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Arendt to Goldstone

Judith Butler
Paris, 31 March 2010

I am pleased to offer you one part of a larger project I am working on. In effect, I am
trying to derive a theoretical perspectives from certain texts that more or less belong to Jewish
intellectual life or, more broadly, Jewish historical predicaments as they articulate principles of
co-habitation, wage a critique against state violence, and articulate a way to think about
convergent histories of exile and dispossession. The background for this larger project consists
of certain debates about Israel and Palestine, the oft-repeated allegations that to criticize state
violence is not a Jewish thing to do, anti-Semitic, or not good for the Jews. I want to respond
only by saying that there surely ways, more or less Jewish, to establish the right to wage public
criticism against violence, to articulate the values of co-habitation, and to make use of the
resources of remembrance, in order to develop an alternative normative framework for thinking
about Israel and Palestine. My project is not exactly religious, but it does argue that there are
religious sources for certain values that are universalizable, and in this way can be seen as
tracing certain religious contributions to secular ideals.
Of primary concern to me in this presentation will be the importance of not effacing the
active traces of past destruction. As a general principle, it can and must apply equally to the
claim never to forget the Nazi genocide against the Jews and never to forget the dispossession of
the Palestinians, both historically and currently. It is difficult to hold both instances together for
several reasons. Sometimes (a) it is feared that the genocide and the dispossession are thereby
rendered morally equivalent, or (b) it is feared that by acknowledging the one set of losses, the
other set of losses must be effaced or (c) that if one mourns the losses associated with the Naqba,
one is really anti-semitic, or (d) if one acknowledges the full destructiveness of the Nazi
Genocide that one is really a Zionist. The point is not to establish a strict analogy; indeed, one
could and must say that both losses are absolutely wrong without saying that both losses are
exactly the same. I am holding out for the possibility of a framework that not only can and must
acknowledge both sets of sufferings as historically specific, but will also consider the ways in
which those separate histories of dispossession and loss converge at the site of the present
conflict. Indeed, this project seeks to follow a set of suggestions made by Edward Said in his
book, Freud and the Non-European:
The first is that Moses, an Egyptian, is the founder of the Jewish people, which means
that Judaism is not possible without this foreigner and, indeed, this Arab; this founding implies a
diasporic origin for Judaism which suggests that a fundamental status is accorded the condition
by which the Jew is wrought by the non-Jew, defined in relation to the non-Jew, and has this
inevitable ethical task of co-habitation with the non-Jew as its original meaning. The second
dimension of this text effectively follows from the first, since Said’s text is something of a
petition, an incitation, an invitation to consider that “displacement” characterizes the histories of
both the Palestinian and the Jewish peoples, and so, in his view, constitutes the basis of a
possible, even desirable, alliance between them, even the foundation for a new polity.
If we consider that Moses was a non-European, and that he is said to found the Jewish religion,
this means that the non-European Jew, the Arab Jew, is at the origin of our understanding of
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Judaism. This fact has contemporary implications not only for rethinking the history of the
Jewish people in ways that do not presume a European origin and, hence, including the
Mizrachim and Sephardim as central to its history, but also for understanding that the “Arab
Jew” constitutes a crucial conjuncture, a figure for co-habitation as a founding principle of
Jewish life.i
In Freud, Said finds an inquiry into how the non-European is essential to the meaning of
Judaism. What he likes most in Freud's embrace of Moses as the non-European, the Egyptian, as
the founder of the Jews, is the challenge that the figure of Moses poses to a strictly identitarian
politics. If Moses is to stand for a contemporary political aspiration, it would be one that refuses
to be organized exclusively on principles of national, religious, or ethnic identity. It would be
one that accepts a certain impurity and mixedness as the conditions of social life. “The strength
of this thought [Freud’s thought],” he tells us, “is that it can be articulated in and speak to other
besieged identities as well...as a troubling, disabling, destabilizing secular wound.” (54) He asks
whether we might continue to think this thought of two peoples, diasporic, living together, where
the diasporic, understood as a way of attaining identity only with and through the other, becomes
the basis for a certain binationalism. Can [this thought] aspire to the condition of a politics of
