13 August 2007 - Writer's block?

Today I traveled to Tel Aviv to interview South Africa’s ambassador to Israel, Major General Fumanekile Gqiba, about his views and his country’s policies toward the Israeli-Palestinian conflict. I will post more about that tomorrow. In the meantime I have been busy helping to edit a translation of an essay by renowned legal scholar Ruth Gavison on a vision or “meta-purpose” for Israel in the twenty-first century.

Gavison and a group of like-minded scholars—mostly liberals who were at the core of the Israeli left until it drew nearer to radical anti-Zionism—are building a new institution called “Metzilah,” which is to be a “Center for Zionist, Jewish, Liberal and Humanistic Thought.” Sounds great to me. I spoke to Gavison recently about the Harvard class I am preparing for, and some of my ideas about Israel.

One of the ideas she questioned was my application of Hayek to Israel’s human rights problem. Hayek, she seemed to suggest (if memory serves, which it may not), was considering the problems of planning within a society, not problems that arise in conflict between societies. I am not sure I agree with that, but I must admit that I have had trouble expanding on what I think Hayek means for the situation.

I sat down yesterday to try to write an essay about the state of human rights in Israel. I didn’t get much further than the introduction (below), partly because I think I am pushing Hayek a bit too far. Basically I am trying to apply his ideas to make an argument that is even stronger than the Sharansky argument—i.e. it’s not democracies that allows peace to emerge, but specifically liberal democracy, viz.:

“Israel’s human rights activists believe they are facing a crisis. This past June, several organizations marked the fortieth anniversary of the Six Day War and the occupation that followed by asking themselves: why, after nearly four decades of human rights in Israel, has the occupation of Palestinian territories continued? And if our past attempts at change have failed, is it now time for more radical steps?

Some Israeli activists fear they are legitimizing the status quo by continuing to take part in a legal system that has declined to rule on whether Israeli settlements in occupied territory are illegal. The army, they say, has grown used to referring hard cases—for example, Palestinians who need unusual medial treatment in Israel-to human rights groups rather than reconsidering its border controls in the first place.

Meanwhile, the government, which views the work of human rights activists as something of a nuisance, nevertheless enjoys the credibility that these organizations bestow on the Israeli legal and political system. Is it not time, some activists are wondering, to down tools and boycott the state, joining the international campaign to isolate Israel until it withdraws from the territories it seized in 1967?

The arguments against a boycott are clear enough. The first to suffer would be the Palestinian clients of Israeli human rights organizations, who would lose their most important avenue of relief. Innocent Israelis, too, would suffer—not just the Arab citizens of the state who are striving for greater recognition and equality, but others, including Jewish Israelis, whose rights are at stake in a variety of issues.

A boycott would also further isolate human rights organizations from the Israeli political mainstream, reducing their political credibility and their ability to educate the public about human rights concerns. Furthermore, human rights activists are not being repressed, intimidated or attacked by the state—as was the case in apartheid South Africa, to which parallels are increasingly, but wrongly, drawn.

Ultimately, the occupation is not Israel’s fault alone. It was brought about by an unprovoked Jordanian assault against Israeli civilian targets in 1967, and it has been maintained—though minimized, through the Oslo peace process and the Gaza disengagement—because of terror attacks by Palestinian extremists on sovereign Israeli soil. A boycott would not change, and might reify, the underlying problem.

Why, then, have Israeli human rights activists got things the wrong way ‘round? The answer lies partly in a misconception of human rights that Israeli activists share with others around the world. This misconception confuses the political imperative to protect the weak against the strong with the legal imperative to protect each individual from harm and from unjust exertions of power by the state.

Recent decades have seen human rights activists expand their focus from protecting civil and political rights—“negative rights” such as freedom of expression, freedom of religion, the right to vote and so on—to advocating socioeconomic rights—“positive rights” such as the right to a living wage, the right to a clean environment, et cetera. The former imply freedom from the state; the latter place demands on it.

The problem is that the power the state needs to guarantee socioeconomic rights may interfere with civil and political rights. In addition, human rights require the rule of law, which requires equality before the law. But socioeconomic rights view equality before the law with suspicion, because it leaves other forms of inequality undisturbed. When equality before the law is sacrificed, rule of law is vulnerable.

Several aspects of the Israeli occupation likewise undermine the rule of law. These include Israel’s system of military justice in the occupied territories; the creation and development of civilian settlements in the West Bank; inconsistent law enforcement against Jewish settlers; and the arbitrary nature of security measures in Israel’s fight against terror, including “oral warrants” and other innovations.

Israeli human rights groups have fought against all of these, and their work has made a positive difference in the lives of Palestinians while strengthening Israeli human rights jurisprudence. But they have been fighting with one hand tied behind their backs, because they subscribe to a theory of rights that enshrines state power and contributes to the same erosion of the rule of law that facilitates the occupation.

This misconception of rights may be motivated by altruism, but in fact devalues human rights. It also relieves the weaker party in the Israeli-Palestinian conflict from the equal obligation to uphold human rights. Human rights organizations do have an important role to play in conflict resolution, but the approach they have taken may prolong the conflict, and not for the reasons many activists imagine.”

There’s something in there, I think, but I need to spell out (and defend) the links I am drawing between an over-expansive definition of rights and the sort of moral equivalence that promotes conflict by encouraging extremism. Perhaps I am missing a deeper, underlying cause. Perhaps there are some answers to be found in John Rawls and Robert Nozick, who I’m currently reading. For now, I’m stuck.