Abstract

This essay addresses Walter Benjamin's “Critique of Violence” to draw out the implications of the paradox he notes, that an exercise of a right, if it calls into question the legitimacy of the legal order, can be perceived by the state as violent, even where it is, strictly speaking, nonviolent. Benjamin theorized this in relation to the general strike, which reveals “an objective contradiction in the legal situation” that is nonetheless fundamental to the problematic constitution-in-violence of the state itself. His meditation on the strike can be extended to boycott, divestment, and sanctions as nonviolent exercises of a right that are understood by the state as destructive acts of violence: they present a challenge to the legitimacy of the state precisely in their will to abolish a condition of exclusion and differential rights that is constitutive of the state. In this respect, the observation that BDS seeks “the destruction of the state of Israel” finds its rationale and its limit within the logic of the “Critique of Violence” but also points beyond the institutions of rights, states, and law.

At the outset of this essay, I wish to acknowledge that my reflections were in large part shaped in the context of the conference “Benjamin in Palestine: The Place and No-Place of Radical Thought” in Ramallah, December 2015, during a moment when the permanent state of exception that is the norm for Palestinians living under occupation was in full evidence.1 This was a conference that will, I hope, become a model for many such collaborative intellectual ventures in the future and for which all who participated owe the deepest thanks to the organizers and to our hosts. Living under a permanent state of emergency such as Walter Benjamin recognized to be the condition—and the condition for knowledge—of the oppressed, our Palestinian colleagues need urgently not only our solidarity with their call to boycott, but also our active collaboration to break the intellectual blockades that occupation and siege impose upon them and their institutions. The urgency of thinking the question of nonviolence and committing to its practice has been made all the more acute by subsequent events: the grossly disproportionate toll on Palestinian lives and bodies has always been one of the salient aspects of Israel's regime of occupation and dispossession. Nothing has made that clearer than the unarmed protests of Gaza's Great March of Return, which has been met for some twenty months now with lethal Israeli force, having at the time of this writing killed over 200 Palestinians and injured close to 18,000.

Such casual deployment of lethal fire against the unarmed, legally sanctioned as it has been by Israel's high court, makes it incumbent upon us to try to understand why nonviolence should elicit, under certain circumstances, the state's violent response and its suspension of every norm of law and rights.2 Why is it that after repeated calls for Palestinians to commit to nonviolent protest, calls made in ignorance of the long history of Palestinian nonviolence, Israel so deliberately and methodically meets nonviolence with fatal violence? And what is it about the simple claim to the exercise of internationally acknowledged rights—the right to assemble, the right to protest, the right to go home—that leads not only to the denial of those rights but also to the denial of the right to life itself, to the relegation of the Palestinian to a permanent status outside the law and effectively outside humanity? Such questions—which go not only to Israel's violations of Palestinian rights, but also to the impunity that the “Jewish state” is granted by the indifference or active complicity of Western governments—force us to engage yet again with the traditions of critique of violence and nonviolence that are as inseparable from the practice of nonviolence and its ends as from the critique of the regime of rights itself.

The current rise of authoritarian regimes in the United States and globally, generally in association with the rhetoric of ethnonationalist majoritarianism, has everywhere entailed the assault on and even erosion of another regime that has held sway internationally since the Second World War and the foundation of the United Nations, that is, the regime of rights. As I acknowledge further below, the emergence of the notion of human and civil rights obviously has a far longer history that can be traced to the Enlightenment and the revolutionary constitutions of the United States and France or to England's Glorious Revolution and the Magna Carta before it.3 But the postwar period saw a gradual consolidation and globalization of the notion of universal human rights—or of an individual “right to have rights”—and its extension from the constitutions of nation-states into the sphere of international law, for which the protection of individual and group freedoms exceeds the boundaries of nation states and the rights of citizens. The notion of “a right to have rights” was identified by Hannah Arendt in The Origins of Totalitarianism. At that juncture, in the immediate postwar context, it was her assumption that the idea that “the right to have rights, or the right of every individual to belong to humanity, should be guaranteed by humanity itself” nevertheless “transcends the present sphere of international law which still operates in terms of reciprocal agreements and treaties between sovereign states.”4 Subsequently, however, such a regime of rights has been institutionalized in numerous treaties and accords, and such a general conception of rights as extending to individuals and even groups as a consequence of their sheer humanity has emerged. In the context of the Cold War, the emphasis in the West fell on civil and political rights, rather than on the “social rights” to public goods, from welfare to health and education, that social movements had struggled for over generations. The former included rights of freedom of conscience and expression and freedom of movement and, notably, the right to property rather than the right to common goods. These rights also entailed the right to asylum for those seeking protection from persecution on the basis of protected grounds, including race and religion as well as political expression or association. Together, the protection of these rights has also generated an international network of nongovernmental agencies concerned with the plight of “prisoners of conscience” or refugees, from Amnesty International to Human Rights Watch and the International Rescue Committee.5