diasporic life? He asks, can it ever become the not-so-precarious foundation in the land of Jews
and Palestinians of a bi-national state in which Israel and Palestine are parts, rather than
antagonists of each other's history and underlying reality? I would like to query further: is it
precisely through a politics that affirms the irresolution of identity that binationalism becomes
thinkable?ii
Of interest to me here is the way that Said links up the possibility of convergent histories
of exile with the prospect of a binationalism that might imply equality. How does one move from
that set of histories to a present normative framework for binationalism? Briefly, I want to
suggest that Hannah Arendt already made the suggestion by insisting that the history of the
refugee become the normative point of departure for the critique of the nation-state, including the
nation-state of Israel founded on principles of Jewish sovereignty. Similarly, when Primo Levi
objected to the bombings of southern Lebanon and the atrocities in Sabra and Shatilla in the early
1980s, he made clear that the most important principle to be derived from the persecution of the
Jews under Nazism is that, “never again” should any people be subject to brutal state violence on
the basis of their religion or nationality. Although Levi erred when he claimed in La Repubblica
that the “Palestinians are the new Jews,” he meant to say that any group could be in the position
of the oppressed, and that what is needed is a framework in which a fierce denunciation and
opposition to such oppression, however it happens, takes place. Even though the Nazi genocide
against the Jews was historically singular and unprecedented, it does not establish grounds for
Jewish exceptionalism. On the contrary, it quickens the need for a concept of justice that would
protect any minority from race-based state violence. One might look to the work of Walter
Benjamin as well, since he sought to identify the messianic with that moment in which the
history of the oppressed makes its claim on the present. Although the messianic was clearly
derived from Jewish theological resources, it was in no way intended to apply exclusively to
Jewish suffering.
In this way, perhaps, the positions of Levi and Benjamin might be tentatively linked with
the historical memory of the refugee or the stateless as find that figure in Arendt’s The Origins of
Totalitarianism. As you know, Arendt had two basic claims to make in this regard: the first was
that any state founded on a homogenous idea of the nation is bound to expel those who do not
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belong to the nation, and so reproduce the structural relation between nation-state and the
production of stateless persons. This anti-democratic consequence of the nation-state calls into
question its legitimacy and viability as a state formation. Indeed, her second point is that for any
state to have legitimacy it must accept and protect the heterogeneity of its population, what she
called its plurality. At some points she seems to suggest that that heterogeneity belongs to all
countries starting sometime in the 19th century, or at least, it becomes an explicit problem for the
nation-state after Westphalia. But at other points, she seems to establish an ontology of plurality:
the plurality of any and all populations constitute the precondition of political life, and any
political state, policy, or decision that seeks to eradicate or limit that plurality is racist, if not
explicitly genocidal.iii
Toward the end of Eichmann in Jerusalem, she puts herself in the position of the judge
and offers her own indictment of Eichmann. She explicitly claims that he wrongly thought he
could choose with whom to co-habit the earth. In her view, co-habitation was a precondition of
political life, and though one could choose with whom to share a bed or a neighborhood, to some
extent, one could not choose with whom to co-habit the earth. That co-habitation remains the
unchosen condition of all political decisions, if political decisions are not to be genocidal. As a
result, laws that protect rights of co-habitation among the heterogenous populations form the
anti-genocidal basis of any international law that she would consider legitimate.
Although Arendt accuses Eichmann in 1962 of thinking he can choose with whom to co-
habit the world, she is actually saying that any choice of this kind is genocidal. It actively
deprives targeted populations of legal protection and entitlements that they need in order to
survive. This thought can clearly be found in the late 1940s when she pursues this thought of
unchosen co-habitation in relation to the proposal for a federated Palestine and then again in her
historical reflections on the American Revolution: in all these cases, she articulates her clear
opposition to any concept of citizenship based on national, racial, or religious grounds. Though,
in her terms, everyone has a right to belong to a group that may be defined by cultural and
national parameters, none of those modes of belonging can function as the ground for that right.
In other words, the “everyone” has to remain both abstract and differentiated. Everyone has the
right to communitarian belonging, but communitarian belonging gives no one that right.
