an established position within academia, among civil society organizations, and UN agencies that the policies of Israel towards the Palestinian population also may be legally classified as an apartheid regime.

According to Dugard, Israel is more disrespectful of international law than South Africa was. He underscored that South Africa had accepted the importance of complying with norms of international law, yet argued that these norms were not applicable to the facts. By contrast, despite being party to several Human Rights Conventions that South Africa never was,[ii] Israel disregards the applicability of international law norms. This includes the Israeli government’s refusal to recognise the jurisdiction of the International Court of Justice, which in 2004 confirmed that the construction of the wall in the Occupied Palestinian Territory, the settlements and associated regime were contrary to international law.[iii]

So, how does one explain such a dismissive attitude towards international law? Both Dugard and Shawan Jabarin, who also spoke at the event, agreed that a combination of State complicity and lack of political will on the part of the United States and the European Union to ensure that Israel respected human rights and other sources of international law played a crucial role in perpetuating Israel’s domination of the Palestinian people.

As Jabarin further highlighted, although legally it is possible to argue that Israel’s occupation has many features of apartheid and colonialism, when assessing how the concept of apartheid applies in the Israel-Palestine territory, a purely legal analysis is insufficient. It is critical to consider political factors and the daily conditions that people face under the regime.

How nationality works in Israel-Palestine

Israel does not legally-recognise Israeli nationality. Instead, Israelis and Palestinians experience profoundly different conditions and enjoy different privileges, depending on their legally-mandated, privileged nationality as Jewish, or in accordance with more than 130 other officially-recognised nationalities. By disassociating the concepts of nationality and citizenship, Israel enforces a particularly strict regime of separate development. Ronnie Barkan, who also addressed the event, argued strongly that apartheid went beyond its application to Israel’s occupation of Palestinian territories, noting that not every Israeli citizen enjoys the same rights. In other words, the dual-layered legal framework of Israel privileges Jewish nationality, while excluding and/or neglecting the rights of everyone else.

Moreover, Barkan argued that Israel was built upon this sophisticated dual-layered framework that on the surface seemed like a democracy, but only protected the rights of a privileged national group. For example, although Palestinians are allowed to vote, only candidates who recognize Israel as a Jewish state are permitted to participate in elections. In this sense, the participation of Palestinians in the political system is only apparent in so far as it does not have the potential to modify power structures, or their living conditions.

Nationality also determines who gets access to land and who is allowed to live in certain areas. The blockade of the Gaza Strip and the West Bank, the establishment of settlements and the forced displacement of Palestinians from their villages are further examples of inhuman practices, through which Israel exercises its control.

All panelists agreed that the issue went beyond domination. The long term goal of Israel’s apartheid regime is not merely to exercise control over Palestinians, but to expel them from the land.

Responses to challenge apartheid

In July 2018, Israel issued the “Nation-State Law”.[iv] Among other measures, the law declares that Israel is a Jewish state, and that the only official language is Hebrew, whereas previously the second official language was Arabic. The law is by no means the first, but possibly the most blatant effort to entrench apartheid. Protests from civil society have been considerable, including a stepping-up of the Palestinian-led Movement for Boycott, Divestment and Sanctions (the BDS Movement) until Israel respects Palestinian rights.

As observed by the third panelist, Nieuwhof, the BDS Movement offers an action perspective, a tool to mobilize citizens to pressure governments and companies to support the Palestinian people. One of the early achievements of the movement, she noted, was a decision by the Dutch Bank ASN to divest from Veolia, one of many companies that has generated profits from the illegal occupation of the territory of Palestine.

All in all, the event was both timely and highly-relevant to the ISS research agenda on social justice. Regardless of one’s views, it is important to preserve spaces for discussions like this, which allow us to explore a critical perspective regarding one of the most relevant social justice issues of our time.

[i] In addition to Dugard, Ronnie Barkan, an Israeli human rights activist and founder of the movement Boycott From Within shared his perspectives, together with Adri Nieuwhof, a long-standing human rights advocate who worked from the late 1970s with the Holland Committee for Southern Africa and Shawan Jabarin, a Palestinian human rights advocate, Commissioner of the International Commission of Jurists (ICJ) and General Director of the Al-Haq.
[ii] Israel is signatory of the International Convention on the Suppression and Punishment of the Crime of Apartheid (ratified on 1973), the International Convention on the Elimination of All Forms of Racial Discrimination (ratified on 1979), the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (ratified on 1991), and the International Covenant on Civil and Political Rights (ratified on 1991).
[iii] Israel’s Supreme Court only partially recognised the ICJ’s ruling. See Susan Akram and Michael Lynk (2006) ‘The Wall and The Law: A Tale of Two Judgements’, Netherlands Quarterly of Human Rights 24(1): 61-106.
[iv] This was the subject of an earlier event, also organized at ISS.

Image Credit: © 2007 George Latuff. Wikicommons. Nelson Mandela, who spent 27 years in prison for fighting apartheid in South Africa, said that “our freedom is incomplete without the freedom of the Palestinians”.

About the authors:

Ana Maria ArbelaezAna María Arbeláez Trujillo is a recent graduate from the Erasmus Mundus Program in Public Policy. She is a lawyer and a specialist in Environmental Law. Her research interests are the political economy of extractivist industries, environmental conflicts, and rural development.

