In part two of our coverage of the Paul Hirst Memorial Lecture, 2010 , Eyal Weizman, in conversation with openDemocracy editor, Rosemary Bechler, discusses the challenge of how to use international humanitarian law to permit the articulation of progressive political demands, and why this involves a sure grasp of the kind of elastic space he called the ‘political plastic’
Rosemary Bechler: Before moving onto the examples involving the porosity of the Wall, you started your lecture with a section entitled, ‘The best of all possible walls’, in which you consider a set of legal cases dealing with the route of the separation barrier in the West Bank. According to these calculations, the path had to mediate between what the agents of the Israeli state sought to define as its ‘vital security needs’ and what the humanitarian lawyers were willing to concede were the excessive negative impacts on the livelihood of people living along it. In asking us to think about this territorial border-making practice, in this and the other narratives that structured your lecture, you are encouraging us to reflect on another border, the shifting borderlines between military and humanitarian practice…
Eyal Weizman: Yes, what I tried to do in this memorial lecture for Paul, was to engage in a detailed analysis of three legal controversies, and to infer from them certain structural forces that define the politics of humanitarianism and human rights in particular, but not exclusively, in the context of the late Occupation by Israel. I want to talk about typical issues that arise when these forms of discourse or practice are positioned as the tools of domination. It is a problem that for many they have remained the only tools we have both to analyse and to confront the injustices that we see around us.
RB: Why did you begin your lecture by looking at the physical model of the route of the Wall between Israel and the West Bank, which was carried into the Israeli High Court of Justice in 2004?
EW: This was rather curious. I chose this instance because this legal process was not a criminal trial in the sense of looking into a person’s actions to establish guilt or innocence, but it was an apparatus or a thing that was on trial. This physical model of the Wall that was brought into court was simultaneously three things. It was obviously both a representation of the crime and the evidence for it. The paradox was that it was not built by the people who were constructing the Wall as a design tool, but by the people who were opposing it, who wanted to dismantle it. The third function of it in court was as a ‘legal prosthetic’ - the introduction of physical-planning language into court as a means of articulating an argument. It allowed a certain forensic engineering which is the way in which the legal process actually engages in the design of things. The judges demanded that this model be brought in because they could not read maps very well. They said: “We just don’t understand what you’re talking about. Please come back with something concrete we can understand.”
Of course the Human Rights Team did not have any experience of building models. They found a group of architects to help them, and the model itself was finally produced by a military contractor that otherwise builds models for the military. One of the potential borderlines on this model was drawn by former military officers - the Association for Peace and Security - who drew a blue line representing what they referred to as the “Lesser Evil line” which was less intrusive than the path the military drew. There were in fact two blue lines: the first one was drawn up by those ex-Generals; the other by the petitioners’ lawyer, Mohammed Dahla, who said that he would not accept even that proposed path. He insisted on a “lesser, lesser evil line” - another blue line that at certain points even crossed the green line (the border as it is internationally accepted between Palestine and Israel) into Israeli territory. That completed the model.
You can imagine that such models are not often brought into court. The porters didn’t know where to put it down and went round and round in circles looking for a resting place. Finally, someone got a table from the cafeteria, and then the problem was that the judges couldn’t see it because the bench was too high. So for the first time the judges stepped down. The parties for both sides were invited up and started arguing around the model. A member of the team later told me how all legal protocol and language was abandoned as the legal process took the form of a design session. Everybody loves models: like toys they make people smile. Here too, things went well and the court’s judgment came down on the side of the appellants, the villagers, who were asking for the Wall’s route to be shifted to their advantage.
So, simultaneously, we see here two significant processes under way. We see in the late Occupation, the increased involvement of the Israeli High Court of Justice as an arbiter of all sorts of things. This whole process involves a certain ‘legalization’ of Occupation itself. The legalisation of the illegal. Because international humanitarian law is so central at this juncture, internationally, as the language of opposition to Israel, Israel has turned its High Court of Justice into a bulwark against attacks from this quarter. This represents, you might say, the more liberal face of Israeli colonialism: its milder tool of occupation, capable of creating the lesser evil scenarios. It falls under its jurisdiction, now, to monitor and decide how many civilians could be killed in pursuit of military aims of continued domination; how many calories Palestinians need in order to survive; how much voltage should run in electric lines into Gaza.
RB: What is the legal principle used?
