By Nasser Rego
The fiftieth anniversary of the death of revolutionary, writer and psychiatrist Frantz Fanon was commemorated this past December. In late February, the not-so-revolutionary judge Asher Grunis was elected President of the Israeli Supreme Court.
The fanfare that accompanied Grunis’ inauguration was an opportunity to extol Israeli democracy by playing out the ritualized Supreme Court induction ceremony. Yet, there was a disquieting stink about the celebration. Mum among the lot of Hatikva-singing judges was Justice Salim Jubran, the Arab. His refusal to join the chorus likely stemmed from not identifying with the lyrics, “as long as in the heart, within, a Jewish soul still yearns…” His silence, however, prompted loud condemnation from the public and Israeli Knesset members, leading some to propose legislation that would impeach Jubran and effectively bar Arabs from serving on the bench.
This article reads Fanon’s death anniversary and Grunis’ appointment and inauguration ceremony against one another, as an opportunity to recycle Fanon’s ideas to better situate the place of Palestinians, as a colonized people, within the imagination of Israeli law today. In particular, the article traces the outlines of Fanon’s historico-racial schema in Israel/Palestine, emphasizing the legal experience of Palestinians from the Beersheba region, or the Naqab.
Look Mama, an Arab!
Fanon’s historico-racial schema builds on Merleau-Ponty’s (1964) corporeal schema, which is the body’s agency in relating to itself and its historical world (surrounding environment) wherein there is a communication between the two through a perpetual contribution to and reordering of one another. Therefore, as the world contributes to how the body sees itself, the body is an agent that continually transforms and disrupts the historical world, their mutual constructions always being altered and differentiated. For Fanon, the colonial context describes a historico-racial schema rather than a corporeal one. The colonized self does not contribute to this schema as a full sovereign (i.e., citizen) because in an encounter with whiteness, the black body constructs a self-image that is deficient, owing to signifiers by a white mythos that weaves the black body from “a thousand details, anecdotes and stories” (Weate 2001, Fanon 1967: 89-119). This article shows how Israeli law functions as a powerful element of a similar white mythos, weaving the ”Bedouin, Palestinian” subject out of anecdotes of comparable mythical proportion. As a result, the possibilities are similarly thin for Naqab Palestinians to effect free agency and participate fully in the schematization of the historical world they inhabit.
The legal status of Palestinians in other locales in Israel/Palestine also reveals how Israeli law is in fact, vis-à-vis Palestinians, not only illiberal and undemocratic, contrary to the claims of certain enthusiasts, but even more harmful. After the Arab Supreme Court Justice stood out like the reluctant elephant in a room full of Hatikva-singing comrades, the liberal and democratic court could be forced to ask very existential questions. Why were the Court’s most touted values denied to one of its own members by the larger society, including the legal community? Why was a Supreme Court judge, who happened to be Arab, not allowed the liberal privilege of being “tolerated” for his silence? And why was he condemned for exercising his democratic right to non-participation and silent expression?
The heterogeneous strands of Fanon’s works can be applied in the Israeli/Palestinian context to speak about the need for an episteme of colonialism to inform the power-knowledge system of Palestinians’ habitation, to highlight the shortcomings of national consciousness, and to probe the psychiatric treatment of political prisoners in a colonial context. Edward Sa’id (1989) also mobilized Fanon to criticize fixed ideas of identity as a mark of colonial thought.
To discover how the Fanonian white mythos is propagated by Israeli courts, we look at the discursive effects of a few cases over the past two decades. Law is a major propagator of the white mythos, though the media (see Kabha), education and the medical establishment are also contributing factors (Fanon 1963: 249-310).
Legal rules, decisions, settings, negotiations, confrontations, affidavits, minutes, appeals, orders nisi and other temporary remedies, press releases, news reports and analyses recycle the facts of the case and the ways in which Palestinians are mythified. As each textual form peters down to the lived conditions of those who are immersed in but unequal before the law, or all Palestinians, it leaves an imprint on how the senses see the self and the historical world they inhabit.
