Governing the commemoration of catastrophic violence: The Israeli Nakba Law

What to make of the recent events marking the birth of the state of Israel 63 years ago? The Israel Air Force nationwide flyover, the Israeli President, Prime minister and Defence minister singing their favourite patriotic songs with the crowd at Beit Hanassi in Jerusalem, the parades and the fireworks marking the Israel Independence Day on May 10? The protests on the occupied territories (and the conflicting accounts of the circumstances under which they were responded to with the infamous ‘riot dispersal means’ of the Israel Defence Forces) as well as other forms of commemoration and public mourning in Israeli cities marking the Nakba Day on May 15?

I will keep these recent events in mind going back to March 22 this year, the day when the Knesset adopted the so-called Nakba law. The Nakba law addresses the fact that the birth of the state of Israel is both celebrated as Israel Independence Day or Yom Ha’atzmaut in Hebrew and mourned as the catastrophe or al-Nakba in Arabic.

The original proposal for the law made commemorating the day as Nakba Day a criminal offence subject to imprisonment for up to three years. The end result was, however, very different: an amendment to the budget law allowing funds to public institutions and other financially supported entities to be reduced, should they engage in practices contrary to the principles of the state of Israel inter alia by commemorating Independence Day or the day of the establishment of the state of Israel as a day of mourning.

The adoption of the so-called Nakba law calls for critical reflection on the history of the birth of the Israeli state, but also, and more generally, on the mechanisms that link the birth of states with catastrophic violence. I claim that the Nakba law should be understood in light of this more general problem and, for that reason, I will use the German-Jewish philosopher Walter Benjamin’s essay Critique of Violence, published in 1921 along with the French philosopher Jacques Derrida’s close reading of Benjamin’s text entitled Force of Law – The Mystical Foundation of Authority as my theoretical reference points in analysing the Nakba law.

Israel is not the only state whose birth also can be described as a catastrophe. On the contrary, states are often born through extensive violence and displacements. The term ‘law-making violence’ coined by Benjamin makes precisely this link: the link between the emergence of law and violence. Derrida describes these moments as ‘terrifying moments. Because of the sufferings, the crimes, the tortures that rarely fail to accompany them, no doubt, but just as much because they are in themselves, and in their very violence, uninterpretable or indecipherable.’ In relation to that latter point, Derrida also speaks of a ‘silence’ being walled up in the violent structure of the founding act. This silence is due to there not yet being proper interpretative models to give sense, and, above all, legitimacy to the ongoing founding violence.

The birth of the state of Israel was preceded as well as succeeded by a war, the atrocities of which included the expulsion of more than 700,000 Palestinians from their homes, a flight from which they have not been allowed to return since. The military violence that founded the state of Israel was, however, not discontinued with the birth of the state. Suffice it to mention the Six-Days War in 1967 and the subsequent occupation of the West Bank and Gaza, an occupation that has seen low-intensive as well as high-intensive military violence on the part of Israel and two violent uprisings in the first and the second Intifada. But let us return to 1948 and the birth of the state of Israel, the day that is marked yearly as the Independence Day and Nakba Day respectively.

The first step towards breaking the silence of the law-making violence is the creation of a ground for its explanation and justification. The declaration of independence provides such a ground. The declaration of independence is intimately linked to military violence in being entirely dependent (at least if it wants to be successful) on military victory. The linguistic structure of the declaration of independence can be described with the statement ‘This is now the law’. As such it is a clear example of the ability of language not only to describe the world but act in it. The arbitrariness of the birth of law and state through the outcome of military battles and subsequent declarations of independence is emphasized by Benjamin when he writes that the origin of law is ‘violence crowned by fate’ and by Derrida in calling them instances of ‘non-law’.

Israel was declared independent on May 14 1948. The Israeli Declaration of Independence laid the foundation for the Israeli state and, like other declarations of independence, broke the silence of, gave reasons to, the violent processes that led to its establishment. Among other things the Declaration of Independence speaks of the catastrophe that the Jewish people was subjected to through the, then recent, persecution and extermination in Europe – the Shoah. It also speaks of the natural right of the Jewish people to a state of their own in which they can be masters of their own fate: Jewish sovereignty. Furthermore, the Declaration of Independence contains the contradiction that the Palestinian minority in Israel has been reminded of again and again through the history of the state and was reminded of yet again on March 22 with the adoption of the Nakba law: the contradiction that Israel is the state of the Jewish people and, at the same time, should offer full and equal citizenship to its Arab population.

The day of the declaration of independence is, according to a law adopted in 1949, the Independence Day which, according to the same law, will be celebrated each year as a national holiday. How should such a yearly commemoration of the declaration of independence be understood? Basically, I think it should be interpreted as a reiteration of the declaration of independence. It no longer breaks silence but it repeats, rearticulates, reinvigorates the proper interpretative model for the violent processes out of which law emerged.

It is sometimes said that ‘the victor writes the history’. Although clearly a reductionist account, Benjamin’s theses of law-making violence could be described as ‘the victor writes the law’. The Nakba law appears as an unpleasant combination of these two prerogatives of the victor. The transformation of the law from criminalisation of individual conduct to making it possible to effectively fine public institutions and other state funded entities, may have made the law less glaring. The purpose of the law, however, remains the same. It is an attempt to manage the proper interpretative model for the birth of the state and, as such, an attempt at governing the commemoration of catastrophic violence.

One of the reasons behind Benjamin stressing the link between military violence and the birth of states with their own laws and their own political institutions appears to be that the knowledge of this connection would somehow change how they are perceived. Benjamin moans about the ‘woeful spectacle’ of parliaments not having remained conscious about the violence to which they owe their existence. The Nakba law shows that the Knesset cannot be accused of such loss of memory. This consciousness has not, however, resulted in critical self-reflection. On the contrary, the majority in the Knesset makes law the instrument to get rid of competing descriptions of the violence of the founding act. This may not be in accordance with Benjamin’s predictions but is all the same a woeful spectacle.

Through this woeful spectacle where the victor attempts to write history with the law as its instrument, the state of Israel exposes itself to the criticism of taking steps towards making the catastrophe that its birth also constituted permanent. This is hardly a development that would have surprised Benjamin, however. In his Theses on the Philosophy of History he writes: the tradition of the oppressed teaches us that the “state of emergency” in which we live is not the exception but the rule.’ To the dismay of the Palestinian minority as well as many Jewish Israelis, the current majority in the Knesset appears to be doing their very best to prove Benjamin right on this particular point.

Markus Gunneflo

Open Democracy – free thinking for the world

19 May 2011

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