While the “right to rights”—and especially the right to social rights—has never been as evenly distributed as the concept of “equal rights” might pretend, not only authoritarian regimes but even putatively democratic states are increasingly abrogating or limiting even the political and civil rights that had seemed to be protected by national and international laws and to represent the settled norms of the global community of states, especially and most urgently those of refugees and asylum seekers. Such curtailments of fundamental principles of international human rights conventions largely correspond to Arendt's observation that the right to rights was, practically speaking, tied to the secure enjoyment of citizenship and to the sovereignty of the state. In the case on which I want to focus in this essay, however, the limitation or denial of a right even within the context of a citizenry actively exercising that right, raises questions as to the limits not merely of their applicability, but of their fundamental relation to the law and the states by which, as Arendt points out, rights are supposedly guaranteed. Currently, the right to freedom of expression is under direct attack in national legislatures, including those of Germany and France, and across the United States has been explicitly sanctioned by state assemblies. I refer, of course, to the movement for Boycott, Divestment, and Sanctions from Israel (BDS), which has been unconstitutionally targeted in some twenty-eight states, from Alabama to California and New York, and which was recently condemned by the US Congress in House Resolution 246. While, not unlike its German counterpart, the latter stopped short of infringing the constitutionally protected right to boycott, its language echoes that of state legislative measures and opens the way to possible passage of the “Combating BDS Act” of 2019, an attempt to “authorize” state and local governments to pass laws prohibiting the state from contracting with or investing in entities that boycott Israel.6 These international efforts to subject the advocacy and practice of BDS to legal sanction or even, in some cases, to criminal as well as civil penalties, despite Supreme Court rulings that have affirmed the right to boycott, raise compelling questions about the limits of rights.7 BDS is a movement that bases its claim to organize and advocate on a generally acknowledged right, and which seeks only to realize the right to exercise rights on the part of others. At what point, then, can it be seen as in violation of, or to do violence to, the rights of others, and even be seen as engaging in “intimidation and harassment,” in the language of HR 246? How can a movement that explicitly and consistently adheres to the principle of nonviolence, and works fully within the terms of both national and international laws, be understood to be, in effect, violent and therefore properly worthy of the full application of legal force?

What I seek to explore in this essay is, firstly, the question as to how the very conception of a “right to rights” predicated on a universal conception of humanity may already contain within it a contradiction that would categorically bar certain human beings from the claim to or exercise of rights, and, secondly, how the persisting framework of state sovereignty, through which even the internationally grounded claim to and guarantee of rights continues—as Arendt partly saw—to be exercised, subtends the apprehension of nonviolent action as destructive violence. My principal aim, however, is not to venture a critique of the regime of international law, but to reflect on a tension within the BDS movement itself that has emerged precisely in relation to its adherence to and mobilization around rights that are defined in international law. The normative framework of international law defines both the rights for which BDS struggles and the modes of practice and conduct that it calls on its supporters to undertake. The movement “aims to pressure Israel to comply with international law and to end international support for Israel's regime of settler colonialism and apartheid,” the latter term being defined not by analogy with South Africa, but according to the terms of the 2002 Rome Statute of the International Criminal Court (ICC). Its specific demands, ending the occupation and siege of Gaza, recognition of the fundamental rights of the Arab-Palestinian citizens of Israel to full equality, and respecting, protecting and promoting the rights of Palestinian refugees to return to their homes and properties, are all predicated on international law and human rights treaties, from the Geneva Conventions to the ICC. As a movement, it is committed to respecting human rights and defines itself in a manner determinant of its practice as “an inclusive, anti-racist human rights movement that is opposed on principle to all forms of discrimination, including anti-Semitism and Islamophobia.”8

Given the hegemony of the postwar international law and human rights regime, and given the delegitimation of decolonizing movements by the association with “terrorism” that has hardened since 9/11, both the appeal to a rights-based framework and the adherence to nonviolent practice may reflect the strategic necessities of building a global civil society movement as much as ethical commitments. Such exigencies have not spared BDS from Palestinian critiques that understand its grounding in international law and human rights as undermining the agenda of liberation and decolonization from Israeli settler colonialism. As one summary has put it:

While activists, both in Palestine and outside it, continue to push back against Zionist encroachment, intensify the demand for equal rights, and build a boycott, divestment and sanctions movement aimed at shaming and delegitimising Israel internationally, the creative offerings of the settler colonial studies paradigm remain underutilised. This lack of rigorous engagement has consequences for movement building. The historic response to settler colonialism has been the struggle for decolonisation; in the absence of a settler colonial analysis, Palestinian strategies have tended to target or accommodate settler colonial outcomes rather than aiming to decolonise the structure itself.9

A similar critique has developed within the Palestinian Youth Movement, which “started with a general acceptance of the international law and human rights framing of Palestinian politics” but has more recently come to see the international law framework as potentially incompatible with liberation and justice:

[T]he human rights framework is “problematic” for anti-colonial struggle inter alia because the “reference point and authority” of a “juridical, rights-based discourse” are placed with and referred to “bodies, institutions, conventions, rulings and resolutions that are rooted in hegemonic, juridical structures rather than indigenous, justice- and liberation-centered ones.”10

The issue here is not the validity and value of rights-based tactics in the effort to mobilize civil society solidarity and action: the BDS movement did not cause but responded to the stalling of liberatory decolonizing struggles in post-Oslo Palestine and its successes in transforming the international public discourse on Palestinian oppression have been remarkable and undeniable. At stake is rather a more fundamental question of the relation of means to ends and of the ends that a nonviolent rights-based movement may envisage and perhaps bring about even beyond the principles that frame it.

In what follows, I argue that Walter Benjamin's classic essay “Critique of Violence” (1921) allows us both to think more effectively the rights-claims that underpin nonviolent struggle and, in particular, that of the BDS movement, and to comprehend the legal violence directed against it. To my knowledge, no other work so acutely explores the relation and the tensions between legally acknowledged rights and the law's exercise of violence to prohibit their use. Since in debates about BDS many of its opponents, not least in academic associations that proclaim their commitment to critical thought, have generally and uncritically elevated the unquestionable rights of Israeli individuals and institutions above the impermissible exercise of rights on behalf of Palestinians, it is clear that this is an instance where the right to rights is exorbitantly unequal in its distribution.11 The implicit violence of the enjoyment of rights on one side, that of the relatively privileged, is occluded by the projection of destructive violence against those rights onto the rightless. I will argue that Benjamin's analysis in “Critique of Violence” of the practical ways in which claims to rights broach the limits of the law and thus appear as violent might lead us also to question the Kantian categorical terms in which the right to rights is generally framed as definitionally universal in extent. But, by the same token, I will take seriously the proposition that the moral suasion of nonviolent movements is indeed a use of force and does aim at a certain kind of destruction, one that envisions dismantling the logic of rights themselves even as it claims the right to their exercise. And I will speculate finally on how the claim of rights can lead beyond rights to the possibility of what I will call “poetic justice.”