EW: It is ‘Proportionality’ which is a fundamental tenet of International Humanitarian Law (IHL) which seeks to establish a proper relation between means and ends; between military ends and their negative effect on civilians; between goods, evils and lesser evils. It is a moderating principle that constrains the use of force. And the law does not answer the question, “how much is too much?” but rather demands an on situ case-by-case assessment. Proportionality can be understood as a certain ‘calculating mechanism’ for the reduction of evil. Applied to the design of the physical properties of apparatuses from checkpoints to the wall itself - ‘proportionality’ requires that a certain ‘forensic engineering’ be practiced. My argument is that in fact there is no compromise or balance offered here. Rather there is a new concept of security that has emerged. One which includes the use of human rights principles and international law, and in which these make military acts more efficient. The new concept of security sees IHL and human rights as efficiency indicators and as contributors to the task of winning – this awful term – hearts and minds.
But proportionality is not merely an abstract system of legal and/or ethical calculation and judgment. Rather, it is a material practice that results in the configuration of physical structures. Let’s call it ‘Material proportionality’ - the principle that arranges the distribution of legal rights across technological systems and architectural configurations. Here proportionality exists as an entire field of calculations through which the physical and territorial form of the Occupation takes shape. The legal process must thus deal with agricultural fields, orchards, water sources; with their specific qualities, such as climate and irrigation; and with natural givens such as topography, and calculate these factors over against issues of territorial control. But they all add up to a new concept of security and attempts at pacification.
The material form the Wall takes provides us with a diagram of that ‘proportionality’, the outcome of all those micro-political forces that continuously push and pull against it. And this makes the Wall much more efficient. It needs to allow a certain life to persist around it. This plasticity is linked to the increasingly dominant feature of the late Occupation, which is the introduction of all sorts of humanitarian commands and all sorts of new professionals into the Israeli military, whose aim it is to preserve the minimum survivability of those living under Occupation at a level which does not precipitate any undue outcry that would be too difficult to control. The legal process in which humanitarianism and human rights language manifest themselves has itself become co-opted into the apparatus of the Israeli Occupation, part of the apparatus of colonialism, rather than a form of opposition to it. Another of the petitioners’ lawyers, Michael Sfard, who is also a great thinker on these issues told me that, “at the end of the day, you know, I felt that I am one of the architects of the Wall.”
RB: The reason why Israel might be so interested in getting everyone around the model of the Wall, contesting the path of the Wall, is because it simply sets to one side the fundamental political question about the Occupation...
EW: Of course. The political question is completely flattened into the fetish of the Wall as an object. Moreover, Israel itself does not know what the needs of people living along that Wall are. It doesn’t speak to people. So the courts are essential for providing it with a sort of feedback. To keep ‘the fabric of life’ relatively intact on the Palestinian side is also in Israel’s security interest. Of course there is this enormous act of dispossession which has taken place along it, with all the violence and seizure of land. But if the Israeli state, without compromising its position, could shift some things to accommodate some Palestinian farmers, it would do that. Specifically, this participation is what has made the wall and its associate regime more efficient. Opposition has found itself taking part in the collective, albeit diffused, authorship of the architecture of the Wall.
RB: At first sight, one might think - well, this is a fairly normal position to be in, not just for the Palestinians, but for anyone, isn’t it? - foregoing the opportunity to critique at a much more fundamental level so that you can improve things a little for the ‘people on the ground’…. the Janus-faced position any social democrat would regard as entirely normal or everyday. But you are saying something quite different…
EW: Take the position of those aboard the flotilla as a point of contrast. Humanitarian purists would never agree that the IHH, the Turkish humanitarian relief fund that played a central role in organising the flotilla to the Gaza Strip, is per se a humanitarian organisation. It does not ascribe to political neutrality, but takes sides and gives political support to the people in Gaza, as I think it should. The human rights and international law language deployed around the flotilla attempt to “break the Israeli blockade” is not seeking to become ameliorative: rather, it is designed to shatter Israel’s political domination, to challenge and reverse it in a way that is not entering into its arenas and arguing within its courts. And its sacrifice indeed changed things…
Of course there are limits. We can’t just go Don Quixote-style and hurl ourselves against the windmills. But a very clever strategy can know how to use international law language in a way that does not simply reproduce the realities of the Occupation. Many of the people supporting the Goldstone Report and its findings have no illusion about the fact that there is no ultimate salvation in international law. But they do understand that right now, a certain application of its findings would allow the articulation of a political demand to follow. Whereas the participation in the engineering and design of the Wall, better or worse checkpoint systems, arguing about the number of calories that should pass through the Wall in a state of siege - this is not just to try and improve things a little - this is to be co-opted into the administration of colonial power.
RB: In the case of Gaza, surely any talk of ‘accommodation’ gets in the way of the dominant message that the Gazan people have displeased Israel by electing Hamas as their political leaders?
