Palestine, Refugees, and Transitional Justice
by Rifk Ebeid
The fairly new field and study of transitional justice continues to grow each year at an exponential rate. Whether established or newly formed democracies, more and more countries are trying to use transitional justice mechanisms to address human rights violations of the past. According to the International Center for Transitional Justice (ICTJ), the main goal of transitional justice is to promote justice, peace, and reconciliation. Governmental officials and non-governmental players have considered various approaches to achieving this goal, including retributive or restorative responses to human rights abuses.1 The transitional period is defined as beginning right after political change, for example moving from communism to democracy or dictatorship to democracy. "Thus", explains Teitel, "the problem of transitional justice arises within a bounded period, spanning two regimes".2
What happens, however, when a country is not involved in a shift of political orders, yet appears to be involved in some sort of transition? The case of the Palestinians and Israel presents an interesting complication to the study of transitional justice. The region is not experiencing a transition from one regime to another, but it is in a transitional period moving from an unstable situation under Israeli occupation to a seeming settlement.3
Despite claims that this transition has already begun, the facts on the ground do not allow for it to actually succeed. Because the underlying foundation for transitional justice is the restoration of internationally recognized human rights, this paper will attempt to explore the case of the Palestinians and Israel in terms of the real transitional justice that needs to occur: a move to a secular democratic state in the whole area where race, religion, or ethnicity does not determine one's superiority, and human rights are respected and given back to those from whom it was taken away.
Many would argue against the relevance of transitional justice in the Palestinian-Israeli case. In a 2004 BADIL forum hosted by the Emil Touma Institute, a session was dedicated to the examination of new and evolving academic approaches and their relevance for conflict resolution of the Palestinian-Israeli conflict, and an overview of the discipline of transitional justice was given. Arguments that arose for the irrelevance of the transitional justice model include:
- Restorative/transitional justice mechanisms are developed mainly to deal with internal conflicts. In these cases the populations in question share the same territory. In the Palestinian-Israeli case, the conflict is "cross-borders" and the trend is towards separation.
- Transitional justice mechanisms apply better to situations of a former dictatorship. Israel is defined as a democracy.
- A transitional justice process can be effective only when the beneficiary realizes "something is wrong." Since most Israelis operate on a "victim psychology," they won't recognize that "something is wrong."
- A transitional justice process is fit for application in post-conflict societies. The Palestinian-Israeli conflict is far from being in a post-conflict situation.4
Most of these arguments, however, do not hold sway. The idea that the Israeli and Palestinian populations do not share the same territory is false based on the facts on the ground. The Palestinians who hold citizenship in Israel proper constitute nearly 20 percent of the population. Also, Israel has built more than 400 settlements so far, housing over 403,249 Jewish settlers in the Occupied Territories.5 The building of these settlements in the Occupied Palestinian Territories is clearly not indicative of a "trend towards separation." Furthermore, as occupied territories, there is no semblance of a Palestinian state that would allow for the idea of a "cross-border" dispute to even exist.
Regarding the second point, although Israel is defined as a democracy, it also represents an Occupying Power. The acquisition of territory by force is illegal under international law, and the United Nations passed General Assembly Resolution 242 calling for Israel to withdraw from territories it occupied during the 1967 war. Clearly violating international law, Israel's continued occupation has resulted in countless human rights abuses against the occupied Palestinians. There is clearly a need, therefore, for transition out of occupation to occur and mechanisms of justice to be applied in order to address the abuses committed during occupation. Additionally, the feeling that "something is wrong" is starting to be found among sectors of Israeli-Jewish civil society, and there are some who have started to search for and speak out about the truth.6
Although the Palestinian-Israeli conflict is far from being a post-conflict situation, I would argue that the mechanisms of transitional justice are the exact necessity in order for transition to true democracy and equality to occur. Instead of justice during times of transition, justice for transition is what is needed. A common theme heard throughout Palestinian circles is "no peace without justice." Pope Paul VI once said, "If you want peace, work for justice".7 In this case, the Palestinians and Israel could truly benefit from the study of transitional justice. Applying some of the approaches of countries who have actually experienced transitional justice may be the necessary step in the Palestinian-Israeli path to peace. In the forum discussed earlier, contrary to the arguments against the relevance of transitional justice, it was argued that some elements can in fact be employed irrespective of the fact that this is not a traditional post-conflict situation. A model for restorative justice that was discussed included: 1) recognition of the harm perpetrated, 2) restoration of balance and repairing the wrong, 3) and clarification of the future.8
The primary objective of transitional justice is to address past abuses of human rights, and in doing so, restoring a sense of justice to the victims. Restorative justice focuses primarily on exposing the truth and inquiring into patterns of past abuses in order to establish an accurate historical record of events. Rouhana contends that justice is introduced to the discussion of the Palestinian-Israeli conflict only in the context of reconciliation.9 He outlines four components of reconciliation: justice, historic truth, acknowledgement of historic responsibility, and social and political restructuring. Returning to the idea of "justice for transition," these four components of reconciliation lead to the appropriate atmosphere and relationship necessary for achieving conflict resolution. In fact, the first three components Rouhana discusses are the key features that allow for the application of the model of restorative justice discussed above.
