Law, Justice, and Reconciliation
in the Israeli-Palestinian Conflict:
Comments and Questions
from a Visiting Critical Psychologist

Dennis Fox

December 19, 2006
Revised version

Abstract

A critical social psychologist, an outside observer of the conflict between Israelis and Palestinians, assesses the roles of law, justice, and different forms of reconciliation. Although law can sometimes help achieve justice, it is less likely to resolve entrenched conflict. Justice is crucial but complex. Reconciliation between conflicting parties cannot succeed if the effort is limited to the kinds of understanding and empathy possible through even-handed dialogue. Instead, reconciliation must incorporate a commitment to take justice into account.

Law, Justice, and Reconciliation in the Israeli-Palestinian Conflict:
Comments and Questions from a Visiting Critical Psychologist

Efforts to resolve the long and complex conflict between Palestinians and Israelis typically emphasize some combination of law, justice, and reconciliation. During today's Birzeit Legal Encounter I'd like to make several loosely connected comments and ask a number of questions about what I see as some of the difficult choices facing Palestinians. These comments and questions reflect both my academic interests in critical social psychology, primarily at the intersection of psychology and law, and my status as an outsider. Both of these, I hope, can sometimes help identify problematic assumptions that those who are enmeshed in a situation sometimes take for granted, even though I have less first-hand knowledge of the conflict's complexities than do those of you living here in Palestine.

The points I focus on today are not the only relevant factors, and in the long run they may not be the most important, but they are impossible to ignore. Other concepts are also part of the discussion: power, rights, history, tradition, religion, compromise, peace. Politics, the use of power, underlies it all, and throughout this discussion I use a lens that is simultaneously political, psychological, and personal. I aim not to resolve issues for you but to generate discussion of a variety of relevant issues.

So what stands out in this landscape of law, justice, and reconciliation, or perhaps (as I'll soon suggest) law, justice, and three kinds of reconciliation? Several questions are obvious. What is the connection between law and justice? Between justice and reconciliation? Is law a useful tool to bring about justice? Is justice the only or most important goal? Is resolution of the conflict between Israelis and Palestinians, with roots more than a century old, possible? And what can be attained in light of events just this past week, which clarify all too well the lack of Palestinian consensus about priorities and methods?

I should say right here that I don't have answers to all these questions, and the ones I do have are mostly pessimistic. But let's start with law.

Law

The widespread focus on law as a method, even the primary method, to change the current situation is understandable, and no doubt inevitable in the difficult situation Palestinians face today. Given the general assumption that Israeli actions violate international law, human rights law, and often even Israeli law, it's not unreasonable to conclude that law can be used to force Israel to change its occupation policies and perhaps even to end the occupation itself. I'm not surprised to see so many Palestinians believe that law can be used to bring about justice.

But I'm not so sure. I'm not a lawyer, but as a student of how law works and how it is used I often think people's confidence in legal forums is unrealistic. I don't think that law, taken as a whole, is routinely, or even mostly, on the side of all that is good and just. Although many people believe law's goal is to bring about justice, most lawyers understand that justice is only one of law's possible functions, and not typically its most important one.

Even when the law on the books is adequate, its application is rarely predictable enough to count on. That's true within any single legal system, and perhaps especially true at the international level where there are no universally accepted mechanisms for creating, interpreting, and enforcing legal decisions. Many of Israel's occupation policies have been widely seen as illegal for a long time, but converting that awareness into action has not yet been possible.

So although, like many tools, law can sometimes be helpful in relatively narrow specific circumstances, and although it can sometimes help settle difficult issues, I don't think it can play the major role in resolving the kind of long-term conflict facing Palestinians and Israelis. That's the case partly because there's no single legal forum that both Palestinians and Israelis accept, partly because the fundamental conflict is political rather than legal, and partly because the purpose of a legal process is to decide who wins and who loses, not to formulate the structure of an ongoing relationship. And I do believe that, regardless of how the conflict is resolved, Israelis and Palestinians will be sharing this land for a long time to come.