JeffHandmakerISSJeff Handmaker is a senior researcher at the International Institute of Social Studies (ISS) and focuses on legal mobilisation.

He is a regular author for Bliss. Read all his posts here. 

 

 

Distorted anti-Semitism allegations in UK’s Labour Party are a cover for Israeli apartheid by Jeff Handmaker

Posted on 5 min read

On 18 February 2019, Luciana Berger and six other British Members of Parliament (MPs) left the UK Labour Party. The most prominent reason provided by the departing MPs, led by Berger, is that the Party had become ‘institutionally anti-Semitic’, due mostly – or so it would appear – to Labour Party leader Jeremy Corbyn’s outspoken criticisms of the Israeli government and military. As discussed in this blogpost, which draws on a longer article published on Mondoweiss, these allegations are both dangerous distortions of anti-Semitism and serve as a shameful cover for Israel’s regime of apartheid.

In the extensive reporting that followed the departure of the Labour MPs, a Spectator columnist alleged that this was the beginning of the end for Labour, while the Guardian claimed that the party faced an anti-Semitism crisis. It was hardly mentioned in any of this reporting that the seven Labour Party members who decided to leave were all closely tied with Labour Friends of Israel, an avowedly pro-Israel organisation. Berger is its former director.

A report by the Media Reform Coalition identified ‘myriad inaccuracies and distortions’ in the reporting of anti-Semitism claims against the Labour Party, which prompted a public statement by prominent journalists and scholars. Fomenting a strategy of disinformation is consistent with claims made by Jonathan Cook, a highly respected author and long-time journalist, who has established that the Israeli Ministry of Strategic Affairs has long been actively seeking to marginalise its critics through a range of measures.

But where did the anti-Semitism claim come from?

The IHRA Definition

The contemporary ‘debate’ over anti-Semitism within the Labour Party relates to August 2018, when pro-Israel members of the party proposed the incorporation of a highly controversial definition of anti-Semitism. Called the “Working Definition of Antisemitism” and drafted in 2016 by a group called the International Holocaust Remembrance Alliance (IHRA), the IHRA definition contains vague and dangerously far-reaching conflations of criticisms of Israel and references to the holocaust.

The lobby to incorporate the IHRA definition was fierce and unrelenting, largely led by Berger and others affiliated with Labour Friends of Israel. At the time of the August 2018 debate, there were even efforts to smear Hajo Meyer, a Jewish survivor of Auschwitz who had once spoken at a Labour Party rally where he made comparisons between the Nazi regime and his observations of Israeli policies. Meyer, an outspoken retired theoretical physicist, recorded his experiences in a moving memoir The End of Judaism: An Ethical Tradition Betrayed, published in 2012.

Steven Garside, a member of the UK Labour Party and Palestine Solidarity Campaign who strongly opposed the IHRA definition, maintained that erroneous allegations of anti-Semitism were in fact related to Corbyn’s harsh criticisms of the Israeli government and military. Ash Sarkar of the Sandberg Instituut condemned the move as a threat to free expression. Prominent human rights lawyer Geoffrey Robertson warned that the definition would suppress legitimate criticism of Israel while failing to cover genuine cases of anti-Semitism.

But despite these criticisms and warnings, Labour ultimately decided to incorporate the definition in full.

Since then, emboldened by the wide-ranging IHRA definition, groups such as Labour Friends of Israel and the Jewish Chronicle, with very little substantiation, have sought to equate criticism of Israel as “Jew hate”.

For liberal supporters of Israel, adopting the IHRA definition has been a crucial strategy. However, the true aim of such vacuous, yet highly damaging allegations is to avoid a critical dialogue on Israel’s policies of apartheid against Palestinians. Unlike South Africa apartheid, which from the 1960s became increasingly reported, understood and eventually condemned, Israeli apartheid has been shamefully underreported and is far less understood.

So what does Israeli apartheid look like?

The many forms of apartheid in Israel

Israeli apartheid takes many forms, whether this be the overt racism enshrined in Israel’s 2018 “Nation-State law” that discontinued Arabic as an official language, which is now being challenged in Court, or Israel’s continued blockade and bombing of Gaza (since 2005) that is currently the subject of a preliminary examination by the International Criminal Court.

Apartheid also takes the form of literally hundreds of insidious Israeli military orders, including Order 101 that makes it impossible for Palestinians to legally protest. Israeli regulations make it virtually impossible for Palestinians to build a home. This is due to the fact that Israel’s land and zoning regulations are, according to Israel’s Basic Law, oriented around “preserving” the land for Israel’s Jewish inhabitants.

But the most insidious manifestations of Israeli apartheid are the decades-long, everyday experiences of Palestinians. Farmers have to stand in long lines to reach their sheep in the agricultural village of Qalandia (that is surrounded by a high, concrete wall). School children in Hebron cannot walk to school without being stopped daily by soldiers at a military checkpoint to check the contents of their schoolbags. The UN Committee on the Elimination of Discrimination Against Women has heard numerous cases of official abuse against Palestinian women, including a seven-month pregnant woman assaulted at a checkpoint.

