Applying Transitional Justice to the Israeli-Palestinian conflict

By Chloé Delaitre Bonet

The Israeli-Palestinian conflict has its roots in the late 19th century, when after the defeat of the Ottoman Empire in WWI, Britain was put in charge of Palestine, which primarily comprised an Arab majority and Jewish minority. In the years that followed, and especially after WWII, the number of Jews in Palestine increased, as did tensions. In 1948, the British terminated its Mandate, and left the question of Palestine to the UN. The UN voted on a Plan of Partition, however this was rejected by the Arab side. That same year, Jewish leaders declared the creation of the state of Israel, which was followed by a war as Palestinians objected. During the war, or The Nakba as denounced by Palestinians, approximately 700,000 Palestinians fled or were driven from their homes. The properties that they left behind were seized by the nascent Jewish state. Furthermore, hundreds of thousands were freshly displaced by Israel’s 1967 occupation of the West Bank and Gaza. Today, most Palestinians live in the West Bank and Gaza, and 5 million Palestinians are registered by the UN as refugees. In addition to competing land claims, the Israeli-Palestinian conflict is fuelled by the parties’ mutually exclusive narratives of the past, their denial of each other’s nationhood and national aspirations, and their competition over victimhood.

The Right of Return

One of the most contentious issues in the conflict is the demand for the ‘’right of return’’ for Palestinian refugees and their descendants who fled or were expelled from their homes during the war in 1948. This is one of the most difficult and sensitive questions, as each side maintains the fundamental belief that its future national existence hinges on whether and how the right of return is resolved. For Palestinians, the right of return is sacrosanct and defines their struggle. For Israelis, the right of return poses an enormous threat to the existence of their Jewish society, their argument being that the return of Palestinian refugees would transform the Jewish state’s demographics too deeply. This demonstrates how the right of return stands at the very heart of the Israeli-Palestinian conflict. Therefore it is clear that, as Israeli scholar Yoav Kapshuk argues, ‘’any peace deal that does not include the refugee issue is empty and hopeless’’, as it is so central to the conflict. Past negotiations aiming to establish peace have already made this detrimental mistake. Even though the 1993 Oslo Accords designated the subject of the Palestinian refugees a ‘’final status’’ issue, the matter has not been meaningfully addressed in peace efforts. Instead, the refugees’ rights have often been set aside, in turn bringing down potential agreements. An example is how at Camp David in 2000, the refugee question was an important reason for the summit not resulting in a final-status agreement, as Israel failed to provide a compromise resolution on the right of return. Yoav Peled and Nadim N. Rouhana posit that this failure is a reflection of the fact that, more broadly, in negotiations attempting to solve the Israeli-Palestinian conflict, the question of historical justice in general has been avoided because justice is a subjective construct and allowing it to become a subject of negotiation would only perpetuate the conflict. However, this avoidance only serves as a barrier towards more peaceful relations, as without solving the problem of Palestinian refugees an agreement cannot be reached- this is why this article stresses the need to incorporate a Transitional Justice approach to the conflict.

Conceptual Framework: Transitional Justice

Transitional Justice (TJ) is concerned with addressing legacies of human rights abuses in the context of transitions to peace and democracy. Even though TJ is commonly involved in transitions where former rival groups seek to consolidate peace with one political system, TJ can be applied when the conflict is still active in an attempt to bring it to an end. For example, during the Colombian peace process, TJ was key for reaching final agreements, with a commitment to truth and reconciliation. It is important to note that TJ does not seek absolute justice, but rather a doable one; whilst examining the past and addressing injustices, it is done so in a forward-looking perspective focusing on improved future relations between the parties in conflict. A central element of TJ is acknowledgment of the past injustices committed in order to accord the victims dignity and respect. It also validates their experience and includes it in the collective memory of the political community. This recognition is necessary to aim to repair the damage done to the victims. Furthermore, another central aspect of TJ is a focus on future relations to strive for reconciliation. To do this, the interests of the other group should be considered, and their humanness recognized. Applying Transitional Justice to the situation in Israel/ Palestine

The principles of TJ could be applied to the Israeli-Palestinian conflict in that Israel should agree to acknowledge the Palestinian’s right to return to their homes and, by doing so, recognize both Israel’s historical responsibility for the injustice of the massive uprooting of Palestinian society, as well as the legitimacy of the Palestinian people, who’s nation was literally destroyed and its people made stateless. This recognition so crucial to Palestinians would then enable the two parties to enter negotiations over restitution, such as the logistical aspect of how exactly the right of return should be implemented. In these negotiations, Israel’s interests and preoccupations would be taken into account, such as the connection of the Jewish people to the land of Israel, or the changed circumstances between 1948 and now, where Jews have acquired over time the right not to be displaced and maintain an Israeli Jewish national community. Notably, it is the act of recognition over the right of return that would radically change Israeli-Palestinian peace negotiations, which have so far been derailed by the question of how to deal with this very issue. As Peter Beinart wrote for The Guardian, the case for the implementation of TJ with the question of Palestinian refugees’ right of return ‘’(…) constitutes more than repentance for the past. It is a prerequisite for building a future in which Jews and Palestinians enjoy safety and freedom in the land each people calls home’’.

The implementation of Transitional Justice look like This article argues that in order to implement the TJ aspect of recognition, there should be an approach similar to the one undertaken in the Colombian peace process, where a Truth and Reconciliation Commission was established in order to acknowledge the wrongdoings committed during the civil war by the FARC and members of the military and security forces. It is must be pointed out that this focus on reconciliation was used as an alternative to more punitive, judicial measures such as prosecutions, which as Yoav Kapshuk notes, would have derailed the peace negotiations. Knowing that the protracted conflict in Israel/ Palestine carries a death toll of 14,000 lives since 1987, this article stresses the benefits of following Colombia’s example and undertake a non-judicial TJ approach, as it is the best way towards the route of peace, which is urgently needed, highlighted by the huge human cost of the conflict. Besides the implementation of a Truth and Reconciliation Commission, an institution dedicated to the revival of memory to clarify the violations committed should also be installed. A substantial array of activities fall within this category, including mapping and documentation, human rights reporting, commissions of enquiry, truth commissions, exhumations, fact-finding endeavours, establishment of archives, commemoration, memorials and oral history projects.

Secondly, the right of return should be negotiated between Israeli and Palestinian authorities. Israel should acknowledge the Palestinians’ right of return to their homes, even as there may be limitations on the vision of all scattered Palestinian refugees and their descendants returning physically to Israel in practice. A international fund for Palestinian refugees should be created, in order to grant monetary compensation for, amongst other things, expropriated property. Additionally, the bodies in which to carry out the negotiation over the realization of the implementation of the right of return would best be done through peace talks’ diplomatic processes, possibly brokered by a mediator state. In these talks, it is imperative that refugees be included, possibly working alongside existing organizations such as the UNRWA.