Law may be a tool to achieve certain ends, but in this case it just doesn't seem to me to be a very useful tool.

Justice

If not law, then what? Is it justice that we really want most? Can law bring justice?

In my own work on the interface of psychology and law I've criticized law partly because its link to justice is tenuous if not hostile. Justice has always seemed to me the primary goal, and law a hindrance rather than a help. As I've already noted, law may sometimes help achieve certain short-term goals, but it is a tool disproportionately available to those who already have the most power. So for me the important question is not, "Is it legal?" but "Is it just?" The problem with Israel's occupation is not that it's illegal, but that it's unjust.

The difficulty of using justice as the standard, however, is that justice turns out to be complex. It's hard enough to come to agreement about what's legal and what's not; deciding what's just can sometimes be even more troublesome. That's why many argue that justice is not the proper goal of law - justice is too subjective, too culturally specific. Law is more practical. It seems more objective.

It's also why social psychologists so often avoid substantive justice and turn to procedural justice instead. I think this is a mistake, partly because identifying the procedures that make people feel justice has been done makes it easier for political elites to create the appearance of justice without actually delivering it. I'm not quite ready to give up on substance.

My own way through this morass, admittedly imperfect, is to try to decide not which competing version of substantive justice is right but to try to identify and apply a more universal conception. In other words, in assessing the conflict between Israelis and Palestinians, the primary route for me is not to choose sides between Israeli and Palestinian interpretations of justice, but to try to understand how more general principles of justice and morality can help clarify the terrain.

This may seem like an insignificant distinction, but I think it's useful for suggesting to others how to sort out the complexities of the conflict. Asking outsiders to choose sides can raise a number of difficult emotional responses. Asking them to think in more universal terms suggests a context that's easier to accept. And it seems clear enough to me that, when doing so, a conception of universal principles of justice and morality highlights the primary injustice Israel continues to impose on the Palestinian people.

Despite my emphasis on justice, there are complications when moving from generalities to specifics. Justice-seeking doesn't completely resolve conflicting principles and experiences, and can't completely erase the passage of time. As new generations arise, ending injustice for those victimized in the past becomes difficult, sometimes impossible. It can also create new victims, descendants of those guilty of early injustices who are themselves innocent of wrong-doing. It turns out that justice-for-everyone is not so easy.

Reconciliation - Version A: Peace

If law is not the primary route to resolving the conflict, and if even a justice-based process can't untangle all the many complexities, what's left? One route is continued military resistance. Resistance to illegal occupation is legitimate, but whether it remains both feasible and useful only Palestinians can resolve. In my view, even if resistance someday succeeds, the cost for both sides is likely to be so high that hostility will continue to devastate both societies long into the future and generate unending conflict for generations to come.

The obvious alternative to war is peace. Peace is good. That's why just about everyone wants peace, or at least they say they want it. Israeli political leaders talk peace all the time. If only the fighting would stop, they say, we will all be better off. Even my own president, George Bush, wants peace, believe it or not.

Let's call peace the first approach to reconciliation. For Palestinians and Israelis to reconcile with one another, in this view, all they need to do is stop killing each other. For many pacifists, for parties to the conflict who are simply tired of the killing and beaten down by circumstances, this would be enough. Peace, in this view, is simply the absence of war. Life goes on.

The problem, we all know, is that simply ending the violence leaves everything else unchanged. Israel remains powerful and Palestinians remain oppressed. Without something more, without resolving grievances and aiming for meaningful change, putting away the weapons can only be temporary.

Reconciliation - Version B: Understanding and Empathy

Unlike politicians who use the language of peace to mask oppression and injustice, serious peace advocates know that peace isn't so simple. Mutual hostility, dehumanization, ideology, and fear stand in the way. Traditional peace advocates often seek to move past this stage by helping people on both sides understand each other better. With understanding should come empathy, and empathy in turn reduces the willingness to kill. Relations become "normalized" and both sides can then "co-exist."

