Debate rages about the possible appointment of Valentina Azarova to the position of Director of the Toronto Law School’s International Human Rights Program. Cary Nelson argues that her career and writings to the present day – here analysed in detail – have been devoted to the delegitimisation of the Jewish State, the denial of the ancient Jewish relationship to the land, the denial of its right to self-defence, challenge to the right of ‘Zionists’ to appear on academic platforms with her, the redefinition of Hamas as ‘legitimate resistance’, and the endorsement of the so-called ‘one state solution’, which would see the Jewish State ended. Her support for the BDS movement and campus ‘Apartheid’ weeks, has been coupled with opposition to the IHRA Definition of Antisemitism. The question hanging over her appointment, Nelson argues, is whether these career anti-Zionist commitments will impact on her conduct of a major administrative role implementing a curriculum and external work experience. The backdrop to the controversy, he claims, is that higher education stands on a precipice, as an increasing number of academic programs and departments are openly defining themselves in terms of an ‘anti-Zionist’ political mission, something that would have been inconceivable only a few years ago.

In the fall of 2020, a widespread controversy erupted over a decision by the dean of the University of Toronto law school not to go forward with the appointment of Valentina Azarova as Director of the school’s International Human Rights Program (IHRP).^[1] Azarova is an extensively published critic of Israel with considerable experience working with anti-Zionist Palestinian NGOs. The dean’s decision was widely criticised as a violation of academic freedom by Azarova’s supporters, a view I will dispute. In June 2021 the search was reopened, with Azarova still identified as ‘the preferred candidate’ and encouraged to reapply. The substantive issues to be decided should have been what her publication record and political advocacy said about how she would administer the program and how they would reinforce or undermine public respect for the programme. Those remain the issues. This essay is my effort to review Azarova’s publications and career in detail, as should have been done in 2020 but apparently was not, as a basis for assessing the controversy. A search process at a research university should include a very thorough and comprehensive review of a candidate’s publications. I saw no evidence of that from either Azarova’s defenders or her opponents. Even a search for an administrator requires such a review when controversial political issues form the core of a candidate’s professional profile.

Even if the Azarova appointment file had remained closed, it would have been worthwhile to have read all her work and written this essay. Her identification as the candidate of choice set a standard and established a principle that heralds further politicisation of the academy as a whole, not just in Canada but elsewhere. Nonetheless, many if not all Toronto faculty members may feel I have no business commenting on the case, as I am not a Toronto colleague. But this is a case that matters to all of us in the academy. Higher education is at turning point, on a precipice, when an increasing number of academic programs and departments are openly defining themselves in terms of an anti-Zionist political mission, something that would have been inconceivable as late as 2020. Higher education as a whole needs to address the core question posed here: Should a dedicated career anti-Zionist be appointed a senior administrator responsible for designing and running an academic program? Will she incorporate a variety of political views and work opportunities for student interns in the program or emphasise opportunities embodying her own convictions? Could her selection possibly be politically disinterested? Should her appointment as a senior administrator go through, it will not be the last highly politicised such appointment we will see.

This essay also adds to the detailed analyses of anti-Zionist scholarship I have been producing for a number of years. It is an addition to the series of very detailed portraits of individual anti-Zionist faculty published in my 2019 Israel Denial: Anti-Zionism, Anti-Semitism, and the Faculty Campaign Against the Jewish State. Summary, analysis, and evaluation of faculty publications is fundamental to academic freedom and to the collective search for the truth. It is a professional responsibility that should honor no institutional boundaries. Those who simply applaud or denounce Azarova’s work have failed to rise to the necessary standard for academic evaluation. A full account of a career like Azarova’s, that includes both longer research projects and numerous shorter, more argumentative pieces, requires careful analyses of both kinds of publications. Indeed, the clearest formulations of her positions are scattered throughout her work and often not repeated. Without a detailed review, one cannot reliably establish the values and conclusions that define her career or suggest how she would do her job.

In addition to drawing on conclusions from a number of her publications, I will include detailed readings of several of her major essays. After reviewing the appointment controversy that provoked widespread interest in the case, I proceed to an overview of the mix of publication and NGO work that define her career. The core of the essay follows: a detailed review of her written work that establishes her professional identity and the values that have defined it. I open by focusing on one substantial essay, a coauthored essay on Israeli archeology. I follow with an overview of her publications, then concentrate on one of her recurrent topics, the potential impact international law could have on corporations that do business with Israel. A section on her essays on Gaza and West Bank legal issues is next, followed by some final reflections. Here is the sequence of topics:

1. The Azarova Appointment Controversy
2. An Azarova Career Overview
3. Imaginary Antiquities
4. Azarova’s Publication Pattern
5. Opposing West Bank Business Relationships
6. War in Gaza and the Law of Occupation
7. Final Reflections

THE AZAROVA APPOINTMENT CONTROVERSY

Toronto’s International Human Rights Program is distinctive because it combines course work with practical experience in legal advocacy at NGOs. Indeed, students receive credit for advocacy that is not connected with a given course. As the Canadian Association of University Professors would later observe, ‘the Director oversees the IHRP’s advocacy initiatives, clinic, speaker series, working groups, publications, internship and mentoring programs. In addition, the Director is required to supervise students, develop and deliver clinical legal education programs, and organise and conduct workshops, conferences, and research.’ Depending on how you view academic political advocacy, Azarova’s career is either a perfect match for such a program or one guaranteed to undermine the program by giving it an unqualified political orientation. Azarova has made it clear that she considers Palestinian human rights to be the only pressing human rights issue in the Israeli/Palestinian conflict. She would almost certainly identify the law school with one side of the conflict. I find it difficult to credit arguments to the contrary.

Although the position of IHRP director is clearly an administrative job, not a faculty slot, that fact has been lost in much of the controversy around the appointment. Azarova was told more than once that the appointment neither comes with faculty status or tenure nor would lead to either. It is an eleven-month annual administrative appointment. She would serve at the pleasure of the dean. Nonetheless, Azarova expressed her wish to have ‘pseudo-faculty’ status, a status that does not exist. Its benefits might include, she asked, her right to spend two summer months abroad doing advocacy work annually, possibly the pro-Palestinian advocacy work she had done on the West Bank for years. Her request was turned down. She would be hired to be on campus eleven months a year. One benefit of doing that work on the West Bank would be the ability to maintain comparable NGO advocacy options for University of Toronto students. It is not clear they could work for the Anti-Defamation League instead, let alone that the program under Azarova would establish opportunities with both Zionist and anti-Zionist organisations, along with robust options of many other forms.

Did the committee discuss how Azarova’s previous experience would affect her work as IHRP director? Her vita makes such conversations inescapable. Did they talk to her about the matter? It would be remarkable not to do so, given the job responsibilities. We do not know enough about the politics of the three-person ‘selection’ committee (Professor Audrey Macklin, Chair of the Faculty Advisory Committee to the IHRP; Vincent Wong, Research Associate at the IHRP; and Alexis Archbold, Assistant Dean at the law school), to make a definitive judgement about how their politics affected the decision-making process, but we are not without indicative facts.

Macklin, the chair of the search committee and, it is important to emphasise, its only full-time faculty member, had signed a 2009 letter stating that ‘It is crucial that forums for discussion of Israel’s accountability to the international community for what many have called war crimes be allowed to proceed unrestricted by specious claims of anti-Semitism’ (IJAN). She signed a 2015 Open Letter ‘Regarding Palestinian Rights and Canadian Universities’ that protests ‘increasing efforts to limit advocacy of Palestinian rights on Canadian universities’ and issues a demand to ‘Defend the right to freedom of speech about Palestine for all members of the university community, including freedom to use the term “apartheid” to identify and debate certain policies associated with the state of Israel and the freedom to support, facilitate and participate freely in activities under the rubric of “Israeli apartheid week.”’ She also signed a 2020 Open Letter arguing that the IHRA definition ‘is worded in such a way as to intentionally equate legitimate criticisms of Israel and advocacy for Palestinian rights with antisemitism.’ Her overall support for the political views Azarova holds is thus a matter of record.

Wong taught a clinical course on media freedom and international human rights at IHRP. He resigned in protest against the decision to withdraw the offer and is now in private practice. He is also the only selection committee member to condemn the UT process, something he has done in a detailed essay that characterises it as ‘a nakedly political process obscured by legal rhetoric.’ He asserts that ‘Palestinian rights and international law with respect to the Israel/Palestine situation are now demonstrably a taboo subject in the law school,’ a conclusion that is hyperbolic and unfair, given that UT’s faculty continue to possess academic freedom and that events criticising Israel are common in Toronto. Wong reserves especially strong rhetoric for the role he believes institutionalised, structural racism and sexism—‘the operation of intersectional power and privilege that continues to govern the legal academy, the legal profession, and the judiciary in Canada’—played in the decision: ‘this episode first related to improper conduct and influence by a powerful white male judge (Justice David Spiro), was bumped up to and decided upon by a powerful white male Dean of Law (Dean Ed Iacobucci, son of former SCC judge Frank Iacobucci), was mediated through another powerful white male investigator (former SCC judge Thomas Cromwell), and was then whitewashed by a powerful white male University President (President Meric Gertler) while all other voices have been sidelined.’ Finally, Wong attributes the sequence of events to a conspiracy between the Centre for Israel and Jewish Affairs (CIJA) and conspiracy among some of those just named, ‘an almost surreal story of what went on behind the scenes with Dean Iacobucci, the funding offices at UofT, Justice Spiro, and the CIJA, who found out about Dr. Azarova’s candidacy and explicitly set out to put the brakes on it.’ There is some indication of where Wong’s political sympathies lie.

