The Banality of Legal
I admit it. I didn’t watch the trial. Or at least not the whole televised trial, but it was nearly impossible to turn on the television without seeing testimony or hearing commentary on every little detail. I didn’t watch the O.J. Simpson trial either. And I certainly did not witness Adolph Eichmann’s 1961 trial in Jerusalem. But Hannah Arendt did, and when she wrote that Eichmann’s actions could not be proven to be intentionally genocidal the world shook in horror at her words. In the post-WWII context, how could she possibly fail to emphasize the cruelty of that infamous Nazi criminal? Was he not a vicious anti-Semite, the embodiment of evil? Instead of focusing on the horror of the crime, Arendt wrote about the banality of evil. The individual defendant did not have to be a violent, monstrous, hate-filled racist. Racism is far more insidious, more systemic than the beliefs or actions of a single individual. It is a much larger evil.
Racialized thinking, in fact, is so large that it suffused all of Europe, justified the Atlantic slave trade, and formed the basis of European ethno-nationalism, which nearly exterminated all the Jews of Europe. It is the same underlying logic that made Native Americans barbaric, aggressors whom early American settlers had to eliminate, and the same underlying logic by which Africans could be sold as property and provide unpaid labor that built the United States.
The racial thinking of Nazi Europe is the framework in which people in France are “French”(not Muslim) and people in Israel are “Israelis” (not Arab). Their ethno-national identity endows them the right to claim sovereignty in their homeland. It is also the underlying logic of the Palestinians’ claim to self-rule in their homeland. The logic of racialized thought is deep and often elusive. Entire institutions—nations-states, courts of law, education systems—are built upon its foundations in ways that hide those foundations from our everyday view. Once in a while an event transpires that temporarily exposes those foundations. For some American viewers, the trial of George Zimmerman for the death of Trayvon Martin was such a case.
I did not watch every minute of the trial, but when the verdict came in the case, I was not surprised. It’s just the law, that’s all. Two stories were told, either one of which could be true. Neither could be proven. There was room for “reasonable doubt,” and according to the law one cannot be convicted of a crime when there is such doubt. In this case, the Florida law allowing lethal force in self defense resulted in the death of an unarmed African-American teenager. Is this the banality of evil, or just the banality of legal?
While Americans were watching the Trayvon Martin trial, Israelis were watching television too. They watched a video clip of soldiers in Hebron detaining a Palestinian boy for throwing a stone at a car. The boy was five years old. He was shown surrounded by five or six soldiers, automatic weapons slung around their shoulders, packs on their backs, berets on their heads. The boy, accompanied by a young man, perhaps a neighbor who tried to convince the soldiers to just let the boy go, is crying. He’s crying like a child who has just gotten in trouble with a teacher or the principle, or even his own parents. But this time, he is in trouble with armed men. The soldiers ask where the child’s father is; where does the child live? They take the child to their jeep. They want to take him home, to find his father. The little boy doesn’t want to get into their jeep, he cries harder. He throws a tantrum like children do when they don’t get what they want, or when they don’t want to get in the car and be taken home when they know they’re in trouble. Another man who seems to know the child takes his hand and coaxes him into the jeep and sits with him in the back seat as they drive off to the child’s home to confront his father.
The video clip of the young Palestinian boy detained by Israeli soldiers was filmed by a member of the Israeli human rights group, B’Tselem as part of their recent campaign to document and expose human rights violations in Israeli Occupied Territories. The videos are shown on Israeli news programs and many Israelis are morally outraged. This is not the way they expect their soldiers to behave. This is no way to treat a small child. Israelis are not like that. The soldiers, however, seem to be following orders, doing their jobs. Their job is to secure the Jewish settlers who live in Hebron. Is this the banality of evil?
The press release on B’Tselem’s  website explains the situation in a carefully worded statement: “On Tuesday, 9 July 2013, at around 3:30 P.M., seven soldiers and an officer detained Wadi’ Maswadeh, who is five years and nine months old (his birthdate on his mother’s ID card: 24 September 2007) close to ‘Abed checkpoint, near the Tomb of the Patriarchs in Hebron, after he threw a stone.” It recounts the details of the event and summarizes: “B’Tselem has written urgently to the Legal Adviser in Judea and Samaria, demanding his response to a grave incident in which soldiers detained a five-year-old boy in Hebron for two hours, after he threw a stone. The soldiers threatened the child and his parents, handcuffed and blindfolded the father, and handed the boy over to the Palestinian Police. Detaining a child below the age of criminal responsibility, especially one so young, has no legal justification.”
According to this explanation, if the child had been twelve, or say maybe thirteen or fourteen, then this would be fine. If Wadi’ Maswadeh had already reached his 12th birthday and he threw a stone at a car, and Israeli soldiers detained him for that criminal act, political activists might film the encounter and take note of the asymmetry between armed soldiers and an unarmed boy. They might write a press release detailing the brutality of the Israeli occupation of the West Bank. They might explain the history of Israel and Palestine and claim that the settlers in Hebron are horrible, violent land thieves who should not be protected. They might show the film on You–Tube or send it to Israeli television stations. People might express outrage. But, according to B’Tselem, the legal age of criminal responsibility in the Israeli occupied West Bank, as inside Israel proper, is twelve. Moral outrage aside, the detention of this boy would be legally defensible. And if Wadi’ was 17, and if his face was covered with a keffiyeh instead of a hoodie, and he threw a stone, then he would emerge as the very image of the terrorist and his detention would be both legally defensible and far less disturbing to many viewers. It would be “right.” That’s the banality of legal.
We watch the video clip of the soldiers in Hebron and hear the outcome of the Trayvon Martin case and we are morally outraged, astonished, or just very sad. This is racism, unnecessary aggression, this is an immoral decision; we would never act like that! We would never shoot an unarmed teenager or detain a five-year old boy for throwing a stone. And so we remove ourselves; experience ourselves as not directly implicated in the violences of our racialized society. But the broader implication of this should not be missed. Neither the settlers in Hebron nor the Israeli soldiers are responsible for the harassment and dispossession of Palestinians once the legal framework in which such actions occur specify its appropriate limits. And we are not responsible for George Zimmerman pulling the trigger and killing Trayvon Martin, because the law treats this as an action subject to legal judgment. We have managed to avoid such responsibility because we have successfully built legal, social, political, educational, and economic institutions that allow us to do the “right” thing even when it is very, very wrong.