I want to start this presentation by sharing my personal background as a political activist of Argentinian origin and as a feminist sociologist researcher. I will then connect the issue of Transitional Justice to the Zionist/Palestinian conflict from this personal standpoint, namely my identity as an Israeli Jew (in this forum), and an immigrant who arrive in Israel and received Israeli citizenship through the law of return.

 

This standpoint is a source of diverse dilemmas when confronting the Palestinian refugee issue. At the same time, being an immigrant has perhaps given  me the “advantage of the margins”. Joining a non-dominant group has enabled me critically observe Israeli societal structure, and the dominant Zionist version of history I was exposed to in the Zionist/Jewish educational system in Argentina.

 

The complete denial and blindness to the Palestinian narrative that was integral to the “official story” we were exposed to, and in consequence, my complete ignorance of the Palestinian narrative upon my arrival to Israel, has made me feel embarrassed up till now.

 

The process of uncovering the layers of denial above the Palestinians’ history, reality and the “refugee problem” was and still is, complex and painful. As for many Israeli Jews, this was an “awakening journey” that includes processes of unveiling facts and stories. I can recall the first time I understood that there are Palestinians that have Israeli citizenship. The first time I heard that more than five hundred Palestinian villages were evacuated. The first time I heard the word nakhba and how I started looking at the oppressive elements in planning and environmental policies.  My refusal to be drafted into the army was not, at that time, out of awareness and a conscious political stand rather it was connected to a more intuitive feeling that “something was wrong”.

 

At the same time, my immigration from Argentina in 1978, is closely related to a totalitarian regime that committed gross abuses, and made disappear, tortured and killed members of my family.

 

Having lived almost all my life under state terrorism, military checkpoints and curfews, has had an impact on my adopting a critical perspective to the conflict here. It has given me the ability to analyze the Zionist/Palestinian conflict from a global perspective, and has also led me to engage in the Transitional Justice perspective that I am presenting now. Having experienced an overt military totalitarian regime, which included complete control over all media and the educational system, as well as the assassination of those who dared to express any voice of opposition and dissent, gives me some insight in identifying more subtle aspects of totalitarianism and militarism under the illusion of the freedom we live as Israeli Jews.

 

Argentina is a pertinent place to look at for responses developed to the history of massive abuse, long before Transitional Justice (TJ) was conceptualized as a discipline, and truth commissions became famous with the South African Truth and Reconciliation Commission.

 

Three main mechanisms of truth-seeking and memory developed in Argentina were:
1.   The National Commission on the disappeared, CONADEP in 1984
2. The weekly demonstration of the Mothers of Plaza Mayo, that started in 1976, with the first disappearances and has continued till today. This march serves as an active tool of memory in the public space and demand for truth and accountability asking “what happened to those who disappeared?”. At the beginning of the first Intifada I joined Women in Black – Israeli Women against the Occupation - in Haifa, a group which has used this same pattern of weekly demonstration for the last 17 years and continues to do so today.
3.   The Museum of the Memory established at the Escuela De Mecanica De La Armada in March 2004, that previously served as the main torture camp. The new elected president – Kirchner - chose this location due to its central significance in the violence to express apology for the crimes committed by the junta 28 years ago. One of strategies of TJ is to transform places of collective trauma and suffering into places of healing and recovery. I wonder what location we could chose in our conflict for such a process.

 

The CONADEP was the first formal “truth seeking mechanism” of its kind, that today would be named a “truth commission”. Established in the transition from dictatorship to a democratic regime, when the survivors and representatives of the disappeared demanded that the successor regime disclose the truth about “what happened”. Their demand evolved into the establishment of a commission of inquiry (Teitel, pg. 78).

 

The mandate of CONADEP was to establish the truth about the fate of the disappeared and the repression. Though victims’ groups had petitioned for a governmental commission, the CONADEP was a political compromise, only semi-governmental. The commission was more a fact-finding than an investigatory body, its mandate was to report on what happened under military rule, as we would ask “what happened in 1948 in relation to the “Palestinian refugee problem”.  Whereas in Argentina the task of the Commission was to expose the hidden facts, what would be the function of such a mechanism in our conflict given that most of the information is available.