Arendt has the stateless in mind in On the Origins of Totalitarianism when she considers
the massive deportations from Europe in World War II and the massive exodus of refugees, and
she has the stateless in mind again when she objects to that form of political Zionism heralded by
Ben Gurion that defeated her co-authored proposal for a federated binational authority in
Palestine in 1948. She predicted a new refugee problem, not merely one that would happen in
the course of the Naqba of 1948 to over 750,000 Palestinians, but one that would continue to
happen as the state of Israel moved forward as a nation-state on the model that she rejected, and
thought everyone should reject. The problem is not that the Israel state seized land illegally in
1948 and expelled an indigenous population, but rather than land confiscation and forms of
simultaneous expulsion and containment continued to be the policy of the state, as they do in the
present (cf. the expansion of settlements and the building of the wall both contest Palestinian
rights to land, and assert Israeli rights to territory through fiat).
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In 1948, the United Nations Conciliation Commission put the number of displaced Palestinians
at 726,000; the newly-established United Nations Relief and Works Agency subsequently put the
number at 957,000 in 1950. They claim, “In 1967, another 300,000 Palestinians fled from the
West Bank and Gaza, to Jordan (200,000), Syria, Egypt and elsewhere. Of these, approximately
180,000 were first-time refugees ("displaced persons"), while the remainder were 1948 refugees
uprooted for the second time. Estimates put the worldwide Palestinian population at over 8
million today. A million and a half Palestinians are now estimated to live in camps in these
areas.” Nearly 4 million Palestinians live in Gaza and the West Bank combined.
Arendt could never have predicted these numbers in the late 1940s. What she did predict
was that the making of the refugee could not cease under the political conditions of the nation-
state. Her call for co-habitation was an effort to assert an unchosen plurality on an egalitarian
basis as the precondition for legitimate politics, and it was meant quite clearly to counter the
genocidal politics of National Socialism and the recurrent production of the stateless by any and
all nations that sought to homogenize the nation by purging it of its heterogeneity. Although the
slogan “never again” came to signify the absolute refusal to allow such a genocide to take place,
that slogan was divided between those who said “never again” would the Jewish people suffer in
that way, and “never again” should any people have to suffer in that way, including the Jews.
Although Arendt took a clear stand against genocide when she sought to establish the
reasons for judging Eichmann, she combined this opposition with one that extended not only to
the fate of those who lost their lives in the camps, but those who were rendered stateless by
persecution, fascism, racism, and nationalism. So “never again” became a rallying cry for the
situation of the refugee, one produced in Europe by fascist and anti-semitic states, a condition
that was invoked, in part, to establish the state of Israel on the terms of 1948. The question for
Arendt, then, was how one could solve the problem of one set of refugees by establishing a state
that would be committed to containing and ever-increasing population of refugees?

The problem for her is the nation-state or, more precisely, the nationalism that supports the idea
that the state ought to express a single nation. When she considers Eichmann’s crime, the crime
of plotting and implementing genocide, she does not speak from the point of view of any nation.
Indeed, it is not as a Jew or a German or as a US citizen that she judges him. Similarly, when she
explains how he is to be judged, she makes clear that Eichmann may not stand for the entire
nation of Nazi Germany.
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The crime at issue is neither committed by an entire nation nor committed against an entire
nation, but attacks and ruptures a plurality that, by definition, cannot know nationality, cannot
be bound by nationality, and finally ought not to be. And yet a plurality is invoked in the name
of which Arendt speaks, suggesting that this commitment to plurality offers the principle of
legitimation that she finds nowhere explicitly articulated by the trial. Does this plurality exist, or
is it a specific kind of norm, one that instates a post-national framework for conceiving of
complex and heterogeneous populations and would then also serve as the basis for legal
decision-making about crimes against humanity, a basis she finds nowhere actually instantiated
in the law of her time? She asks us to consider human judgment not as bound by existing law,
“not bound by standards and rules under which particular cases are subsumed, but on the
contrary, [as that which] produces its own principles by virtue of the judging activity itself: (27)
Although one might expect Arendt to turn to natural law as a way to ground the
legitimacy of positive law, she turns instead to a pre-legal understanding of responsibility or
practical reason. In this sense, the kind of judgement she makes, and calls for, is practical and
performative, grounded less in existing legal code than in the non-existence of an ideal of justice
- one that I think might better be described as a recognition of equality that follows from her
conception of human plurality. In other words, a recognition of equality that rejects homogeneity
in favor of difference.
