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The Legality of Genocide: On International Law & Thoughtcrimes on US Campuses

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This week – the legal criminality of genocide: of perpetrating it, supporting it – and in the US, of decrying it. In the first half of the show, Hassan Ben Imran from Law For Palestine joins Eleanor Goldfield to discuss the recent case of genocide brought by South Africa to the ICJ against Israel: the potential, the pitfalls and the precedent. Ben Imran also debunks Israel’s claim to self-defense and shines a light on the West Bank, a primary target for Israel beyond obliterating Gaza. Next up, Professors Anthony O’Rourke and Wadie Said join the show to discuss their recent article in Dissent covering the oppressively Orwellian push to criminalize support for Palestine as material support for a terrorist organization, particularly on college campuses — going farther than the already ludicrous assertion that antizionism  is antisemitism.

Notes: 
You can find the link to the European Journal of International Law article mentioned by Hassan Ben Imran here.

Video of the Interview with Hassan Ben Iman

Video of Interview with Anthony O’Rourke and Wadie Said

Below is a Rough Transcript of the Interview with Hassan Ben Iman

Please consider supporting our work over at Patreon.com/ProjectCensored

Eleanor Goldfield: Thank you everyone for joining us at the Project Censored radio show. We’re very glad right now to be joined by Hassan Ben Imran, who’s a board member at the Law for Palestine organization and an author on Palestine/ Israel and international law. And he joins us today from Istanbul, Turkey.

Hassan, thank you so much for joining us.

Hassan Ben Imran: Thank you, Eleanor. It’s a pleasure to join you.

Eleanor Goldfield: So I’d like to start off first with the elephant in the room with regards to the ongoing genocide being perpetrated by Israel, the issue of “self defense,” because on its face, it’s an absurd argument because it would be like bombing an entire city because somebody bumped into you at a bar.

But for the sake of argument, let’s look at article 51 of the UN charter which Israel invoked, and it refers to a state’s right to self defense when attacked by another state. But, as Francesca Albanese, the UN Rapporteur on the Occupied Palestinian Territories put it, Israel’s never been threatened by a state, but rather, “an armed group within an occupied territory.”

And just going by international law as I understand it, there is no right to self defense when you are an occupying force. Could you expound a little bit on this?

Hassan Ben Imran: Of course. So, to basically start the discussion before we talk about Israel’s right to self defense, it’s quite interesting for me that most of the discussions, I’m not talking about this particular discussion, but the international media discussion, the mainstream media discussion starts with speaking about Israel’s right.

As if Israel is that innocent, cute, weak entity looking for rights, looking for someone to protect them, forgetting that this is a nuclear power. It claims to be the strongest army in the Middle East, stronger than the huge surrounding armies. It does claim to be the most powerful power in the Middle East. Stronger than Iran, Turkey, Egypt, Saudi Arabia. This is what Israel claims.

So I find it quite mind provoking that the conversation in mainstream media always starts with Israel’s right, whether to self defense or to anything else. But for the sake of the conversation, as you said, Eleanor, we can discuss what the law says about it.

Francesca Albanese, Dr. Francesca put it in a very good way. But it was not only Francesca and it’s not a new discussion. It’s not a discussion that started this year or in the past, previous operations. We have an ICJ advisory opinion that was issued back in 2004, the advisory opinion on the wall. It clearly said in paragraph 139, and anyone who would like to refer to it, please feel free to do so while watching this. It clearly talks about that Israel, while being the occupying power, does not enjoy the rights conveyed upon states by Article 51 of the U.N. Charter.

So Israel does not enjoy the right to self defense to a territory it occupies. Let’s, let us break it down. So why is that the case?

So when you are on occupying power, what does that mean? You are in a state of offense, you are actively taking an active part in moving your military forces or using your cards of power, let’s say, because it’s not just military forces, like the electricity, the water, the maritime boundaries, so on and so forth. So you are in an active state of offense. And I’m not talking about the legality of it. Now we’ll come to the legality of it. So this means that you are already in the offense. You are taking the initiative.

Self defense is a reactionary thing. It’s something that you do in response to something that happens to you.

So that’s not the case in the case of Israel according to international law, according to the ICJ, which is the most authoritative judiciary on earth. There’s no dispute about that. It’s the court of the UN or the World Court. So, so we have that.

Now we have the other advisory opinion, which is being deliberated at the moment following the UN Commission of Inquiry back in 2022. The commission said that the Israeli occupation of the occupied Palestinian territories is illegal in and of itself.

So what does that mean? That means that Israeli occupation is not illegal because of its conduct, which is illegal, but it’s not because of the conduct. It’s because of the very fact that Israel is occupying the Palestinian territories.

The former special rapporteur set very clear four criteria for an occupation to be illegal. It’s published in EJIL Talk. And the court right now is deliberating on this particular, before the ICJ case started, it was already deliberating on the legality of the occupation itself. Now, this is supposed to end the dispute once and for all.

In my opinion, the occupation started to be illegal, did not turn out to be illegal, but regardless, it is illegal right now in and of itself, which means you definitely cannot claim the right to self defense. You cannot speak of rights because you are in a state of aggression, not just a state of offense. A state of active aggression.

So because now if let’s say the Israeli occupation deprives Israel of the right to self defense, that means Israel might be entitled, according to international law, and now I’m talking within a gray zone, a gray area, might be entitled to some measures to repel certain hostilities on its own territories. I mean, that would be the case. Now that we speak of an illegal occupation in and of itself, then you absolutely strip them of any claims to rights.

So let’s, for the sake of the conversation, let’s think of it like this. Now we have Russia and Ukraine. It’s a clear case where everyone is talking about. For some reason, history chose Ukraine to happen right before this Gaza war to, to expose many things that have been beautified, or many people are trying to beautify them or change that in fact. But they happened in such a very close timeframe for people everywhere to see the hypocrisy, I would say, while dealing with these matters. And we can get into this further on later on.

So let’s say that Ukraine, now everyone is talking about the Russian occupation to be illegal in and of itself, because Russia is in a state of aggression. That’s the international legal debate on it. So now let’s say that Ukraine attacks the Ukrainian territories occupied by Russia.