 

The report published after nine months “Nunca Mas” – Never Again - named the disappeared, heard the testimonies of the disappeared that were released and the testimonies of their families, and documented the systematic nature of the junta repression.

 

This strategy is one of the main TJ mechanisms used today by societies in trying to clarify the past. Other South American experiments in alternative justice took place before the more famous Truth and Reconciliation Commissionin South Africa, that was designed after the Chilean Truth Commission, the first named in this way.

 

About the mechanisms of exposing past human rights abuses and constructing collective memory it was said that:  

 

“all (they) can achieve is to reduce the number of lies that can be circulated unchallenged in public discourse. In Argentina, its work has made it impossible to claim, for example, that the military didn’t throw half dead victims in the sea from helicopters. In Chile it is no longer permissible to assert in public that the Pinochet regime didn’t dispatch thousands of innocent people”. (quoted in Alex Boraine, Truth vs Justice, p 146).

                  

I arrived at the TJ paradigm in looking for alternative responses to “personal” traumas/experiences of violence, abuse, violation and crimes and became interested in the processes of communities and societies in coming to a response to collective traumas and crimes in searching for justice, closure and healing. 

 

My main exposure to the issue is connected to an international NGO, the International Center for Transitional Justice (ICTJ) that supports governments and civil society in coming to deal with human rights abuses for societies in transition. ICTJ identified five main mechanisms that societies choose in dealing with transitions and abuses: prosecutions, reparations, truth-seeking, institutional reforms and removing abusers from positions of power.     

These responses integrate elements from both retributive and restorative paradigms, use legal and non-legal tools, and may include official and non-official initiatives.

 

In this presentation I will ask some questions related to the “Zionist/Palestinian issue” from the TJ model, and examine some possible strategies in reference to the Palestinian refugee issue. I will cover a number of arguments rejecting the applicability of the TJ model to our conflict and present counter-arguments to these statements.

 

I will focus here on less discussed models of transitional justice such as 

non-governmental efforts of truth-seeking and civil strategies of memory, identifying actual processes within Israeli Jewish society that express that “the transition has already started” and propose proactive strategies in anticipation for change.

 

I will try to answer the following questions:

Is the transitional justice paradigm relevant to the reality of the Zionist/Palestinian conflict?  If so, how? Which existing mechanisms of justice express in some way the five TJ mechanisms? What role can Israeli-Jewish civil society play in promoting transitional processes?

 

Researchers and human rights activists writing on the applicability of the TJ model to the Zionist/Palestinian conflict present the following arguments in explaining its irrelevancy.

 

 

1.The Israeli-Palestinian conflict has a unique history and features. Lessons learned from transitional processes in other societies can’t be inferred to this conflict.

 

Counter-argument

Similarities between the past apartheid regime in South Africa and Israeli control of the Palestinian territories are cited more frequently by human rights activists and by researchers (Bashara, 2001 and others – (24)

 

As was mentioned before, critics say that the hidden and real agenda of all peace agreements between Israel and the Palestinians , from Oslo to the road map, was to create an apartheid system in the West Bank, based on the creation of territorial bantustans, relocation of population, land confiscation and a segregated economy  (Said, 1999, Benvenisti, 2003  - (25). Based on these similarities with the SA regime, it is possible to look at the South African experience as a model of successful transition (26).

 

2.Restorative/transitional justice mechanisms are mainly developed to deal with internal conflicts, like South Africa or Argentina. In these cases the populations in question share/are forced to share the same territory. In the Israeli-Palestinian case the conflict is cross-borders and the trend is toward separation (Goldstein, 2001 – 16).

                                          

 

Counter-argument

The geographic proximity of Israel and the Palestinian occupied territories, 36 years of blurring of the “green line” (the border between Israel and the West Bank before 1967) and the interconnection of the two populations, challenged/contradict the definition of this conflict as a cross-border conflict (27). The dependency of the Palestinian economy on Israel is another crucial aspect of this immersion (28), as is the massive presence  of thousands of Israeli soldiers and 400,000 Israelis living in settlements among Palestinian population. 