Any reading of Benjamin's “Critique of Violence” (“Zur Kritik der Gewalt”) must start with acknowledgment of the threefold meaning of the German term Gewalt: it means, as in the standard translation, violence, a word already complex enough in its range of connotations and applications. But it can also mean—and Benjamin uses it thus throughout the essay—force or coercion, as it can mean authority or power, as in Wilhelm von Humboldt's Individuum und Staatsgewalt [The Individual and State Authority], or as in die ausübende Gewalt or executive power. Furthermore, these distinct meanings, despite the different phenomena they embrace, form a continuum: as we shall see further, there is no very firm distinction between the authority of the state and its power, or between the state's power and its use, or monopoly, of violence. The consequences of failing to observe that continuum, which lies at the heart of Benjamin's argument, are legible in a work like Arendt's On Violence, in which—despite having been Benjamin's editor—she seeks to restore a distinction between the state's use of force and violence, with an inevitable incoherence that is also profoundly racialized. Insisting on the need to “distinguish among such key words as ‘power,’ ‘strength,’ ‘force,’ ‘authority,’ and, finally, ‘violence’—all of which refer to distinct, different phenomena,” she will go on to insist on the essential instrumentality of violence that distinguishes it from power, which, unlike violence, is “of the essence of all government.”12 Her insistence that violence “is ruled by the means-ends category” and therefore risks “the end . . . being overwhelmed by the means which it justifies and which are needed to reach it” (OV, 4) flies in the face of Benjamin's analysis of violence, as we shall see, precisely insofar as her argument seeks to reduce violence to instrumentality and ignores the continuum that is crucial to the latter's critique. But it also enables an insidious distinction of a racial kind, one that is constitutive of the division within humanity that the opposition of civil or political discourse and violent extremism constantly produces and which is, as I hope to show later, intrinsic to the discourse on rights itself. Since “the student movement has been seriously radicalized [only] wherever police and police brutality intervened in essentially nonviolent demonstrations,” it generally advances “the disinterested and usually high moral claims of the white rebels.” “Serious violence,” on the other hand, “entered the scene only with the appearance of the Black Power movement on the campuses” (OV, 18–19). Where the claims of “white rebels” are moral and disinterested, or, in other terms, formulated in conformity with the academic and political institutions they seek to reform and by subjects those institutions recognize, those of the Black students—the majority of them admitted “without academic qualification”—are mostly “silly and outrageous,” but mobilize a violence all the more forceful because it appears as the instrument of the community that backs “the verbal or actual violence of the black students.” What is at stake here, the circumscription of a right to a right, that of protest, echoes in a minor key a distinction that Arendt was elsewhere capable of acknowledging, that rights and the political recognition they confer are in the first instance state-sanctioned and install a threshold between those who enjoy them as legal subjects and those who are evicted from the polis, outside the law and seen therefore not as dissenting or supplicant but as insurgent.13

Such a fastidious discrimination between violence as illegitimate means to ends and either moral force or state power is precisely what Benjamin anticipates and refuses. For him, the critique of violence is grounded not in the legitimacy that just or merely legal ends might confer on the means used to attain them, as in natural law theory, but in positivist legal theory's perplexing distinction between “sanctioned” and “unsanctioned,” or legitimate and illegitimate violence.14 According to Benjamin, furthermore, “positive law demands of all violence a proof of its historical origin, which under certain conditions is declared legal, sanctioned” (CV, 238). Violence, to name the tautology implicit here, is legitimate not by virtue of the ends it pursues, but only if the established legal system accords it legitimacy. In replacing the “natural ends” of individuals, which could “be usefully pursued by violence” with “legal ends that can be realized only by legal power,” the law also considers that “violence in the hands of individuals [is] a danger undermining the legal system” (CV, 238). What thus appears as illegitimate violence is defined not by the nature of the ends it pursues, however just or unjust, but by the fact that it is a use of force not sanctioned by the existing law. But that law or system of law is not defined by ends either, but by “its historical origin”: it is the law because at a certain point, and by violence, it was established as such. “Unsanctioned violence,” however morally or politically justified by its ends it may seem, troubles the law not so much by questioning its ends as by questioning its foundations in violence and its subsequent monopoly of legitimate or sanctioned violence.