Given these examples, and much more, of Israel’s apartheid policies, it is exasperating that there is such a resistance to criticise Israel. And yet, this is exactly what happens. Liberal groups such as Labour Friends of Israel in the UK, Centre for Information and Documentation on Israel (CIDI) in the Netherlands and others repeatedly fuel the public’s outrage on anti-Semitism through disingenuous use of the IHRA definition, yet simultaneously maintain a silence that Israel’s policies amount to apartheid, not unlike the approach of like-minded liberal groups in Israel.

Apartheid cannot compete with a global social justice movement

Just as was ultimately the case in South Africa, neither Israel’s government, nor its most adamant, liberal supporters, can compete with a global social justice movement committed to ending Israel’s regime of apartheid. Rooted in equal rights claims, this movement is bolstered by growing judicial attention to Israel’s commission of war crimes and a highly successful, Palestinian-led global campaign of boycott divestment and sanctions (BDS).

The success of the BDS movement is acknowledge to have transformed the debate on Israel-Palestine. Indeed, as prominent Israeli journalist Gideon Levy has put it, BDS has been a true success story for the movement, succeeding to undermine Israel’s strongly cultivated image as a liberal democracy.

The conclusion that can be drawn from all this is that just like those who turned a blind eye for decades to apartheid in South Africa, the failure of Luciana Berger, Labour Friends of Israel, CIDI, and others to confront Israeli apartheid will place them all on the wrong side of history.

Image Credit: https://www.stopthewall.org/apartheid-wrong

JeffHandmakerISS
About the author:

Jeff Handmaker is a senior researcher at the International Institute of Social Studies (ISS) and focuses on legal mobilisation.

He is a regular author for Bliss. Read all his posts here. 

 

 

Learning from the crisis in international criminal justice by Jeff Handmaker

Posted on 5 min read

A new book on the pedagogy of crises was launched in January 2019 at the ISS, edited by Karim Knio and Bob Jessop. In one of its chapters that focuses on the legitimacy crisis in the system of international criminal justice, Jeff Handmaker argues that the politics of international law must be taken seriously in order to address not only the legal legitimacy problems attached to the functioning of international criminal tribunals, but also the external political challenges it faces. 

Law is impartial, neutral, objective, certain, and predictable … most political scientists would shake their heads in dismay at such a statement. However, it accurately reflects values that are strongly held by international lawyers. This includes legal professionals who are involved in referring, investigating, prosecuting, adjudicating, and defending international crimes.

The International Criminal Court (ICC) came into being in 2002. It was not an easy journey, beginning hundreds of years ago when states started exercising jurisdiction over piracy in the high seas, defining it as a violation of the Law of Nations. Following the gruesome aftermath of the Second World War onwards, the Nuremburg and Tokyo war crimes tribunals were established as ad hoc international institutions, creating a solid institutional precedent and jurisprudence.

The ICC exists alongside other ad hoc international and ‘hybrid’ institutions, such as the Special Court of Sierra Leone, the Cambodia Tribunal, the Lebanon Tribunal, and the Yugoslav and Rwanda Tribunals that preceded them. While nations have long had jurisdiction over crimes committed in their own territories, the ability to prosecute international crimes, irrespective of the nationality of the perpetrator or the victims or where the crimes took place, with the exception of piracy, is still a relatively recent phenomenon.

Since its creation, the ICC has been plagued with technical and resource capacity issues as well as significant management problems, including challenges in hiring qualified staff members. The ICC has also faced political challenges to its legitimacy. The USA, primarily through the bombastic statements of John Bolton, who has served in diplomatic functions for both the Bush and Trump administrations, has actively sought to delegitimise the ICC. Meanwhile, following a string of indictments, particularly against leaders of both the Sudanese and Kenyan governments, the Africa Group of Assembly of State Parties to ICC have accused the ICC prosecutor of Africa bias.

But these are surface-level problems, what Jessop refers to as ‘accidental’ crises that can be somewhat predictably resolved. Indeed, giving either of these surface-level problems credence glosses over a deeper crisis of legitimacy faced by the ICC, which I discuss in my own contribution to the book by Jessop and Knio, namely:

the crude and culturally essentialist way in which the ICC prosecutor, and the NGOs that support the Court, regard themselves, the perpetrators, and the victims/survivors of international crimes … fail(ure) to consider the complex social, cultural and political contexts in which these crimes took place.

This crisis of legitimacy is born largely out of the dominant, liberal underpinnings of international law, which tend to fetishise supposedly Western values. Accordingly, the values of individual elites have held sway over general societal values, and individuals whose human rights have been violated have been expected to make claims themselves against the source of those violations, rather than expect the state to provide a remedy. As a result, there is an innate tendency to regard violators of international crimes as coming from the global South rather than the global North, and committed by individuals rather than by corporations.

The ICC, with its broad and independent mandate and direct jurisdiction over individual violators of international crimes, represents a significant, potential challenge to these values and to chart a new path in securing global justice. This requires the court to not only withstand, but actively confront the external pressures it faces.