EW: Today, I believe, the West Bank and Gaza operate as counter-laboratories to each other. These are the laboratories of the good and the bad native. This is what you will get if you are more or less quiescent and cooperative in the state of things. If you don’t – well, this is what will happen to you if you are ‘bad’.
RB: Let’s just go back to the flotilla for a moment, because there it seems to me that the extraordinary scandal of what you are talking about in that instance is the management of a medicalised war against the Gazans which nobody is meant to notice, including the international community. This isn’t about managing the violence of war in the same way is it?
EW: Here food, humanitarian assistance, medical aid, electricity, petrol, water, themselves have become forms of ammunition in a different kind of war. We really need to think about the story of the flotilla in the wider context of the siege of Gaza, which is becoming a very large international military affair now. Both the Dubai assassination of the Hamas envoy for the smuggling of weapons into the Gaza Strip, and the attack on the flotilla in the middle of the Mediterranean are part of this war on Gaza. What type of war is this? The idea is that a new form of occupation has been developed gradually over the years.
At this particular point in time, when international law is one of the biggest challenges to the Israeli Occupation, but on the other hand, its vocabulary is being incorporated hand over fist into Israeli law and abused by Israeli courts - we need to be able to differentiate between these two positions. The conduct of the Gaza war and its coverage in the Goldstone Report is at one and the same time, one of the biggest legal challenges ever to the ambitions of the Israeli state, and a field day for military lawyers. The design of the war itself had the highest ever involvement of Israeli lawyers, whose aim was to establish a defensible position for the Israeli aggression. Lawyers designed various strategies which made it possible to bomb civilians in Gaza, by re-designating them from ‘protected civilians’ to ‘human shields’ – as I showed in my openDemocracy piece, ‘Legislative attack’. Since the same language is being used on both sides, one has to be very careful not to become a party to the mechanism of dispossession.
RB: Are you arguing that maybe we have to look at the death-toll of such a new kind of warfare - ‘wallfare’ you call it, when you refer to the walls operating as membranes or filters - in a different way? Under this form of control, the violent deaths of militants or civilians is not in fact the main cause of ‘conflict-related mortality’. It would be true to say, wouldn’t it, that the conflict over Palestine has never produced a huge death toll, and that the 4,000 Palestinians who have died a violent death at the hands of the Israeli security forces in the past decade pale in comparison to the number of those that have died in other conflicts?
EW: But the main killer in this conflict is what one may call the ‘non-avoidance of avoidable deaths’. It amounts to nothing rapid or spectacular (and thus highly conspicuous) but to the slow process of killing by changing the environmental conditions or the milieu: bad hygiene, lack of food vitamins (especially B12), water, deteriorating healthcare, creating the conditions that militate against the prolongation of life and that will also reduce fertility. The evidence for this is camouflaged within statistics of mortality rates in government databases. The control of these supplies provides Israel with political leverage in its attempts to affect the Hamas government. But this leverage can only be maintained if commodities pass through and get counted at the borders rather than reaching their destination through underground tunnels or by sea. This is also the logic of the attack on the MS Mavi Marmara passenger ship: not provoked by weapons, but aid. To use provisions as a weapon one needs to control their flows. This may help to explain why the navy commandos used lethal force to 'defend their nation' from an aid convoy.
So if you want to talk about the tension between ameliorative and revolutionary action, look at nonviolent action in the occupied Territories today. In the nonviolent movement you see perhaps a potential to put in place a questioning of the entire system of Occupation, rather than enter into its mechanisms and think together with it… which I think is absolutely counterproductive. Mohammed Dahla, the petitioner’s lawyer on the route of the Wall, is an interesting character from that point of view, because he is on both sides participating in the political struggle, inside and outside.
RB: Dahla had come there hotfoot from the International Court of Justice in the Hague where he had just been securing an outright condemnation of the legality of the Wall, hadn’t he?
EW: He does both this and that. Although, for my part, I can’t help thinking that it isn’t the business of those who resist the Occupation to design the Wall together with the Israeli military…
RB: So far, we have covered two instances in which humanitarian standards seem to be derived from the effect on the human body, where a different relation between the body and the border is set up in each. Your third and last case in the spaces of what you call ‘political plastic’ is to do with rubble… this is where ‘Forensic Architecture’ comes into its own as a diagnostic technique. The framework within which this kind of investigation takes place is the legal interpretation of war, or war crimes. But let’s start with the term ‘forensics’ that peppered your talk…
EW: Yes, forensics - or forensic architecture - stands between and thus brings together an analysis of space and that of law. But the origins of the term forensics are not legal. Forensics, etymologically derived from its Latin source, means ‘before the forum’ and refers to the practice and skill of presenting evidence before a gathering such as a professional, political or a legal forum. The forum is thus not necessarily legal or political. And forensics, it is important to note, is part of the art of rhetoric. Rhetoric is of course about speech: but forensics does not refer here to the speech of humans but to that of objects. In forensic rhetoric, objects address the forum via their ‘translators’ who are most often ‘expert witnesses’ in science and technology.