As an administrative position, the Toronto selection committee’s recommendation for the appointment is only advisory. The actual decision is the dean’s. Although faculty position search committees also make recommendations, not appointments, their recommendations are most often honored. After all, they are evaluating a prospective colleague. But administrative positions entail issues and responsibilities faculty members are neither qualified nor charged to evaluate. Will the candidate support administration policies once they are adopted? Do other administrators find a candidate compatible? Will their public positions undermine their ability to do their jobs properly? Faculty members are free to take controversial public political positions, but administrators are expected to be neutral. It is much more difficult to insist that an administrator ‘does not represent the institution.’ Administrators are not protected by academic freedom. Few if any of Azarova’s supporters seem to recognise that stark fact.

The advertisement for the IHRP Directorship included a requirement that successful candidates be licensed to practice law either in Ontario or elsewhere. Details regarding Azarova’s fulfilment of that requirement have not been released. Failure to meet that requirement would risk lowering the job classification to a lower salary level. Without that requirement in the job notice, additional candidates might have applied.

The sequence of events is fairly clear. The three-person selection committee recommended her unanimously. But she was living in Germany and is not a Canadian citizen. The administration then set out to find a way to bring her to campus by the start of the fall semester. When the lawyers involved made it clear approval from Canadian immigration authorities would take longer, the law school looked into the possibility of hiring her as an external employee and having her direct the IHRP program from abroad for a semester. Then German authorities informed Toronto that that arrangement would be illegal.

Meanwhile, someone leaked the news about Azarova’s being the candidate of choice to David E. Spiro, a tax court judge, University of Toronto alumnus, and a donor who had given somewhere between $25,000 to $100,000 to the university. For a highly ranked research university, that is not a huge sum, though his family donated more. It costs millions of dollars to endow one faculty chair, still more to fund a building and get your name on it. During a routine phone conversation initiated by a UT Assistant Vice President, Spiro at the end of the call, when asked whether he had other issues of concern, mentioned that the appointment would be controversial in the Jewish community, a factual statement. Under prevailing US judicial ethics, there would be no prohibition on Judge Spiro expressing a private opinion to the UT administration. There is no evidence Spiro threatened not to make further gifts, though a number of people have decided a threat was surely implied. The law school dean decided the visa problems were unsolvable and notified Azarova they would not proceed with the appointment. At that point the Azarova case became a large public controversy.

The Canadian Association of University Teachers (CAUT), which serves as a union for almost all Canadian teachers, took up the case, believed the accusation of political interference even in the absence of direct evidence, and decided Azarova’s academic freedom had been violated, ‘concluding that the decision to cancel Dr. Azarova’s hiring was politically motivated and as such constitutes a serious breach of widely recognised principles of academic freedom.’ CAUT applied its most extreme remedy, formally censuring the U of T. CAUT also insisted, contrary to academic tradition, the University of Toronto policy, and the AAUP’s standards, that administrators have exactly the same academic freedom as faculty. The AAUP specifies that administrators only have academic freedom when they are engaged in performing faculty responsibilities—teaching classes, advising students, and publishing research—not in the performance of their administrative duties. Azarova thus could not have comprehensive academic freedom. Academic freedom should not have constrained evaluation of issues affecting her fitness to be an administrator. CAUT notably acted before two important reports were issued.

The university insisted no formal offer had been made. It subsequently hired retired Supreme Court justice Thomas A. Cromwell to investigate the matter and write an independent report. Crowell could find no evidence of political influence in the decision. His 78-page report detailed the law school’s efforts to solve the visa problem in excruciating detail. He found no reason to conclude the dean was lying in reporting that neither Azarova’s politics nor Justice Spiro’s warning had played any role in his decision. Azarova’s allies were not persuaded.

With David Spiro regularly vilified in the press and demands for his removal escalating, the Canadian Judicial Council appointed a Judicial Conduct Review Panel to evaluate his conduct in the Azarova case and decide whether he should be removed from office. The panel decided that ‘Justice Spiro was voicing his concerns about the potential impact of the appointment and associated controversy on the University and the Faculty, as opposed to actively campaigning or lobbying against the appointment.’ He had avoided contacting the dean directly because he he thought that would be inappropriate and did not wish to signal that level of concern. They noted that ‘before his appointment to the judiciary, Justice Spiro devoted a great deal of time to enhance his understanding of the Israel-Palestine conflict and to build bridges between the parties and the faith communities involved.’ They added that no reasonable person could ‘conclude that the judge is biased against Palestinian, Arab or Muslim interests. The fear of bias on the part of Justice Spiro is based on misinformation and speculation that is inaccurate.’ Nonetheless, they decided that, as a member of the judiciary, he should not have intervened in the appointment. Spiro expressed his regret and he was not sanctioned. The panic in the press and among academics about Justice Spiro’s phone call was unwarranted. Given that the accusations against Spiro have been discredited, one is left with the question of why it was so readily believed that one Jewish donor could dictate who the richest law school in Canada could and could not hire.

AZAROVA: CAREER OVERVIEW

On April 24 and 25, 2014 the UN ‘Committee on the Exercise of the Inalienable Rights of the Palestinian People’ held a ‘Roundtable on Legal Aspects of the Question of Palestine’ in Geneva. According to Human Rights Voices, speakers at a closed session included Valentina Azarova, at the time a Lecturer in Human Rights and International Law at Al-Quds University in East Jerusalem, who ‘argued in favor of the Palestinian “right to return” including “Palestinian refugees in the Diaspora with a territorial link to Israel” . . . . She also supported the “BDS” (boycott, divestment and sanctions) campaign against Israel, pushing third states and international actors to adhere to “the duty of non-recognition, non-aid or assistance…the same goes for private entities like businesses.”’ Except for the encouragement of third state action against Israel, these views are often not explicit in her published work, though she is sometimes clear about them in other contexts.

In a 2019 interview, she endorses the BDS movement and reports ‘there is promise in the mobilization of third-party enforcement action, including those by local councils, investment institutions, and supermarkets’ to address ‘the ultimate subaltern case that Palestine represents’ (Shokirova). Indeed, she says, there is a ‘now-generally-accepted view amongst international lawyers and political analysts that few contemporary cases, aside from that of Palestine, make international law appear as morally and politically bankrupt.’ She argues that political activism is the only practical option now available, given that the International Criminal Court (ICC) has been constrained ‘through political and financial blackmail.’ Until the ICC can become ‘a law enforcement body in the proper sense, that is prosecutorial and operational,’ it will be limited to ‘a social mechanism symbolic and perceptional, or reputational,’ through ‘activities auxiliary to the investigation and prosecution of international crimes, such as the outreach it plans to conduct in the West Bank and Gaza.’ The ultimate point is that ‘Israel is illegally present in Palestine and has an obligation to withdraw from the territory.’

Meanwhile, she has explicit advice to law students: learn ‘how to frame and address ongoing processes of structural violence and structures of complicity,’ as ‘in the case of Palestine’: combine on-the-ground work with research to discover ‘how law can be brought to operate in disruptive and subversive ways.’ Of course she said that before facing controversy over the Toronto appointment. Azarova calls herself a ‘practitioner-scholar’; she reports ‘having spent a considerable part of my professional life working with primarily local and regional human rights organizations, and then teaching and thinking about the law through and in order to refine my and others’ legal practice.’ There is no doubt that she would have brought this paired commitment to anti-Zionist activism and analysis regarding Palestine to her role in mentoring students and designing programs at the University of Toronto.

Azarova’s dual career moves beyond alternating between scholarship and activism toward an exceptional fusion of the two. She completed an LLB in European Legal Studies at London’s University of Westminster in May 2008, meanwhile earning a Certificate in Transnational Law from the University of Geneva from 2006-2007. Those combined programs qualified her as an attorney, though she added a summer 2009 certificate of attendance from the Hague Academy of International Law. She earned a PhD in Public International Law from the National University of Ireland after completing a two-and-a half-year program in 2014. Her doctoral thesis was about contemporary forms of occupation and their regulation under international law.