. Importantly, Arendt faults Eichmann for following existing law, for acting as an obedient
positivist, rather than questioning the legitimacy or patently racist law; similarly, she bases her
judgment against him on no existing law, but on judgment itself. This may seem tautological,
but it seems to be a tautology that is crucial to the idea of critical responsibility her words seem
to embody. When Arendt judges Eichmann, she speaks neither as part of an established court of
law nor in the name of the Jewish people. Importantly, she does not speak as a Jew, or for the
Jews alone. And though she herself claimed in an interview that she no longer spoke ‘as a Jew’
after 1948, it does not mean that she did not find ways to voice the complexity of her historical
and political situation.iv In Eichmann in Jerusalem, she clearly speaks for the Jews, as she does
simultaneously for any other minority who would be expelled from habitation on the earth by
another group. The one implies the other, and the “speaking for” universalizes the principle even
as it does not override the plurality for which its speaks. Arendt refuses to separate the Jews from
the other ‘nations’ persecuted by the Nazis on any communitarian grounds. Arendt speaks in the
name of a plurality that is co-extensive with human life in any and all its forms. Is there a
universal principle or presumption in this plurality? And is this, in some odd way, a Jewish thing
to do?
Arendt universalizes her claim in the following way: no one has the right to decide with
whom to live; everyone has the right to co-habit the earth with equal degrees of protection. She
does not assume that “everyone” is the same – at least not in the context of her discussion of
plurality (her Kantian strain will pose other problems here, as we shall see). Equal protection or,
indeed, equality is not a principle that homogenizes those to whom it applies; rather, the
commitment to equality is a commitment to the condition of differentiation that we cannot
choose against. One can see why there can be a communitarian reading of Arendt, since she
herself elaborates the right to belong and rights of belonging.v But there is always a redoubling
here: everyone has the right of belonging. And this means that there is a universalizing and a
differentiating that takes place at once and without contradiction. In other words, political rights
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are separated from the social ontology upon which they depend; political rights universalize,
insist on the substitutability of one subject with another; but they do this in the context of a
differentiated (and continually differentiating) population. Further, it would seem that precisely
because there is no common denominator among the plural parts of this humanity, except
perhaps the right to have rights, and a certain right to belonging and to place, we could only
begin to understand this plurality by testing a set of analogies that will invariably fail.
If we start with a communitarian presumption that this group is like another group, we
could pursue the analogy until it becomes clear that the specificity (or instability) of the group in
question cannot be analogized. The specificity or instability of the group in question defies
analogy with another; the obstruction that thwarts analogy makes that specificity plain, and
becomes the condition for the process of pluralization. Through elaborating a series of such
broken or exhausted analogies does the communitarian presumption meets its limit, and the
internally and externally differentiating action of plurality becomes clear. We might try to
overcome such “failures” by devising more perfect analogies, hoping that a common ground can
be achieved in that way (“multicultural dialogue” with an aim of perfect consensus), but that
would be to miss the point that plurality implies differentiations that cannot be (and should not
be) overcome through ever more robust epistemological experiments or ever more refined
analogies. At the same time, the elaboration of rights, especially the right of co-habitation on the
earth, emerges as a universal that governs a social ontology that cannot be reduced to a single or
common denominator, except perhaps the right to have that right to co-habitation. Hence, the
universalizing right, to be concretely understood, has to break up into its non-universal
conditions; otherwise, it fails to be grounded in plurality.
On the one hand, Arendt gives us a strong notion of social plurality that serves as the
basis of a pre-legal obligation to accept plural co-habitation as an unchosen condition of sociality
itself. On the other hand, we might reasonably ask whether the theory of judgment she provides
is fully compatible with this version of social ontology. After all, the judgment that Eichmann
failed to make, and the judgment she formulates against him, seem to depend on individual
minds, even sovereign decisions. The one who refuses to obey the law does so on the basis of
his or her judgment; and the one who convicts Eichmann in the right way does so on the basis of
a judgment that finds no ready precedent in law. She seems to say as much in “Personal
Responsibility Under Dictatorship”: “… the rather optimistic view of human nature, which
speaks so clearly from the verdict not only of the judges in the Jerusalem trial but of all postwar
trials, presupposes an independent human faculty, unsupported by law and public opinion, that
judges in full spontaneity every deed and intent anew whenever the occasion arises.” She goes
on to speculate, “perhaps we do have such a faculty and are lawgivers, each single one of us,
whenever we act.” In “Some Questions in Moral Philosophy,” Arendt makes clear that at least
this part of Kant has to be safeguarded and opposed to Nazi obedience. Again, she offers her
norm through a conjecture: “If, however, I can be said at all to obey the categorical imperative, it
means that I am obeying my own reason…I am the legislator, sin or crime can no longer be
defined as disobedience to somebody else’s law, but on the contrary as refusal to act my part as
legislator of the world.”