RB: How did this play out in Gaza?
EW: The Gaza War killed almost 1,400 people and destroyed or damaged about 10,000 buildings. A lot of the people who died, died in or because of the destruction of buildings, lacerations from flying debris, or people crushed by their own homes. The city is not only the site of the violence, it is also the means of the killing. Most people died in their own homes. And after the attack ended, and this conflict moved into the legal domain, it was the rubble itself which stood as a testimony of what had happened. This created the rather unique situation in which forensic scientists were now called upon to arbitrate on that conflict. Whereas a lot of previous analysis of conflicts has been more skewed towards human interviews and testimonies of victims and others, here you see a massive shift towards the “speech of things”. In the Goldstone Report this is very much the case, and you are told that it is the case because, “ things do not lie”. There are 188 testimonies by Gazans in that report. But if you look, you will see that these are only there to corroborate what is leading the research: the material forensics evidence.
I like this image of Richard Goldstone presenting his findings, and in fact it has within it most of what I’d like to say…Let’s look at it: a man stands in front of the ruins of a tall building, and the microphones of places worldwide are in front of him. Since the rubble can’t speak, he seems to speak on its behalf, like an interpreter to an international audience. This is a perfect demonstration of how, spatially speaking, the principle of forensics assumes a relationship between a structure (or a thing) and a forum. In fact, in the absence of an international forum to account for war crimes, the ruin here assembles the forum around the object that is made to speak through its interpreter.
The forensic sciences started to obtain this distinction within the framework of international law after the end of the Cold War, when International Humanitarian Law (IHL) became one of the primary domains for extensive research into conflict. Previously, other categories governed research about war, such as political analysis, for example. This shift of emphasis in human rights and war crimes investigation meant that forensic science gradually began to invade some of the legal (and cultural) grounds previously reserved for the testimony of living beings, (mainly that of the victims). For someone like Richard Goldstone, promoter and supporter of the South African ‘truth and reconciliation commissions’, based around aural testimony of perpetrators and victims, this represents a major reorientation. It was justified on the grounds that while people might lie, things would not.
There is a marked contrast here with the traditional culture of human rights, which has always relied to a great extent upon the posture of the witness, whose contribution is distinct in opening up the historical record to include those voices previously excluded. The era of the witness did not only treat the witness as a bearer of information, but also as an ethical opportunity (deserving of empathy and compassion). It was the fragility of the voice that mattered most. Testimony was important for being delivered.
RB: One of the main agents for this increased invocation of objects and “objectivity”, or at least its public face, is the forensic analyst of Human Rights Watch, an ‘expert on battle damage assessment’ who you can see in this picture, investigating materials…
EW: Between the end of the attack and the summer of 2009, he authored a series of reports demonstrating the possible violation of international law by the Israeli military. He was an excellent forensic analyst. His findings are quoted 36 times in the Goldstone report. This is a lot of footnotes. And his are some of the central findings in it.
This is a photograph which I showed in the lecture. Our expert is not interested in the woman in the foreground, but the ruin which is her backdrop. He tries to locate a certain system and order in the chaos of destruction. Looking at tracks, discussing their width, looking at methods of destruction, he tries to differentiate between bulldozer destruction, and the effects of a controlled blast by engineers, aerial attack, or tank fire.
Take one example of what he is capable of establishing. This is the type of analysis he has built up around the evidence of destruction, south of Gaza City in the neighbourhood of Zeitun: “I needed to paste together the battle story,” he told me when I interviewed him about it later, “to recreate the chaos of battle, minute by minute...”. Four homes are left standing as sites of observation. Bulldozer destruction might have occurred in the midst of battle. Landmine destruction might have occurred after battle. This suggested to him a war crime of wanton destruction.
RB: So this shift from a concern for people to things, or subjects to objects, is part of a much larger transformation that has also involved the militarisation of human rights.
EW: The speech of witnesses that human rights has always been identified with was the essence - the anti-totalitarian origin - of the human rights discourse itself: the idea of speaking truth to power, the individual against the state. It had an ethical and political place. The question is: what are the ethical and political meanings of the shift towards the object ?
