Continuing the 'All Souls' conversation: first thoughts on Israel/Gaza from a criminal justice scholar's perspective
What stories to tell from a criminal law perspective, when justice seems so far away?
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Inspired by the All Souls message by colleagues Castermans and Lawson on this blog, I have been wondering what stories to tell from a criminal law perspective, when justice seems so far away.
When faced with deliberate and massive infliction of human suffering and with the threat of ethnic cleansing – some even express fears of a looming genocide in Gaza – one wonders what criminal law could be able to achieve, as a mechanism that can at best hold perpetrators responsible after the fact. The hope has been that our international and domestic systems of criminal justice with regard to gross human rights violations will deter, that they will prevent those horrendous crimes from happening in the future – enabling truth-telling and accountability for atrocities that have happened to those before us, in order to breathe life into the future. Yet we are witnessing the opposite: horrendous violence and gross human rights abuses accompanied by unequal levels of condemnation – and more importantly, a lack of meaningful action – from those powerful enough to make a change.
Let us mourn not only for those suffering the extreme horrors on and since 7 October – which are most immediately on our minds now – but also for the occupation- and conflict-related victims in the West Bank, Gaza and Israel (there have been 3800 civilian victims since 2008, of whom more than 3600 Palestinians). Let us stand still for a moment to consider the constant fear and inhumanity that land seizures, settler violence, enforced separations, arbitrary detentions, institutionalised discrimination and the lack of self-determination bring with them – even though some try to make us believe that we are thereby relativising or justifying the horrors experienced by Israeli citizens on 7 October and beyond. Acknowledging the immense suffering inflicted on Israeli citizens, and the shattered hopes of living a life free from fear on that tragic day, can and should be accompanied by reflections on the pre-7 October situation – otherwise one cannot even start to think about a future (see Judith Butler’s compelling contribution).
Imagining a future for Palestinians and Israelis in peace and equal freedom may seem very far away as hundreds of Gazan children are being killed every day, while numerous Israeli families are still in anxiety over their loved ones taken hostage. Revenge and retaliation will only breed more violence, more suffering – so criminal justice theory teaches us.
Criminal justice can and should be utilised to deal with discrimination, including anti-Semitic speech and acts (which are alarmingly on the rise these days), without falling into the trap of conflating a strong stance against Israeli authorities or policies with anti-Semitism. The right to free expression and the right to protest, including forms of non-violent resistance, is of paramount importance to be able to address gross injustices. Yet it is precisely this right that has come under pressure in the past decade. This has only intensified since 7 October, as the threat of criminalisation for protesting injustices against Palestinians looms large in many places in Europe, while social media platforms remove or ‘shadow ban’ messages from our timelines. The freedom to express oneself, to tell stories, to protest abuses, and to discuss the way forward, is indispensable.