13 August 2007

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.

4 Comments:

At 2:07 AM, Anonymous Anonymous said...

Interesting piece, Joel. On the whole I concur with much of it. Some comments:

"...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?"

Because to reach any kind of a solution to any problem involving people (not toasters) requires two or more parties who each will agree to some compromises. In the 59 years since the Israeli War of Independence, there has only been one side willing to make any concessions on any of the main questions. For one side to take more radical steps than it already has without getting any concessions from the other side is suicide.

"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."

As far as I can ascertain, it is not in the jurisdiction of the Israeli legal/jurisprudence system to entertain such a judgement. This decision has already been made by international laws and international bodies and, with the exception of the "advisory opinion" by the ICJ, they have found it quite within Israel's jurisdiction as an "occupying force" to develop such settlements.

Aside from the above, why is it completely acceptable for there to be some number of Arab towns in Israel—amounting to about 20% of the Israeli population, while the West Bank and Gaza must be Judenrein?

"A boycott would also further isolate human rights organizations from the Israeli political mainstream"

Although I don't live in Israel and can only go by what I read in the English-language Israeli press and "outside" press reports, it doesn't appear to me as if there's any degree of "isolation" of the human rights organizations in Israel!

Interesting position on the comparison between "negative rights" and "positive rights"! Hadn't thought of it this way before....

"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."

Is there any other kind of justice in an occupied territory other than "Military" justice? How could there be any other kind of justice? What kind of justice did Jordan exert in the West Bank and Egypt exert in Gaza during their periods of occupation?

Note comment above on the settlements.

Inconsistency in the application of even military law can be a problem. Has this inconsistency anything to do with an attempt to "lighten-up" on the inhabitants because of earlier criticisms of strictness or inconsistency, or because of heightened terrorist fears?

Quite agree with the 3rd- and 2nd-last paragraphs, but this comment "It also relieves the weaker party in the Israeli-Palestinian conflict from the equal obligation to uphold human rights" needs even greater emphasis and expansion. How is it possible for others to extend human rights to groups of people who refuse to entertain these same human rights for themselves, let alone for their neighbours? How, for example, can the Palestinian "refugees" allow themselves to be forced to live in run-down ghettos for 59 years and not rebel against this?

 
At 4:03 PM, Anonymous L. King said...

Joel -

The previous poster has some good points. What struck me was "In the 59 years since the Israeli War of Independence, there has only been one side willing to make any concessions on any of the main questions."

The seminar you are sitting in on deals with rights. Perhaps one could shift the discussion to that of ethics, in this case ask the question - is it ethical for legal counsel to delay a settlement for 60 years - is there not an ethical responsibility to the client to reach a reasonable settlement so that both parties can move on. Is not a speedy resolution also a right? Notice I said reasonable, not ideal. One has to ask the question as to what is the basic goal of justice - to wholly restore what once was or to lay a foundation of what can be. There is a time cost to justice delayed.

Of course from an Islamic (Hamas) point of view, eternal patience is a virtue, which indeed may be a clash of values. However, from the Palestinian nationalist point of view, they've had a bunch of lousy lawyers who's major contribution has been to line their own pockets.

Let me end though with a note of hope - Prime Minister Fayyed seems to be a more practical politician than his predecessors, more concerned with the mechanics of government and trade.

 
At 3:43 AM, Blogger Joel said...

Thanks for these insightful and helpful comments. I think there really is a legal question about the settlements--they are possibly OK if done for military purposes or to improve the lives of the occupied population, but questionable when done for the benefit of Israeli civilians. When I speak about the isolation of Israeli human rights groups, I am not talking about any kind of political repression or even ostracization, but the fact that many ordinary Israelis do not trust them.

 
At 11:12 AM, Anonymous Anonymous said...

"...there really is a legal question about the settlements..."

You're the lawyer, of course, but the relevant documents I've seen suggest to me no such bars. The bar to "transfer of populations" is, as I understand it, a bar to the forced movement of populations from what has been their ostensible home to some other location; deportations of Jews during the Holocaust, for example. Are the settlements the result of the forced deportation of Jews from Israel?

That the settlements are a political thorn in Israel's side is an entirely different matter.

"...many ordinary Israelis do not trust them [Israeli human rights groups]"

Now, why would that be? :-)

 

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