The convergence, noted by Giorgio Agamben, between Benjamin and his contemporary Carl Schmitt, is clear here: both refuse the conventional liberal assumption that the state comes to “cure” violence and that its use of force is legitimated by its containing of the “natural” violence of uncivil humanity.15 For both, law and its legitimacy alike are grounded in the groundless violence of foundation itself, in what Benjamin describes as the “lawmaking character of all such violence” (CV, 240). But Benjamin's observation also gives rise to the “surprising possibility” that

the law's interest in preserving the monopoly of violence vis-à-vis individuals is explained not by the intention of preserving legal ends but, rather, by the intention of preserving law itself; that violence, when not in the hands of the law, threatens it not by the ends it may pursue but by its mere existence outside the law. (CV, 239)

Here, Benjamin invokes the great criminal and the “secret admiration” he inspires in the public, “arousing even in defeat the sympathy of the masses against the law” (CV, 239). The idea of a violence that maintains an “existence outside the law” suggests at the least the partiality of the law and its failure therefore to gain unequivocal assent from the “masses.” But it also implicitly raises a further possibility, which is that “mere existence outside the law” might inversely be coded as in itself violence, irrespective of the means that it proposes to achieve its ends and irrespective of the justice of those ends. An instance I have elsewhere discussed would be that of the agrarian movements in early nineteenth-century Ireland which gained a reputation for violence far in excess of their actual practices: British colonial administrators understood what historian E. P. Thompson would have named their “moral economy” to represent a principle of counter-legality, such that the very fact of their organized combinations represented a threat to the state's monopoly on law and therefore on the “legitimate use of violence.”16

Benjamin almost acknowledges this peculiar effect of the law in the paragraphs that follow, remarking that “even conduct involving the exercise of a right [Ausübung eines Rechts] can nevertheless, under certain circumstances, be described as violence” (CV, 240) The instance he has in mind here is the general strike. The right to strike in the ordinary sense, Benjamin asserts, is one that the state grants or is indifferent to. It conceded that right both “once this was no longer avoidable,” that is, due to the coercive power of the workers' movements, and because the strike can be understood strictly as nonviolent: “the omission of an action, or service, where it amounts simply to a ‘severing of relations,’ can be an entirely nonviolent, pure means” (CV, 239). As such, the strike is, moreover, to be considered a means “to escape from a violence exercised by the employer.” But a strike used as a means to gain other ends can introduce “the moment of violence . . . in the form of extortion [Erpressung]” when “it takes place in the context of a conscious readiness to resume the suspended action under certain circumstances that either have nothing to do with this action or only superficially modify it. Understood in this way, the right to strike constitutes in the view of labor, which is opposed to that of the state, the right to use force in attaining certain ends” (CV, 239). The importance of the continuum of meanings in the word Gewalt is here at its most manifest, as the coercive force—or extortion—applied by the strike or boycott slips over into violence without any change in the legal concession of the right to strike.17 In this respect, while the analogy between a political strike and an act of boycott is not exact, BDS as a tactic deployed with a view to attaining certain ends and predicated on a right to boycott previously conceded is, like the strike, at once a purely nonviolent “severing of relations” and an instance of the exercise of force that is in principle within the law. But Benjamin gives us reason to complicate, though not to deny that view.

The contradiction embedded here manifests in full clarity in the case of the revolutionary general strike. Here, labor “will always appeal to its right to strike [auf ihre Streikrecht berufen]” (CV, 239), but the state calls it an abuse and declares a state of emergency: it recognizes in the revolutionary general strike an exceptional challenge to its own foundations and therefore suspends the law that these legitimate. Accordingly, also, “the law meets the strikers, as perpetrators of violence, with violence” (CV, 240). Note that Benjamin does not state here that the state's violence reacts to a prior violence of the strikers, as Arendt's white students react to the violence of the police: in this respect, the German text seems less ambiguous: “wenn es den Streikenden als Gewalttätigen . . . mit Gewalt entgegentritt” (CV, 48). Confronted with a not necessarily violent, a perhaps even passive, refusal to labor that threatens to bring down the whole legal order, the state produces the strikers as agents of violence. Violence is not a quality that inheres principally in actions, but expresses a relation of interiority or exteriority to the law as constituted.18 What is clear, furthermore, is that it is not the fact or act of striking as such which invokes the state's ascription of violence, but the exercise of a right in such a manner as to threaten the very legal order that granted it. Indeed, Benjamin's knowing play on the ambiguity of the word Recht in German—law and right—underscores his claim that what might seem paradoxical, that the exercise of a right might be treated as violence, may be an objective contradiction in the law and yet no logical contradiction (CV, 240). That logical contradiction, indeed, points to “the only secure foundation” of the law's critique. In what follows, I wish to dwell with Benjamin's insight here and extend it into the domain of rights that he does not further address in “Critique of Violence.” For there is surely much to be learnt from the contradiction he observes, by which the claim to and exercise of rights may appear as a form of violence and a critique or even abolition of, rather than an adherence to, the law.

Benjamin's example can be further clarified by the invocation of another historical instance in which the exercise of a legally acknowledged right could be regarded as violent by the state. The case of Northern Ireland has in general strong parallels with that of Palestine, both on account of the long-standing solidarity between the PLO and the Irish republican movement, as between Northern Irish Unionists and Zionism, and on account of their mutual historical relation to British colonial policy. Like Palestine and Israel, Northern Ireland was created by one of those acts of partition so balefully characteristic of British responses to decolonizing struggles and to the legacies of its own policies of colonial management through exacerbating intercommunal divisions.19 Established in 1922, through a treaty that ended an extended and brutal war of independence, Northern Ireland was constituted expressly as an ethnomajoritarian state by the devising of a frontier that would separate it from the entity that became the Irish Free State and secure for the foreseeable future a Protestant majority in a predominantly Catholic Ireland. As a result of that initial act of gerrymandering, Northern Ireland remained for over fifty years explicitly “a Protestant state for a Protestant people,” determined to deny a range of civil and social rights to its large Catholic minority, from voting rights to equal access to public goods like housing. Yet as a province of the United Kingdom, the state was also obliged to honor British customary rights, such as those of assembly, despite the frequent abuse of a Special (or Emergency) Powers Act that had been maintained continuously in force since the state's foundation. When the nonviolent Northern Ireland Civil Rights Association (NICRA) was formed in 1967, with explicit reference to the US Civil Rights movement, and began to engage in large public marches, it was met with exceptional police and paramilitary loyalist violence. A nonviolent movement was apprehended as a threat to the very constitution of the Northern Irish state precisely because it had exercised an acknowledged right in order to demand other rights that were quite legal but whose concession would have effectively spelled the end of “a Protestant state for a Protestant people.” Accordingly, the NICRA was treated as if it were violent, even though it had not engaged in acts of violence “properly speaking” and was unambiguously committed to nonviolent principles. Their constitutional claims to rights were, from the state's and from its Unionist or Loyalist population's perspective, deconstitutive. As in the case of Israel, equality of rights could only be seen to entail the destruction of the state precisely in so far as the realization of equality would have abolished its ethnosupremacist ends.20