Like any institution, the ICC is managed and staffed by individuals who more than often  possess a liberal understanding of international law. This is clearly reflected in the practice of the ICC. Drawing on his conceptualisation of the so-called SVS Metaphor, Kenyan legal scholar Makau Mutua has observed that key actors in international justice efforts have been subject to an intense reductionism. Hence, their approach to complex human rights problems is characterised by simplistic and racialised categories of saviours (from the Global North) pitted against savages (culturally speaking, from the Global South) in order to protect interests of ‘helpless’ victims (also from the Global South).

This untenable situation should trigger some serious and critical reflection by the many legal professionals engaged in the work of international criminal justice. First and foremost, decisions by international prosecutors over who, when and how to prosecute international crimes always have a context that is rarely appreciated, let alone openly acknowledged and engaged with. Second, while the complementarity principle of the ICC Rome Statute ought to compel a much greater commitment to build capacity for prosecuting international crimes at the national level, to date this has not been adequately prioritised by the ICC and its member states. Rather than seeking to preserve elusive legal values, a critically reflexive approach to international criminal justice would likely avoid what Martti Koskenniemmi has termed techno-managerial solutions to complex social and political problems and enable a more transparent engagement with the volatile political environment in which the ICC operates.

 These reflections are also reflected in another, recent volume that I have co-edited with ISS colleague Karin Arts on Mobilising International Law for ‘Global Justice’ (Cambridge 2018), notably regarding the system of international criminal justice.

In short, the politics of international law must be taken seriously in order to address the political, and not just the legal legitimacy problems attached to international criminal justice. It is also essential to cultivate a contextualised understanding among legal experts of how international criminal justice functions, entailing a socio-legal approach to both legal practice and analysis. Finally, it is crucial to develop a strategic approach to international criminal justice that transparently engages with these matters and sidesteps simplistic and often self-serving critiques that dominate discussions on international criminal justice generally and the ICC in particular.

Image Credit: Mark L. Taylor/www.thecommonercall.org

JeffHandmakerISS
About the author:

Jeff Handmaker is a senior researcher at the International Institute of Social Studies (ISS) and focuses on legal mobilisation.

He is a regular author for Bliss. Read all his posts here. 

 

 

Globalisation, international law and the elusive concept of ‘global justice’ by Jeff Handmaker and Karin Arts

Posted on 4 min read

We all talk about the search for ‘global justice’, but what does it really mean, and how can international law help achieve it? The elusive concept of ‘global justice’ is discussed in a new book launched tomorrow at the ISS and edited by ISS scholars Jeff Handmaker and Karin Arts. This blog post shortly introduces the book, which seeks to show how legal vocabularies have framed the possibilities for mobilising international law as an instrument for attaining global justice.

THE ELUSIVE CONCEPT OF (GLOBAL) JUSTICE

Just as is the case with the term globalisation, notions of justice, and even more so global justice, have been elusive and difficult concepts to define. While questions on the rule of law still reveal a liberal leaning, broader questions have also come up, asking: how can law serve as an instrument of global justice?  Such questions explore among others the politics of state (non-)compliance with these norms and the strategic challenges involved in accomplishing global justice.[1]

 LAW AS AN INSTRUMENT FOR PURSUING GLOBAL JUSTICE

Similar to conceptualisations of justice, the function of law as an instrument for global justice is ambiguous, too. Law and legal institutions articulate bold promises, yet contain very definite limits to what they can deliver, let alone explain in relation to complex social phenomena.

Legal perspectives have a very different starting point than other scholarly perspectives, particularly within the social sciences. While there are numerous viewpoints among legal scholars about the content of law, its origins, interpretations, and the institutions created to enforce it, legal scholarship has generally resisted multi- or inter-disciplinary study.

On the other side of the scholarly plain, social scientists often misunderstand law. Law has been regarded as irrelevant, particularly by scholars studying culture in relation to identity, race, lifestyle, ritual, and other factors, conceptualising law and culture as ‘distinct realms of action and only marginally related to one another’. [2]

In our understanding, in so many respects law fulfils a central function in society, in political discourse and in social relations. But its resistance to other scholarly perspectives, and the way in which some legal scholars fail to critically address the normative, liberal bias embedded in law has limited our understanding of the complex interactions between politics and law, not to mention its potential as a vehicle for reaching global justice.

THE STRUCTURAL BIAS IN INTERNATIONAL LAW

Martti Koskenniemi, whose work is a major intellectual reference point for the book, has argued that there is a ‘structural bias’ embedded within global governance institutions, itself a consequence of the fragmentation of international law.[3] According to this concept, international law is not the homogenous system it once was, but has evolved into ‘a wide variety of specialist vocabularies and institutions’.[4] However, the rhetoric of rights has lost its ‘transformative effect’ through over-legalistic explanations and is ‘not as powerful as it claims to be’.[5] Koskenniemi argues that one should look beyond the normative liberal tendency that underpins the world view of many lawyers, that is, to look beyond the content of law.

On the one hand, Koskenniemi argued that international law has been criticised as ‘too apologetic to be taken seriously’ because of its dependence on the political power, and thus the power politics of states.[6] On the other hand, international law has been considered to be too far removed from power politics and thus ‘too utopian’ (or speculative) to meet the challenges of a complex globalised world.[7]

Rather than forming an objective system of ‘concrete and normative’ and therefore ‘valid’ and ‘binding’ rules, as many lawyers claim them to be, Koskenniemi observed that international legal rules were, in fact, highly malleable.