This same shift can be seen in an apparently very different sphere - the increased fascination in contemporary times with forensic detective fiction. In these potboilers an entire storyline is led by things. No longer is the detective a psychoanalyst, but a scientist, who mediates and translates the speech of things… It is our trust in science, I think, that fuels that massively organised fetishism. Politics operates through the engineering of objects. And our understanding of history is the task of the structural engineer who can read history in the ruin. So the engineer - now dealing with politics and ethics as a technical problem - is very much the figure for our time.
RB: You pointed out that before joining Human Rights Watch, the expert had worked for seven years as an intelligence analyst in the U.S. Defense Intelligence Agency at the Pentagon?
EW: Yes. While he was there, he undertook target selection and planning for aerial bombing in the 1998 attack on Iraq. In fact, he was something akin to a military target assassin in charge of – or participating in the planning for killing Saddam Hussein and the Ba’athist leadership. The American military, you should understand, wanted to finish the 2003 Iraq war in the first two hours of the attack, killing the entire leadership, and then simply drive in to Baghdad. A central part of planning these missions depended on a calculus otherwise known as ‘collateral damage estimate’, which establishes the ‘right balance of civilian casualties in relation to the military value of a mission:’
He explained how the threshold of 30 civilian casualties operated. If the computer came up with 30 anticipated civilians killed, the air-strike had to go to Rumsfeld or Bush personally to sign off. Anything less than 30 could simply go ahead. He was allowed to kill 29 people per mission. The thirtieth was over his pay scale. As outrageous as this calculus appears, the limit of 30 civilians, like any other number that could have been proposed - the fact that there was a limit at all - is a rather new form of mitigation and limitation based on the introduction of human rights and international humanitarian law principles into the logic of war-making.
RB: So this again, is operating on the principle of proportionality…
EW: Yes, and moreover it was the proportionality that translated into the forensics. Drawing on our three scenarios, we can say that proportionality is a new type of violence that simultaneously kills and saves, and as such inhabits the threshold between life and death. But proportionality is not merely an abstract system of ethical calculations. Rather, as we discussed, it is a material practice that results in the configuration of physical structures. Here in the design and making of the ruin. Material proportionality is here concerned with the design of ruins. This calculation of life and death is in fact the same thing as the engineering calculations of structural and blast analysis. The aim is to use the minimum size bomb to achieve this effect, and thus designing a bombing mission resembles a mathematical minimum problem. Because if there was no limit, the entire building could have been destroyed. With a limit in place only parts of the building can be taken out. The same technological developments that have improved bombing precision, have also made it possible to predict the ‘collateral damage’ that will result. And they are now helping us, in reverse, to read the rubble.
RB: One of the many interesting things about this story, is that it was his military past that gained him the visibility and credibility he enjoyed as a Human Rights analyst…
EW: It was never hidden and was in fact the first line in his biographical note. The Washington Post called him “the man on both sides of the air war debate” and he was often asked about “crossing the lines”.
RB: But you question this assessment. Did he really cross any lines?
EW: Although his move from the Pentagon to a human rights organization was understood by many according to the popular narrative model of a redemption story, like a saint whose sainthood is only as great as his sin - this fails to register the extent to which, at present, humanitarians and militaries are inextricably intertwined in their methods and aims.
There was a famous instance when General Petraeus, considered the intellectual of counter-insurgency, sits down to write a manual together with people from the Carr Centre for Human Rights in Harvard. Sarah Sewall, Director at the time, agrees that there is a convergence of interests between the military interest in pacification and the human rights interest in reducing civilian casualties. Because counter-insurgency is thought to depend on the perception of violence within the civilian population, the reduction of what the military call ‘collateral damage’ is not only a humanitarian goal, but it is an indicator of military efficiency - it ‘would make a more efficient military operation”, she suggests.
By the end of General McChrystal’s time, this proportionality ratio was reduced from 29 to almost zero - not because McChrystal, the man who more than any other has promoted and overseen targeted assassination in the US armed forces, is concerned for the civilians all of a sudden – but because of the damage perceived to be done to the military effort because of the politics surrounding such events. That is what the war is. It contains the same dynamics as those generating the concern with the lesser evil.
When violence is all about civilian perception - a kind of ‘discussion with survivors’ - the military can either spare them or scare them into submission. If you look at the Dahiya Doctrine developed by Israel in its attack on Lebanon in 2006, it concluded that because they could no longer efficiently fight the militants themselves, what they would do instead would be to punish the population to pressure the militants. The civilian casualties were therefore no longer perceived as the undesirable side effect of the military attempt to destroy militant targets, but their pain could be used as leverage to pile on the political pressure. In the attack on Gaza, there is a direct intention to create loss of property and life on the Palestinian side, in order to increase the popular pressure on Hamas - state terror against terror.