Before then, however, she had undertaken a substantial amount of pro-Palestinian activism and work experience, first at HaMoked in 2007 and from 2008 to 2010 both during the time she studied for an LLB and immediately thereafter. She was Senior Legal Researcher at Al-Haq from June 2010 to December 2011 and External Legal Advisor to the same group from August 2013 to January 2014. In between, from July to October 2012 she was a research consultant at the Diakonia International Humanitarian Law Research Center in Jerusalem, founded to address International Humanitarian Law violations in the Israeli/Palestinian conflict. Al-Haq is a leader in anti-Israel lawfare and BDS campaigns. Its General Director Shawan Jabarin has been active in the Popular Front for the Liberation of Palestine (PFLP), a recognised terrorist group. In 2007 the Israeli Supreme Court characterised him as a ‘Doctor Jekyll and Mister Hyde, acting some of the time as the CEO of a human rights organization, and at other times as an activist in a terror organization which has not shied away from murder.’ From September 2013 to May 2014, while studying for her PhD she was an Associate at the MATTIN group, which promotes human rights resistance to Israel within the European Union, a focus of Azarova’s research.^[2]

Although we do not have any information about possible representation of clients during her NGO work, we know that a significant amount of her time was spent researching and writing reports, some of which were apparently distributed as bound pamphlets. They include four reports done for Al-Haq and three done for Dakonia. All these reports are highly critical of Israel, sometimes appropriately, as with Institutionalized Impunity: Israel’s Failure to Combat Settler Violence in the Occupied Palestinian Territory (Al-Haq, 2013). She later did several reports for Amnesty International on the 2014 war in Gaza.

Her essay ‘Making human rights work’ describes some of her work with the MATTIN Group. In the Acknowledgements to 2014’s ‘From Discretion to Necessity: Third State Responsibility for Israel’s Control of Stay and Entry into Palestinian Territory,’ she expresses ‘immense gratitude to Charles Shamas . . . cofounder and senior partner of the MATTIN Group, whose methodology and work this article seeks to capture’ (353). She also draws on work by Al-Haq and HaMoked. The essay condemns Israel’s ‘de facto prohibition on virtually all movement between the two territories’ (333), while failing to point out that Hamas organises terrorist cells from Gaza and thus that movement from Hamas to the West Bank presents security risks. The Palestinian Authority is consequently unwilling to support free travel from Gaza to the West Bank

Her first teaching experiences matched her NGO-based anti-Zionist advocacy. From 2009 to 2013 she was Co-founder & Director of the Human Rights & International Law Program at the West Bank’s Al-Quds Bard College at Al-Quds University, simultaneously teaching such courses as ‘Human Rights in Armed Conflict,’ the topic of several of her anti-Zionist publications. She continued to teach the course there until January 2015, immediately afterwards spending a year as a research fellow at Birzeit University in Ramallah. Meanwhile she taught at Birzeit from 2014 to 2015. She went on to teach in a summer 2015 program at Bilgi University in Istanbul, followed by the academic year in Lebanon.

Azarova’s first publications came in 2009 when she was working at HaMoked, partly overlapping from her summer at the Hague Academy. A series of essays followed in 2012 and 2013 while she was working for the anti-Zionist NGOs described above. She has neither abandoned nor significantly modified the views she expressed then. This consistent, devoted, and elaborate history of Palestine-based anti-Zionist NGO work and anti-Zionist writing and publication seems distinctive. As a first step in understanding what that means, I review her claim that Israeli archeology violates international law.

IMAGINARY ANTIQUITIES

In 2013, in the midst of her PhD studies and while working for several Palestinian NGOs in Jerusalem and Ramallah, Valentina Azarova published an essay coauthored with David Keane, ‘UNESCO, Palestine and Archaeology in Conflict,’ that seeks to apply political opinion and international law to the status of antiquities discovered in the West Bank and in waters off the coast of Gaza. They are not alone among anti-Zionists in castigating Israeli archeology, though they particularly emphasize legal arguments. ‘For more than a century,’ they argue, ‘Palestinian cultural heritage and property has been the subject of capture and destruction by other states’ (310). The claim that all area antiquities have a specifically Palestinian character is strikingly anachronistic, since a distinctly Palestinian, as opposed to Arab, identity did not exist until the late 1960s, a fact Azarova seems unable to acknowledge. Although Yasser Arafat announced the creation of a ‘State of Palestine’ in 1988, this hypothetical entity only gained the status of a United Nations non-member observer state in 2012. Their one hundred years plus timeline dates the property seizure by ‘other states’ to the period of the Ottoman Empire, an entity that did not survive the First World War. But Keane and Azarova extend a Palestinian cultural heritage to the Roman and Byzantine eras as well (318). When the Oslo Accords took effect in 1994 and the Palestinian Authority gained authority over Areas A and B, they write, ‘for the first time the Palestinians could control part of their own cultural heritage’ (315). In a highly debatable claim, they add that ‘the Palestinian Department of Antiquities and Cultural Heritage, re-established in 1994, is considered to be a revival of the Department of Antiquities that was established in 1920 under the British mandate and terminated by the political events of 1948’ (316). In other words, the creation of Israel and the war that followed it temporarily broke the proper chain of custody over Palestinian artifacts. But the only legally credited chain of custody following the British mandate belongs to Israel, as Arabs refused to accept the statehood offered by the UN in 1947.

In the world their essay evokes, Israeli archeology exhibits no cultural or historical virtues and delivers no academic benefits; every project is an appropriation of Palestinian property and a violation of Palestinian rights, what another critic calls ‘an archeological heart of darkness.’ ‘The presence of archeological or biblical sites is used to justify confiscating Palestinian lands and building illegal settlements’ (316). ‘In some cases, offences against cultural property can amount to crimes against humanity, in so far as these acts are part of a broader set of facts on the widespread or systematic persecution of a civilian population’ (323).

They detail the existence of an illegal antiquities market supplied by Palestinian workers finding opportunities to loot the Israeli sites at which they work. But they are never motivated by greed. ‘Palestinian involvement in the looting stems from the alienation of the population from its own cultural heritage,’ since all antiquities are by definition artifacts of Palestinian history; moreover, ‘looting grows in line with unemployment’ (330). Keane and Azarovna are both law faculty specializing in international rights law. Neither is an archeologist. Far from being disabling for them, it is altogether enabling. An archeologist might have to justify the invented, anachronistic notion of a Palestinian antiquity. For them it is not an authenticated historical category to be verified and defended. It is apparently validated by international rights law, by the belief that Palestine is occupied territory; its true history is therefore Palestinian, not Jewish. As a consequence of their unhistorical construction of ancient artifacts, their essay becomes a meditation on what amount to imaginary antiquities.

A series of elaborate legal arguments follow, which eventually enable Keane and Azarova to endorse the most provocative of all the claims in this long-running dispute in cultural politics, that the Dead Sea Scrolls are part of the Palestinian cultural heritage and thus legally Palestinian property (324-326). As people worldwide know, the first of the Dead Sea Scrolls were discovered by Bedouin goatherds in 1947. Israel gained control of most of them in 1967. After a long hiatus, additional fragments were found in caves in 2021. Political disputes over their ownership most often erupt when plans surface for the Israel Museum in Jerusalem to lend them to a museum abroad, at which point Palestinians demand they be seized and handed over to the Palestinian Authority. Jordan has also claimed ownership and demanded their return. When the German government declined to guarantee their return to Israel after a scheduled 2019 exhibition at a museum in Frankfurt, the exhibit was cancelled.

The scrolls and fragments are the earliest known material versions of the Hebrew Bible, the sacred text of Judaism, and thus carry immense religious significance for Jews. The scrolls include no Christian or Muslim texts. Few other artifacts thus belong more decisively to Jewish cultural and religious history. Israelis overall have no tolerance for the idea they are part of Palestinian history and no intention to send them to Ramallah. Palestinian claims of ownership are little more than a gratuitous provocation, an instance of war by other means, which is evidently how Keane and Azarova deploy them. Indeed, they suggest circumstances could arise to justify a Palestinian case demanding their seizure before a US court. Remarkably, these two writers do not find occasion to mention, let alone debate, the unique place the scrolls occupy in Jewish religious history. Indeed, they do not mention that any Jews lived in Palestine during the Roman period. Israel’s Jewish character is not part of the Keane/Azarova analysis, but it must be part of any morally honorable evaluation of who has the deepest right to ownership.

In the opening pages of their essay, Keane and Azarova decry the fact that ‘this hemorrhaging of Palestinian property is occurring in a context where archeology has been used by Israel’ as pretext to control territory and exercise its sovereignty over the West Bank and its resources (310). They conclude by pointing out that Palestinian efforts to gain control over archeological artifacts ‘not only constitute an expression of Palestinian sovereignty . . . but also represent a means of moving beyond the cultural property protection framework to propel the integration of the State of Palestine within the international legal order’ (343). Their first passage stigmatises what they consider a case of theft, the second endorses their view of political justice at work.