The dominant legal framing of Palestinians from the Naqab is within the strictures of criminality by a homogenous mass, even in cases that achieve legal victories for the community. Other characteristics that the courts contrive are those of violent, irresponsible Palestinians, and those who deserve “a minimal right to life in dignity,” or in layman’s terms, the right to be ”the living dead.”
“The native…a sort of quintessence of evil… invisible to ethics… the corrosive element, destroying all that comes near him” (Fanon 1963: 41).
The first case we will examine is the 1984 “landmark” el-Hawasheleh decision (CA 218/74). This decision set the precedent for future courts to undermine Bedouin settlement and pastoral lifestyle, thereby classifying their lands as mawat (dead), thus providing the basis to conclude that Bedouin had no historical rights to the land. In reaching this conclusion, the court cited the work of the nineteenth-century British explorer E.H. Palmer, who “found a wasteland, ruins of antiquities, Bedouin vagabonds, who did not work the land in any particular manner.” Later in the same text Palmer wrote that “the Bedawí… wherever he goes… brings with him ruin, violence and neglect.”
“The fellaghas are ambitious peasants, criminals… (1963: 287)… The Algerian people: they were born slackers, born liars, born robbers, and born criminals” (1963: 296).
Between 2002 and 2004, the Israel Lands Administration (ILA) sprayed thirty square kilometers of Palestinian agricultural land with the herbicide Monsanto’s Roundup. The court found in the Abu Mdeghem case (HCJ 2887/04) that the state’s actions were illegal, as they endangered life and violated the dignity of those affected. Yet, blacking out any even-handed reference to the contested status of the land, the court foregrounded Bedouin criminality throughout the decision. On the basis of illegal Bedouin squatting and planting, the court found that the ILA acted in a manner befitting the values of the state and that the spraying had a proper purpose, which was to protect state land. It was because Bedouin illegally squatted and planted on state land and used violence against police enforcing eviction laws that the court then recommended that the State “take determined and uncompromising action” to evict Bedouin squatters and continue with the destruction of crops, but by using tractors and not planes. The myth of mass Bedouin criminality was foregrounded, despite documented evidence that some families were forcibly and illegally displaced by the authorities and had returned, while still others had been ordered by the authorities to live and work on the land under question.
“My body was returned to me spread-eagled, disjointed, redone, draped in mourning on this white winter’s day” (Fanon 2008: 93).
Justice Procaccia begins her decision in the Abu Musa’ed case (CA 9535/06) by asking the question, “To what extent do Bedouins living in various illegal places of settlement in the Negev have a legal right to demand that the State install private connection points to water in their illegal place of accommodation?” In the twenty-three-page Supreme Court decision, reference to illegal settlement features forty-four times. The decision concerns the petition for water provision to six villages, including the sister-village duo of Atir-Umm al-Hieran. The case of this sister village is not so clear-cut as to be ”illegal,” given that its residents were moved to their location in 1956 by the authorities. Nevertheless, in a hallmark for legal rationales concerning Naqab Palestinians, they are framed within the confines of criminality, making court intervention seem like a benevolent humanitarian intervention in spite of Bedouin incorrigibility. The Court rules that the Bedouin have a right to “minimum access to water” on the basis of having a ”human right to minimal existence in dignity.” This pronouncement bears an eerie familiarity to the biopower function of the modern racist state (Foucault 2003, Mbembe 2003) which allows for the precarious Palestinian population to float in the interstices between being made to live and left to die. The Palestinian then comes to understand himself as belonging to a people who deserve to be kept just barely alive, as “living dead.”