Now everyone is going to say, of course, Ukraine is entitled to it. I haven’t heard another dispute. What if Ukraine takes further step into the Russian territories to make sure that – you see where I’m going with this. So, basically, the discussion, once you remove the word Palestine and you remove the word Israel, the discussion is already settled. It’s because of the titles we add to them that we have a legal dispute about them. As simple as that.

So, moving on from here, from the right to self defense and from the advisory opinion, I believe, just to conclude, I believe the discussion on mainstream media should start with what are Israel’s responsibilities because it is the occupying power. It has been the occupying power for decades, and above all, it is the capable side in this conflict. It is a nuclear power, just ask any military analyst. I don’t know if you have hosted any military analysts to just make a quick comparison between what the Palestinians have, of all factions, including the PA, and what Israel has. Any military analyst would tell you this is a joke. I mean, why are we saying comparative? Yeah. So I’ll end here about this.

Eleanor Goldfield: Yeah, absolutely. I mean, just how the mainstream media or corporate media, as we call it here, calls it a war. That suggests that there are two sides that are somehow evenly matched, which is absolutely not the case. So even just to call it a war, I feel is very misleading.

And I do want to get into more conversations about the ICJ, but I also want to talk about something that the corporate media misses entirely. I mean, it misses almost everything, but, something that has not come up a lot, even in some alternative media is talk of the West Bank because most of the focus understandably has been on Gaza, but there’s quite a lot of ramping up of violence happening in the West Bank as well that’s just basically passing under the radar in terms of the push to blockade, to further displace Palestinians and throw up settlements.

Could you talk a little bit about what’s going on in the past couple of months here and how Israel seems to be using this time when everybody’s focused on Gaza to perpetuate this violence in the West Bank?

Hassan Ben Imran: For many reasons, Israeli behavior seems to prioritize alienating Gaza, like getting rid of the problem of Gaza, or as Rabin said it very clearly, he said, I wish the sea swallows Gaza. Yitzhak Rabin, the Nobel Prize winner. So he clearly said that I wish the sea swallows Gaza for a simple reason that the moment that Israel is done with Gaza, it wants to reclaim the whole land and territory and holy sites of the West Bank.

Israel has one simple problem when it comes to the West Bank: it has some Palestinians. For some reason, you know, this problem existed for Israel. So this has to be resolved. But in order to resolve it, you need to finish one by one. You need to end the problem of Gaza and then focus on the West Bank.

Now, some people say that this is something that happened with the right wing government starting from Netanyahu and before that, Ariel Sharon. Well, if we look at the numbers, the whole process started in 1967, Israelizing the West Bank, annexing the territory, starting from East Jerusalem and to the West Bank, the Jordan Valley.

Then it accelerated massively following the Oslo Accords. While Palestinians, I mean, while Yasser Arafat was being blamed for being the bad guy who does not want to negotiate peace and who’s being stubborn, ultra stubborn to give up further of the remaining 18 percent of the territory of the Mandate Palestine, while he was being accused of that, Israel has been massively accelerating the pace of settlements during the left wing labor government.

So this is not something about the right wing of Israel. Linking it with the right wing, I think, is a distraction for many reasons. Then the process with Netanyahu became worse, so I’m not saying that they are equally bad, or they’ve been equally bad treating Palestinians. Definitely, Netanyahu has made it much worse. But it has started way before Netanyahu.

Netanyahu continued a path that has been started by others. The situation got worse and worse until you had this current new government. And I’m not just talking about this formation of the government, I’m talking about the few years, the latest governments. You had an extreme fascist minded government with people like Smotrich, Ben Gvir, who are publicly talking about genocide. Netanyahu is talking about it, but, you know, they’re kind of more comfortable talking about it. Like, Netanyahu seems to have a legal team, they don’t seem to have a legal team. They seem just to be speaking out their mind.

So, the process became very evident to the extent that now we’re talking about a state within a state. There is an Israeli state. And then there is an Israeli sub state formed by the settlers. It’s kind of disorganized, but also organized. It is connected to the state and independent from the state. Connected in the sense that they are being fully armed by the state of Israel, the government, and by Ben Gvir.

And this is not something that needs any analysis. Just Google Ben Gvir providing heavy artillery to settlers in the West Bank. So now you’re talking about a state within a state. And now when I talk with any Israeli affairs specialist or expert, whether an Israeli, a Palestinian Israeli, or anyone who specializes in this field, they tell me that there is not a single Israeli leader who dares to dismantle the settlements.

Everyone talks about an Israeli civil war if anyone dares to dismantle the settlements. What does that mean? That means that Israel has zero interest in giving anything when it comes to the territory of the West Bank, which was a part of the territory of the mandate Palestine.

If we go back to 1939. I refer to something called the White Paper of 1939, where the king, the Government of Great Britain promised to establish a state in Palestine. One state in Palestine called Palestine, for the whole citizens of the territory. Palestinians being Muslims, Christians, or Jews.

So it was a state for everyone. And if you look at the coin, it had two languages: Arabic and Hebrew, and of course, English, since the UK was being the mandate over Palestine. So, of course, the UK did not fulfill, broke its promises, violated its obligations. If there is an independent judiciary to look into this one, definitely the UK government, the government of Great Britain would be indicted.

And here I refer anyone who is interested in this one to read further about it from John Quigley, an American professor of international law who has written, like regularly has been writing about this one and he published a book called the British mandate talking in details about that the UK did not simply violate the League of Nations, the whole act was in violation of the principles of the League of Nations back then.

So now back to the current situation, we’re talking about a state within a state that is being fully armed by the state of Israel and that is not subject directly to the Israeli judiciary in the West Bank. People are subject to different military judiciary, like the Israelis are subject to one law, the Palestinians are subject to another law. However, those in the West Bank, they have the kind of a free card, a free pass, you know, get out of jail in Monopoly, that’s that type of card. They’re not accountable in any possible way.

