A Response to Norman Finkelstein

Virginia Tilley

19 February 2012

Responding to bizarre statements always risks magnifying their exposure and importance. Hence I wouldn’t normally respond to Norman Finkelstein’s startling 32-minute video attack on the movement for boycott, divestment and sanctions (BDS) against Israel, which was recently posted on YouTube to considerable fanfare by Zionist blogs. Some other good writers have taken him on, like Sean O'Neill, so I could leave it there. But having watched the whole video-taped interview as well as the 5-minute version that someone cobbled together of its “highlights”, I’m sufficiently irritated to respond. Partly I'm concerned to counter some fallacies he promotes that are floating around more widely, but I also feel obliged to challenge people who use the worst conceits of the academy—“it’s science!” “it’s law!”—to trash people’s work while abusing the real rigor and subtlety of academe. In fact, some of Finkelstein’s points are flat wrong, others partly wrong, some partly right and others flat right.  I’ll start with the wrong ones.

First, it’s seriously irritating that Finkelstein goes on about international law in ways that reduce international law to a parody of itself. You can’t take some law and not all law, he says, as though law is a fixed box set. For one thing, he cherry-picks law with abandon himself, as I'll discuss later. But mainly, international law isn’t a frozen set of rules. Like any law, it’s a moving target. Rules and norms develop incrementally, and are interpreted and reinterpreted over time, as conditions and needs change. For example, when the United Nations voted for partitioning Palestine in 1947, apartheid in South Africa hadn’t yet been invented. Within a few more years, South Africa’s first apartheid laws were on the books, yet it was another decade before the UN began to react seriously against it and 1973 before the UN made apartheid a crime against humanity. Today, the prohibition of apartheid is codified in the Rome Statute of the International Criminal Court and what Israel is doing can be defined and denounced in terms that did not exist a half-century ago.

This is why Finkelstein botches international law in holding that, because “Israel is a state,” no one has a jot to say about the situation of Arab citizens inside Israel. Even when he talks about the 1947 partition resolution of the UN, Resolution 181, which recommended partitioning Mandate Palestine into a Jewish state and an Arab state, he gets it wrong. He forgets that Resolution 181 specified plainly that neither state could discriminate on the basis of religion or race. When the General Assembly admitted Israel as a member of the UN in 1949, on the basis of this history, its members relied (gullibly) on Israel’s hints that it would not discriminate against Arabs inside the state. So Israel’s discriminatory laws flew in the face of international opinion even in 1949, let alone sixty-plus years later, when human rights law has gained so much more strength in prohibiting racial discrimination and apartheid. Today, no state anywhere in the world today has a “right” to discriminate among its citizens on the basis of race, religion, or ethnic or national origin. Israel has signed onto the international conventions which explicitly prohibit such discrimination and is bound by its obligations on this score.

So if Finkelstein and others try to rely on diplomatic recognition of Israel to argue that international law has nothing to say about discrimination against Arabs in Israel, they are flat wrong, because it is flatly prohibited. Yes, Israel is recognized as a state, but so is South Africa, and that didn’t stop the entire world from slamming apartheid as the racist abomination it was and insisting that the apartheid regime be dismantled.

Finkelstein is also flat wrong on another historical point: that the international legal framework for resolving the conflict has always been partition into two states. For evidence, he mentions that when Arafat—that legendary legal mind— proposed two states in 1989, he invoked the 1947 partition resolution as unfinished business of the conflict. Yes, Arafat did cite this, but his point was precisely to jump back over four decades during which the opposite was true. From 1947 to 1989, Israel flatly rejected creation of a Palestinian state anywhere in Mandate Palestine as an intolerable threat to Israel. The formal public position of the PLO from its creation until 1988 was also one state. Since 1967, Israel has made deadly clear—in rhetoric, laws, maps, settlement construction, military rule and anything else we might care to check—its intention is to keep all of Mandate Palestine under its supreme control. And in all that time, the UN Security Council said nothing about two states or even about Palestinian national rights. That’s precisely why the Oslo Accords manifested to naive international public as a “historic compromise”, blah blah.