In regard to the Palestinian-Israeli conflict, no other group would benefit from reconciliation more deservedly than the Palestinian refugees. They are one of the largest mass of people who have experienced the abuses and loss of their fundamental human rights in this whole conflict. Reconciliation is the necessary first step in addressing their plight and restoring their rights. Reconciliation as a process calls for both sides of the conflict that were involved in human rights violations, such as ethnic cleansing and property confiscation, to acknowledge historic truths about these violations and to agree on the perpetrators' responsibility.
To illustrate the idea of justice for transition, the process example is more poignant than reconciliation as an end-state. The reconciliation process leads to a political arrangement guided by a framework that seeks to correct the injustices of the past and guarantee human rights. The importance of correcting the injustices of the past cannot be stressed enough in terms of the long term consequences. Wi'am, a Palestinian Conflict Resolution Center, explains,
"When we talk about justice we are interested in redressing the injustices and correcting wrongs rather than avenging them or taking revenge. This notion of relative justice is the approach to help in the social transformation and strengthening the fiber of the Palestinian people..."10
The difficulty in starting the reconciliation process lies in Israel's denial of the historic truth about its role in the creation of the refugee problem, and subsequently in its denial of redressing the human rights violations it committed by not allowing the fundamental refugee right of return. The general Israeli narrative of the events of 1948 is that Arab countries waged a war on Israel and encouraged the Palestinians to leave until the war was won, creating the idea that the refugees fled voluntarily. Based on this narrative, Israel refuses to accept responsibility for the refugee problem. Yet, as Rouhana argues,
"The controversy over how many Palestinians were expelled in 1948 and how many left under duress of war, is irrelevant to their basic right to return to their homeland and to Israel's responsibility for their plight".11
Israel maintains its own narrative of the events that unfolded in 1948 in order to evade the responsibility for justice that the real truth entails. "Until these truths are faced," concludes Rouhana, "the current power imbalance between the parties will not allow for reconciliation, simply because the unchallenged narratives that guide each party's behavior do not allow for compatible political moves".12
Due to the lack of agreement on Israel's responsibility, the main recourse that the Palestinians have used is international law. Somewhat similar to the idea of retributive justice, Palestinians have applied legal doctrines to impose responsibility on the State of Israel for its crimes under international law; in particular, the application of the right of return. In fact, the Palestinian focus on right of return uses the mechanisms of restorative justice in order to impose responsibility by entailing accountability and compensation.
Some of the Israeli arguments raised in the local and international media against the right of return were examined in a bulletin published by BADIL in April 2001.13 Numerous Israeli writers argue that there is no right of return in international law. Yet in practice, many international peace treaties have affirmed the right of return. Many of these treaties were concluded in countries that were, in fact, applying transitional justice mechanisms: Yugoslavia, Rwanda, Bosnia-Herzegovina, and Kosovo. Israeli writers also argue that the UN General Assembly Resolution 194 does not establish a "right" of return. Resolution 194 did not, in fact, establish a new right; it merely re-affirmed a principle of international law which was already considered binding upon states in 1948. Another argument raised by the Israeli press is that the right of return is inconsistent with a two-state solution and therefore must be subject to negotiation. As discussed previously, current conditions on the ground already do not allow for a viable two-state solution. Furthermore:
"the applicability of the right of return to the Palestinian refugee case, as with other rights recognized in international law, is not subject to negotiation. The objective of any peace negotiation process, rather, should be to re-affirm the rights of refugees and to establish mechanisms and guarantees for the implementation of their rights."14
Implementation of the right of return for Palestinian refugees is the necessary guarantee that Israel accepts the historic truth and its responsibility for the plight of the refugees. Reaffirming the refugees' rights through the implementation of international law achieves one of the most important objectives of transitional justice, which is to restore fundamental human rights to those from whom it was taken.