 

These facts, together with the analysis presented earlier, that Israel doesn’t really intend a “separation”, a total withdrawal and dismantlement of settlements confirm that this is an “internal conflict” – similar to the one in South Africa - and should be considered as such when coming to implement a transitional process (29)

 

3. In most cases, the advantage in implementing restorative transitional mechanisms - especially truth-seeking ones – lies in the existence of a clear discontinuity of the ruling political regime. The efficacy of the process is grounded in this discontinuity, allowing the new regime to openly reject the former regime during the transitional justice process (Tamir, 1986 – 17). This is not the case in our situation.

 

4. Transitional justice mechanisms apply better to situations where there has been a clear dictatorship or totalitarian regime (Goldstein, 2001 – 18) Israel is defined as a democracy.

 

I put forward the view that it is not vital to have discontinuity for a Transitional process to happen, anyway a genuine transformation process will demand structural and institutional reforms in Israel that reject the former ideology.

 

A more radical analysis contends that Israeli society as a whole is militarized, led by values of war and violence and it socializes its citizens to consent to the draft system from the moment they are born. This provides evidence of totalitarian features in the Israeli government.

 

 

It is arguable that no military coup is necessary in Israel – it is already in government since current and former military men, like the Chief of Staff, the Prime Minister, the Minister of Defense and several other army “graduates”, regulate policy and control decisions regarding the occupation, even when dealing with “civil” matters - such as conscientious objection. Critics of this pattern of government thus refer to it as a “junta”.

 

In addition, it is well documented  that some decisions taken by the government regarding the West Bank and Gaza are disregarded by the army, which implements its own policy (30).

 

 

5. The success of a transitional justice process lies in an official initiative and willingness of a government (12).  Since, in the present circumstances, the Israeli government – as the one in power - will not initiate and back (like in South Africa) a process of justice and reconciliation, this possibility is not real right now.

 

A truth-seeking process that looks back at the history of Israel  (either the last 100 years or since 1948 or 1967)  (13) and its policy towards the Palestinians living on this piece of land will expose human rights violations and an oppressive regime and policies against Palestinians, what may end up putting the whole Zionist project on trial.

 

Official exposure of mass abuses would mean recognition of the damage inflicted. Such an acknowledgement would mean taking responsibility for (at  least)  the events of 1948, not the least of which would suggest a need to establish an official  reparation programs for the Palestinian refugees and their descendents, (including internal refugees –i.e. Palestinians living in Israel -and the Palestinian diaspora refugees).

 

6. A transitional justice process with a goal of reconciliation can be effective only when the beneficiary - the Israeli Jews - realize that something is wrong” (14). Since this group and the political leaders function in the conflict against the Palestinians out of a “victim psychology”, they are not in a state to recognize that “something is wrong” (Tamir, 1986 - 14 -15).

As put forward by Teitel: “Either political change is thought necessarily to precede the establishment of the rule of law, or conversely, certain legal steps are deemed necessarily to precede political transition.” (pg 3 –). I would say this is also relevant for non-official initiatives.

 

Because politicians and generals will not give an official backing to the transition, some Israelis are already re-telling the story of the occupation, the establishment of Israel, the Nakhba and the Zionist movement.

 

7. A restorative process for societies in transition is adequate to be implemented in societies in ‘real” transition and “real” post-conflict. The Israeli-Palestinian conflict cannot be defined (yet) as a transitional situation and far from being a post-conflict situation.

Counter-argument –

Modes of transition can be defined in terms of four categories (Alex Boraine, pg 382). Alex Boraine proposes one way of looking at patterns of transitions and how they condition justice responses. Each mode has to deal with political and institutional constrains which delineate the form of justice – from the most retributive model (prosecutions and trials) to more restorative models of justice, like truth commissions. As we can see none of the following modes of transition directly apply to the Zionist/Palestinian conflict: 

1. Full defeat in an armed war, like in Germany, end of WWII.

2. A transition coming after a dictator loses an election, like in Chile.

3. A transition through compromise and negotiations like in South Africa.

4. Transition from a longstanding communist regime, as seen in many Eastern  European countries.

Strategies started as civil/grassroots efforts in places like in Uruguay, Brazil, Ireland, Russia, and the example of Greensborough, NC, in the US - (26 – ICTJ),  catalyzed official transitional processes such as institutional reforms,  investigations, prosecutions and reparation programs. The exposure of the lies and the denunciation of abusive regimes by non-governmental voices, mobilized an official response. 