One way to characterize liberal/activist rulings of the Israeli courts vis-à-vis Palestinians that are evident in the Abu Mdeghem and Abu Musa’ed cases besides bequeathing legitimacy (Shamir 1990, Al-Haq 2010) to colonial rule by dressing it in liberal clothing, is to trim the excesses of colonial government. Therefore, in the 1953 decision in Kol Ha’am, the Court rescinded the suspension of the publication of two papers critical of the Israeli-American relationship as a violation of the right to free speech and freedom of the press. Fast forward to the more recent past; in 1997 it called on the Ministry of Health to establish six mother-child health clinics to serve a population of over eighty thousand. No mother-child health clinics existed previously in these “unrecognised villages,” a gross violation of the community’s right to health. In 2007, it called on the Ministry of Education to open the first high school in the unrecognised villages, its prior nonexistence a flagrant violation of the right to an education. In the 2004 Beit Sourek decision, the Court called for a portion of the separation/apartheid wall to be redirected. The wall’s construction constituted gross violations over three years to the petitioners’ right to property, right to earn a livelihood, and freedom of movement, affecting forty-two square kilometers of land and the lives of thirty-five thousand villagers. Justice Barak did not waste the opportunity to racialize and mythify the schema as being a matter of terror/security whereby “Palestinians use guided human bombs… sew destruction and spill blood… [T]he forces fighting Israel are terrorists.”
In all of these cases, the court is seen as performing “landmark“ work (Shamir 1990, Sultany 2007). Mautner (2011) and former Chief Justice Barak (2006) have lamented the strict confines within which Israeli courts and the law work: namely, the Zionist imperatives that underpin statutory law and judicial interpretation, the lack of a constitutional framework to provide backing for the Supreme Court in pro-civil liberties rulings, and the courts’ deference to the Knesset and executive to formulate and execute the law. Yet, these material conditions should not obfuscate the law’s violence and its mythos-generating activities vis-à-vis Palestinians.
Not that liberal legal theory shuns critique—it can hide historical materialism, its ideological work, or the violence of the law, all while operating bureaucratically and formalistically (Sultany 2011). In fact, as Yousef Jabareen demonstrated in comparing the law’s utility in the civil rights struggles of African Americans and Palestinians, the Israeli Supreme Court has not yet developed an express methodology to deal with equal rights cases and lacks doctrinal standards such as strict scrutiny and suspect class analysis for deciding such cases. Rather, the legal victories were formal remedies, individual in character and lacking context to bring about wide-ranging substantive equality. In that they resembled decisions of the US Supreme Court.
The colonial world is a Manichean world (Fanon 1963: 41).
Fanon has been criticized for adopting a Manichean dichotomy between colonizer and colonized, which (allegedly) denies the native agency. Postcolonial theory advises us to watch out for these blind spots (Gates 1991). Nevertheless, Fanon does not claim that these are intrinsic, natural divisions. Rather, they are constructions as a form of colonial rule, an “us” versus ”them” scenario, formal compartmentalization into racial hierarchies to legitimate differential exclusion that is propagated by state machinery such as the law.
Why is the isolated and embattled Naqab region emblematic of the place of Palestinians under Israeli law? Colonial law is a tool of dispossession, displacement and oppression and functions across the distinct legal entities that have been carefully carved out for Palestinians to facilitate their management. Therefore, dispossession of Bedouin in the Jordan Valley resembles that of not so distant relatives in the Naqab, the South Hebron Hills of Dahriya, and the Jahalin in Area C’ east of Jerusalem. Similar legal rationales enable the dispossession of Palestinian citizens in Lydd and Ramleh, while the ban on Palestinian family unification across the Green Line is a legal somersault to keep distinct legal persons in their distinct legal environs. Though, in terms of death-world rulings (Mbembe 2003), these may seem oppression-lite alongside the Court’s slow-death (cutting off fuel and electricity) and chop-chop, swift kill (targeted assassinations) rulings vis-à-vis Gaza.
As law functions with similar colonial objectives across the distinct legal environs for Palestinians, we can summarize its mythos-generating activities for Palestinians with differentiated legal statuses. As racial others under Israeli sovereignty, the courts tell us to see Palestinian citizens of the State as “cultural others” who pose a latent security threat, and citizens from the Naqab as criminals. The Israeli courts repeatedly remind us, to the point of badgering, of the proclivity to terror by Palestinians in the occupied territories. The law in practice teaches the Palestinian that he is not what law’s ideal holds him to be: equal (Fanon 1963: 89).