So in my opinion, what’s happening in Gaza is a rehearsal for what could be happening in the West Bank, if not worse. Because from many perspectives, religious, strategic, and many other perspectives, for some reason, the West Bank is the focus. for annexation. They don’t want to annex Gaza. They just want Gaza out of the equation. How? Gazans can go to Congo, as per the latest news, they can go to Rwanda. I mean, you know, they figure it out. Sinai is too big, you know, go to the desert, do something there. So they just want to get rid of Gaza. They don’t necessarily need that territory per se. Now they want, because of greed, and arrogance, but historically they did not want per se to annex Gaza, but they did want to swallow the whole territory of the West Bank.

So, I would conclude about this that what is happening in the West Bank is not a random disorganized action. Yes, the settlers are not as organized as the Israeli military, the Israeli armed forces, but it is being commissioned somehow by the state of Israel. The connections are deeper and older than Ben Gvir, but with Ben Gvir, the pace of acceleration has become very evident and too clear.

Eleanor Goldfield: Yeah, absolutely. Thank you so much for contextualizing that. That sounds absolutely horrifying to think that the West Bank could also look like Gaza soon. But, with regards to kind of shifting back now to the ICJ, I want to turn to South Africa’s filing of a genocide case against Israel.

First of all, some listeners have noted that they’re confused between the ICJ and the ICC, so I just want to say, and you probably have far more to say about this, but the ICJ is part of the UN, and as such, like the UN, has no enforcement mechanism. The ICC is an international court seated at The Hague, Netherlands, and has historically, since its founding in 1998, which is not that long ago, been a colonial court focused on crimes against humanity, almost exclusively in Africa by non-white perpetrators. Of the 51 defendants currently listed on the ICC’s site, only two are not African.

It does have the power to arrest, but the US, for instance, has made it clear, not least of all with the Hague Invasion Act, that’s what it’s called colloquially, that it will, “use all means necessary and appropriate to bring about the release of a U.S. or allied person detained or imprisoned by the ICC.”

So, with that in mind, as we look at what’s going on with the ICJ, I mean, the U.S. can just shrug it off, like it shrugs off everything the U.N. says. And of course Israel can do the same because it has the backing of the United States.

And if it does somehow move to the ICC, it seems that the U.S. could also just shrug it off because it’s ready to invade the Netherlands, which is just absurd to think about, but that’s the world we live in.

So I’m curious, with those two judicial mechanisms, what are your thoughts on these cases?

Hassan Ben Imran: Yes. So to break it down, I’ll come at the end to discuss the Hague Invasion Act, which is so surreal, you know, like it feels like a scene from some movie.

So to break it down, now we’re talking about the limits, or let’s say that the challenges to the UN system, to the court, in terms of application, enforcement of its decision. We also have the issue of the U.S. pressure, American pressure on the UN, on its court, blocking certain resolutions, and we have the issue of what do we expect from the court of the UN, considering the limitations that we’re speaking of.

Now, we can talk in details about the colonialist foundation of international law. I mean, it’s not too difficult to dig deeper. We can just, for example, we started the discussion by talking about the right to self defense, right? Now, I have a tiny question, like a simple question. Why do we have such a well coded resolution or article, very well coded, very heavily documented, codified, and clarified in the international legal regime, which is called the right to self defense, which is a right for states.

And now when we say states, basically we’re talking about the states that were in existence when the UN was founded in 1948. And they happen to be from certain geographical zones. Not from different countries all over the world. So while 70 percent of the world was colonized at that time, nobody spoke about the right of people to defend themselves. Self defense for people. I mean, why is that?

Even though morally speaking, the right to self defense of people, to be honest, in my opinion, it it’s more of an obligation. If someone attacks my house, attacks my kids, what kind of a father am I if I don’t protect them? I mean, I mean, why is it called a right? This is an obligation. I will find it very difficult to morally respect someone that runs away, a father, a mother, anyone that would run away from protecting their kids because, I mean, it’s a very commonsensical thing to think about. However, this was not codified, the right of people to self defense.

Look at the British discourse about the Mau Mau revolution in Kenya, for instance. While Kenyans were being very softly and gently genocided back then, they created conservatories for Kenyans to put them. The British were less aggressive in their colonialism than the French. The French genocided like in broad daylight the people of of many cities in Algeria. I’m trying to remember the name of the city where 14, 000 people were genocided in one day by the French. But the British, I’m talking about the government of Great Britain back then, they were more gentle, more soft.

So, basically, they wanted to do business in East Africa, basically Uganda and Kenya. They didn’t want to kill people. They just want to do business. However, there is a tiny problem is that there are people in this land. So how do we come across this problem? We just create conservatories. So if you go to Kenya right now, you have something called Masai Mara, which is a conservatory for wild animals. Basically, they created the same for the Kikuyu tribes for them to stay in certain conservatories where they do not bother the business conduct of the government of Great Britain back then.

So we can talk in details about the foundation, the colonial foundations, however, we can acknowledge that there are many moral foundations for the current international legal regime. It’s imperfect. It is very flawed, but it has certain moral foundations. It has certain, things that people commonsensically agree on.

The fact that there is a court for the U.N. in itself is an achievement. However, the problem is everyone made sure that this court is not given any enforcement powers.

So in a local context, in a state context, you have the government, the executive body, you have the judiciary, you have the parliament and you have the checks and balance system. And let’s say if the judiciary makes a decision based on, let’s say, a legislation coming from the parliament, who is going to implement this one? It’s very clear, the police, the executive. They will implement this resolution.

In the international legal system, it’s much more complicated than that. The body that was supposed to have certain executive powers is the UN Security Council. And, for some reason, it’s paralyzed. Now we’re talking about the veto power, which was mainly in this context, in the context of Palestine, we’re talking about the US activating the veto powers whenever they feel like it. As simple as that. And I did see that the American envoy to the UN when he voted against the ceasefire, I did see his hand shaking. I don’t know if that was caught by many people, but his hand was shaking. He knew what they were doing right there.