As discussed earlier, one of the major goals of restorative justice is to create recognition of the harm perpetrated and to repair the wrongs committed, and the major components involved in achieving this goal are those which lead to reconciliation: justice, historic truth, and acknowledgement of historic responsibility. For the Palestinians, particularly the refugees, justice means recognition of the historic truth through the implementation of international law. The Palestinians will view Israel's compliance with international law as their aggressor's acceptance of its historic responsibility. In late 2000, former Israeli Justice Minister Yossi Beilin rejected requests to open files in state and IDF (Israel Defense Forces) archives relating to the displacement and expulsion of Palestinians in 1948 based on claims by senior archivists that the content of these files would damage Israel's reputation.15
In a book written by Nur Masalha, The Expulsion of the Palestinians, declassified Israeli and Zionist documents prove that the concept of transfer was a central component of Zionism and the creation of the State of Israel.16 If it is clear that the Israeli government itself has conclusive evidence pointing to its responsibility for the refugee crisis, the question remains why it continues to deny its role and create a deceiving historical narrative. The answer lies in the implications of undoing the injustice that was committed. As Rouhana indicates,
"These implications can be both political and psychological. In cases of ethnic cleansing such as in the former Yugoslavia, the political implications can involve such steps as power sharing, political transformation, and return of refugees; these consequences are usually framed in terms of existential threat to identity and national security."17
Despite the claims of a threat to identity and national security, the 1995 Dayton Agreement in Yugoslavia serves as the most prominent example of inclusion in the peace agreement of the refugee right to return. Furthermore, as mentioned before, one of the fundamental goals of restorative justice is to restore human rights. If the perpetrator created the very conditions that led to such destructive implications, it is not the fault of the victims. Those whose human rights were denied or taken away do not lose their right to have them restored just because the passage of time created negative implications.
Many would argue that reconciliation between the Palestinians and Israel is impossible. To argue this point is to destroy any chance for restorative justice. Those who find reconciliation impossible only purport this belief because they want to create a "peace process" that conveniently ignores the injustices of the past and disassociates them from any responsibility to redress these injustices. It is easy for those in a position of power to suggest that we "accept the injustices done by both sides," as a way to give the impression that both sides are on equal playing fields.
However, there is an important and fundamental need for reconciliation. Through reconciliation, historic truth must be exposed and responsibility for past atrocities must be taken. In the Israeli-Palestinian conflict, many often argue that the idea of a historic truth is non-existent because both sides will never agree on what really happened. This fact was recognized by the Palestinians, so instead they turned to international law as a final hope for their grievances to be acknowledged. Still, people argued with the Palestinians' reliance on international law and began to question its applicability and authority.
The question then remains: what other recourse is left? Where else can the Palestinians look to have someone, anyone, acknowledge the wrongs done to them and give them back their due rights? Regarding refugees, those same Israelis who would like to disassociate from the past (i.e. pretend the refugee problem does not really exist in order to wash their hands clean from it) would suggest that what is left is to give Palestinians citizenship elsewhere.
But is this really justice? It may give the refugees their due social and economic rights, but does that mean that in the process they should lose their political and legal rights? Does giving them citizenship even address the injustice done to them in the past? Does it apply the mechanisms of transitional justice, or does it continue to ignore past injustices, and in turn impose a new injustice on the host countries that were forced to take in the refugees? More generally, what is justice? Is right of return really the only way to address the injustices of the past, or to achieve justice for Palestinian refugees?
Perhaps those who experienced the injustice, and have continued to experience it for the past 50 years while living in squalid refugee camps, should be asked what they think. Perhaps when abstract political language that ignores the cries of millions of human beings is replaced with transitional justice, then peace can be achieved not only with "the other" but within oneself. This peace, achieved through the justice that the victims of injustice see fit, is possible only when the dominant population realizes that race, religion, or ethnicity should never be the determinant of one's superiority, and that human rights should be respected and given back to those from whom it was undoubtedly usurped.
Rifk Ebeid is a graduate student in Human Rights Studies at Columbia University. She is the co-founder of Nakba '48. Her email address is rifkebeid@yahoo.com.
Notes
1. For more information, please see the International Center for Transitional Justice.
2. Teitel, Rudi. 1997. "Transitional Jurisprudence: The Role of Law in Political Transformation." Yale Law Journal, 106:2009-2080, pg. 2013.
3. Zoughbi, Zoughbi. 2005. "Restorative Justice: The Middle East." Wi'am: Palestinian Conflict Resolution Center.
4. BADIL, 2004. "Models of Transitional Justice and Participatory Process - Tools for Moving Forward in the Case of Palestine-Israel?" Expert Forum for the Promotion of a Rights-Based Approach to the Palestinian Refugee Question, Emil Touma Institute for Palestinian and Israeli Studies (Haifa), February 7th.
5. Please see Palestinian Monitor.
6. BADIL, op. cit.
7. Zoughbi, op. cit.
8. BADIL, op. cit.
9. Rouhana, Nadim N. 2001. "Reconciliation in Protracted National Conflict: Identity and Power in the Israeli-Palestinian Case." Israeli Sociology, 3:277-295.
10. Zoughbi, op. cit.
11. Rouhana, op. cit.
12. Ibid.
13. BADIL. 2004. "The Right of Return - An Analysis of Recent Debate in the Israeli Press." April Bulletin.
14. Ibid.
15. Ibid.
16. Masalha, Nur. 1992. Expulsion of the Palestinians: The Concept of Transfer in Zionist Political Thought, 1882-1948. Washington, D.C.: Institute for Palestine Studies.
17. Rouhana, op. cit.