From a different vantage point, in her chapter in our book, Barbara Oomen argues that realising human rights at the municipal level holds tremendous potential for fostering a culture of constitutionalism. Oomen suggests that Koskenniemi’s distinction between talking either ‘rabbitese’ or ‘duckalese’, respectively the language of politics or that of the law, might not be that simple in local practice.

This book as a whole shows in various ways how legal vocabularies have framed the possibilities for mobilising international law for global justice. In addition to showing how this legal mobilisation can potentially hold states, corporations or individuals accountable for violations of international law, numerous inconsistencies within the global liberal legal order are revealed.

References
[1] David Barnhizer, Effective Strategies for Protecting Human Rights (Aldershot: Ashgate, 2001) and Christopher Lamont, International Criminal Justice and the Politics of Non-Compliance (Aldershot: Ashgate, 2010).
[2] Naomi Mezey, ‘Law as Culture’ (2001) 13 Yale Law Journal, 35-67 at 35.
[3] Martti Koskennimi ‘The politics of international law – 20 years later’ (2009) 20(1) European Journal of International Law, 7-19: at p. 9.
[4] Ibid., p. 12.
[5] Koskenniemi (2011), at p. 133.
[6] Ibid., p. 9.
[7] Ibid.

This blogpost is an adaptation of the introduction to our edited book Mobilising International Law for ‘Global Justice’ (2019, Cambridge University Press, https://doi.org/10.1017/9781108586665), that is first launched at the International Institute of Social Studies on 30 November 2018.

About the authors:

JeffHandmakerISS_small

 

Jeff Handmaker is Senior Lecturer in Law, Human Rights and Development and csm_4fe244a1a72e59e9c42dc150abedd9c6-karin-arts_78559ee7d1 Karin Arts is Professor of International Law and Development, both at the ISS.

 

 

Legal mobilisation in the court of public opinion by Lotte Houwing and Jeff Handmaker

Posted on 5 min read

The idea of a dystopian government that is all-powerful, unrestrained and especially all-seeing is centuries-old. Machiavelli, Orwell and many others have pondered the opportunities and challenges of allowing a government, particularly an authoritarian one, to have access to a system of surveillance that provides every detail of people’s lives. But few could have imagined the implications of modern technologies, such as DNA testing and facial recognition software. What can be done by way of legal mobilisation, beyond the courtroom, to restrain the government when threats to human rights by surveillance agencies are regarded as unacceptable?

The societal debate in The Netherlands regarding privacy and surveillance has been accelerated by the process of reform of the Dutch Intelligence and Security Services Act (in Dutch, the WIV). The Bill was met by an unprecedented level of reaction from the public in a consultation round that took place over the Internet (reference in Dutch). Shortly thereafter, five students from the city of Amsterdam took the initiative to petition for a referendum on the Bill, which was accompanied by a public campaign wherein the students succeeded in collecting even 344,126 more than the required 40,000 signatures. After the students succeeded, several organisations joined in campaigning, highlighting a variety of human rights concerns. Subsequently, the Public Interest Litigation Project (PILP) announced that it would explore the possibilities to start strategic litigation concerning a number of human rights violations that they alleged would be a direct consequence of proposed amendments to the Act.

The outcome of the referendum confirmed that the majority of Dutch citizens were against the Act as it was drafted by the government. This was a huge victory for the students, organisations and other privacy advocates. In response, the government formulated a proposal to make certain changes to the Act. Unfortunately, these changes were not much more than cosmetic. However, since the proposal entails a new legislative process, there is a fresh opportunity to lobby Parliament to introduce more far-reaching amendments.

These forms of legal mobilisation—petitioning for a national referendum, law-based campaigns, (the threat of) strategic litigation—and now a renewed opportunity to lobby Parliament on the revised Bill, reveal the power of public pressure to restrain government over-reach and leverage possibilities for rights-based advocacy and reform.

Where does it hurt?

One of the guiding questions of the PILP in assessing the challenges and potential for launching strategic litigation is: “where does it hurt”? The general problem of the Act is that it contains several capabilities that allow for data collection of people that are not targets of the intelligence and security services. Bulk interception, for example, entails the automatic collection of incredibly large amounts of data before the data even gets analysed by anyone.

The problem with this capability is that the (communications) data of anyone can be gathered, without having taken into account whether individuals form any risk at all from a national security standpoint. It is this specific capability that led to the name “sleepwet”, a portmanteau word of the Dutch word for dragnet (“sleepnet”) and law (“wet”). Besides bulk interception, the Act includes other capabilities with untargeted effects: the capability to hack third parties; to gain real time access to databases; to acquire bulk (personal) datasets; and to exchange (unevaluated) data with foreign intelligence agencies.

Apart from the direct consequences of exercising these capabilities to obtain and share large amounts of data of innocent people, there is the chilling effect. This effect refers to the inhibition or discouragement of the legitimate exercise of certain fundamental rights caused by surveillance measures. For example, in an age of social media, most people recognise the situation of typing something, and then removing the social media post before sending it, because they do not have control over who will read it. Sometimes, such restraint can be a good thing. However, it is harmful for a democracy when political dissidents or whistleblowers begin censuring themselves and are discouraged from making political statements or revealing something bad that is happening.

