Without quite the same resonance as “new world order” or “end of history,” another set of terms has rapidly become part of the international political discourse: “transition,” “democratization,” “reconstruction” and “building civil society.” Aside from their purely rhetorical uses, these terms descr
Without quite the same resonance as “new world order” or “end of history,” another set of terms has rapidly become part of the international political discourse: “transition,” “democratization,” “reconstruction” and “building civil society.” Aside from their purely rhetorical uses, these terms describe real and complex political changes following collapses throughout the world of a variety of authoritarian regimes and their replacement by more democratic governments.
In the international human rights community, these terms have entered into a discussion known as “justice in transition.” This is a useful framework for evaluating comparative justice and policing and for seeing just where the post-Oslo phase of the Israeli-Palestinian conflict fits.
Three sets of cases have figured in the “justice in transition” debate: first, the shifts in various parts of the South, mostly in Latin America, from dictatorships and military juntas to civilian democracies; second, the collapse of the Soviet Union and the satellite East European communist regimes; and third, the dismantling of apartheid and the emergence of a multiracial democratic South Africa.
Each of these sets is obviously very different. What happened in Chile and El Salvador is not what happened in Czechoslovakia or South Africa. But there is one set of common problems in the restoration or construction of democracy, civil society and the rule of law. This is the fateful, vexing and divisive issue of “policing the past” -- how to deal with the human rights violations, atrocities and injustices committed by the previous regime. [1] What should be done to those responsible for both the dramatic abuses -- torture, extrajudicial killings, disappearances, political massacres -- and the more ordinary, routinized denials of basic human rights? Should the perpetrators’ deeds be investigated and should they be hunted down, exposed, made accountable and punished? Or should the past be allowed to recede and these offenders benefit from amnesty, impunity, forgiveness and reintegration into the new social order so as to let old wounds heal, to achieve national reconciliation, to preserve a fragile democracy, to get on with the business of social and economic reconstruction?
The answers to these complex questions are both normatively derived and politically determined. Normatively derived, in the sense that the quest for judicial accountability that informs the Nuremberg precedent and all international human rights standards may conflict sharply with both pragmatic political calculations and principled visions of reconciliation. Politically determined, in the sense that the answers depend on such matters as: how the transition took place (willingly or violently, gradually or suddenly); the extent and seriousness of the violations (whether the victimization was general or selective, whether there was an identifiable group of perpetrators or a whole society compromised); the current political balance (the residual strength of the military or the old regime, the symmetry of the transitional agreements); and lastly, the existing traditions of democracy and civil society.
Does any of this debate apply to the current changes in the Israeli-Palestinian conflict? In the CNN spectacle that passes for news, recent events are already being slotted into the same timeless zone of history. The iconography of “the secret talks in Oslo,” “the White House handshake” and the Nobel Peace Prize -- all this appears alongside the fall of the Berlin Wall and the South African elections. However ludicrous these comparisons, some “transition” is certainly taking place here. Bogus as they sound from Israeli Prime Minister Yitzhak Rabin’s lips, words like “reconciliation” are in the air and express a genuine desire of many people on both sides. And terms like “reconstruction” are certainly appropriate to describe the tasks facing the Palestinian Authority in the autonomous enclaves of Gaza and Jericho as well as the local leadership who built up the oppositional infrastructures in the occupied West Bank, especially during the intifada. The creation of the “strong police force” (perhaps the clearest clause in the Declaration of Principles) and an accountable judicial system are familiar subjects in the “justice in transition” discourse. But beyond this, the comparisons are either sadly irrelevant or premature.