AZAROVA’S PUBLICATION PATTERN

Azarova’s co-authored essay on archeology is characteristic of the longer single-author essays she began to publish the following year, in 2014. She does not, however, typically publish in law reviews or publish the monograph-length research papers often seen there, sometimes preferring more political venues, especially when she wishes to be more polemical. Of the sixty-seven publications on her 2016 vita, ranging from essays and reports to blog posts, fifty-eight centrally address Israel. Others do so briefly, as with her piece on genocide in Bosnia. Israel is rarely far from her mind, since she often writes about a legal principle that she then applies to the Israeli occupation of the West Bank. Her 2020 essay ‘Adjudicators, Guardians, and Enforcers: Taking the Role of Non-Governmental Organisations in Customary International Law-Making Seriously’ draws on her experience with Palestinian NGOs without mentioning either any of their names or those of any other NGO. The essay is an effort to categorise the work NGOs do to ‘mobilize international law with the hope of raising global standards of human security and offering greater protections to marginal and vulnerable populations.’ She does not have to name Palestinians or any other group to make the context clear. Masha Gessen claims that ‘early in her career, she [Azarova] focused primarily on the Israeli occupation of Palestine,’ then moved on to other topics, which is manifestly untrue. The New Yorker could have easily fact-checked that statement and realised that it was false.

From the time Avarova began publishing in 2009 she intermittently addressed legal issues in other countries as well as Israel. But her career to the present day is single-mindedly devoted to the delegitimisation of the Jewish State through legal analysis. She either writes about specific Israeli violations of international law (as in ‘Families Under the Rubble: Unlawful Israeli Airstrikes Kill Entire Families’) or explores the ways a particular category of international law can used to sanction or condemn the country (as in ‘Mapping the Legal Framework of Israel’s Occupation: How to Better Secure Rights’). Azarova herself routinely sanitises her research focus in author notes, as with ‘Her research concerns the role of third parties and the contribution of domestic and transnational regulatory processes to the enforcement of international law.’ No mention that almost all this ‘research’ is focused on Israel. Faculty members often concentrate their research on one country, but it is unusual to issue self-representations in the form of abstractions that omit that fact.

Azarova was something of a precocious anti-Zionist; the five 2009 anti-Zionist pieces were published the year following completion of her first degree. Two years earlier she had done a summer internship for a Palestinian NGO. Her ideological commitments coalesced when she was young. They have organised her life ever since.

Her 2016 vita includes forthcoming pieces and others ‘pending submission,’ so it extends beyond its date of composition. Her SSRN author page lists some of the publications in her vita, along with more recent ones, and offers PDFs of most of them. A Koc University website, established during an extended position as a postdoctoral fellow in Istanbul, provides PDFs of a number of other essays and reports, including several written for Al-Haq, that are otherwise difficult to obtain.^[3] I supplemented these resources with searches on Google and Chrome and several academic search engines in 2021. Given the number of her publications and the difficulty of locating some of them, it is entirely possible, indeed likely, the 2020 Toronto search committee did not review her entire output.

Israel has been and continues to be the central preoccupation of her research and advocacy. Her recurring topic, how international law applies to a given set of Israeli policies and practices, is pursued with a political aim—in order to discover ‘the ways in which international law is capable of constraining political discretion’ (‘An international legal demarche for human rights’).^[4] ‘UNESCO, Palestine and Archaeology in Conflict’ is one of several longer, self-contained pieces that address topics, in this case archeology, that she has only written about once, though they are often linked by anti-Zionism. In other essays, she takes up a topic briefly and tackles it again later in a different context. But opposition to Israel and to the occupation continue to unify almost everything she writes. It would be easy to gather her chapter-length anti-Zionist essays into a book, something she may be planning to do. Indeed, their interlocking and mutually supplementary character means there is no one essay fully summarising her position on Israel and the Israeli-Palestinian conflict. As the documentation in this essay suggests, one must read them all.

Some describe her preoccupation as obsessive, but many scholarly careers are defined by some narrow topic pursued over decades. Research is almost by definition obsessive. The issue is what she argues. A key question is whether her fierce anti-Zionism crosses a line into anti-Semitism. With some possible exceptions, I do not believe she crosses that line in her publications. She is certainly capable of unpersuasive hyperbole, as in ‘Lost at Sea’ when she asks regarding the Gaza blockade whether ‘the use of blockade terminology is indeed more appropriate than the law of siege warfare.’ ‘The blockade,’ she has irresponsibly concluded, ‘is in fact arguably rather a siege.’ Well, it is neither the siege of Troy nor the siege of Leningrad. Israel facilitates delivery of food and materials, helps with electrical and gas supplies, and provides other services. The blockade is more restrictive than it needs to be, but it is foolish to insist it is really a siege.

Most of what she has written recently, however, is reasoned, not abusive or exclusively polemical. Her claims are consistently debatable, though they regularly omit counter-evidence and are frequently misleading, but they can be debated, not simply cast aside as inexcusably false. She is invariably hostile toward Israel, having nothing good to say about the Jewish state. Israelis and Palestinians for her represent uniform, internally consistent categories. They are flattened and two-dimensional; you never encounter a fully realised human being in what she writes. I realise some of her critics would prefer to believe otherwise, but careful distinctions regarding anti-Semitism are essential. There are faculty members whose publications clearly and repeatedly exhibit anti-Semitism. And there are cases like Azarova that establish themselves in a gray area and present real challenges to classification. Notably, in the scores of pieces written about Azarova since 2020, both positive and negative, there is little if any detailed attention to her publications; it is not clear that many people have actually read any of them. The problem for her hire, as I will show, is due to the way her career anti-Zionist commitments intersect with a major administrative role implementing a curriculum and external work experience. I would not welcome her appointment as a full-time faculty member, as opposed to a senior administrator, but I would not campaign against it.

A recent essay that may cross the line is her 2017 ‘The Pathology of a Legal System: Israel’s Military Justice System and International Law.’ It declares itself to be ‘a diagnosis of a wrongdoer’s legal system,’ a system that ‘accepts, encourages, or even mandates conduct that is internationally unlawful’ (6), indeed carries out ‘premeditated and deliberate internationally unlawful acts’ (15). Israel’s legal system not only operates ‘in contempt of’ international norms, it aims to revise them; although she unwilling to say so, not all of Israel’s efforts to modify international norms are inherently destructive. The core of her accusation is the ‘unlawful re-definition of the internationally-recognized status of Palestinian territory,’ with Israel ‘arguing that there was no sovereign Palestinian state before 1967’ (8), an issue taken up below. One example of a clear violation of those norms, she claims, is the decision ‘to detain inside Israel proper persons arrested in the West Bank’ despite ‘the absolute prohibition of such transfers in International humanitarian law’(10). Although she predictably does not acknowledge it, Israel has to investigate actual terrorist cells in the West Bank; building a prison in the West Bank would not be a politically applauded alternative to the use of facilities in Israel proper. Moreover, at issue are short distances, not removal to a distant country.

That said, I too think the present dual legal system on the West Bank is unacceptable, despite the expectations for military supervision of occupied territory. While Israel cannot simply incorporate the West Bank within its own legal system without provoking accusations of annexation, the current inequities must be ameliorated. But her complaint about ‘the threat that Palestinians are socially constructed to represent within the Israeli national system’ (12) ignores the fact that a minority of Palestinians are a threat. Once you know Palestinians or Israelis personally, it is difficult to impose identical social construction on them. Given that Azarova knows many personally, it is regrettable that she does exactly that herself.

Although her essay does not engage in any detailed analysis of Israeli law, she justifies that by saying it is instead ‘directed at the social structure and cognition of the Israeli domestic system’ (17). She ‘steps back from the classical approach to the assessment of violations’(17), she says, to expose the ‘deep structure of internationally wrongful acts’ (20). Yet she never actually undertakes that ambitious task either. Nor, in a typical violation of International Holocaust Remembrance Association guidelines, does she compare Israel’s legal system to that of any other country. Where is the call for a structural analysis of the racialised US justice system, let along what counts for justice in China, North Korea, or Russia. The key point is that Azarova is very good at making such comparisons and contrasts succinctly, when she wants to do so, in a sentence or two. In this case, she preferred to depict Israel as cast out of the community of nations, a particularly relentless violator of human rights. That stand is inherently biased; readers may decide whether it qualifies as anti-Semitic.

OPPOSING WEST BANK BUSINESS RELATIONSHIPS

As an example of a recent essay at once thoroughly opposed to Israel’s presence in the West Bank and entirely rational, one can consider ‘Business and Human Rights in Occupied Territory: The UN Database of Business Active in Israel’s Settlements,’ published in Business and Human Rights Journal in 2018. In 2016, a UN Human Rights Council resolution requested the High Commissioner for Human Rights to create a database of companies doing business with settlements and to review it annually. Given the many years in which a wide range of groups have promoted organised boycotts of corporations conducting business on the West Bank, a reader might expect Azarova to do the same. Although she devotes paragraphs to a ‘wave of divestment decisions’ (204) carried out by various companies, boycotts are not mentioned until the end of the essay, and BDS is never mentioned at all. In 2016’s ‘Boycotts, International Law Enforcement and the UK’s “Anti-Boycott” Note,’ however, she does welcome the potential for public bodies refusing contracts with companies implicated in ‘Israel’s internationally unlawful exercise of its domestic jurisdiction in occupied territory.’ Since such actions would not be ‘adopted on the basis of a sweeping, politically-driven boycott that targets commercial sectors, governments, or situations,’ they could escape the ‘long practice of executive branch monopoly over boycotts.’

