03 August 2007 – A human rights assessment

I came to Israel this summer to learn more about human rights in the Israeli-Palestinian conflict, and whether human rights could be useful, conceptually or practically, in resolving it. Thus far, my conclusion is that human rights can be useful, but largely in the civil and political sense. Broader concepts of human rights, beyond the reciprocal right to collective self-determination, hurt the peace process.

My conclusions are informed by my experiences in South Africa. There, I have seen how the inclusion of socioeconomic rights (“positive liberty”) in the constitution not only slowed down socioeconomic progress and also reinforced the centralization of power such that civil and political rights (“negative liberty”) suffered. Crime and corruption also highlight the primary importance (or absence) of the rule of law.

Law is the essence of political legitimacy; rule of law (as opposed to rule by law) is the core of constitutional democracy. Human rights emerged as an argument for the rule of law against rule by law. However, human rights have been diluted by the rise of positive over negative liberty. As Hayek suggests, positive liberty, which requires centralized power, tends to erode equality before the law and rule of law.

Whether one believes human rights are natural or God-given, a privilege of membership in a political community or the result of human responses to past suffering, the distinction between negative and positive liberty applies. The former is essential to human rights; the latter is essential to human fulfillment but may contribute to both autocracy and anarchy, and hence to conflict instead of peace.

The one exception is the concept of self-determination, which is sometimes called a group right but is perhaps a strong form of the right to free association. Different claims to self-determination sometimes compete and conflict but need not do so. They may be reciprocal and even overlapping, reflecting the complex nature of individuals as well as the interdependent nature of communities and societies.

One of the reasons the Israeli case is so important—aside from other motivations for disproportionate global interest—is that the state was born at the same moment as the concept of universal human rights. It was, in fact, intended to harmonize individual rights with rights of collective self-determination in a new international order. Its success or failure thus has implications for the whole rights enterprise.

At the same time, the attempt by Israel’s enemies—almost none of which support human rights themselves—to attack Israel’s legitimacy based on its human rights record has systematically undermined almost every international institution created to protect human rights (and created, ironically, after the near-destruction of European Jewry). Solving the conflict would help rescue human rights.

Yet there is a tension between human rights activists and conflict resolution experts, one that is only partly resolved in international humanitarian law (which applies in conflict situations). This tension can be somewhat resolved by setting up human rights as a boundary around diplomatic options. But the question remains what the definition of this boundary, the balance between peace and rights, will be.

There are two approaches to this problem. One, from the left, prioritizes the rights of the weak over the rights of the strong, even justifying further conflict until a “balance” is achieved. The other, from the right (notably Natan Sharansky), argues that peace can never be achieved with governments that do notuphold basic human rights. The former critique fails; the latter critique is correct, within certain limits.

In my interactions with Israeli human rights activists, I have been impressed by their love of their country, but equally surprised by their rejection of it, as if they were afraid (as Ruth Wisse says) to preach what they practice. They opt for the left critique, along with cynicism about their role in the legal system, looking towards international pressure on Israel—and even the end of the state—for solutions.

I can only agree with Wisse’s assessment that this perspective is a kind of moral solipsism—or perhaps a naiveté, driven by confusion about what is central to human rights and what defines a rights-based society. They have allowed politics to get ahead of principle—not that politics is unimportant to human rights, but this is ideological, academic politics, not politics as a form of grappling with reality.

There are several political futures for this conflict that are compatible with human rights (bounded by single-state solutions that deny collective self-determination and therefore cannot protect individual rights, either). One set of possible futures takes the two-state solution as fundamental. The other begins with a federal vision. All of these models propose varying degrees of independence and interdependence.

Criticism of Israel’s human rights record comes in three forms. First, there are critiques that oppose to Jewish sovereignty altogether, and define expressions thereof as hostile to human rights. Second, there are those that validate Jewish self-determination but insist that it is conditioned upon, or responsible for, repect for Arab rights, as individuals or as a special minority group within Israel.

Within this second category there are two sub-groups. One focuses on formal, legal equality, which has been steadily improving over the years. Another rejects this type of equality as insufficient and argues either for a new power-sharing arrangement (such as those that exist in other nation-states with large minorities) or for radical changes in the identity and structure of the state (a shakier proposal).

The third category validates Jewish democracy in Israel but criticizes Israeli policy in the occupied territories. Here there are also two sub-groups: some critics consider the occupation separately from Israel itself, while others connect the two. Among the latter, some warn of the consequences of the occupation for Israeli sovereignty, while others (unacceptably) assert that these should undermine Israeli sovereignty.

There are two general areas of concern for human rights in the occupied territories. One area involves problems that are the direct result of occupation itself. These, while important, are largely inseparable from the overall conflict. In this case it is important to remember that the occupation was not initiated by Israel and has partly persisted because of general Arab rejection and specific Palestinian failures.

Another area is Israel’s settlement policy, for which Israel is directly responsible. Settlements are not the primary obstacle to overall peace but in the absence thereof they can and do perpetuate conflicts over land and resources. They are partly a symptom of, and partly reinforce, the erosion of the rule of law in Israel, and reflect some of the troubling dilemmas in Israeli and Palestinian law and politics today.

So which comes first—resolving the human rights problems of Israel and the Palestinian authority, or solving the conflict between them? Some argue that one priority depends on the other. However, they are interdependent. Both require the building of institutions—trans-national institutions that can facilitate conflict resolution, and national institutions that promote legitimacy and the rule of law.

On the Palestinian side, the need for institutions is desperate. Here an important aspect of institution-building emerges—namely, the need for strong institutions that are independent of the central authority. The division of the Palestinian Authority into “Hamastan” and “Fatahland” might even (eventually) provide an opportunity for institutional experimentation and federalist political development.

In Israel, what is urgently needed is a citizen-made (as opposed to judge-made) constitution. Its primary purpose would not be to resolve Israel’s lingering identity problems—i.e. the fate of minority groups and the relationship between religion and the state—but to remove power from the legislature and place it in a higher authority, not a stronger executve but an independent and sovereign constitution.

At the same time, there is a need for new cooperative institutions between the two sides. The creation of such institutions was critical to the success of (or the averted failures of) the South African and Northern Ireland peace processes. This case is different, because it necessarily involves political separation, but negotiating forums could promote peace, starting in areas where cooperation already exists.

So what is needed in the Israeli-Palestinian context is not a broader definition of human rights, but a return to fundamental “negative liberty,” which places the political responsibility on both societies to develop their own, and joint, institutions. Human rights organizations have a role to play in setting bounds around conflict resolution and supporting institutions; they must, however, become more focused.