It seemed to me that in trying to imagine how a person could exercise responsibility
under social and political conditions of thorough constraint, indeed, under dictatorship, she
sought to find and establish a certain kind of judgment that would be free of all cultural and
social constraints, an operation of freedom that no external constraint could suppress, an action
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of freedom, we might say, that would be neither conditioned nor determined by social norms.
And yet, in laying out a conception of plurality, is she not also laying out a social ontology? I
think there could be differences of opinion on this point. There are those who might claim that
plurality is a political desideratum, or that plurality is a normative measure. But it seems to me
that something more is at stake, and it comes through precisely when we think about modes of
co-habitation that we do not choose, and which, in her view, it is not our prerogative to choose.
If we have no choice about co-habiting the world, and if that co-habitation commits us to
plurality, then it would seem that co-habiting in plurality is prior to any social contract, that we
do not enter into it freely and deliberately, but that it is the unchosen situation of social life, and
that certain obligations emerge from the fact that we do not, and may not, choose the inhabitants
of the world.
So what does this mean? It means to begin with that we are up against others we never
chose, and that this proximity is a source of a great range of emotional consequences, ranging
from desire to hostility, or indeed some combination of the two. She emphasizes time and again
how freedom requires acting in concert, but what she seems not to consider at any great length is
the unfreedom that conditions co-habitation, and how we think about that unfreedom in relation
to the freedom which is, for her the basis of politics.
But if we take seriously the inability to choose with whom we cohabit the earth, then
there is a limit to choice, even a kind of constitutive unfreedom that defines who we are and even
normatively who we must be. It is for this reason that I think that the recourse to the sovereign
mind, its faculty of judgment, its individual exercise of freedom, is in some quite strong tension
with the idea of co-habitation that seems to follow both from her accusation against Eichmann
and her own explicit reflections on plurality. This last notion provides a precedent for
international law, one that is not based exclusively on the rights of citizens, but extends members
of all populations, regardless of their legal status. Indeed, in the recent Goldstone Report (“The
United Nations Fact-Finding Commission on the Gaza Conflict”), Goldstone himself remarks
that international law, and justice requires that “no state or armed group should be above the
law.” In saying so, he posits a law that overrides whatever laws and policies govern a particular
state or an armed group.
Although Goldstone seeks recourse to international legal precedent throughout this
report, there is still a tension between the way in which the report asserts or even makes law, and
the way that precedent constrains the judgments it makes. I think in some ways this mirrors the
tension between sovereignty and co-habitation in Arendt. Does judgment presuppose a
sovereign action, or is it the result of an historically forged consensus, an action on the part of a
plurality? I think we see something of this tension in the public reception and adjudication of the
Goldstone Report, published in September of 2009, which calls on both the State of Israel and
the Hamas authority in Gaza to conduct criminal investigations into possible war crimes. At
stake in one part of the report and its findings is whether civilians were targeted, or indeed,
whether civilians were used as human shields. Not only has the State of Israel called into
question the fairness or, indeed, even-handedness of this approach, but it claims that Goldstone
has exercized inappropriate authority, framing the conflict in a one-sided way, and Israel made
clear that it will not to honor the legitimacy of the final recommendations of the reporto to
inquire into war crimes and crimes against humanity. At this point, we can see that there is a
question of whether it is Goldstone who speaks, or whether international law speaks when
Goldstone speaks. Is this a sovereign decision on his part, giving to an individual a moral and
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legal authority that he ought not to have, or is he entitled by international law to make the
judgments he does (it is, of course, a commission that judges, but the judgment is formulated
under his name). Both sides of the conflict disputed the legitimacy of the demand, especially
Hamas which understands that the civilian population of Gaza was disproprortionately effected
by the assault of December 2008 that ended in January 2009. The Palestinian authority has,
incredibly, failed to support the report. And the investigations that the Israelis have agreed to
conduct are emphatically not independent criminal investigations, and have yet to result in
convictions. As reported by Adalah, the center for minority Arab rights in Israel,
“ According to the Israeli military, the focus of these investigations is any "misconduct"
by Israeli soldiers as individuals outside the scope of any official instructions and orders
received, and not the policies and strategies of the Israeli military operations, their
implementation, the size and type of weapons used, etc. Thus far, these investigations seem
primarily intended to ease international pressure on the Israeli government and to relieve the
army and its command of the charges leveled against them, and to preclude deliberation of these
crimes in international fora.”