When official impetus for an official investigation is lacking, the construction of collective memory, and the investigation and documentation of past repression,  is taken up by civil society’s non-governmental organizations, such as churches. Guatemala is an example where a church organization initiated the investigation on past abuses. Its unofficial report, with the mandate of restoration of historical memory, based on victims’ confessions, was to be integrated in the official report that appeared as a result of settling the conflict. The unofficial findings were later confirmed by the official report, “The memory of Silence”. In other places where repressive rule ended without clear political transition, as in Brazil for example, or following difficult negotiations, as in Uruguay, governmental mechanisms were out of the question. In Brazil, past wrongs were published in a report – Never Again - based on files removed from military control. Though these responses are unofficial, they emulate official accounts, in a way that also unofficial reports can be said to construct an “official” truth. (Teitel, Page 81)    

 

To deal with this problem and in order to promote “collective memory”, societies in transition developed mechanisms in order to research and acknowledge totalitarian regimes/abuses – that can receive the general name of “strategies of memory”. The most famous and systematic till now are the truth commissions”, that are seen by some critics as “the essential, crucial minimum response to advance reconciliation for societies in transition” (Bhargava).

 

“Truth-seeking” mechanisms, like Truth Commissions, as a special kind of commission of inquiry for societies in transition and dealing with massive human rights violation, emerged as the leading mechanism elaborated to cope with the evil of a repressive state – a response that can capture massive and systemic abuse policy.

 

Non-official, civil strategies of memory developed more frequently and have a major impact in countries where the official government policy toward the past (in our  case the past and the present) is amnesia or collusion. Civil society initiatives have challenged the official desire to sweep undesirable histories under the carpet often at risk of their own security and personal freedom like in the case of the refusers.

 

The refusers movement represents  a clear example of a more general trend in Israeli civil society- of challenging the “official story”, and thus advancing a “real” transition.    I see testimonies given by refusers in martial court on massive abuses of Palestinians in the occupied territories and challenging the existing narrative as anticipating in Israel a unique truth-seeking mechanism.  

 

Young men who refuse the compulsory draft are using the martial courts as a public forum to expose the “non-official story” of the occupation regime. At each new trial hearing, they change Israel’s collective memory.  Young women refusing the draft in closed sessions of the “conscience commissions,” and reservists refusing to serve in the occupied territories, tell their stories on the web in an Israeli version of “virtual truth commissions.”  These civil strategies continue to create new cracks in the “official story” of Israel that we have been force-fed during (at least) 55 years. The moment the marginalized story is exposed, there is less room for lies and denial.

 

Some of the characteristics of these truth commissions apply to some of the by-products of the testimonies of the refusers:

Their testimonies contribute in establishing the truth about the nature and scale of HR crimes, foster accountability of perpetrators, by collecting and preserving evidence and publicly identifying those responsible, provide  a public platform for victims to address the public telling of their stories, inform and catalyze public debate about how to deal with the past and how to ensure a better future and serve as a guard against revisionist accounts of the past  (Mark Freedman – ICTJ).

 

In these hearings, that have become a sort of “co-opted” truth commission, the refusers, who, in being drafted into the army, were about to become collaborators with the government policy, convert themselves into spokes-persons for the victims, the  Palestinians.

 

They take advantage of the official stage given to them in the trials - as accused  persons for refusing  to be drafted – and use their (relative) privilege of being Israeli Jews and their being prosecuted in an open and official trial,  to expose the crimes committed against the Palestinians by the army.

 

The army, in the act of punishing the refusers for crossing the line, finds itself in the role of the accused, as if they would be invited to testify in a truth commission as the perpetrators

  

This organized resistance, coming from the “collaborators” themselves is a main

crack in the military dominant narrative about the conflict and how to solve it. (Mamdani, Meyerstein, 2002). At the same time, this strategy is leading to some changes in the structure of the army, anticipating some kind of “institutional reforms”, another TJ mechanism.

 

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As I mentioned earlier TJ utilizes a range of both retributive and restorative forms of justice, I am interested at looking at the intersection of the transitional justice model with the restorative justice paradigm for the following reasons:

 

Ten years of experiments in achieving justice at the international level using the adversary paradigm such as the following: the International Criminal Tribunal for Yugoslavia (ICTY), for Rwanda (ICTR), the International Criminal Court (ICC ) and a recent “hybrid” attempt of a court, a combination of a local and a UN Court in Sierra Leone, reinforce the limitations of Retributive Justice mechanisms.