As Benjamin maintains, the peculiar “flip” by which a nonviolent action or organization gets rendered as violent and is met with violence by the state cannot be explained within any framework which regards the law as an institution that guarantees rights as the means to claiming and securing just ends. On the contrary, the peculiar distinction between sanctioned and unsanctioned violence suggests, in light of Benjamin's logic, that the relation of agent and action can be reversed: there are agents whose claim to rights, irrespective of the means used to promote it and regardless of any previously conceded right to advocate for it, cannot be granted legitimacy precisely because it would undermine the sanctioned violence in which a given state and its legal system is founded. His argument implies that any right to rights could not, accordingly, be categorical but would depend on its conformity to existing law and its grounds. Though Benjamin only once expressly mentions Immanuel Kant in “Critique of Violence,” to invoke his essay on “Eternal Peace” in relation to the necessary sanctioning of law (CV, 240), he briefly alludes to “the categorical imperative, with its doubtless incontestable minimum program,” but precisely to suggest its inadequacy for the critique of violence. Indeed, it is more than inadequate: Benjamin's argument here suggests a fundamental critique of any invocation of the “categorical” definition of the human as a ground for the right to rights.

Let us turn to Kant's telling formulation of the categorical imperative that prohibits any use of any human person as if they were not ends in themselves, not subjects:

A human being is indeed unholy enough but the humanity in his person must be holy to him. In the whole of creation everything one wants and over which one has any power can also be used merely as means; a human being alone, and with him every rational creature, is an end in itself: by virtue of the autonomy of his freedom he is the subject of the moral law, which is holy. Just because of this every will, even every person's own will directed to himself, is restricted to the condition of agreement with the autonomy of the rational being, that is to say, such a being is not to be subject to any purpose that is not possible in accordance with a law which could arise from the will of the affected [leidenden] subject himself; hence this subject is to be used never merely as a means, but as at the same time an end.21

Kant's maxim, which assumes that any infringement on the autonomy that not only belongs to but actually defines the human subject is an infringement on the autonomy of humanity in general, furnishes the grounds for a categorical condemnation, not only of the coercive use of violence to suppress the exercise of rights or expression but also of any such infringement of human autonomy, as, for example, slavery or torture. It expresses most clearly the philosophical foundation for an ethical, legal, and ultimately political condemnation and sanctioning of the use of violence and of its agents that is based not on subjective feeling but on the very category of the human subject as such. It remains the fundamental statement on which, in some form, every argument against enslavement, torture and other forms of coercion rests. And yet, at the same time, Kant's predication of the subject's right to be treated as “an end in itself,” of the right to rights, on its autonomy entails a necessary division of the human between this categorically human, ethical subject and its counterpart that he denominates the “pathological subject,” that is, the subject subjected to need and desire, fear and gratification and therefore constitutively lacking in autonomy. This pathological—or leidenden (affected)—subject is the imaginary but necessary differential against which the categorically autonomous subject emerges in its ethical freedom. Understood as a mere moment, an effect of corporeal being, in the European subject destined to full autonomy, the pathological is a permanent condition projected onto Europe's racial others, creatures of nature and necessity, not of freedom and reason.22

This unfree subject of heteronomy, always subjected already to the implicitly coercive force of nature or necessity, is likewise apt to be subjected to the suspension of law, that “state of necessity” or Notstaat in which normative law is suspended and the state's coercive violence is the norm. For the oppressed, this “state of emergency” is, as Benjamin elsewhere pronounces, “not the exception but the rule.”23 Framed as it is within the logic of development or the “civilizing process” in which certain humans remain bound to their tutelage, the categorical imperative and its predication on the autonomy of the fully human subject relegates a whole segment of potential human subjects to the status of “pathological subjects.” As Denise Ferreira da Silva puts it, “raciality produces both the subject of ethical life, whom the halls of law and forces of the state protect, and the subjects of necessitas, the racial subaltern subjects whose bodies and territories, the global present, have become places where the state deploys its forces of self-preservation.”24 For the latter, as Frantz Fanon so eloquently spelled out in the chapter “Concerning Violence” in The Wretched of the Earth, violence, or the regime of perpetual corporal punishment that is slavery and colonialism, is absolutely the norm wherever “the agents of government speak the language of pure force.”25 For it is only, in Kant's terms, “by virtue of the autonomy of his freedom” that the person is “the subject of the moral law” and therefore exempt from the law of force. To all other categories of human beings, to whom the exercise of freedom and the right to rights may be denied because they have not yet realized their autonomy, existence as a means is not merely routine, it is justified by their not-yet-human status. The categorical imperative, in its very own terms, cannot underpin the universality of the claim to rights; even less can it dispel the sanctioning of the state's violence. Rather, it offers a covert justification of it that is entirely complicit in the logic of domination and of colonialism and in the denomination of certain categories of human as outside the protections of the law. For such humans to demand rights appears as a fundamental challenge to the regime of the law that not only sanctions but is also grounded in their subordination.