A broader campaign on privacy

The controversial law reform process of the Act fired up a broader public debate, and, especially in the run up to the referendum, led to accompanying campaigns on privacy in The Netherlands. The most common reaction has been: “but I do not have anything to hide”. However, the campaign waged against specific parts of the Act succeeded in planting seeds of doubt and criticism against this popular, though indifferent attitude. Also, it was the first time that the secrecy of the Dutch surveillance regime was brought into question.

Beyond the Netherlands, the debate has international ramifications. The Netherlands is not the only country that is in the midst of an overarching law reform regarding its intelligence and security services. France, Germany, the U.K. and Finland, among others, are in the midst of comparable processes. The debate in the Netherlands is of international relevance because the Dutch law reform fits in an international trend wherein untargeted surveillance measures are introduced, Internet service providers are more involved in the application of the capabilities, and the focus shifts from content to metadata. Nevertheless, there is a sufficient extent of transparency and free speech in The Netherlands to have an open debate—circumstances which enable legal mobilisation to play a crucial role in bringing issues to the public’s attention, i.e. beyond the courtroom. The broader debate and campaign over privacy is therefore still highly valid.

 What is the role for strategic litigation?

The PILP coalition, which has been discussed in an earlier blogpost, focuses on strategic litigation for human rights. Strategic litigation, a specific form of legal mobilisation, involves the strategic use of legal procedures to bring about certain social, political or legal changes. Strategic litigation often accompanies campaigns or other means to amplify the voice of people and/or organisations fighting for this change.

 What is PILP doing in this specific case?

Regarding the Intelligence and Security Services Act of 2017, PILP is coordinating the legal procedures of a broad coalition of lawyers, journalists, NGOs, and IT/tech companies. This coalition is legally represented by the renowned law firm Boekx Advocaten. Within this file, two separate procedures are underway. First, PILP petitioned for an urgent procedure to force the postponement of the entry into force of the Act until the proposed changes had been passed by the Dutch Parliament. Unfortunately, the judge declined to answer this claim.

Secondly, the coalition is assessing the possibility of starting strategic litigation to challenge the untargeted effects of aforementioned capabilities provided for in the Act itself against the framework of the European human rights treaties. This procedure will be conducted if the changes made by parliament will be insufficient to address the fundamental human rights problems of the Act.

Given the unpredictability of the judicial system, it is difficult to predict the outcome of the lawsuit. However, it is very clear that the other forms of legal mobilisation—a law-based referendum and campaign—have not only underscored the value of taking matters to the formal courts. They have been doing well in their own right; restraining government through the Court of Public Opinion.

Picture credit: Magic Madzik

Lotte-zwart-wit-1-e1493911446330About the authors: 

JeffHandmakerISS_smallLotte Houwing is File Coordinator at the PILP concerning the WIV. Her views do not necessarily represent those of the organisation.

Jeff Handmaker is a senior researcher at the International Institute of Social Studies (ISS) and focuses on legal mobilisation.

Trump’s ‘doublespeak’—why academics should speak out by Jeff Handmaker

Posted on 5 min read

U.S. President Donald Trump in January 2018 delivered his first State of the Union Address (SOTU). At first glance, he sounded more presidential than ever following his tumultuous first year in office. However, his careful words hid an agenda that is hostile to most of us, and to academics in particular. As scholars, we have a responsibility to take notice, and to speak out. 

The SOTU Address – Trump’s doublespeak

During much of his SOTU address, Trump made an effort to reach Americans, beyond his more familiar, albeit dwindling ‘base’ of support, composed of evangelicals, the elderly and whites without a university degree. His presentation was peppered by American proverbs and even managed to come across as compassionate.

But gaps and contradictions blatantly revealed Trump’s doublespeak. While Trump refrained from referring to countries as “shitholes” as he had done a few weeks earlier, his contempt for foreign nations was evident. He praised the Iranian peoples’ “struggle for freedom”, while failing to mention the travel ban in place against all Iranians.

Trump also praised his decision to recognize Jerusalem as Israel’s capital, a decision condemned by most nations in the United Nations General Assembly. Trump said that “friends” of the US would receive support, while “enemies” would not. While these were not explicitly specified, there was a clear reference to how nations voted at the UN concerning Jerusalem.

Capping off a dizzying array of international law violations, Trump insisted that the notorious detention camp in Guantanamo Bay, associated with torture and indefinite detention without trial, would remain open. He affirmed that the US military would continue its operations in Afghanistan, ominously, under unspecified “new rules of engagement”.

So how is this all relevant for scholars?

The overall response from media commentators to Trump’s SOTU address was disappointing. Most focused on its tone rather than its content. In the Netherlands, some even referred to Trump’s address as “brilliant” and “politically, very clever”. The NRC Handelsblad offered perhaps the best commentary, emphasising its ‘polarising’ content, but this was an exception.