In the 2018 piece, she disassociates herself from the expectation that a database of businesses operating in occupied territory will inform boycott organising: ‘Political narratives in the US, the UK and France have assimilated the database with “boycotts” against Israel, which are prohibited under their respective domestic laws. The misconceived view of the purpose of this initiative as one that is intended to politically isolate and bully Israel has fueled state and business hostility towards it’ (208). The database, she assures us, some will feel disingenuously, is not part of a political movement. She is aware that it will be used that way, but she claims the motivation for its creation is simply to enhance adherence to international law. Even if this line of argument is tactical, not principled, it governs the character of the essay and its scholarly status. Putting ‘boycotts’ in quotation deftly distances her from the movement, stages a simulacrum of distaste for the phenomenon, and appears to render it illegitimate.

Azarova’s aims for the project are both economic and political, and they would in reality be carried out in tandem with boycott and disinvestment initiatives, but that fact is bracketed and ignored. Indeed, boycott organisers can adapt their strategies and use Azarova’s essay to advocate for multinational corporations and national governments to discourage business investments in West Bank activities. The essay amounts to a set of guidelines for rational persuasion to promote its political agenda. While most boycott pressure emphasises morality, Azarova focuses on legality: ‘a home state could and should protect its domestic legal order and domestic subjects from contributions to illicit proceeds and financial flows in transnational contexts’ (208). That is the kind of advice a legislator might offer or risk assessment a company’s own lawyers might provide if confronted by third-state regulation of West Bank investment. The essay is a model of the way faculty research and analysis can contribute to a political project while claiming not to do so.

Yet Azarova is more forthcoming about her aspirations for the UN database in more polemical pieces for nonacademic audiences also published in 2018, especially ‘The UN Database on Business in Israeli Settlements’ and ‘Tracking Business in Israeli Settlements.’ In the second of these pieces she defines the UN database as ‘a mechanism to document, report, and engage primary interested parties’ and specifies accurately that ‘it does not have the mandate to adjudicate the responsibility of concerned parties, nor to act as a coercive tool of law enforcement.’ She adds that ‘it cannot afford to alienate its target audiences by operating as an adjudicative or coercive body.’ A few sentences later, however, she expresses her wish for how the database will be used: ‘it could well become the first to function as a regulatory tool that gains support, and encourages compliance with international law.’ In the first of these two essays, published in Al-Shabaka: the Palestinian policy network, however, she reminds us that ‘not only does the establishment and maintenance of the settlements constitute violations of international law, but so do all private transactions and business dealings in or related to the settlements.’ The UN Guiding Principles on Business and Human Rights, she insists, ‘require businesses to assess whether their operations have a harmful effect on human rights and to mitigate such harms,’ but warns us that ‘HRC resolution 31/36 affirms that a business undertaking operations in Israel’s settlements is unable to mitigate the adverse impact of its activities on the severity and frequency of violations of human rights . . . all business activities in settlements would contribute to the rampant human rights abuses caused by their existence and maintenance.’

The range of those implicated is broad: ‘companies and individuals acting as procurers, investors, and consumers may contribute to and benefit from violations of international law in occupation.’ Consequently, ‘to guarantee their compliance with international standards, all businesses must therefore terminate all their business activities that extend to the settlements.’ We are in the presence of a political agenda. It would be misleading to tell students otherwise.

Azarova is correct that the UN database is not part of an enforcement regime. On the other hand, UN countries are implicitly encouraged to use it as one by her repeated emphasis on settlement engagement as a hugely serious human rights violation. In both ‘The UN Database’ and ‘Tracking Business’ she emphasises that, since the database lacks enforcement mechanisms, it cannot be considered a blacklist. This is in response to all of those who complain that that it is precisely what it is. Of course blacklists are often quite independent of enforcement. The claim it is a blacklist, she writes, ‘is a semantic twist that is intended to undo the image of a soft mechanism with a mandate to document, report, and engage interested parties into a coercive tool that shames offenders into compliance’ (‘UN Database’). Of course her characterisation of the human rights violations intrinsic to all settlements turns the database into a means of shaming offenders into compliance. And the only way states can protect their constituencies from violating human rights is to opt for enforcement. The controlling logic of her argument might be characterised this way: ‘it’s not a blacklist; it’s a blacklist.’

Her dissatisfaction with the existing investment patterns and widespread indifference to what she sees as the legal demand to withdraw from West Bank entanglements was made clear in 2016’s ‘On Business and Human Rights in Illegal Territorial Regimes.’ ‘The track record on lawsuits for foreign business involvement in Israeli wrongdoing,’ she complains there, ‘is dismal.’ Moreover, states ‘have stopped short of enforcing international law-based obligations by adopting measures that could redress the immitigable business involvement in the harm resulting from operations under the auspice of Israel’s illegal legislative and administrative regime.’ She points out that a 2016 Human Rights Watch report ‘requires states to stop or prevent their corporate nationals from becoming involved in settlements.’ Domestic law must be brought in line with public policy. Then laws baring doing business in settlements ‘would become as enforceable as any other domestic laws regulating corporate actors.’ Two years later she would turn to the UN database as an inducement to trigger action.

You could read ‘Business and Human Rights in Occupied Territory’ in Business and Human Rights Journal and conclude that Avarova is not interested in enforcement. But you would be wrong. She decides how forthcoming to be according to the audience she is addressing. It is at least a problematic strategy to teach to law students.

Her harsh commitment to enforcement is also evident in other pieces, among them the briefing paper ‘Taking forward the UN Commission of Inquiry Report on Gaza,’ in which she recommends consideration of more punitive actions: ‘suspending arms and defense exports to Israel,’ ‘adopting restrictions on travel and economic activities of individuals in the Israeli military or political ranks,’ and ‘preventing nationals, individuals, charities and other associations from lending support to unlawful Israeli acts’ (9). She considers such actions necessary because Israel’s enforcement of international law is limited to ‘the “bad apples” that Israel has sacrificed to maintain a pretense of house-keeping’ (10). Appropriate principles must be ‘brought to bear on the perpetrators through criminal accountability and on Israel for state responsibility’ (213). Ostensibly just a report on Gaza, the essay implicates West Bank conduct as well.

Her companion briefing paper on ‘The International Criminal Court, Israel/Palestine and EU Support’ revisits this advice to give it more specificity, recommending that other countries ‘halt arms trade with Israel in light of the unlawful use of certain weapons by Israeli forces’ and ‘review the travel to and economic activities in the EU jurisdiction of Israeli military and political officials suspected of international crimes (e.g. in relation to settlements and the conduct of hostilities.’ She urges that EU countries ‘regulate private actors’ activities in settlements.” Some of the NGOs she has worked for, including Al-Haq and Diakonia, have complied dossiers for submission to the ICC for possible prosecution. She highlights ‘individuals or entities involved in planning and ordering’ actions by ‘violent settlers, military and political officials responsible for Area C destruction,’ and ‘charities funding settlements.’

Her 2013 paper for the Palestinian NGO Dakonia, ‘Securing Injustice: Legal Analysis of G4S Israel Operations in Occupied Palestinian Territory,’ is more explicit in assigning responsibility to corporate ‘actors who benefit financially from the conflict, and who have altered their activities in order to gain from it financially, without taking into consideration the role they play in the conflict’ (4). G4S withdrew from all settlement business relationships in 2017, but the essay’s general principles remain relevant. Companies engaged with settlement activities, she argues, ‘have a vested interest in the prolongation of conflict, as it allows them to maximize their profits’ (5). Although she does not say so, business activity in the West Bank could well increase with the realisation of a two state solution, which suggests there is little necessary corporate determination to sustain the conflict. Since she accuses Israel of committing war crimes in the occupation, it follows that ‘those aiding and abetting, ordering, supervising, and jointly perpetrating can also be held individually accountable’ (12). She adds that ‘case law has shown that corporate officers have successfully been prosecuted for international crimes’ (24).

Returning, then, to ‘Business and Human Rights in Occupied Territory,’ it is less polemical, though the subject is the same as her more argumentative publications. The essay is carefully calculated to address concerns business representatives and business faculty would recognise and to employ rhetoric with which they would feel more comfortable. But she wants to expand their horizons. The ‘internationally unlawful acts committed by Israeli authorities’ begin with the physical establishment of West Bank settlements but implicate much more: ‘The non-physical infrastructure of the settlements include the legal and administrative acts that enable the establishment and maintenance of settlement-based entities, and thus that absorb the settlements into the economy, and social and political life in Israel proper’ (190). This casts a wide net, implicating more than those companies actually operating in the settlements in ‘the rights abuses that result from the conversion of [Palestinian] property rights into revenues’ (196). Settlement-based contributions to abuses of human rights ‘may be impalpable and unintended, often falling short of the standard of complicity, but nonetheless entail the conversion of wrongful rights and titles into financial gains’ (197). The name for the ‘entire legal and political regime’ that ‘underpins the creation and maintenance of settlements in occupied territory’ can be identified in one word: Israel. Israel’s very existence is grounded in illegality. Although Azarova does not say so, her analysis makes it difficult to rationalise any economic relationship with the Jewish state by claiming it has no entanglement with the settlements.