Both the logic of Benjamin's “Critique of Violence,” which implies the limits of any categorical appeal to the universality of rights, and the example of the NICRA are richly instructive in the context of the Palestinian nonviolent struggle for justice and rights conducted under the rubric of Boycott, Divestment, and Sanctions—a movement often accused by its critics of seeking “the destruction of Israel” or, more pointedly in their language, the abolition of the Jewish state.26 From the outset, the claims of BDS have been framed in the language and traditions of human rights and international law. BDS seeks redress for specific abuses of fundamental rights and an end to a system of domination that conforms to the definition of apartheid outlined in the Rome Statute of the International Court, for which the crime of apartheid “means inhumane acts . . . committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.”27 Insofar as BDS addresses global civil society as the necessary advocate of such redress, the tactics it calls for, boycott and divestment, represent no more than what Benjamin terms a “severing of relations” with the Israeli state and its institutions. Sanctions, which can only be imposed by states, would be more actively punitive. All, however, may be regarded as nonviolent interventions, operating within the precepts of the law and aimed at holding Israel accountable for its dispossession of and discrimination against the Palestinian people. It calls not only for ending the siege and blockade of Gaza and the Occupation of the West Bank, but also for an end to the constitutively discriminatory regime by which Israel, at the expense of its indigenous Palestinian minority, maintains itself as “a Jewish State for a Jewish people.” And it calls for Israel to honor the right, acknowledged in international law, for the return of all Palestinian refugees to their homes in Palestine and Israel.

BDS is, like Benjamin's reformative strike, not just the deployment of legally sanctioned rights but also an indubitable exercise of coercive force. To that extent, it too occupies a place on the continuum of Gewalt. It seeks quite simply to use the moral force of civil society to pressure Israel to respect rights already defined under international law and human rights conventions or, more immediately, to pressure those politicians whose support preserves Israel's impunity for its refusal to respect basic Palestinian rights. It exercises a right to organize and persuade acknowledged in every democracy in order to assert rights sanctioned by international and humanitarian accords to which those democracies have subscribed. The “Critique of Violence” is here of further theoretical value if we wish to think through the logic of BDS dialectically. Its opponents rightly recognize the degree to which the practice of boycott involves the exercise of force, even if it operates through the invocation of rights that are generally conceded to the citizens of democratic states. The degree to which the right of proponents of BDS to exercise that widely recognized right to boycott is increasingly being called into question, as noted at the outset, confirms that “however paradoxical this may appear at first sight, even conduct involving the exercise of a right can nevertheless, under certain circumstances, be described as violent” (CV, 240), and therefore be relegated outside the law. It is clear that Israel regards BDS as in effect an act of war and responds accordingly, threatening its proponents in Israel and Palestine with “targeted civil elimination” and attacking those in the United States and elsewhere, who are beyond the reach of its violence, with what it has revealingly dubbed “lawfare.”28 BDS is the expression of the constitutive contradiction that shapes Israel and has generated its current crisis in the face of growing international awareness: as liberal Zionists have increasingly had to acknowledge, a state cannot at once be devoted to ensuring ethnic supremacy and still claim to be a democracy.29 This is why some liberal Zionists have recently sought to confine boycott to the Occupied West Bank and the illegal settlements: those abuses, they believe, can be delinked from the larger system of discrimination that Israel maintains, leaving the Israeli state untouched.

But BDS does not merely shed light on the “law-preserving” violence of the military occupation, nor only on the violence of dispossession and institutional apartheid on the West Bank. Insofar as its principle strategically approaches a status akin to what Benjamin denominates the “general strike” rather than a merely tactical or ordinary strike, it highlights the relation between the “law-making” violence—conquest and ethnic cleansing—in which Israel as a polity was forged and the daily, structural, law-preserving violence it requires to remain in existence. In this respect, even in its claim to rights, BDS necessarily pushes beyond the humanitarian discourses of human rights and international law within which it was framed and into another terrain altogether, a terrain that lies neither within nor outside the law, but beyond it. It raises the question as to whether it represents an instance of “pure, unalloyed violence”—what Benjamin calls “divine violence”—or another moment of “lawmaking” violence that he dubs “mythic.”

For Benjamin, both mythic and divine violence represent the “nonmediate function of violence”(CV, 248), that is, violence not as an instrument or means to attain given ends, which is the only way in which legal theory can conceive of violence. Mythic violence “in its archetypal form” initially appears as “a mere manifestation of the gods.” But that manifestation reveals itself as both establishing a boundary—a “frontier between men and gods”—and a law. Ultimately, “this immediate violence in mythic manifestations proves closely related, even identical, to lawmaking violence” (CV, 248). This lawmaking function of violence not only inaugurates a new law—as in conquest or coup—but also “specifically establishes as law not an end unalloyed by violence but one necessarily and intimately bound to it, under the title of power [Macht]. Lawmaking is power-making, assumption of power, and to that extent an immediate manifestation of violence” (CV, 248).

If the end of the BDS movement were indeed the destruction of the Israeli state and the foundation of a single non-sectarian one in its place, we might regard its nonviolent means as “an exercise of a right” that manifests as mythic violence, insofar as it would be foundational and frontier-establishing and “power-” as well as law-making. It would seek to inaugurate a new legal regime, a new state, and the moral force of nonviolence would be an instrument devoted to ends indistinguishable from those attained by violence. Rights, as legal entitlements guaranteed only by states or by interstate systems, would represent not only the tactics of the movement but the bounds within which it was confined, the thinking of the state. Necessarily, it would replace one category of human currently in dominance with another that, however inclusive, would install a new regime of state and law.