The fact remains that a significant majority of Americans have consistently disapproved of Trump’s job as president. There has been a public outcry in countries around the world, particularly after Trump’s decision to recognize Jerusalem as the capital of Israel. So why have there been so few critical analysts, particularly in the mainstream media?

In my own observations at academic gatherings in the US and abroad, since Trump first came to office in January 2017, it appears that most academics tend to dismiss Trump, rolling their eyes, ignoring his statements, mocking him, or even suggesting that he doesn’t really have all that much power. A handful of academics have even openly supported him.

There are, of course, notable exceptions. Those in the immigration law field have written persistently on the Trump administration’s persecution of immigrants. Apart from the alternative media, such as Mondoweiss, Democracy Now and MSNBC, The Conversation has produced in-depth articles by scholars condemning the Trump administration’s policies. But even critical media outlets, such as De Correspondent in The Netherlands have acknowledged that, while news outlets have tended to reflect daily indignation, they have rarely produced sustained resistance to the policies of the Trump administration.

A position of ambivalence in these circumstances is not tenable. As Professor Harris Beider has poignantly observed: “we live in an age of volatility and scepticism … As academics we find ourselves in the dock of public opinion too … we as universities and academics can also be part of the problem”.

Accordingly, with the rise of ethno-nationalist administrations in the USA and the United Kingdom, Beider has issued an appeal to academics to be less self-absorbed and “to question received wisdom and follow the people rather than expect them to follow us”.

What Trump says publicly should matter a great deal to us, if only in view of the vast military and nuclear arsenal at his disposal and the message to other world leaders that Trump’s behavior should in any way be regarded as acceptable.

Trump’s specific threats to academics

Alongside general concerns around Trump’s policies, there are at least three specific examples that are pertinent to academics worldwide.

First, Trump’s travel ban on nationals from specific countries has made it impossible, and even dangerous for academics from these countries, some of whom are regarded as scholars at risk, to share their knowledge and in extreme cases obtain safe refuge in the United States. Several vice chancellors (rectors magnificus) of Australian universities have protested Trump’s travel ban, joining thousands of other scholars worldwide.

Second, while Congress has so far pushed back on Trump’s proposals to slash health research, Trump’s refusal to accept the scientific consensus concerning a link between carbon emissions and climate change is having a devastating global impact in restricting access to crucial research funding. Research funding cuts in other areas are also likely.

Third, the harassment of scholars by right-wing groups has been steadily rising against scholars, particularly following the election of Donald Trump. Such harassment is even described as “becoming normal” by the American Association of University Professors, which has set up an on-line platform for reporting incidents of harassment.

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Picture Credit: Newtown grafitti

This would not be the first time scholars have stood up in protest against regimes whose policies have threatened society at large, and academics specifically. This includes South Africa’s persecution of non-whites and critical scholars in the 1980s, the persecution of scholars by the government in Turkey and Israel’s persecution of Palestinian scholars.

Whether as scholars of climate change, international law, race relations or many other related areas, we should all be shocked. Alarmed. Indeed, appalled at Trump’s SOTU speech. And we should speak out at every opportunity, particularly outside our close-knit community that largely holds the same views we do.

Also see: Scholars at risk: precarity in the academe by Rod Mena and Kees Biekart

Picture credit: DonkeyHotey

JeffHandmakerISS_smallAbout the author:

Jeff Handmaker teaches law, human rights, development and governance and conducts research on legal mobilisation at the ISS. He is also an associate member of the Faculty of Law at the University of the Witwatersrand in Johannesburg, Editor-in-Chief of the South African Journal on Human Rights and a member of the EUR INFAR Project.

Toward greater tolerance? Ethno-nationalist lawfare and resistance through legal mobilisation by Jeff Handmaker

Posted on 6 min read

JeffHandmakerISS_smallAbout the author:

Jeff Handmaker teaches law, human rights, development and governance and conducts research on legal mobilisation at the ISS. He is also an associate member of the Faculty of Law at the University of the Witwatersrand in Johannesburg, Editor-in-Chief of the South African Journal on Human Rights and a member of the EUR INFAR Project.

In September 2014 Henk van Oss, a caravan dweller and member of the Dutch traveler community, received a letter from the Dutch municipality of Oss. Condolences were expressed for the recent death of his mother. And, in accordance with the Dutch “extinction policy”, he was informed that the permit for his mother’s caravan had been withdrawn and that he had to leave. His story of ethno-nationalist lawfare and the struggle for citizens to defend themselves reveals the importance of research on the contested terrain of legal mobilisation.

Victory for van Oss

Mr. van Oss, who had cared for his mother until her death, did not accept the municipality’s demands. He came in contact with the Dutch organisation Public Interest Litigation Project, who took his case to the Netherlands Human Rights Institute and brought a legal claim against the municipality of Oss. While the legal battle continued for some years, it was ultimately successful. The Human Rights Institute declared that the actions of Oss Municipality were unlawful. The courts (on appeal) declared that the municipality had acted illegally by withdrawing their permission for the caravan stand.

It was in some respects a legal tale of David and Goliath.  From an analytical standpoint it was a classic case study of how ethno-nationalist lawfare to end what the Dutch government regards as an undesirable cultural practice met the counterpower of the Sinti, Roma and Traveler community, who used strategic litigation, a form of legal mobilisation, to claim their rights.