Tracking all the ways businesses ‘contribute to the chain of custody of the illicit financial flows generated by the settlements economy’ (203) requires some new categories for evaluating economic activity. Her interest in this issue dates to her 2013 paper ‘Backtracking on Responsibility,’ which found fault with a French court’s decision regarding two French companies, Alstom and Veolia, that participated in constructing a light railway between West Jerusalem and East Jerusalem settlements. The Court in part ‘concluded that the claimants failed to demonstrate the proximity and causal link of the company’s actions to the Israeli authorities’ internationally unlawful conduct.’[v] To clarify that issue, she proposes a proximity-based classification system that can account for ‘a lower threshold of harm’ (204). It is a three-part ‘typology of degrees of proximity’ to the settlements. First-degree proximity characterises companies actually based in settlements, including those operating franchises there. Second-degree proximity is reserved for companies ‘that buy or supply products, equipment and services to or from settlement-based companies,’ a much larger number. Finally, third-degree proximity is achieved indirectly by doing business with a company that itself does business with settlements. The UN database will not track or list those companies; nonetheless, Azarova believes companies have a responsibility to monitor their own relationships for third-degree proximity. The intrusive surveillance and research required to do so should not be underestimated. I would not want my department head urging students to institutionalise that agenda.

Published a year before, in 2017, ‘The Bounds of (Il)legality: Rethinking the Regulation of Transnational Corporate Wrongs’ is very much a companion piece to ‘Business and Human Rights in Occupied Territory,’ as is 2018’s ‘The secret life of non-recognition: EU-Israel relations and the obligation of non-recognition in international law,’ which is about the European Union’s ‘obligations of non-recognition and non-assistance to Israel’s serious breaches of peremptory norms under international law . . . such as the flagrant denial of the right to self-determination of peoples’ (24, 25). The subject of ‘The Bounds of (Il)legality” is the lack of adequate home-country regulation and enforcement of corporate practices in foreign countries, particularly the failure to monitor and enforce indirect corporate human rights obligations. The body of the essay is mostly composed in the abstract; no specific corporations are mentioned.^[6] Except for the 2013 tragic collapse of the Rana Plaza factories in Bangladesh, country-specific violations are not cited. Palestine is only referenced in the text toward the end. Unless you read the series of footnotes dealing with Israel, you might imagine the essay entailed no specific political commitments. But the Israel-focused notes are there; the 2017 essay underwrites the 2018 essay.

Azarova’s opposition to the occupation unfortunately blinds her to some of the economic benefits Palestinians gain from foreign and Israeli investment in the West Bank, the most obvious one being better jobs than they could otherwise find. When the Israeli firm SodaStream abandoned its West Bank factory in 2015 under BDS pressure some 500 Palestinians lost jobs paying about twice as much as Palestinian businesses paid. If the Palestinians are ever to get a viable state of their own it will require economic cooperation with Israel. For Azarova, unlike, say, the former Palestinian prime minister Salam Fayyad, all Israeli West Bank economic investment equates to exploitation.

WAR IN GAZA AND THE LAW OF OCCUPATION

Nonetheless, her recent business-related essays are more rhetorically restrained than a number of her earlier publications. In her 2009 piece on an Israel Supreme Court decision, she claims, with a sense of injustice, that the Court ‘has virtually never upheld or referenced in any context whatsoever’ the Palestinian ‘inherent right to self-determination.’ That right is a matter of principle, not of black letter law. In neither case, moreover, would the right be ‘inherent.’ Yet the court has recognised Palestinian rights many times and regularly asserted equal rights for Israeli Arabs. She partly concedes that in a 2014 essay ‘An International legal demarche for human Rights?’ She writes, ‘The court has provided a remedy to Palestinians in few cases, in rulings that have not curtailed the general policy and practice responsible for the individual injury.’ Familiarity with the court’s history shows that courts under some chief justices preferred to decide cases narrowly, while others were more activist and used rulings to establish or extend general rights. In 2009’s ‘A line of selective rhetoric’ she accuses the court of rendering yet ‘another stultifying judgement,’ and in 2009’s ‘The Security Paradigm’ she accuses the court of ‘heedlessness towards international law’ and in ‘An International legal demarche for Human Rights?’ she condemns the court for ‘providing a legal façade for illegal policies and practices.’ The court in reality has sometimes acted as a check on Israeli policy, a role it has not always played, but has done so frequently enough to earn it substantial international respect.

Her 2013 ‘Israel’s loopy logic of exoneration’ takes on the Israeli Military Advocate General’s record of investigating potentially illegal fatal wartime attacks, arguing that ‘Israel’s system of military investigation has created a closed circuit of impunity,’ embodying ‘the tautology whereby without investigation there is no evidence and without evidence there is no investigation.’ The result, she tells us, is ‘virtual impunity for its military and political officials’ due to ‘Israel’s deficient institutional and legal practice.’ Those political officials who have been convicted of offenses and sent to prison might beg to differ about their impunity. Only two years later, in ‘Palestine’s Day in Court?’ she reports that ‘Israel has embarked on a series of potentially resource-intensive, prolonged investigations into alleged wrongdoing by its forces in the Gaza Strip.’

In any case, ‘Business and Human Rights in Occupied Territory’ is politically and ideologically of a piece with everything she has published since 2009. Indeed, her controlling subject of Israel’s ‘belligerent occupation’ received its first definition and analysis in five brief essays she published in International Law Observer that year. During that time, from June 2008 to March 2010, she was employed as a Legal Researcher at HaMoked: Center for the Defence of the Individual in East Jerusalem. HaMoked defines its main aim as ‘assisting Palestinians of the occupied territories whose rights are violated due to Israel’s policies’; it regularly represents families of Palestinians responsible for carrying out terrorists attacks against Israel. She had earlier served as a HaMoked legal research intern in the summer of 2007.

In the first of her 2009 pieces, ‘Who is a civilian in Gaza?’ she insists on classifying Hamas as a ‘non-state actor,” although the terrorist group has been governing Gaza since 2007. The main issue, however, is how to determine who is a valid target during hostilities. She argues for a clear distinction between combatants (members of the military wing of the armed group) and fighters (‘those who sporadically participate in hostilities on an “ad hoc” basis without being members of a brigade’). The impossibility of realising this distinction in the midst of combat in urban warfare is made considerably more difficult by Hamas’s lack of military uniforms, a fact she fails to mention. How one is to know ‘whether the individual is performing a “continuous combat function”’ she does not say. Yet she suggests provocatively that, without observing the distinction, Israeli reservists could be considered valid targets. By 2015, in the wake of the 2014 war with Hamas, she writes in ‘A Healthy Dose of Wartime Normative Realism’ that Israel ‘in effect eviscerates the category of civilians and undermines the principle of distinction’ (214). She is arguably still more blunt in ‘An International legal demarche for human rights?’ saying polemically that Israel has ‘disposed of the international humanitarian law principle of distinction by classifying Gaza’s civilian population as the enemy.’ That is a tendentious political argument masquerading as a fact. Although it is a typical move for anti-Zionists to ignore Israel’s elaborate efforts to limit civilian deaths, it is a more serious case of irresponsible slander for a specialist in international law to do so. In ‘A Healthy Dose’ she writes ‘A belligerent with a cumulatively scandalous record of in bello violations should be scrutinized for its liability for the fact of sustaining the war’ (212), scrutiny that apparently Israel alone of the participants merits.

In 2015’s ‘Exploding Civilian Involvement,’ an essay that pays ‘particular attention to the case of Israel,’ she adds yet another requirement. Deciding whether a civilian is a valid military target, she asserts, ‘involves a two-part test, which requires both that their actions be “crucial” to and concretely and causally linked to military operations, and that the individual made an objectively-determinable free choice to make such a contribution.’ She insists that Israel honor these criteria despite acknowledging that ‘in some cases civilians feel that they are subject to circumstantial coercion and socio-political pressures to support the fighting forces.’ From Nazi Germany to Hamas’s Gaza, ‘circumstantial coercion’ is a documented phenomenon. Yet there is no way to apply the two-part test in the midst of combat in any case. But more broadly she believes Israel has no right to claim self-defense to justify targeting combat units or rocket launch sites in Gaza. As Sharon Weill and Azarova write absurdly in ‘The 2014 Gaza War,’ ‘a State may not invoke self-defense against attacks originating from territory that it controls’ (367). It is arguably morally corrupt to suggest a state cannot claim the right of self-defense when its citizens are subjected to lethal attack. They do have an alternative argument, but it is one only the most radical anti-Zionists offer: ‘it can be argued that the use of force by Hamas was not illegal . . . because it amounts to legitimate resistance to illegal oppression. In that case, Hamas’ acts would not constitute an (unlawful) “armed attack” for the purpose of triggering Israel’s right to self-defence’ (372).