In other words, the investigations taken up in response to the Goldstone injunction to investigate
crimes of war and crimes against humanity have effectively decriminalized the charges. The
risk, of course, is that the report is taken to be bad public relations, one that can be countered by
rival commissions and findings, at which point the findings of tribunals are bad press, but have
no other legal standing, and no moral claim.
Of course, it is interesting that Goldstone is himself a Jew and a Zionist, and that Richard
Falk, the special rapporteur for the United Nations on Palestinian Human Rights was detained in
an Israeli cell prior to being given limited rights of mobility within the Occupied territories. Falk
is also Jewish, but more along the lines of Arendt. Can we say that an alternative memory
prompts the moral embrace of international law over and against nationalism or the claims of the
nation-state for both Goldstone and Falk? The division that we see between these two supporters
of international law and the explicit claims made by Israeli authorities about the skewed and
unreliable nature of international law reveal certain tensions between universalizing claims of
justice and the sovereign claims of the nation-state. In the Israeli context, this devolves into a
question of whether the nation-state of Israel not only has the right to defend its citizens against
attack by so-called “terrorist” groups, but also, implicitly, whether the State of Israel must defend
the Jewish populations against an internationalism that is suspected to be, fundamentally, anti-
Semitic. It is on the basis of this last claim that both Goldstone and Falk have been called self-
hating Jews within the Israeli press. But could it be said that, in fact, they represent a different
trajectory of post-war, and even pre-war, ethical thinking that takes co-habitation to be
fundamental to social and political life, and understands international law to have the obligation
to protect not only citizens of existing nation-states, but all populations, including refugees or
colonized peoples whose citizenship is either non-existent or in the process of emerging. In
effect, I understand Goldstone to be continuing an Arendtian tradition within Jewish thought,
which is to say that it is a thought, a normative framework that binds the fate of the Jew with the
non-Jew. This ethical value of co-habitation is doubtless the result of a diasporic condition, one
that includes dispossession, persecution, and exile. But can we understand it as well as a way of
calling for international law that would apply to all refugees? And can we also think about bi-
nationalism in this regard as basing itself on an ethos of international law that does not
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discriminate among the claims of the refugee, whether contained under conditions of
occupation, or de-contained in exile.
Interestingly enough, the Israeli Ambassador to the United Nations wrote a strong letter
opposing both the legitimacy and the findings of the Goldstone report, claiming that it did not
adequately take into account the rights of a sovereign state to defend its own civilian population
against a terrorist group. You will note that “civilian” enters into this formulation of the so-
called conflict on the side of Israel, although the Goldstone report assumes that there are civilians
on both sides, and that an inquiry into the rights of both has to be conducted. But if the civilian
population of Gaza belongs to Hamas, does that mean that they are no longer civilians, or that
they fail to be protected under those international laws that seek to protect the lives of civilians in
war? Given that Hamas is also the organization that takes care of the infrastructure of
Palestinian society in Gaza, including irrigation, food distribution, schooling, and transport, is
Hamas not effectively co-extensive with civilian life in Gaza? That can lead to a question about
how best to distinguish civilian from military populations in Gaza, and Israel has clearly sought
to augment the numbers of military killed, suggesting as well that children killed in open
playgrounds were nothing more than human shields. At a certain point, it becomes impossible to
say, within such a framework, whether there are any civilians, or whether the women and
children killed are military shields, to be regarded as instruments of war, rather than as
“civilians” whose rights are to be protected according to international law.