 

How did the trial against Milosowicz advance peacemaking and reconciliation between the groups in conflict in the former Yugoslavia?

 

More relevant to our situation, trials focus on “personal responsibilities” and don’t fit to situations where the violence/abuses are endemic, where most of the society, perpetrators, collaborators and beneficiaries of the regime can be blamed for the oppression, either directly or indirectly. Mechanisms in criminal justice are suitable when breaking the law is the exception and not the norm.

 

The  magnitude of the crimes  challenges the capacity of the criminal justice system to deal with them. Because of the limitations of the retributive model when the violence is endemic, societies in transition or post-conflict have explored and developed alternative practices of justice.

 

The paradigm of TJ goes beyond trials, broadening the concept of making justice. While trials focus on the perpetrators, the restorative justice model is a “survivor’s justice”.

 

The model of Restorative Justice I chose to look at is Fresno, California, which deals with healing and restoration of the material and non-material harms through processes aimed to solve the conflict in such a way as to give maximum response to the needs that the harm produced (Claasen). For the model to be successful all three of the following components must be fulfilled and each one is reliant upon the fulfillment of the former: How can we talk about reparation/compensation when the perpetrators have not yet acknowledged of their wrongs?

 

1. Recognizing/acknowledging the harm perpetrated;

2. Restoring the imbalance and repairing the wrongs;

3. Clarifying the future and giving assurance that the wrongs won’t be perpetrated again.

 

Based on this model, the first stage “acknowledgement” requires dealing with the past. 

 

This is necessary because participation in any social order must presuppose a shared memory. To the extent that memories of a past diverge, its members can share neither experiences nor assumptions. (Connerton)   

The purposes of any mechanism dealing with the past is related to exposing the past and challenging the lies of the collective memory.

 

As in the case of the refusers , civil strategies of memory come to challenge the official historiography and developed a new movement demanding accountability. And can be defined as a counterdiscourse of the marginalized – that is forcing truth, justice disclosure into the social discourse

 

 

Another example of a civil initiative is ZOCHROT that links to voices within Israel  calling for the acknowledgement of the State’s responsibility for the wounds inflicted since 1948.   In South Africa, the Truth and Reconciliation Commission reconstructed the country’s vision of its history.  20,000 testimonies of victims and 7,000 confessions of perpetrators bore witness to past atrocities.  The Israeli establishment may not be ready to take that step, but civil society is ready, as demonstrated by these various cases. 

 

I do not envisage that an official truth-seeking mechanism in the near future as part of a transitional process, but I see two possible tracks at this point within the existing constraints of dealing with the events of 1948 and the Palestinians refugees as a precondition for any conflict resolution:

 

1. An official commission of Inquiry (through existing law, 1968). Based on this law a commission of Inquiry to review an issue of public interest and that needs clarification.

 

Regardless of whether a concrete outcome was produced by previous commissions of inquiry like the Kahan Commission investigating the events at Sabra and Shatilla, 1982; the Landau Commission investigating interrogation practices of the general security services, the Shamgar Commission investigating the Hebron Massacre, 1994 and the second Shamgar Commision into the murder of Yitzhak Rabin, 1994 and the most recent, the Orr Commission investigating the October 2000 events, I would start a lobbying campaign to make better use of the commission of inquiry to investigate the state policies of  1948 regarding the creation of the refugee problem:

 

2. Civil strategy of transitional truth telling/dealing with the past space -

We will need a forum and a framework for listening to the narrative of the victims, inviting perpetrators and collaborators to testify as a way of acknowledging the past and making a space for the possibility of a transitional apology. This is seeing as an apology from official sources is not likely in the near future. I think that as was expressed earlier, civil society in Israel is mature enough to explicitly engage in taking responsibility and apologizing and in this way offering public rehabilitation to victims. The process of testifying is thought to be cathartic in itself.

Since social knowledge of the past is constructed through public processes, we can start with civil non-official public forums with open hearings, transmitted through alternative electronic media, where victims, human rights activists, draft resisters and perpetrators testify, where the painful stories of the past can be heard.  If Israel is not ready, we can start outside Israel, creating “exile” commissions.