Finkelstein calls for us to stick with this “historic compromise”. He dresses down the BDS movement for not doing so and for seeking instead, if implicitly, to “eliminate” or “abolish Israel”. We are all so sick of this language that I couldn’t normally find energy to write this sentence, except that he extends the point to delegitimizing the BDS organizers by saying that they “don’t want Israel to exist”. So let’s go through it one more time: this old Zionist chestnut makes open hash of international law by deliberately confusing two things—Israel as a modern territorial state and Israel as a Jewish state. Finkelstein’s critique of BDS doctrine is sort of right: yes, taken as a whole (as I agree with him we should take it), the comprehensive effect of the BDS agenda would “abolish Israel” as a Jewish state.

But is this logical implication—based entirely on international human rights law, by the way—illegitimate? I’d say, damn straight, Israel as a Jewish state must be abolished, just as white South Africa had to be “abolished”, and for the same reason—because ethnic states simply can’t exist without discrimination and oppression. But does this mean abolishing Israel as a modern territorial state? Of course not, just as South Africa was not “abolished” in this sense. So language about “eliminating Israel” is just pointless sophistry—scare-mongering, rhetorical sabotage—as Finkelstein well knows. Indeed, accepting his claim to senior experience of this conflict, we must assume he knows all about this manipulative language and his using it therefore can only mirror his accusations of hypocrisy back on himself.

Indeed, it is Finkelstein himself who avoids being honest—just saying straight out that he wants Israel to remain a Jewish state and won’t accept as "reasonable" any program that disagrees. Instead, he cites “international law” selectively and thinly as a cover for this. He also claims that the BDS movement contradicts “international law,” such as UN Security Council resolutions which call for creating two states. Yet here again, he cherry picks, and hoists himself on his own petard. He cites Resolution 1515 of 2003, which calls for two states, as “international law” yet then disparages Resolution 194, which calls for return of Palestinian refugees, as “indefensible”. Here more sophistry infuses his objection that mass return of millions of Palestinian refugees to Palestine would be entirely "unreasonable". For one thing, at least one study has found that the number of Palestinians actually wanting to return would be in the hundreds of thousands, not millions. But, in any case, defending the principle of Palestinian return hardly precludes sensible policies to manage the pragmatic realities of it, and activists firing questions from audiences in Finkelstein's talks (his example) hardly define the range of negotiation that must go into such questions. The very complexity of resolutions, diplomatic initiatives and contradictory clauses in the full history of the conflict precludes table-thumping about any one of them. All are necessarily subject to the diplomatic process, power politics, real politik, geographic constraints and evolving international views. Taking bits and pieces in isolation to call some “unreasonable” and others “international law” is meaningless.

It is indeed by viewing all this as a whole process, contradictions and all, that the “compromise” suggested by the Oslo Accords is revealed as a sham. Not least, Finkelstein ignores the glaring fact, hardly irrelevant to his claims about international consensus, that Israel itself has never agreed to a two–state solution. Aside from one sentence in a letter by Ariel Sharon, which was never formally endorsed by the Israeli Cabinet, Israel has never signed onto any document in any way that actually commits its government to create two states. Nor has it ever recognized the Palestinian people as a people or endorsed the Palestinian right to self-determination. The BDS movement might usefully address this farce and open discussions toward accepting that "Israel" now embraces all of Mandate Palestine and therefore must be reconceived as a secular-democratic state. But until that happens, the BDS movement can't be criticized for standing silent on a geographic version of Israel that Israel refuses to hold for itself. Here Finkelstein's citing the International Court of Justice on the question of where Israel's exists is only more cherry-picking: a mountain of international diplomacy confirms that Israel's final borders have not been set and the question remains a "final status" issue.

Finkelstein claims that BDS organisers will not admit to the true goals of BDS (the elimination of Israel) because they don’t want to split the movement. This isn’t a fact so much as an interpretation, but it’s easy to agree with him. He’s flat right that the three-tier goals of the BDS movement—end the occupation, return of refugees, equal rights for Palestinian citizens of Israel—would “eliminate Israel” as a Jewish state. I’ve pointed this out myself, and am convinced for several reasons that the BDS organizers are fully aware of it. And I too have been bothered by the elision, but on reasoning opposite to Finkelstein’s. I think that a strategic fuzziness on this point deprives the BDS movement of its greatest potential, which is the unassailable moral force gained by clearly rejecting discrimination in all its forms and fighting for creation of a non-racial state, as in South Africa.