So, to talk about this one. South Africa going to I.C. J, in my opinion, is a very historical and important milestone in the legal pursuit of accountability for Palestinians. There are many challenges, but the act in itself is a brave act from South Africa. It’s necessary one. And it’s the first time something of this scale happens.

What do we expect from the court on the after the hearing? I would be very surprised if the court does not issue provisional measures, and provision measures, it’s something similar to interim measures in local law, like restraining order. It’s a temporary measure or temporary order issued by the court on the basis of plausibility, not existence of merits. So the court would not say that a genocide has happened or is happening. The court would say that it is plausible. It is thinkable, imaginable, that there could be a genocide happening.

So, in light of this, the war has to be ended. The genocide has to be ended. Without calling it a genocide based on merits, because this is an initial interim measure. So I find it very unlikely that the court would not issue that, despite American and Israeli pressure.

The moment this is over, we will get into discussing the merits, and the case law and characterization of the crimes, the facts on the ground and the law, what the law says based on the jurisprudence of the court building on the Yugoslavia court, Rwanda court, and the ICJ case in Myanmar and the former case of Bosnia versus Serbia.

So there will be a long legal process and this is what Francis Boyle said, who was the first lawyer to get a decision by the ICJ on genocide. He said, I do see this case succeeding. I do see South Africa succeeding in getting a judgment, a binding judgment, which is binding on the UN Security Council, the UN and state parties, the US and Israel and others as well.

A binding judgment on genocide, not just failure to prevent, not just incitement, not just failure to stop the incitement, but also perpetration of genocide. So it’s even more than what has been judged against Serbia back then in the case.

There was a bit of complexity regarding Srebrenica, and if you’re familiar with the Bosnian context, Bosnia was made up of three territories, the Croatian Bosnia, the Republika Srpska, which is the Serbian entity within Bosnia, which was genociding the Bosniaks, who are the Muslim ethnic Bosniaks, the Bosnians, basically, when we say the word, we mainly refer to the Bosniaks. So the court only indicted the Republika Srpska, and did not indict Serbia directly, but indicted them for failure to prevent the genocide.

However, in this case, we’re going to talk about Israel being fully indicted and the U.S. probably indicted for failing to prevent an Israeli genocide. Now, some would say, but you know, the Israel and the U.S. are two independent countries. All of a sudden, this discussion is going to surface at some point. Here, the court would be discussing something related to the capacity of the U.S. to prevent the Israeli genocide, not how interrelated the governments are. So does the US have the capacity to prevent Israel from committing this genocide?

Well, we could talk about the aid. I mean, that’s the simplest way to start this conversation. I think it will be easily proven that the US could prevent the Israeli leadership from commissioning, perpetrating this genocide. So that’s the ICJ case. That’s how the case would naturally go.

Now we will move to the U.S. pressure, which is the main reason why everyone would think that the case might not go through. Now there are many scenarios. The first scenario, which is the natural one, is that the court continues just like it did in every other cases and the decisions, the judgments were respected.

The court, the ICJ has such a prestige and respect that most of its decisions were respected even against some veto power, like the UK, etc. So the decisions of the ICJ are generally respected. So the first scenario is that it will be respected. The second scenario would be that the American pressure might be massive on the court to in a way to obstruct the work.

I don’t see this as the most major likelihood. It is possible, but I would say if a decision of this nature comes out, I wouldn’t be surprised to see the U.S. acting in ways that we would have considered unimaginable, like cutting funds to the UN. They might, they might. I mean, you have something called the Hague Invasion Act, which by the way, when I first heard about it, I thought it’s a joke. I thought my friend is, you know, back then in the days, I thought it’s like, you know, someone is just, you know, that sort of fake news where people create memes out of. But then I was going through it and I was like, this is serious. I mean, how can that be serious? I mean, but so we might be talking about scenarios of this sort.

What I would say is that this judgment is important on many levels: on the level of the remedies, the reparations, the justice that can be served to the Palestinian victims, but also to have impact on the whole international legal regime and system, which would have impact on the international political order in many ways.

This case is, I think, a milestone. I don’t want to be exaggerating, but I think we’re talking about an unusual precedent in the international legal system, something that has never happened before.

Eleanor Goldfield: So just really quickly about that, so let’s say hypothetically that this moves forward and the U.S respects the outcome of this, what would then be the ramifications against Israel and the U.S. and what could Palestinians expect from the U. N.?

Hassan Ben Imran: Yep. So South Africa listed down in its relief sought section. It’s called relief sought by South Africa. It listed nine requests or like demands from the court.

The first one is that it declares Israel has committed the genocide. So that’s the first thing. The second thing is that Israel will be responsible, will be accountable. And the leaders will be brought to justice by the ICJ. The third one is the reparation. So on so forth. So it’s basically a full judgment, binding judgment that includes punishment, not just the moral, let’s say moral decision to uphold the rights of the victims, but it will have direct materialistic or material repercussions and consequences on the state of Israel and its current leadership.

But the judgment will be on the state of Israel. Unlike the ICC, it’s not on the individuals. It’s on the state as a state with its full capacity, which means that everyone who had a part in this genocide will be questioned. This would include people for instance, like journalists, like the doctors, you know, the hundred doctors who signed the letter to ask for the hospital in Gaza to be bombed.

So I mean, I would say that The U.S. pressure is a given. It’s gonna happen. It’s already happening. However, I doubt that the court would be as politicized as the ICC. The ICC is very politicized for clear reasons, starting from the British involvement in appointing the current prosecutor and the deals this prosecutor struck with many leaders who were accused before the ICC, and they were dropped. That’s another discussion.

I think the court, there are grounds to believe that the court would professionally proceed with this case and go on the whole way till the end. But there are also grounds to believe that there is pressure.

However, I am someone who’s practical minded. I am a realist when I read the situation, but I am practical minded when it comes to what can be done. We can’t talk about how the world is messed up since, you know, I’m trying to watch my language.

Like, we can talk about the imbalance of power, all of these problems, however, does that mean we should sit down and do nothing? I would like to do something. So I would think of what could be done. So when I start doing this, I, we humans, before we do something, we like to see what others have done, right? Because our imagination is controlled, we’re imprisoned by our sights or our experiences in a way or another.