Pacifists and legalists, they are in fact partisans of order, the new order… [calling] “give us more power” (Fanon 1963: 59).
Law is an abettor. First are those legalists in dialogue with colonialism who negotiate improvements in the material conditions and more adequate representation for Palestinians (see Fanon 1963: 59-60). They must call out racism and dehumanization as opposed to being resigned to its behemoth-like, monotonously regularized proportions. Palestinian legalists tussle with the possibility that their work confers shades of legitimacy to colonial rule. When Esmael Nashef dissects how Palestinian citizens of Israel collude with colonialism, he explains how practical necessity necessitates the adoption and use of professional legal language. This legal language necessarily collapses any historical materialism (pre-existent class, race, ideological stratifications in society) and feeds the dehumanizing work of legal discourse. Nashef’s recommendation seems to be an epistemic break from the language provided by the law, and suggests a radical political praxis to repudiate the existing colonial order.
The construction of the historico-racial schema is possibly most damaging at the point where its subjects propagate their own disparagement, where black bodies are complicit ”in the reification of a parodic and inferiorised black body-image (Weate 2001, Fanon 2008).”
During an interview I conducted in December 2011 with an Umm al-Hieran resident (for whom I will use the nom de guerre Abdesallam), he admitted to the benefit of “appearing Jewish” at checkpoints to facilitate crossing. Yet, he was very critical of the racism underpinning checkpoint logic, and that of the law. Despite his investment in a legal battle to keep his home from being demolished, he was aware that the law as a site of equality was a fabrication and that its promises of justice were evasive. Yet, embedded in the milieu of the Naqab and absorbing the historico-racial schema of his habitat, he has internalized a view that Arabs (unlike Jews, who in their dealings with each other are exemplary), are violent and dangerous—including to their own. “I have ceaselessly striven to show the Negro man that in a sense he makes himself abnormal,” cautioned Fanon (2008: 200), speaking of a process whereby the colonized native sees himself, instead of the colonial order, as the biggest problem.
The election of conservative-leaning Judge Grunis, for whom Israelis living closer to more Palestinians could spell “national suicide,” seems to portend that the tales will only get taller. For Palestinians, breaking from the chains of subjugation means undermining the historico-racial schema by challenging the white mythos created by the law and sustained by the self, including the carefully crafted legal fictions of the separateness of Jerusalemites/Bedouin/Arab-Israelis/West Bankers/Gazans/refugees. By doing so, they will be better placed to effect free agency in the schematization of the colonial world they inhabit.
An emancipation of sorts happens when the native realizes his humanity and that of his community (1963: 43), and when he “overstands” that he is equal to the settler and is therefore no longer on-edge in his presence (1963: 45). Fanon’s insistence on feeling black zeal and the density of being black as a challenge to Sartre (who had snatched it from him by calling prematurely for humanism (1967: 111-114)) is possibly one opening towards a deconstruction of the historico-racial schema. It takes poetic expression in his citation of Aimé Césaire:
My negritude is not a stone
nor a deafness flung against the clamor of the day
my negritude is not a white speck of dead water
on the dead eye of the earth
my negritude is neither tower nor cathedral
it plunges into the red flesh of the soil
it plunges into the blaxing flesh of the sky
my negritude riddles with holes
the dense affliction of its worthy patience.
And yet, I hear the echo of the similar in the poetry of Palestine’s national poet, Mahmoud Darwish, In Identity Card, Darwish is wise to his community’s dehumanization, proudly stubborn in his refusal to follow the law of the bluest eye, fiery about his roots, aware of his capacity for love and patience; and yet awakened to the sounds of hungry bellies.
The question remains for the rest of us: what about our own situatedness as embedded in the law prevents us from hearing them?
– Nasser Rego is a PhD candidate at Osgoode Hall Law School, York University, Canada, studying socio-legal aspects of the Palestinian Naqab community’s encounters with the Israeli legal system. He contributed this article to PalestineChronicle.com. This article was originally published in Jadaliyya.com – www.jadaliyya.com.
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