Our transition is unlike those in Latin America, Eastern Europe and South Africa in obvious ways. First, the Oslo and Cairo agreements are inadequate for fulfilling Palestinian aspirations and providing for national rights. Second, the Israeli government is backtracking on even these provisions in humiliating ways. [2] Third, all of the human rights violations from the “old days” continue in the West Bank and the edges of the autonomous areas: torture and ill treatment of detainees (now Hamas rather than Fatah), house demolitions, restrictions of movement (more severe than ever before) and, above all, extrajudicial killings by undercover Israel Defense Forces units. Fourth, there are the unresolved questions about the legal implications of the Declaration of Principles: Has the occupation, even in Gaza and Jericho, ended or merely been redeployed? How has the dual legal system (one for Israelis, one for Palestinians) been perpetuated? [3] Finally, and most importantly, there is the blatant expansion of settlements, the confiscation of land and the massive extension of Jerusalem’s boundaries.
The transition that has taken place so far is that Israel has divested its daily responsibilities for some 50 percent of the Palestinian population onto a weak Palestinian authority -- with its “strong police force” -- on less than 10 percent of the land, and retained effective external control. Gaza is more a besieged city, more a truncated bantustan, than an embryonic sovereign state. There has been no official Israeli indication -- even projected -- of transferring full national and territorial control to the Palestinians.
Of course, even in the worst-case scenario this is not the final status. The current negotiations, however protracted and one-sided, will no doubt give more control to the Palestinian people. But even in the best-case projection of a viable Palestinian state (a prospect farther from the government’s mind than the Israeli peace camp wishfully thinks), there will be one crucial difference from every other transition. This will not be an internal transition where previous enemies have to live together in the same society, but a separation into two political entities. The analogy is not Argentina after the generals, Poland after the communists or South Africa after apartheid, but rather that old familiar transition known as “decolonization.” The model of the original Zionist movement as colonialist was always a little implausible, but the standard by which the interim and final status agreements should be judged is the full decolonization of territory occupied since 1967.
This standard is only a remote ideal given the Israeli government’s deliberate ambiguity about the future of the settlements. The January 1995 al-Khadr episode, in which the cabinet responded to protests about the extension of the Efrat settlement by transferring construction from one hill to another one closer to Efrat, is a parable of Labor Party hypocrisy. [4] Yet, even if the internal transition model will never apply and decolonization is a long way off, we might still imagine the justice debate taking place. There are four common themes.
One sense of “coming to terms with the past“ is learning the truth about what happened during the old regime. In countries like Argentina and Chile this has taken the form of official inquiries and revelations -- “truth commissions.” There have been bitter controversies about how much to expose: Are some wounds too old to open, others too recent to expose? Sometimes the search for the truth involves uncovering new factual knowledge about disappearances, death squads, collaboration. More often, though, every one at the time knew what was happening. What they want, particularly the victims, is to transform this private knowledge into public acknowledgment.
The Israeli-Palestinian case is one where knowledge was and is freely available. The relative openness of Israeli democracy, and the Palestinians’ freedom to know and talk, have exposed every facet of the occupation to scrutiny. Human rights organizations -- Palestinian, Israeli and international -- have documented and disseminated information to an extent unthinkable in any of those previously authoritarian regimes. But this is a long way from “acknowledgment.” And it is hard to visualize any future Israeli government setting up a truth commission. (Although the injustices of the occupation are far easier to acknowledge than the current exposures by the “revisionist historians” about what happened in 1948; that history is the real taboo.)
In other countries there have been three ways of imposing some accountability on those responsible for past abuses. The first is the trial and punishment of individual perpetrators through the criminal court system. The second, as in the method of “lustration” in Eastern Europe, is disqualifying people with varying degrees of involvement in the previous regime from office. The third is compensation, reparation or restitution to victims. The opposite of any of these variations, and the norm, is impunity: the exception from responsibility, whether as a negotiating precondition, through amnesty laws, or by default because the new authority is too fragile.
It is impossible to imagine circumstances in which any version of the first two models of retrospective justice will occur in Israel. There will be no political authority to put Shabak agents on trial for torture. The prospects for compensation are more realistic, not so much for individuals but in the form of social restitution. Lump payments to the Palestinian Authority, however, are more to guarantee some internal stability for Yasser Arafat than out of any sense of redress.