Finkelstein, by contrast, denounces the campaign’s silence on this point as deceptive, and failing to accept the inevitable. In doing so, he tramples all over principles of political activism as freely as he abuses international law. His first fallacy is to deride the BDS movement’s fogginess on its ultimate vision of one secular-democratic state as “childish” and “silly.” In this view, he is strangely naive, for a political scientist, about the politics of liberation movements. It’s a very old and time-honoured method in building mass movements to tread lightly around issues that divide people until consensus and trust build to the point where more difficult internal differences can be productively debated. The Zionist movement itself has done this from its earliest years, in skirting deep internal divisions about Judaism and Jewish social values, but we can spot the same manoeuvring in any liberation movement over the past few centuries. So it’s hardly "hypocritical" that the BDS leadership is treading gently by not confronting its constituency with divisive issues until the time has matured for some respectful internal debate about what “eliminating Israel” will actually mean to the future and well-being of the Jewish national home in Palestine. Perhaps it’s time for those discussions to be opened, but meanwhile it’s truly silly to call the delay “dishonest”. (Perhaps Finkelstein’s sensitivity on this score traces to Maoism, to which, by his own account, he was loyal for decades longer than most people. Once in a cult, always see cults?)

Finkelstein’s second fallacy about BDS is in disparaging its few “successes”. Here he fails to grasp the essential character of a BDS campaign. Although any such campaign naturally seeks and celebrates landmark victories, its true success is not measured by the number of companies pulling out of contracts but by the incremental growth of world public opinion. Let’s get this straight: the primary purpose of BDS is public education. This is mostly an intangible or qualitative matter, yet of immense importance, as Israel knows full well: hence Israeli state rhetoric these days barely mentions “terror” and focuses almost exclusively on “delegitimation”. I’d suggest it’s a far better indication of the BDS movement’s success that Israeli ambassadors, meeting in Israel over the New Year's break, reported that they had never before felt their diplomatic environments so chilly. Sean O'Neall has observed the same constraints confronting the stumbling Birthright Israel program, and other observers attest similarly.

Finkelstein’s third fallacy regarding activism is to protest that, if it’s honest about its “eliminate Israel” goals, the BDS will never reach a “mainstream public”. This objection about mainstream opinion, which he repeats several times, is bizarre on its face. Since when do human rights campaigns adjust their arguments to please mainstream opinion? Changing mainstream opinion is their very task. If activists took mainstream opinion as the proper guide to moral action, we would never have had the anti-slavery abolition movement, or the women’s suffrage movement, and apartheid would flourish in South Africa to this day. Indeed, we wouldn’t have most human rights campaigns. The toughest ones, which are often the greatest ones, must often start small and grow slowly.

Still, maybe Finkelstein is unintentionally helpful in drawing our attention to a seamier camp of human rights activism, by publicly positioning himself in it: some activists do tune their positions to what they think the majority wants to hear, eschewing stands that “lack support”. They may believe themselves pragmatic, but I call these folks “human rights entrepreneurs”, as they are essentially market-oriented. Like courtiers, they position themselves just behind the cutting edge, with a keen eye for trends, so they can surf a wave they didn’t actually have the courage or insight to create themselves. In other words, they are not guided by the moral principles of human rights but by how the rhetoric “sells”—how a human-rights posture gets them into the "club", invited to conferences and onto speaker circuits, and draws funds to their NGOs (although I make no assertion about Finkelstein on the money question). I don’t work that way, and I’d submit that the great human rights campaigns of human history have never built that way. They build on principle, and the greatest movements, like the campaigns to end slavery and apartheid, hammered away for decades through fog and darkness, eventually succeeding when moral authority and changing conditions finally synced. So were these all “cults” during those dark years? If so, call me a cultist.

I'm not saying Finkelstein is a money-grubber. On the contrary, he is clearly saying what he truly thinks, and, setting aside his unnecessarily rude and insulting language, I respect his independence of mind. But his position is still entrepreneurial in approaching human rights audiences as markets, in the guise of being pragmatic. If he remains dedicated to this approach, perhaps he can remember the power of marketing: persuading people that they want something. That’s how the ANC did it, anyway, eventually selling its idea of a shared state to what looked for many decades like unassailable white rejection.