Her insistence that Israel occupies Gaza through ‘remote control’ has led to some strained reasoning. In her 2012 essay ‘Disingenuous ‘Disengagement’ she claims Israel maintains ‘its ultimate ability to reinstate its control over any domain of daily life whenever it so wishes’. Short of a massive invasion and permanent physical occupation by troops and bureaucrats, that claim is not based in reality. Yet she uses the following case in point:

Take, for instance, the example of an occupier’s responsibilities in the field of education. If the occupier does not have full control over the functioning of the education system in the occupied territory, in terms of the way schools are administered, curricula set and teachers hired, then the occupier cannot be held liable for defaults made by the local authorities. However, notwithstanding its limited control, the occupier remains fully charged with its responsibility to ensure the enjoyment of the right to education by the occupied population.^[7]

Exactly how Israel could carry out that or any other on-the-ground responsibility in Gaza is not easy to imagine. For my part, although I believe Israel and Egypt have no choice but to continue maintaining a blockade that monitors and regulates imports into Gaza, I believe it comes with responsibilities. As I argued in Israel Denial and Peace and Faith, that includes expanding the fishing limit to 12 miles, supplying additional electricity to Gaza, freeing up and facilitating exports from Gaza, expanding work opportunities in Israel for Gazans, and many other practical actions. Azarova’s focus on questionable or unrealistic responsibilities is immensely counter-productive. It does Gaza no good and confuses the debate.

In earlier pieces, such as ‘Al-Haq’s Questions and Answers,’ she declared that ‘during occupation, the sovereignty over the territory remains at all times with the local population’ (5). In ‘Israel’s Unlawfully Prolonged Occupation,’ she argued that an occupying power must be committed to returning occupied territory to the ousted ‘”rightful sovereign” at the time when it was first occupied,’ a principle she repeats but qualifies in a 2019 essay, ‘Towards a Counter-Hegemonic Law of Occupation,’ to adapt the category of sovereignty to conditions in Gaza and the West Bank. The West Bank was occupied by Jordan from 1948-1967 and was part of the British mandate from 1923-1948. Gaza had a parallel history, save that Egypt filled the role held by Jordan on the West Bank. The only recognised sovereign in modern times was the Ottoman Empire, itself, as noted above, dissolved after its defeat in World War One. So she invokes the notion that the Palestinian people are actually the rightful sovereign, a principle implicitly supported internationally but as an ethical and political principle, rather than a historically based one. She now argues the law of occupation applies to ‘self-determining peoples (West Bank and Gaza Strip)’ (119). That enables her to call for the international community ‘to expedite the return of the ousted sovereign’ (123), defined as the Palestinian people. Granting Palestinians that status is at best speculative.

Her reasoning requires some additional support. ‘As a corollary to the prohibition on the acquisition of territory by force, the right to self-determination — also a peremptory norm and a general principle enshrined in the UN Charter—was intended to protect the link between a self-determining people and a given territory’ (135). Following standard anti-Zionist practice, she never suggests that Egypt or Jordan should have recognised the peoplehood or self-determination rights of the Palestinians under their control. She had elsewhere pointed out that the concept of self-determination evolved after the demise of the era of colonialisation, and she repeats that point here, though decolonisation was well under way in the 1940s and 1950s. ‘Before the decolonization era of international law,’ she writes, ‘the rules on occupation as a function of war were deemed inapplicable to “colonial occupations”, since “civilised” nations allowed themselves to claim sovereignty and acquire parts of the uncivilized world’ (122). Of course she is aware, though she doesn’t say so, that some see Israel’s occupation of the West Bank as the last vestige of the era of colonialism. Although she never mentions the fact, here, as with her claims about antiquities, her argument is weakened by the relatively recent coalescence of Palestinians into peoplehood. So she invokes ‘the indigenous civilian population of the occupied territory’ and argues that Israel ‘seeks the permanent erosion of the indigenous population’s future rights to self-determination of peoples’ (127), even though many Palestinians did not arrive in Gaza or the West Bank until 1948 or 1967. Historically, the people with the longest claim to indigeneity are the Jews. Perhaps that is why she does not explore indigeneity at length. I strongly agree that the Netanyahu government was determined to block Palestinian self-determination, a goal it shared with the settler movement, but such views do not have to gain their moral or political force through claims of indigeneity.

Instead, she opens the essay by reminding the reader that ‘Israel’s occupation of Palestinian territory . . . is the longest occupation in modern times’ (115). Some of us might give that status to China’s occupation of Tibet, which dates from 1951, rather than Israel’s occupation of the West Bank since 1967. Nonetheless, it is the combination of a continuing 50-year occupation with settlement growth that justifies her saying ‘unlawfully prolonged occupations are no different from outright annexation, or other forms of aggression that may amount to so-called “crimes against peace”’ (136). Both here and in several other essays she includes comparisons with or brief references to other international examples and thus in those cases, unlike others, fulfills the IHRA warning against ‘applying double standards by requiring of it [Israel] a behavior not expected or demanded of any other democratic state,’ though the other occupations she cites are not necessarily by democratic states: ‘This is the case beyond Palestine and the Golan Heights, in northern Cyprus, Western Sahara, Transnistria, Nagorno Karabakh, South Ossetia and Abkhazia, and most recently Crimea’ (115).

The occupations that may most deserve comparison, on the other hand, are those of Germany and Japan by the United States and its allies following the Second World War. In ‘Neo-colonial Transformations of Occupied Territory’ she raised the possibility of comparing the West Bank and other current occupations with those of Germany and Japan (225), but dismissed the comparisons as invalid because they are out-of-date. She argues that too much of international law has changed since then. Of course those occupations actually proved beneficial to the ‘indigenous’ peoples, not only because they did not restore the defeated governments (Nazi Germany and Imperial Japan), though Japanese Emperor Hirohito retained his symbolic role, but also because the US in Germany and Japan helped mandate new institutions to transform the occupations into viable democracies. While the creation of the Palestinian Authority in the Oslo Accords did not reach that goal, the PA remains the only vehicle in place. But Azarova wants to disallow all such interventions — ‘prohibiting revisions to the occupied territory’s legal and political order as part of its [the occupying power’s] conservationist premise’ (125) — and instead rely on a hypothetical independent process of self-determination. Azarova is what one could call a self-determination absolutist. Palestinians should be left on their own immediately to determine their own future. She has briefly endorsed a one-state solution, though not offered any detail, but many of us believe that route would not end well for the indigenous Jew.

She regularly invokes the notion of a ‘universal’ conviction that the West Bank is occupied territory, rather than ‘disputed’ territory, as many Israeli governments have maintained. But she fails to acknowledge that many use the designation ‘occupied’ in this case descriptively and categorically, to make it clear that the West Bank cannot be annexed by Israel, that Israel at some point must withdraw from most of it. The descriptive element is thus paired with an aspirational one. But many who use the term ‘occupied’ do not intend to impose the specifics of occupation law, as Azarova does; indeed, most are unlikely to know those specifics. The designation “State of Palestine,” which some international bodies use, is also aspirational, given that the state in question cannot build an international airport, sign recognised treaties with other states, or establish a full-fledged army, and that its two halves have a substantially hostile relationship. Azarova likes to repeat that the 2011 vote admitting Palestine into UNESCO established its statehood, but in ‘ICC Jurisdiction in Palestine’ she admits that ‘no objective definition of a state exists in international law’ and thus that ‘states and international organisations are left to decide individually whether they treat an entity as a state for their specific purposes.’ She characterises statehood as a ‘hollow shell’ to be filled with what we choose. In ‘An International legal demarche for human rights?’ she says ‘the determination of “State’”status and the emergence of States are perhaps two of the most indeterminate, tautological matters in international law.’ A state may hold rights in theory while having no capacity to exercise them.

In a detailed 2011 legal brief, ‘Al-Haq’s Questions and Answers,’ she follows a shifting line regarding Palestinian statehood. One the one hand, she finds the 1947 General Assembly resolution 181 providing ‘for the creation of two States, one Arab, one Jewish’ to be ‘supportive evidence of the international community’s perception and practice in relation to Palestine’s statehood’ (4). On the other hand, she insists that ‘neither is UN membership a requirement for statehood nor does the General Assembly have the powers to constitute a State’ (8). Perhaps the verb ‘constitute’ carries weight here; the GA cannot magically and literally create a State, but it can give the establishment of one international warrant, as it did with Israel. One may be excused for suspecting that the UN’s role in establishing the Jewish State is the unspoken issue here, just as Azarova would certainly make much of a GA vote now to establish a Palestinian State in the West Bank. Similarly, she says ‘a refusal to recognize Palestine is a political act, which does not have any legal bearing on its statehood status’ (5), though we recall the considerable significance the US recognition of Israel carried in 1948. US recognition triggered a series of recognitions by other nations, without which Israel’s statehood would have been uncertain at best. Turn the same group of recognitions into refusals to do so, and history would likely have taken a different course. As she says here and elsewhere, ‘the existence of a State is not a legal, but a purely factual and political matter, and Palestine has been treated as a State over the years by the majority of States and international organisations’ (1).