It is precisely such thinking that Benjamin's “Critique of Violence” aims to exceed. His invocation of divine violence is in pursuit of “a pure immediate violence that might be able to call a halt to mythic violence” (CV, 249), and it confronts the principle of power that informs the mythic with that of justice. It is the function of this “pure immediate violence” not to establish a new order but to abolish the historically foundational function of mythic violence, whose destruction he regards as “obligatory.” It aims at “the breaking of this cycle maintained by mythic forms of law, on the suspension of law with all the forces on which it depends as they depend on it, finally therefore on the abolition of state power”(CV, 251–52). Read in this way, what the Palestinian invocation of rights within the current regime of international law and humanitarian norms ultimately destroys is not the state of Israel as such, but the principle of state power altogether, and with it, the law and the legal basis of rights themselves. It sets in train a movement towards justice whose logic does not culminate in the establishment of a new state—though of course it might get arrested there—but seeks realization in a complete transformation of social relations. It asks not for the destruction of Israel but for its transformation in a condition of justice that Benjamin's friend and colleague Theodor Adorno once defined with deceptive simplicity as “the togetherness of the diverse.”30 To think Benjamin in Palestine, to think Palestine with Benjamin, is not to arrive at this, or at any utopian goal, but it is perhaps to orient ourselves towards a destination by way of a counterviolence that exceeds both itself and the categorical invocation of rights that the movement requires as its starting point. That destination, a destination that would be the horizon of any genuine decolonization, is what I am drawn to call “poetic justice.”

What I am seeking to evoke with the term “poetic justice” is not the fulfillment of law, a judgment ending in decision and sentence, or the affirmation of a right of any kind. Justice is not the realization of a legal process or an end to be attained by legal means, whether the restoration of rights or the punishment of wrongdoing. Its work is not that of the subsumption of particular instances into generally applicable rules or procedures, but the acknowledgment of the singular in its singularity and its difference.31 Justice does not envisage the establishment of boundaries or the making of a new legal order that would guarantee citizenship and rights of belonging at the cost of a constitutive exclusion of the other. Belonging, thus conceived in relation to justice, is not a matter of rights or of taking possession, and freedom not a matter of autonomy and universality. The freedom of belonging is, rather, a matter—pathological, perhaps—of sensuous immersion and of the subtle derangement of sense and of the senses that undoes settled order and the rule of law.

It is in this sense that we can affirm the relation between the poetic and justice. As Giorgio Agamben has noted, there is for Benjamin a close relation between the deconstitutive work of justice, understood as a suspension rather than a making of law, and the work of poetic language. The former posits a state of suspension of decision, one that produces “a zone of absolute indeterminacy between anomie and law.”32 This zone is what Benjamin terms “divine violence,” conceived as a form of violence that is purely revolutionary and that remains outside or beyond any relation of means to ends: divine violence destroys law but does not found an alternative system of law. The analogue for this domain of “pure violence,” Agamben argues, is found in the notion of “pure language” that Benjamin elaborates in “The Task of the Translator,” a language “which is not an instrument for the purpose of communication, but communicates itself immediately, that is, a pure and simple communicability.”33 It is hard not to infer that this “pure communicability” of law and language frames the “zone of suspension” that is poetry itself. It allows for the imagination of a life in common beyond the languages of law and state, nation and ethnicity.

In light of the fact that it is, above all, the right of return of the refugees that Zionists fear portends and intends the destruction of the state, poetic justice stakes the counterclaim that its suspended end is not the foundation of a new law, a further sovereignty, or a new cycle of dispossession. From the statelessness of the refugee, the negative condition of dispossession of all that grants the rights and autonomy of the citizen-subject, there emerges a general unsettling of sovereignty. As Agamben has elsewhere argued, “by breaking the identity between the human and the citizen and that between nativity and nationality, [the refugee] brings the originary fiction of sovereignty to crisis.”34 Accordingly, he goes on to say:

Only in a world in which the spaces of states have been thus perforated and topologically deformed and in which the citizen has been able to recognize the refugee that he or she is—only in such a world is the political survival of humankind today thinkable.35

A short poem of Mahmoud Darwish, “I Belong There,” seems to me beautifully to condense an apprehension of how “poetic justice” might be realized, as just such a sensuous undoing of sense. Here, belonging is not possession, establishment, settlement, but the indifferent and fugitive holding of the multifarious. Home is not a property to be defended but a poetical dwelling in which language itself is dismantled, emancipated from its communicative and rule-bound ends. In its deep horizon, another possible community is envisaged. Let me end simply by citing a part of that poem:

I belong there. I have many memories. I was born as everyone is born.
I have a mother, a house with many windows, brothers, friends, and a prison cell
with a chilly window! I have a wave snatched by seagulls, a panorama of my own.
I have a saturated meadow. In the deep horizon of my word, I have a moon,
a bird's sustenance, and an immortal olive tree. . . .
To break the rules, I have learned all the words needed for a trial by blood.
I have learned and dismantled all the words in order to draw from them a single word: Home.36

Notes

1.

For my longer account of this conference and its significance, see Lloyd, “Walter Benjamin in Palestine.” 

3.

Hannah Arendt's critical analysis of the contradictions of the declaration of the rights of man and of the citizen at the end of the eighteenth century remains compelling. See Arendt, The Origins of Totalitarianism, 290–302. For the history of the Magna Carta and its absorption into common law, see Linebaugh, The Magna Carta Manifesto.

5.

For a summary of the relation between individual civil rights and social rights, and the close relation between that opposition and conservatism and white supremacy in the United States, see Greg Grandin, “There's One Heresy.” For a critique of the postwar regime of rights and associated NGOs, see Williams, The Divided World: Human Rights and Its Violence.