Advocates of this approach can point to research in social psychology and other fields on attitudes during times of war. During conflict, each side's elites portray their state as pure, the other side as evil. What we do is justified and defensive. What they do is unjust, aggressive. They attack. We respond. You are all familiar with this dynamic, which this week we see not just in relations between Israelis and Palestinians but between Fatah and Hamas as well.

A primary method used in this second form of reconciliation is bringing together members of both sides to discuss their differing experiences and perspectives, to teach and learn from each other. There are, thus, many dialogue groups aimed at increasing understanding and empathy. If only people knew each other as individuals, dialoguers maintain, empathy would make violence more difficult and might even encourage those with more power to confront the consequences of their actions.

There is something important about this approach's central insight. Dialogue can generate powerful emotions and personal change, and it can lead to increased interaction and even friendship. Empathy does make violence more difficult, which is why in time of war political and military forces on both sides dehumanize the enemy. It's hard to kill someone you see as human, an individual just like you. It's easier to kill someone you define as Enemy, as Other, not deserving treatment as a human being.

Unfortunately, this approach too has problems. The link between understanding and empathy is not inevitable; greater understanding can lead to more knowledgeable and effective warriors instead of to a commitment to end war. And while empathy may make it harder to kill, it does not reliably enough motivate a commitment to resolve underlying injustices.

More problematic, though, is that dialogue tilts too far to the middle, fostering the notion that justice is too complex to assess and that what's really important is understanding rather than change. It tilts too far to the psychological, assuming that all perceptions are not only equally relevant but equally valid. The best outcome, according to many dialoguers, is compromise based on mutual acknowledgment of mutual injustice. Power and responsibility are too often left on the sidelines, with who did what to whom left intentionally unexamined. Victim and victimizer are rendered equally responsible and relations are normalized in the sense of routinized, with power imbalances fully intact.

This flaw may be basic to alternative dispute resolution methods. Professional mediators often assume that the best outcome to any conflict is someplace in the middle, and put pressure on both sides to shift positions. This sometimes make sense, but frequently the blameless move to the middle disadvantages the side that has already lost too much. Efforts to reconcile Israelis and Palestinians through dialogue often fall into this trap.

Reconciliation - Version C: Peace with Justice

Can reconciliation mean more than simply the absence of war and a patently unfair compromise that institutionalizes injustice? If so, what does it require?

One answer is "Peace with Justice." A common slogan among activists, Peace with Justice is a counter to those for whom peace alone is everything. Clarifying that meaningful, long-term, stable peace requires resolution of past grievances as well as of current issues, Peace with Justice insists that justice cannot be ignored, that any compromise must be principled and honest, not a muddle forced upon those too weak to resist.

So how do we reach peace with justice? Through law? Unfortunately, this I doubt. Legal proceedings can help select winners and losers, but as suggested earlier they cannot lead to sustained peace and cannot reliably bring justice. Although legal work must continue where it is relevant - immediate needs are dire -- something more is needed for the future.

One model worth investigating is the reconciliation process typified by the South African Truth and Reconciliation Commission. There are significant differences between the Israeli-Palestinian conflict and South African apartheid. These differences may prove the model unhelpful. Yet the focus on meaningful reconciliation beyond purely legal assessments of crime and punishment is important, because it can take justice into account in a way that makes lasting resolution conceivable. Rather than assessing and penalizing every transgression according to standard legal categories, a political decision must be made that prioritizes reconciliation. But several things are likely necessary for this to happen.

For example, both sides would have to acknowledge their own past actions. This is difficult, because it would probably require some form of amnesty for acts committed by both sides, an outcome that many would consider unjust. Reconciliation takes justice into account, but not only justice.

Second, both sides would have to acknowledge that their past actions hurt innocents. This too will be difficult.