The Palestinian Center for Human Rights claimed that 1,285 Gazans were killed and
4,336 wounded, and that the vast majority in both columns were civilians. Israel has sought to
dispute these numbers, accusing Hamas of inflating the number of civilian casualties, saying it
can name more than 700 Hamas militants killed in the fighting. Even if we grant that point, that
leaves between 500 and nearly 1000 Palestinian civilians dead. It seems clear that the number
we settle on depend upon how we understand the category of “civilian.” And to understand how
that category works, we have to ask whether anyone who is understood to belong to Hamas can
still be considered a civilian, and then, secondly, whether it is finally knowable within Gaza, or
from an aerial view, whether someone is or is not Hamas.
In conclusion, I would like to just make a few points, and then end with a telling remark
by Arendt, written over 60 years ago. Although international law can and must distinguish
between combatants and civilians, we can see how that distinction can be manipulated by those
who wish to recast civilians as combatants in order to justify violence against civilian
populations. Indeed, it seems to me that the very idea of a “civilian” still belongs to the discourse
of the nation-state – we invariably imagine civilians as citizens. Under what rubric do we
understand the rights of those populations that are in part refugees, in part civilians, belonging to
no established or autonomous nation-state? Secondly, international law has always suffered by
virtue of the problem of having no binding authority on nation-states. The force and justice of
international law has to be derived in part by the publicity it gains through the press – since an
international consensus has to be formed in order to produce a consensus on the findings of
commissions such as Goldstone’s. The necessity of publicizing such views, and even defending
the rights to publicize them, is crucial, but such a position has to defend against the claim that the
findings of international commissions such as Goldstone’s are publicity stunts or simply bad
press to be countered by “good press.” It is interesting to note that part of the Goldstone report
objected to the suppression of dissent within Israel during Operation Cast Lead, which included
the arrest of both Palestinian and Jewish Israelis who publicly demonstrated against the assault.
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The articulation of principles requires publicity, but if those principles are reduced to mere
publicity, the principles are lost.
Finally, then, let me return to the perspective of Arendt, one that resonates I believe with
the ethos articulated by Said in his small book on Freud. In the last forties, Arendt wrote the
following:
“What happened to the Jewish people under Hitler should not be seen as exceptional but
as exemplary of a certain way of managing minority populations; hence, the reduction of
‘German Jews to a non-recognised minority in Germany’, the subsequent expulsions of
the Jews as ‘stateless people across the borders’, and the ‘gathering of them back from
everywhere in order to ship them to extermination camps was an eloquent demonstration
to the rest of the world how really to “liquidate” all problems concerning minorities and
the stateless…After the war it turned out that the Jewish question, which was considered
the only insoluble one, was indeed solved – namely by means of a colonised and then
conquered territory – but this solved neither the problems of the minorities nor the
stateless. On the contrary, like virtually all other events of our century, the solution of the
Jewish question merely produced a new category of refugees, the Arabs, thereby
increasing the number of stateless and rightless by another 700,000 to 800,000 people.
And what happened in Palestine within the smallest territory and in terms of hundreds of
thousands was then repeated in India on a large scale involving millions of people.”

The question of minorities and the stateless thus emerges from a particular history of the
nation-state and its implication in racist politics. We might understand this as a collective
memory, but not the collective memory of the nation. On the contrary, it is the collective
memory of the non-national, the ones who do not belong, who had to flee, and who did not know
whether there might still be legal protection from them in the midst of such loss and fear. One
question then is whether international law is linked with bi-nationalism, and whether their
combination might lead to a conception of rights that are not finally “national” – since, as Arendt
tells us, though everyone has a right to belong somewhere, our modes of belonging are not basis
of our rights or obligations. This non-chosen adjaceny, this living up against and with one
another may well become the basis for a binationalism that seeks to undo nationalism, even
relieve international law of its tacit commitments to the nation-state. This would be a co-
habitation that is guided by the memory and the call to justice that emerges from dispossession,
exile, and forced containment, not just for two peoples, but for all peoples.
1113
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i
Gil Anidjar, Arab and Jew
ii
I cannot explore the vicissitudes of binationalism within this lecture, but I would refer you to an important recent essay by
Meron Benveniste in which he makes the claim that Israelis and Palestinians are already living in a wretched form of
binationalism, and that the contemporary task is to think through newer models, both those that could belong to a one state
or a two state solution.Meron Benveniste, Haaertz, February 2010
iii
Westphalia
iv
No longer speaking as a Jew after 1948 (see la magazine litteraire)
v
See Little Rock