So before we do something, we want to see like, did my cousin manage to do it? So yeah, my cousin did, that means it’s possible. So let’s look at it on the international level. Now we’re talking about Palestine, trying to get some justice. Palestine having the US, almost the whole of Europe, not the whole of Europe, but most of the major countries in the EU, standing by the side of Israel, arming Israel, voting against ceasefire in the UN, so on and so forth.

So, what would be possible to do within this scenario? Then here, I would refer to Namibia, or more clearly to South Africa. Since, for some reason, history was very interesting that South Africa was the one to stand up for Palestine. The country that really knows the meaning of what Palestinians are going through.

So, now think about it. Who was supporting South Africa? The very same countries that are supporting Israel. Almost by name. Almost by name. So they are supporting, they were supporting the apartheid regime in South Africa. The racist apartheid regime. Nobody saw it possible that the non Dutch or the non-white majority would be able at some point to rule their country, or at least to, to be treated like humans with, with equal rights. Nobody saw this as a possible outcome.

And when I was discussing this with some of the drafters of the constitution, with some of the chief of the constitution assembly, you know, everyone was saying like, this was more of a hypothetical. It’s like we’re watching a movie, we’re saying, like, will it go this way, like, Lord of the Rings, I like to see it, but like, maybe it’s, it’s something of this nature. Nobody thought it is a feasible thing.

However, because of so many factors, including the international legal pressure through the international legal movement, and for some reason, the very same international legal movement that was fighting for South Africa, is now fighting for Palestine, and you can look at the legal team of South Africa, many of them were fighting against the apartheid, and now they are the legal team to fight for Palestine. I think it’s something worth noticing.

Now when you think about it, okay, so they did it despite the American pressure. I mean, think about it. Did the U.S. at any point, even now, want South Africa to be ruled by the South Africans, the majority? Of course, hell no. The US would have loved to have Nelson Mandela dying in jail. I’m sure the US is not happy that Nelson Mandela became president.

Now, think about it like this. If South Africa remained racist apartheid regime, you would have no country suing the US and Israel in the ICJ. Because this case is not only about Israel. It’s about complicity. The the ICJ submission made it very clear: it’s about indictment, relief sought for genocide perpetration but also complicity. So the US would be covered by two elements of these: the failure to prevent as well as the complicity which is I think indisputable in many ways not just the UN security council voting but other things as well like the military aid.

So of course, the U.S. did not want South Africa to be free or South Africans to be free, because look at what South Africans are doing right now. They’re spreading freedom around. Nobody wants that, you know? So, but this happened. I think this is very meaningful for us. This happened. History, like humans, we like to look at our cousins, our friends, our people that look like us, with limbs, with faces, with noses, etc. We can think that Palestinians share the same attributes of South Africa and they will be capable at some point of getting something.

It’s gonna be probably more painful and difficult than South Africa for many colonialist reasons related to the colonial regime internationally. But it is possible and I would like to believe that we can do it in our generation

Eleanor Goldfield: Well, I love that and Hassan, thank you so much for all of that very important context, and shining a light where corporate media certainly likes to keep it dark and cold. Really appreciate it. Where is a good place for people to keep up to date on the reports and things that Law for Palestine shares?

Hassan Ben Imran: So I will share with you our Twitter handle, our Twitter account, as well as our website. It’s Law4Palestine.org. We’ll be uploading everything on our Twitter account as well as the website.

Eleanor Goldfield: Thank you again, Hassan. I really, really appreciate you taking the time. .

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Below is a Rough Transcript of the Interview with Anthony O’Rourke and Wadie Said

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Eleanor Goldfield: Thanks everyone for joining us back at the Project Censored radio show. We’re very glad right now to be joined by Anthony O’Rourke and Wadie Said. Anthony is the Joseph W. Belluck and Laura L. Aswad Professor of Civil Justice at the University at Buffalo School of Law, State University of New York. And Wadie Said is a Professor of Law and Dean’s Faculty Fellow at the University of Colorado Law School and the author of Crimes of Terror. Thank you both for joining us.

So as the saying goes in organizing circles, COINTELPRO never ended. And your most recent co authored article in Dissent titled Terrorism Investigations on Campus and the New McCarthyism outlines a so called material support statute which, quoting from the article, “criminalizes public advocacy that is done under the direction of or in coordination with foreign terrorist groups. It’s a nebulous federal statute that imposes prison sentences of up to 20 years.”

So I was wondering if, starting off here, could you give us some backstory on this statute, what it’s been used for in the past, and also how organizations typically end up on the FTO, the foreign terrorist organization list?

Wadie E. Said: Well, if, if I could, I’ll start with answering that because you know, this is a statute that actually was passed in 1996 in some very strange circumstances. There were some attacks in the Middle East that President Clinton at the time was very concerned were disrupting the Middle East peace process, which led to an executive order in 1995. And then there was some lobbying on behalf of what became the material support statute that ultimately didn’t get passed until the Oklahoma City bombing kind of propelled Congress to do so, which was, of course, a domestic act.

So it was very, kind of strange circumstances, but the upshot was that this law was passed as part of a larger kind of omnibus act, criminalizing a whole bunch of areas of law and also curtailing prisoners ability to use habeas corpus. Basically gutting those avenues for relief for prisoners, state and federal.

So it came about in those circumstances and was passed in 1996 and basically one of the key elements of the law was that it allowed and still allows the Secretary of State to essentially, what’s called designate, which is akin to banning any group that is one, foreign, two, engages in terrorist activity, and three, that terrorist activity threatens U.S. National security, the security of United States citizens, or some sort of American or United States foreign interest or economic relations. And that last category is pretty nebulous.

And these are not things that can be challenged in court, except for the fact that, say, if the Secretary of State were to designate the wrong group, you know, got the name wrong, basically administrative is the only way to challenge this. It’s not something that can be subject to any sort of case or legal challenge.

Eleanor Goldfield: So there’s essentially no defense in court. Is that correct?