6.

For information on state and federal measures to penalize BDS, see Anti-Boycott Legislation around the Country,” palestinelegal.org/righttoboycott.

7.

“South Carolina Disqualifies Companies Supporting BDS from Receiving State Contracts,” n.p. European efforts to censure, sanction or ban BDS activism are summarized in White, Ahmad, and Bennis, Shrinking Space and the BDS Movement, 12–13.

8.

These guiding principles and further information about the BDS movement can be found at: bdsmovement.net/what-is-bds. These statements and the most extensive exposition of the logic of BDS can be found in Barghouti, BDS: Boycott, Divestment, Sanctions.

9.

Salamanca, Qato, Rabie, and Samour, “Past Is Present,” 4–5.

10.

Salih, Welchman, and Zambelli, “The Palestinian Youth Movement (PYM),” 4, citing Hindi, “(Re)politicizing Displacement in the Case of Palestine.” This paper contains a useful summary and bibliography of the debate within the PYM. For a searching critique of the invocation of international law in the Palestinian context, and as “a body of law that reifies, rather than unsettles, the asymmetry of rights and duties among international law,” see Erakat, Justice for Some, 6.

12.

Arendt, On Violence, 43, 51 (hereafter in text as OV).

13.

See Arendt, On Violence, 18–19, for this whole discussion of campus disturbances in the 1960s. Her footnotes to these paragraphs, on pages 94–96, with their contempt for Black “fantasies” and for non-Western culture, make quite clear the “civilizational” grounds of the distinctions she is here making. For an extended critique of “an antiblackness that infuses and animates Arendt's work,” with particular reference to On Violence and its peculiar fixation on Black activist James Forman, see Moten, “Refuge, Refuse, Refrain.” 

14.

Benjamin, “Critique of Violence,” 237–38 (hereafter cited in text as CV).

15.

See Agamben, “Gigantomachy Concerning a Void,” in rt8189873C4State of Exception.

17.

In an otherwise brilliant chapter on “Critique of Violence,” Peter Fenves seems to mistake Benjamin's point here. Fenves reads Benjamin's argument as stating, “The threat [of the general strike] stems from a mode of rt8189873C10Gewalt that, unlike extortion, is wholly legal.” But Benjamin's point is that in the political strike, the coercive power of the workers does exercise a form of “extortion” that is legal precisely where it has been granted as a right. See Fenves, The Messianic Reduction, 213.

18.

In this respect, where the regular strike is reformative in its aims, the state's ascription of violence to the general strike is performative. The general strike, however, is, as Werner Hamacher has termed it, “afformative”: its ends are neither reformist nor lawmaking, but law dissolving. See Hamacher, “Afformative, Strike,” 1133–58.

19.

On British colonial “forms of control” based on “the management, and sometimes the encouragement, or even the creation, of religious and ethnic difference” resulting in “a highly developed and systematized communitarian structure,” see Khalidi, The Iron Cage, 50–51. Khalidi explicitly compares British policy in India and Ireland with the Mandate Palestine.

20.

For a related analysis of Northern Ireland as a belated settler colonial entity, see Lloyd, “Protestantism and Settler Identity.” 

22.

On Kant's division between the pathological subject and the subject of freedom, see further Lloyd, Under Representation, 48–61.

26.

See, among innumerable instances of which it is not untypical, Kupperwasser, “The ‘Peaceful’ Movement to Destroy Israel.” Kupperwasser argues that “it is imperative, therefore to confront the false premises on which the BDS case has been constructed and expose the great distance between the polite myths repeated by BDS supporters and the violent realities inherent in a political cause that holds as its ultimate goal the destruction of Israel.” Advocates of BDS might simply inquire why the mere demand for the exercise of rights universally acknowledged by all democracies should lead to the demise of the “only democracy in the Middle East.” (Brigadier General Kupperwasser formerly headed the Research and Assessment Division of Israeli Military Intelligence. He is currently a senior project director at the Jerusalem Center for Public Affairs.)

27.

That the state of Israel practices systematic apartheid is a controversial assertion, but is not based on an analogy with South Africa, as is often asserted, but on that Rome Statute definition, Part 2, Article 7.2.h. See legal.un.org/icc/statute/romefra.htm. This definition is both clarifying and entirely apt to a state that, according to human rights organization Adalah, currently has over 65 laws that discriminate against Palestinian Israelis. See www.adalah.org/en/content/view/7771. For a detailed account of Israel's practices of apartheid, see Richard Falk and Virginia Tilley's report to the United Nations Economic and Social Commission for Western Asia, rt8189873C14Israeli Practices towards the Palestinian People and the Question of Apartheid. This report was withdrawn by the UN under political pressure by the United States and others, but is archived at www.middleeastmonitor.com/wp-content/uploads/downloads/201703_UN_ESCWA-israeli-practices-palestinian-people-apartheid-occupation-english.pdf.

28.

On the threat of “targeted civil elimination” made against Palestinian BDS proponent Omar Barghouti, see Greenwald, “Interview with BDS Co-founder Omar Barghouti.” On the “Lawfare Project,” see Abunimah, “Israel Lawfare Group Plans ‘Massive Punishments' for Activists.” 

31.

On the singularity of justice for Benjamin, see Hamacher, “Afformative, Strike,” 1144.

34.

Agamben, “Beyond Human Rights,” in Means without End, 21.

36.

Mahmoud Darwish, “I Belong There,” from Fewer Roses (1986), in Unfortunately, It Was Paradise: Selected Poems, 7.

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