The traveler community: A precarious existence

The history of the Sinti, Roma and Traveler community in Europe is not an altogether happy one. Historicially, the community travelled for economic opportunities or to escape persecution. But this wasn’t always enough. During the Second World War, several hundred members of the community were arrested and deported from the Netherlands by the Nazi occupation authorities. They were sent to concentration camps; most died. While the number of persecuted travelers in the Netherlands was relatively small, they met a similar fate as several hundred thousand other travelers did across Europe.

Ander-kamp-Oss-in-2013-grotendeels-ontruimd-3
A modern-day caravan in the Netherlands.

Over the course of the past few decades, a range of restrictive legal measures have been taken against Sinti, Roma and Travelers by both national and municipal governments across Europe. These measures frequently reflect ethno-nationalist, autocratic tendencies rather than the values expected of liberal democratic states. Such measures are also rooted in populism. They are framed by over-exaggerated perceptions of criminality and sometimes invoke the mantra of integration or even emancipation as a thin, and disingenuous form of justification.

It is not surprising, therefore, that the Dutch “extinction policy”1, largely implemented at the municipal government level, and sometimes containing a benevolent, moral message aimed at improving the socio-economic conditions of the community, is met with such revulsion and hostility. Ultimately, the government’s legal measures represent an oppressive use of law, with the overall aim of reducing, if not completely eliminating the community; in other words, these measures are a form of lawfare.

Resistance through legal mobilisation

Meanwhile, civic-led, law-based efforts to protect members of the community facing discrimination and to advocate for more rights-respecting policies make it difficult for such restrictive measures to take hold legally, particularly at the local/municipal level. These efforts serve as a counterpower to the exercise of ethno-nationalist lawfare against these legally-recognised ethnic groups.

As I argued in a paper presented at the Dutch-Flemish Socio-Legal Studies Association (VSR) in January 2018, legal mobilisation as an analytical lens can help to explain the potential for civic-led legal instrumentalism to protect groups against retrogressive measures by the state. According to my colleague Sanne Taekema, Professor of Legal Theory at Erasmus School of Law and leader of the project on Integrating Normative and Functional Approaches to the Rule of Law and Human Rights (INFAR) in which I am also participating,

traditional separation or balance of powers focuses on formal mandates of public actors and their interactions. Given the fact that in many states executive and legislative powers have become strongly intertwined, a veritable trias politica is merely an ideal.

Taekema’s research explores whether a model of balance of powers can be extended to include non-state actors. Together, we are investigating whether it is possible to revise the theory to include counterpowers outside of the state and serve as “direct and indirect checks” on government abuse of power. More broadly, my research explores how an analytical lens of lawfare can explain governmental-led instrumentalisation of law against communities, such as the Sinti, Roma and Travelers community, and how an analytical lens of legal mobilisation can explain the strategic potential of law-based, civic-led social justice claims.

A legal mobilisation lens: Useful in practice

The usefulness of a legal mobilisation lens is is further affirmed by Dutch attorney Jelle Klaas, litigation director of PILP, who led the strategic litigation on behalf of Henk van Oss. The Amsterdam-based organisation pursues what it describes as strategic litigation, a concept that is in fact broader than what most legal advocacy organisations traditionally understand strategic litigation to be, and incorporates various forms of law-based, civic-led advocacy. Klaas has noted that

sometimes, alternative routes to justice are blocked. Sometimes dialogue and lobbying are ineffective on their own. In these cases, legal action may be necessary as a form of counterpower to curb government overreach or harms caused by corporations.

PILP’s work is about using legal action to bring about social, political or legal changes. The goal is not necessarily to win a case for a particular client. Strategic litigation complements other ways of bringing about change: from lobbying and advocacy to community organising and protests. According to this approach, an organisation focused on strategic litigation should act as an ally to activists, NGOs and grassroots organisations. Klaas further explains PILP’s litigation strategies:

Usually, the aim is to go to court for a legal victory, but sometimes you can win by losing a case. Where injustice is exposed and publicity generated, there is often an opportunity for non-state actors to be a form of counterpower, regardless of the outcome of the case.

Conclusion

The case brought by Henk van Oss was “won” by PILP-supported lawyers in 2017, albeit not on the grounds of human rights violations as PILP had hoped and eloquently argued for. However, the case elevated the plight of Sinti, Roma and Travelers to the national spotlight. Furthermore, in laying out a detailed dossier of state-based discrimination, the case produced a vivid portrait of the community, giving the legal issue a human face and according credibility to the Sinti, Roma and Traveler movement’s campaign to end discrimination.

Beyond this particular issue, I feel it is crucial to understand the dynamics of legal mobilisation, both in a specific case and – generally – as a form of counterpower against lawfare exercised by state and indeed corporate actors. In this regard, context always shapes the socio-cultural possibilities for legal mobilisation. Furthermore, it is crucial to understand the structural bias embedded within national and international laws that condition the opportunities for exercising agency. Finally, the existence of structural bias, carefully leveraged, can form a powerful basis for advancing a social justice claim.

1The “extinction policy” is known in Dutch as the “uitsterfbeleid”.