Wadie E. Said: Yeah. The statute actually says that. It says that if someone is charged with conspiring to provide material support or providing material support to a designated foreign terrorist organization they cannot raise the, the criminal defendant who’s charged with this violation or with this offense can’t raise the designation of the group as part of their defense.

Eleanor Goldfield: Oh, the land of the free. Well, so I want to also get into what material support, quote unquote, means. Because when I hear it, I’m thinking like pallets of cash. But kind of like the thesis of this piece that y’all wrote is that material support is now creeping into the area of speech. And not only that, but to very dangerously conflate anti Zionism with anti Semitism.

Could you talk about how that sort of creep in terms of this statute?

Wadie E. Said: Yeah, sorry, Tony. Do you mind if I go ahead just with this? Yeah, so basically what the initial kind of thrust behind the law was that there was a claim that Congress accepted and made a finding that terrorist organizations are raising money under the cover of humanitarian activity for their other activities, for their violent activities.

The theory is and Congress adopted this is that money is fungible. So money for humanitarian needs, which the government didn’t challenge were legitimate, frees up money for bombs and weapons.

But as you see, right, the whole focus of material support was money, weapons, tangible things. But the statute was written in such a way as to be malleable, as many of these things that Congress does end up kind of taking that shape and what ended up occurring was defendants and even kind of individual litigants noticed that there was the potential for material support to take the form of speech.

So there were a couple of organizations, American organizations led by American citizens that wanted to provide kind of peaceful help to groups that were designated. And that case reached the Supreme Court in 2010. It was a case called Holder versus Humanitarian Law Project.

And the Supreme Court said that, yes, in fact, material support in the form of speech, like, so if you wanted to provide expert advice to a foreign terrorist organization to be more peaceful and not use violence, that could still be criminalized as material support, and not offend the constitution. And so when that happened, that was kind of a watershed moment for the breadth of this law and the kind of the critical safeguard was that the speech could not be independent advocacy, right? That someone can still support a terrorist organization, a designated foreign terrorist organization with speech as long as they’re not acting on behalf of or in coordination with the foreign terrorist organization.

But when you put that all into the mix of the background of post 9/11 kind of Islamophobia, a hypercharged war on terror, so to speak, those distinctions are subject to interpretation as we’ve seen in recent weeks with the concept of speech being so contested. So it’s still a very, very dangerous development in my view.

Eleanor Goldfield: Yeah. And I, as noted in the article, when the FTO list first came out in October, 1997, seven of the 28 groups designated were Palestinian, which really, it says way more about the U.S. stance on Palestinians, more than it says about Palestinians, I feel. And as you note, Al Qaeda was not designated until 1999.

Wadie E. Said: Well, and one more quick thing about this is that the kind of prototypical terrorist group was in fact Hamas, right? Some of the groups lobbying behind the scenes for the passage of this law were targeting the terrorist organization as envisioned by the Hamas movement, right? This idea that there’s a political wing, a military wing and the social or charitable wing was kind of how it was drawn up.

So this model doesn’t really fit a lot of groups. But it did fit Hamas, so that’s also something that comes into effect with some of the later prosecutions under this law.

Eleanor Goldfield: Yes, absolutely. And lest we forget, Osama bin Laden was actually on the payroll of the US government, so it’s not like the US has a distinct and constant perspective on what constitutes a terrorist.

And I wanted to talk a little bit more about that anti Palestinian stance, because you, you also mentioned in the article the ADL, the Anti Defamation League, and I was wondering if you could just outline a little bit about how they are pushing this point very hard in a lot of different ways, whether that be particularly with college campuses or particularly with the U.S. government.

Anthony O’Rourke: Sure. Well, let’s speak to what the ADL did that was the occasion for this article just to start. So a few weeks after October 7th, the Anti Defamation League and the Brandeis Center, which is not affiliated with Brandeis University, issued an open letter to university presidents calling on them to investigate their chapters of Students for Justice in Palestine for material support of terrorism under the material support statute for quote endorsing the actions of Hamas and voicing an increasingly radical call for confronting against the regime and dismantling Zionism on U.S. College campuses.

And this is easy to sort of treat as just another of the, sort of the latest of a series of volleys in these Free Speech wars about what’s going on on campus. There has been incredible repression and suppression of pro Palestinian speech going on, all of which is reprehensible and deserves to be mobilized against.

But in a way, this is distinctive because the Anti Defamation League isn’t just another organization. It is a civil society organization that has close connections to law enforcement, that trains federal law enforcement, that has been alleged to obtain intelligence information from organizations associated with Israel on what is going on on campus and had lobbied for the implementation of the material support statute.

So it really has an agenda setting power and a degree of connection to federal law enforcement that makes it distinctive and creates a real threat that it’s going to enable or facilitate the expansion on campus of material support investigations to specifically target pro Palestinian student speech.

Eleanor Goldfield: So I’m curious about the ire that’s directed specifically towards college campuses.

Why is that? And how do you feel about people who say, well, I’m not a student, so I don’t need to worry about this?

Anthony O’Rourke: Yeah, it’s an interesting question. So, college campuses, I think, are fertile ground for understanding and challenging the larger Zionist project in the United States and students have been at the forefront of pro Palestinian activism. Students for Justice in Palestine is not just one of the leading voices on campus against Israel’s oppression of the Palestinian people, but it’s one of the leading voices in the United States.

So campuses have long been the target of scrutiny and attack by people who are trying to suppress pro Palestinian student advocacy and one of the techniques for doing so is to conflate anti Zionism or critiques of Zionism with anti Semitism. And increasingly they have mobilized the United States government in the project, for example, but with congressional hearings calling university presidents to the floor for allegedly failing to protect their students from anti-Semitic attacks where the definition of anti-Semitism is conflated with that of anti-Zionism.

And so I think why this is of concern to people who aren’t students is that it represents a dramatic expansion of the state apparatus against speech.

One of the most significant guardrails that came out of COINTELPRO, that came out of the abuses of FBI investigative power in the 1960s, is to implement measures that treat investigations on college campuses as sensitive investigative matters that at least require some degree of oversight before the FBI steps in and starts mucking around on campuses.