In stark contrast to Finkelstein's argument, human rights campaigns must indeed assume, as a premise essential to their work, that public opinion—here, Jewish-Israeli opinion and Palestinian public opinion—is not fixed, but responds to persuasion, events and conditions. Especially, it responds to messages from the other side. A clarion call by the ANC for a shared state is what tipped South African apartheid leaders, once their world crumbled, to give up apartheid. When Palestinians decide collectively that their future is a reunited and shared Palestine, in which all citizens are equal in dignity and rights, the political chemistry of the entire conflict will change. By creating a “mainstream public” for themselves, they will ultimately create it for all.

This brings us to the question of leadership. One point I think Finkelstein did get right, and perhaps it was time to break ground by saying it. He decried the BDS Council for presuming to direct solidarity activities elsewhere. He mentions its squashing his own initiative in Gaza, which was a scandal, but also its claiming authority over initiatives by solidarity people anywhere in the world. I have to agree with him on this one: I’ve never seen anything like it, either—not with the Vietnamese, the ANC, Sandinistas, the Mayas, the PLO, East Timor, or any liberation movement I’ve ever supported or communicated with. The BDS Council is an able body of activists promoting an international campaign, but Finkelstein is right: it’s no more than an unelected, unrepresentative bunch of volunteers, and it has zip to say about what anybody else does, ever, anywhere, in support of the Palestinian people. Its only legitimate role is to serve as a resource, not an authority. Language I’ve heard by international activists on this score—that “proposals” for activity this or that must be “brought to the BDS Council” for “deliberation” and decisions about whether they should go forward—is gobsmacking and raises my political-alarm antennae. The same ugly impression was gained by AdamSchatz in the London Review of Books:

The idea of living with Jews—a central tenet of large sections of the Palestinian movement during the First Intifada—gave way to a vision of struggle against a faceless coloniser. When Israel began to build the wall, Palestinians retreated in pride and defiance behind a separation wall of their own. Many now refuse to associate even with those Israelis who are in sympathy with the Palestinian struggle. Amira Hass, the great left-wing Israeli journalist for Haaretz, who is based in Ramallah, was prevented from studying Arabic at Birzeit; Daniel Barenboim has been vilified by some leaders of the boycott movement on the grounds that the West-Eastern Divan Orchestra, the Arab-Israeli youth orchestra he created with Edward Said, is promoting “normalisation” with the Zionist state. One BDS leader told me with eerie self-assurance that Said would have shut down the orchestra in line with BDS demands. There was even a debate within BDS about whether the Bilin protests ought to be boycotted because of the participation of Israeli Jews who might call themselves Zionists. ‘These people don’t go to Bilin, [Palestinian lawyer Diana] Buttu said. ‘They prefer to issue fatwas from their laptops, and if you question the logic behind the fatwas, you get called a traitor. [emphasis added]’

Who the flippin’ hell is the BDS Council to shut down the Barenboim orchestra, or turn away Amira Hass or anyone else from Birzeit University, or—god help us—presume to assert that Edward Said, of all people, would kow-tow to its puerile diktat? What random NGO coalition is authorized to silence dissent by denouncing people as traitors? This is not just arrogance but dangerous arrogance, ringing of proto-fascism—centralisation by authoritarian personalities, claiming doctrinal and strategic control over a liberation movement in the name of ideological purity with racist overtones, although they have no popular mandate whatever, not even the democratic figleaf provided by the (long-defunct) Palestine National Council. The dangers of this distortion must not be underestimated and further submission to its intimidation tactics is unwise. Perhaps Finkelstein has done the solidarity movement a service, after all, by throwing open a window for true Palestinian democrats to confront this tendency and nip it in the bud. Sometimes a bull in a china shop does create an opportunity to sweep out the place.  

 Virginia Tilley is a professor of political science, author of The One-State Solution and many articles and essays on the Israeli-Palestinian conflict, and editor of a comprehensive study of international human rights law in Israel-Palestine that is coming out with Pluto Press later in 2012. She can be reached at virginia.tilley(at)gmail.com <http://gmail.com> .