The issues of truth and justice raised here apply only within Israeli society during and after the transition. On the Palestinian side, the equivalent problems might be how to deal with collaborators, the delegitimation of Israeli rights and the morality of terrorism. But reconciliation is a political goal that confronts both sides in the same way, whatever the lack of historical symmetry between them. The problem is not how to live together -- as in South Africa -- but how to live side by side with some respect and dignity.
After one interim year, there are few signs that we are anywhere near this. On the Israeli side, there is little spirit of reconciliation, whether at the level of official negotiations or in the behavior of ordinary soldiers at roadblocks. We have a settling of accounts rather than a sense of accountability. And as long as the appalling acts of Hamas terrorism continue, Israelis can hardly be expected to change. Formal expressions of reconciliation in other contexts, such as the amnesty or release of prisoners, here rest wholly on pragmatic political considerations.
Does any of this matter? One position is that no just resolution is possible without an honest confrontation with the past. Without a full acknowledgment of injustices, the ghosts of history will return. The other position is that it does not matter what goes on in people’s heads, hearts or souls. A structure of political and legal compulsion has to be implemented which gives people no choice but to conform.
On the Palestinian side, probably the most resonant of all phrases from the discourse of transition is “reconstruction.” Whatever their shortcomings, the Oslo and Cairo frameworks have to be taken as givens. Within these constraints, what can be done during the interim period -- not in the more obvious political sense of rescuing the agreement (on issues like settlements, elections and Jerusalem), but on the less visible terrains of social life? [5]
Reconstruction here obviously means something more than the consolidation of political authority. “Justice in transition” means creating an accountable police force, an independent judiciary and a culture of human rights. On the wider social and economic terrain, the tasks are even more daunting, given the residues of the occupation and the unpromising status of “Gaza first” as a model for nation building. Here, comparisons with both South Africa and the societies of former communist states are relevant: What will happen to the Palestinian health, education and welfare institutions that grew in the interstices of the occupation? What will happen to forces, especially the women’s movement, that challenges traditional authority?
It is difficult to think now about the aftermath of a transition whose entire shape is still so unclear. But a minimal demand -- one that will resonate in different ways for Israelis and Palestinians -- is expressed in a slogan from the “justice in transition” debate: “All the truth and as much justice as possible.” [6]
[1] For a discussion of these common problems, see my article “Crimes of the State: Accountability, Lustration and the Policing of the Past,” Law and Social Inquiry (March 1995). See also Alex Boraine, ed., Dealing with the Past: Truth and Reconciliation in South Africa (Cape Town: IDASA, 1994). [2] For a bleak summary of these two points, see Edward Said, “Who Is Worse?” London Review of Books, October 20, 1994. [3] The current responsibility for human rights, both of Israel and the Palestinian Authority, are comprehensively reviewed by Geoffrey Bindman and Bill Bowring, Human Rights in a Period of Transition: The Case of the Occupied Territories, Jericho and the Gaza Strip (London: Law Society, November 1994). [4] The consolidation of permanent settlements and infrastructures, in obvious violation of the spirit of the Oslo agreement -- and with tacit support from Meretz ministers -- is the subject of daily “revelations” in the Israeli press. For an overall assessment, see Meron Benvenisti, “Israeli Peace,” Ha’aretz, December 22, 1994. [5] For a useful source that includes criticism of the Declaration of Principles, together with assessments of what can be done in the meantime, see Challenges Facing Palestinian Society During the Interim Period (Jerusalem Media and Communication Centre, December 1994). [6] The slogan is attributed to José Zalaquett, a leading human rights lawyer and member of the Chilean National Commission on Truth and Reconciliation. Zalaquett and Chilean President Patricio Aylwin have been influential in setting up the proposed truth commission in South Africa.