But it seems like increasingly there’s being, there’s pressure being placed on law enforcement to drop those guardrails. And I think that’s a source of concern for anyone.

Wadie E. Said: Yeah, I would just add, because I think Tony spells out a very important point about this idea that, you know, the history of the FBI on campus is not a happy one, since the creation of the agency, but certainly in that crucible, starting from the civil rights movement and antiwar movement of the 60s and onward towards the creation of the COINTELPRO program and the fact that it survives even if not in name or in actual form, but it survives substantively to the present day.

It picked up on the post September 11th war on terror with a focus on terrorism, where a lot of the tactics were kind of recycled and repurposed. And I think the critical thing also to add about the issue of campus speech is, what has, I think, alarmed the pro Israel lobby, the ADL being kind of chief among them, but the Brandeis Center also played a big role here with its director when he was the head of enforcement of anti discrimination on campus during the Trump administration and the Department of Education.

What you’ve seen is the United States, which kind of has the First Amendment as its hallmark freedom, and one of its kind of great draws for people from all over the world is its university climate and university culture, which kind of promotes itself as this place where speech is open and free and ideas can be discussed.

And if that’s true, and I think, you know, to varying degrees it was, the Palestinian narrative is clearly winning because, in my view, it has truth on its side, it has it right on its side. And the younger generation being exposed to this narrative more and more, were rallying around it. So the response has been to kind of just outlaw or proscribe that type of speech, right? And that’s what we’re seeing here.

I mean, the congressional hearings of, I think it was last week where Representative Stefanik says Intifada is a call for genocide of Jews. You know, Intifada, the first Intifada from 1987 to 1993 is kind of the hallmark achievement of the Palestinian people, at least in terms of more recently, in terms of how they struggled in a mostly nonviolent way against the longest military occupation of modern times.

So, the answer to speech hasn’t been more speech. It’s been, okay, we can’t have that kind of speech. We’re just going to call it antisemitic. We’re going to call it genocidal, even as you know, we’re seeing a genocidal campaign take place in real time.

So I’ve been commenting to friends and family, you know, cause I was recently traveling abroad, but coming back to the United States has been entering an alternate reality where I don’t understand kind of how the discourse has taken shape the way it has, but it has.

Eleanor Goldfield: Yeah, absolutely. Stepping outside the Empire for a moment gives quite a disturbing lens on things. And I want to pick up on that, what you talked about, the PR campaign that the U.S., in particular U.S. universities, are places where you can think out loud and you can have these discussions and debates without fear of being locked up for it.

And I’m curious, beyond just kind of a philosophical conversation, what do you think the likelihood of this moving to the point where it basically denies people the access to the First Amendment in terms of the right to speech or assembly?

Anthony O’Rourke: In my view, it already has. I mean, universities have canceled their chapters of Students for Justice in Palestine. Of course, I as a law professor, I have to be a little bit persnickity and mentioned that private college campuses do not have to honor First Amendment rights, but traditionally they have, and public universities certainly do.

And this cancellation of chapters of Students for Justice in Palestine is not just going on on private campuses, but also at Rutgers University, the State University System of Florida citing the material support statute after the ADL letter has tried to shut down its chapters and is currently in litigation with the A.C.L.U.

So right now we are seeing, I think, a climate of speech suppression that I would have thought unimaginable even in September of this year. And a concern of this essay is that it will not only be this the suppression of speech, the expulsion of students, the suspension of students, all of which are awful and all of which are a transformation of the culture, I think, as Wadie put so well, but that it can also increase and strengthen the criminal investigative apparatus against students.

And we might start seeing a real mobilization of federal and state law enforcement against students in ways that we haven’t seen before.

Wadie E. Said: And I wanted to just to add to what Tony was saying about how the First Amendment violations are actually happening now, and they’ve already, the line has been crossed. The thing that’s, I think, also been hard to process is how this is related to a conflict in which the United States is not an actor. I mean, it’s very, very strongly involved and supporting, but at least officially it’s not participating in any open hostilities. Congress hasn’t declared war, even though there’s an air bridge or an airlift of support of, you know, hundreds of planes of aid, military aid and otherwise going to the Israelis.

But it still is, despite all that, it still is a foreign conflict and I think whenever you look at the concept of free speech, I think you always have to pay attention to how close to home it is. The closer to home it hits, the less likely the government is to be able to understand what’s protected speech and what isn’t. It’s a kind of a version of Homerism or something like that.

And here we’re seeing it in this kind of context where, the threats to the average American are not necessarily clear. So then the issue of anti Semitism comes in where, you know, they’re being conflated and the thing I think that’s also alarming to see this is a little bit more from the outside is the complete marginalization or willingness to deploy anti Semitism against anti Zionist Jews who have been very much prominent in pro Palestinian advocacy over at least the last decade, if not longer. I mean, there have been Jewish pro Palestinian activists as long as the Palestinian issue has existed. But certainly the prominence of some of those organizations like Jewish Voice for Peace have really come to the fore and it’s really kind of, strange is really an understatement, to see this dynamic take place.

Eleanor Goldfield: Absolutely. Strange and angering and depressing. I can’t count the number of times in the past two months that I’ve been called not a real Jew.

And I’m curious, with regards to this, what is the, is there any connection with regards to pro Israel and not being allowed to engage in the BDS movement and things like that, some 30 states have loyalty to Israel clauses. And so do you see this specifically in those states, or is this kind of a national push? And do you see more states then glomming on to that you can’t speak bad of Israel, you have to be loyal to Israel idea?

Anthony O’Rourke: I think that this is a national phenomenon. You are seeing the suppression of pro Palestinian speech on campuses in states that would never have passed or had not previously passed a BDS law, that would have been skeptical of those types of restrictions on speech.

Just two weeks ago after the congressional testimony of the university presidents that generated such backlash, the governor of New York issued a public letter saying that calls for genocide on SUNY campuses, on one of which I teach are, going to be treated with expulsion, suspension, and the severest, most severe possible penalties. And that is, of course, in the context of the congressional testimony where university leaders basically accepted the premise of Elise Stefanik that calls for long live the Intifada or the chant from the river to the sea are effectively calls for genocide.