Remarkably, the only specific suggestion she offers about how to transition to one state between the river and the sea is the piece of rhetorical bravado she inserts into ‘The Trickle-down Effects of Normative Power’ and other essays: in order for the final status issues to be addressed, Israel must ‘first bring an end to its belligerent occupation’ (85). She reinforces that stand in ‘Shifting Paradigms’ by insisting that the Fourth Geneva Convention ‘entails the immediate removal of all Israeli settlements’ from occupied territory. Sudden and comprehensive unilateral withdrawal from the West Bank could well prove catastrophic. I say that even though I believe targeted withdrawal from limited territory now to empower the Palestinian Authority to govern more contiguous areas would be welcome. The standard model is that negotiation would precede resolution of issues like ‘borders, natural resources, nationality and the return of refugees’ (85). Withdrawal from the large settlement blocs near the Green Line will not happen; the model has been that those would be accommodated through negotiated land swaps.

All this raises an interesting question: who are the audiences for Azarova’s detailed legal analyses and what do her publications aim to achieve? They certainly may be of technical use to those in the European Union, the UN, and elsewhere seeking legal arguments to buttress opposition to the occupation. But, while they may offer rational alternatives to anti-Zionism based in anti-Semitism, they are not likely to change existing views. Some undecided legal scholars may find her work persuasive, and that is not a trivial potential audience. But the large audience that simply does not read extended analyses will not be affected either way. The same limitation applies to detailed scholarship sympathetic to the Jewish state, including my own. But Azarova’s work has not even been subjected to serious academic debate, only to attack and defense regarding her aborted appointment. People who find her persuasive and those engaged in the controversy over the appointment need to undertake more thorough analyses of her work than they have produced so far.

FINAL REFLECTIONS

Azarova’s publications may not have been evaluated as if she were a candidate for tenure. Ordinarily, she could have been hired in a purely administrative position even if it were decided she did not meet the research standards for a full professorship or even for tenure. The publication record would have to be respectable, but not stellar. A strong publication record would be a plus for an administrator but not a requirement. As I said at the outset, the core issue to be decided was what her publication record and political advocacy suggested about how she would administer the program and how they would reinforce or undermine public confidence in the program. And that, in my view, is the problem. Given the nature of her writing and its direct entanglement with advocacy on the same issues, her publications needed the kind of detailed review I have carried out here. Assuming that the former dean is being truthful in saying he never considered the issue of her scholarship and activism, however pertinent to the job they were, I would say the dean failed in his oversight responsibility. I would argue that her entire career is critically central to her potential administrative responsibilities. In setting aside and not reviewing her publishing and NGO experience, the dean did an inadequate job. If, in reopening the search, Toronto believed it could appoint Azarova or someone like her in a disinterested, apolitical process, then those responsible for that belief were either self-deceived or disingenuous.

Azarova would have immediately given the program she was to direct an anti-Zionist public face and possibly followed through by adding anti-Zionist elements to the program. Would it have been reasonable to expect she would set aside the values she had spent years articulating and traveling the world to support and become a politically neutral administrator? The selection committee clearly found her programmatic political commitment appealing. Should there be testimony under oath to the contrary, I would take it seriously, otherwise not. Meanwhile, we are talking about a candidate who has displayed lifelong ideological rigidity in every part of her professional life. That includes her objection to a Zionist law professor being included in a 2018 conference on ‘The International Legality of Economic Activity in Occupied Territory.’^[8] Had the Toronto dean decided that Azarova’s fixed ideological views were not appropriate to the job or to the public image of the university he would have been acting responsibly. Applying the same considerations to a faculty search would be unacceptable. This was not and is not a struggle over academic freedom; it was and is a conflict over an academic program’s mission and identity.

The politicisation of the academy I warned about at the outset is accelerating. Over a hundred women’s and gender studies programs officially adopted an anti-Zionist mission statement during the 2021 war between Hamas and Israel. Several ethnic studies programs joined the movement, as did Asian Studies on my own campus. Most unexpectedly, the University of California Press declared itself to have a political mission. I had already claimed the press had that bias in my 2019 book Israel Denial, but a public declaration by the press itself crosses a line that many of us thought was an impenetrable barrier. So the Azarova file is not likely the last politically charged appointment file to be opened. The academic issues at stake in the controversy over her appointment were obscured by the reductive politics embraced by many of her defenders and opponents alike. If this essay serves a long-term purpose, it will be to help people think about politicised administrative appointments more clearly the next time. Meanwhile, a pretense that the decision in Toronto should be apolitical prevails among some. It was always a political matter. The selection of Azarova made it so.

REFERENCES

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_____, ‘Palestine’s Day in Court? The Unexpected Effects of ICC Action,’ Al-Shabaka: the palestinian policy network (April 1, 2015), https://al-shabaka.org/briefs/palestines-day-in-court-the-unexpected-effects-of-icc-action/.

_____, ‘Exploding Civilian Involvement and ‘The People’s Perspectives’ Report,’ Just Security (June 18, 2015), https://www.justsecurity.org/24005/guest-post-exploding-civilian-involvement-comment-report-the-peoples-perspectives/.

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_____, ‘Israel’s Unlawfully Prolonged Occupation: Consequences Under an Integrated Legal Framework,’ European Council on Foreign Relations Policy Brief” (June 2017), https://css.ethz.ch/content/dam/ethz/special-interest/gess/cis/center-for-securities-studies/resources/docs/ECFR-Israel’s%20Unlawfully%20Prolonged%20Occupation.p.

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NOTES

[1] My thanks to Yuval Abrams, Steven Lubet, Stan Nadel, and Alan Johnson for their comments on an earlier draft.

[2] NGO Monitor maintains online files for all of these groups.

[3] See https://ku.academia.edu/Departments/Center_for_Global_Public_Law/Documents?page=2. It is sponsored by the Koc University Center for Global Public Law. The site includes four of Azarova’s course syllabi and a couple of posters advertising public lectures.

[4] I do not give page numbers for that essay because my interlibrary loan version is only numbered 1-18.

[5] Veolia responded to Azarova’s essay: ‘The Appeals Court of Versailles upheld the Nanterre Court’s decision in a clear and unequivocal ruling that neither Veolia nor Alstom were breaching international law or the rules of the UN Global Compact by executing their contracts for the construction and operation of the Jerusalem tramway…Ms. Azarov’s describes the purpose of the tramway and of the contract to operate it, as being to “facilitate the establishment of Israel’s illegal settlements in occupied territory and the movement of Israeli Jewish settlers between Israel and their residences in occupied territory”. This is a political statement and view that we cannot agree with…Along the 14 kilometres of the route which serves 23 stations, 7 are situated in or close by Arab neighbourhoods…As part of its disinformation campaign against Veolia, the BDS movement has repeatedly portrayed every contract loss by Veolia as a result of its successful efforts…[W]e are not aware of any contracts that have been lost as a result of Veolia’s involvement in the Jerusalem tramway…’ The Veolia response is part of a Business & Human Rights Resource Centre documentation of the case, which is available at https://www.business-humanrights.org/en/latest-news/veolias-response/.

[6] See two Azarova essays, ‘Backtracking on Responsibility’ and ‘Investigative or Political Barriers?’ for discussion of two companies she considers involved in Israeli human rights violations.

[7] Azarova repeats this passage in ‘Introductory Note to Chiragov and Others v. Armenia,’ p. 963.

[8] The conference was organized by the Asser Institute in The Hague. Eugene Kontorovich, Director of the Center for the Middle East & International Law at George Mason University, submitted a paper proposal for the conference, which was accepted. After a draft program was distributed, several participants with opposing views protested his inclusion and demanded his invitation be revoked (Mackenzie). The organisers refused but made several concessions to avoid the protestors boycotting the event. As Kontorovich recounts in an October 21, 2020, a letter was sent to Toronto faculty at their request, that included ‘cancelling the planned conference dinner, so that they should not have to break bread’ with him. Before presenting her own paper, Azarova ‘got up and formally announced that her “participation in the workshop does not constitute an acceptance of the unconditional invitation to Eugene Kontorovich.”’ Azarova then refused to be published in the resulting book if Kontorovich were included. His paper was published there, but not hers. People who write about political issues often find themselves invited to speak at conferences or asked to contribute to books with people whose views they reject or even strongly dislike. One has to make a career decision about whether to demand ideological conformity from fellow speakers and contributors. The only people I have refused to share a stage with are Holocaust deniers. This anecdote about Azarova is significant because she was being considered for an administrative role that should welcome opposing opinion in scheduling events. Since Kontorovich lives part of the time in the West Bank settlement of Alon Shvut and is a major intellectual force behind anti-BDS legislation, it is unsurprising that Azarova dislikes him, but that does not justify demanding that he be excluded from an academic conference.