So even in sort of blue states, democratic states, states that had normally railed against the restrictions on freedom of speech in other states, you are starting to see policies being implemented that are targeting speech and students.

Eleanor Goldfield: Yeah. And so kind of wrapping up here, there doesn’t seem to, coz as, as you noted, there’s really no defense once you get to the point of being in court. And so what kind of safeguards, if any, are there against this that already exist or what in your experience of criminal law would be safeguards either for college campuses or for specific localities or even federally against this push?

Wadie E. Said: Well, so I would say to that, it’s unclear to me how much the use or the deployment of the material support law is designed to actually prosecute students for providing material support to a foreign terrorist organization, because those links even though, as we mentioned in the article, even though that area of the law is unelaborated, still, I think the bigger danger, at least now, because this idea of coordinating with a terrorist organization, or working in this direction, is going to be, I think it’s going to be tricky to prove.

I think the bigger deal is the idea that the FBI or other government agents might go in, conduct an investigation, and then find other ways, sort of a pretextual type of investigation.

I mean, in the recent history of pro Palestinian advocacy, what we saw in the last five, ten years, was there was an investigation of pro Palestinian groups in the general Chicago area, which led to, I think it was the general Chicago area, which didn’t produce any indictments for material support of terrorism or otherwise target terrorist activity, but they did target a community activist called Rasmea Odeh, who was a well known activist in the Chicago area. And she was targeted because when she came to this country, she had mentioned that she had never been arrested, and she had been arrested and spent 10 years in Israeli prisons for being implicated and convicted of an attack on a market in West Jerusalem that left two Israelis dead as part of the Popular Front for the Liberation of Palestine, which is a designated foreign terrorist organization in this group.

And, you know, she wouldn’t have been targeted. She’d been here 20 years, wasn’t active politically with any group. It was clearly seen as a message to the community that the government will come after the Arab American community leaders, even on the most thin of pretexts, and even when she was able to successfully argue that her confession to the Israelis was the product of torture, the government just kind of switched.

They’re allowed to do this, it’s called superseding the indictment where they basically change the terms of the indictment, sort of midstream, and charge her with a new offense that was basically impossible to defend against. So she ended up being deported and stripped of her U.S. nationality.

So that’s, I think, a really key fear, is that this could be a pretext to something bigger. Especially when you have students of Palestinian origin or foreign origin who can be susceptible to things like being deported and being stripped of their nationality.

Anthony O’Rourke: Yeah, that’s really well said.

And I think in terms of what can be done, right? What can be done to resist this or try to mobilize against this pressure? The short answer is, I think it’s going to have to come from the bottom up and there has to be grassroots mobilization against these kind of disciplinary measures and against this kind of speech suppression.

In our article, we list three specific things that universities could do to try to protect against pretextual investigations. I mean, very briefly, they should never allow speech to be the basis for a criminal material support investigation, and they should draw a public line at protecting students from criminal investigations based on their political speech.

2nd, they should not cooperate with federal or state investigations under the material support statute without a court order. And 3rd, universities that cooperate with federal law enforcement on terrorism matters, and there are many, should rethink those agreements and renegotiate their understandings with state and federal law enforcement to exclude cooperation on material support investigations.

But the truth of the matter is that the recent congressional testimony and the backlash has shown that university presidents are so far away from this sort of thinking and this habit of trying to figure out how best to support speech and protect their students that they’re not going to do do this or implement these measures on the basis of reading an essay in Dissent.

There’s going to have to be widespread political mobilization against it.

Eleanor Goldfield: Yeah, absolutely. And I, I know I said finally, but while you were speaking, I just thought of one last thing. And that’s if we’re, because from the river to the sea, I thought somebody was joking when they told me that people were conflating that with a call for genocide, because I was like, that’s geography. And if Zionists think that that’s genocidal, that’s their own genocidal thinking getting in the way of common sense.

But if we are at that point where From the river to the sea can equal death to all Jews, like, where are we in terms of the difference between hate speech and free speech, and then where do you draw that line in terms of criminal law?

Wadie E. Said: Yeah, well, I mean, I think Tony pointed out the last part of the article where we tried, you know, we’re both law professors. And I think we both didn’t want to do the classic law professor thing of proposing here’s a 3 part test to solve this issue. And I think we ended up coming out with this idea that there should be no cooperation. You know, it’s kind of like, don’t do this. You know, it’s a 3 part test that hides the fact that it’s kind of more of an abolitionist or a this is wrong, full stop position.

So I think it’s really important to go back to what he just highlighted in terms of all these practices are wrong. And I think further, the level of bad faith that’s behind this is staggering simply because there’s a long history now, especially of Palestinians trying to grapple with things, horrendous historical phenomena like the Holocaust and the idea that, you know, I hate to do this, but, you know, my own father with his statement of the Palestinians are the victims of the victims, you know, this grappling with the immensity of the Holocaust has been a good faith effort by a lot of Palestinians, especially in this country, and a lot of people engaged in pro Palestinian advocacy.

And it also completely belies the much more horrific and terrifying point that there is an entire right wing ecosystem of anti Semitism in this country that is far more violent as the Pittsburgh synagogue shooting shows, and other actions that has nothing to do with pro Palestinian Advocacy and the leapfrogging of campus speech and campus pro Palestinian advocacy over the far more dangerous phenomenon would be laughable and, you know, kind of mildly or just laughable and confusing if it weren’t so dangerous.

Eleanor Goldfield: Yeah, thank you so much for highlighting that, it is important to note. I mean, a lot of very powerful anti Semites were at the pro Israel event in Washington D. C., including somebody who literally thought that Hitler was just trying to guide Jews to the homeland.

So that’s, on that note, professors, thank you so much for taking the time to sit down with Project Censored and outline your latest article in Dissent.

Anthony O’Rourke: Thank you. It was a pleasure.

Wadie E. Said: Thank you very much for having

us.

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