And third - this is where I think the South African model is most problematic -- both sides must be willing to dismantle the institutional and ideological framework that generated the now-acknowledged injustice. Israelis will find this harder to do than Palestinians, because Israelis have more to make up for. In South Africa, the Truth and Reconciliation Commission became possible only with the end of apartheid. The acknowledgment of past wrongs accompanied transformative structural change. Without such change, reconciliation would have been impossible.

In Israel, by contrast, there is no indication that political leaders or most Jewish citizens will soon reevaluate a century of Zionism. Even many Israelis who oppose the occupation of Palestinian lands, who oppose construction of the Separation Wall, who oppose demolition of Palestinian houses - even many of these Israelis will find it hard to jettison the underpinnings of the Zionist state. They will not easily conclude that Zionism, like apartheid, is a crime that needs to be undone. And without this conclusion, or at least this topic being addressed without preconditions, a South Africa-style reconciliation commission will have limited effectiveness.

But it's worth a try.

The challenge for Palestine and the challenge for Israel

You all know more directly than I that the struggle in which you are engaged requires difficult choices. Is your goal simply a state with a flag? A reversal of 40 years of occupation, of almost 60 years of division? How much justice will you demand, how little will you accept? Is reconciliation possible if justice is imperfect? Is compromise acceptable, or is it only a means to something else? I can only begin to imagine what it must be like to approach these questions not from an academic world thousands of miles away but inside your own communities torn by conflicting impulses and allegiances. Today's news from Gaza, like last Friday's here in Ramallah, makes Palestinian fissures hard to ignore. How you will reach reconciliation among yourselves is itself a formidable challenge.

It's easier to get a sense of what's wrong with assumptions held by the other party in this conflict. Israel, as the dominant power, must reach deep into its bag of ideological tools to maintain support for policies most of its own citizens, I suspect, would find appalling if they were able to see them afresh. But they do not see them afresh. The lens through which most Israelis gaze is distorted. Distorted by officially encouraged fear. Distorted by nationalist appeals based on cultural myths that convert the Jewish experience of victimhood into justification for victimizing others.

All this distortion isn't easy, and I don't think it's completely successful. Many Israelis, I know, understand that their state is flawed. What they often lack, it seems to me, is a positive conception of what might follow from changing course as well as a strategy to dismantle their country's ideological assumptions. There is no vision of a better future, or at least no single vision that cuts across Israel's many internal divides.

Israel's most obvious internal confusion is the official pretense that it is both a Jewish state and a democratic state. Social psychologists who have tried to determine what happens when people hold conflicting beliefs at the same time call this state of affairs cognitive dissonance, a condition so uncomfortable that we are usually motivated to resolve the inconsistency. The social psychologist in me wonders at the energy it must take to believe that both these things are simultaneously possible.

Many Israelis resolve their dissonance about Jewish statehood and democratic statehood by distorting or making ambiguous both those terms. Despite widespread agreement among Israeli Jews that Israel should be a Jewish state, there's little agreement about exactly what that means other than that Jews are, and should remain, a numerical majority. And although supporters of Israel routinely identify it as "the only democracy in the Middle East," Israel's conception of democracy is so shallow that it hardly qualifies. In most states today that call themselves democratic, democracy means more than simply decision making by majority rule. At least in theory if not always in actuality, individual rights in a democracy are protected even if the majority seeks to restrict them. For many Israelis, though, democracy seems to mean the voting majority can do whatever it wants. I suspect the fear of someday being outnumbered by its non-Jewish citizens is amplified by the assumption that a future Arab majority will have the same shallow notion of democracy that the current majority has today.

If the fundamental question facing Israelis is whether to be a Jewish state or a democratic state, it seems to me the fundamental question facing Palestinians is how to prioritize justice and reconciliation. Or at least that would be the fundamental question if either were readily attainable. Israel's dismissal of both reconciliation and justice has meant Palestinians have not yet had to resolve this difficult choice.

I hope that choice is soon yours to make. And I wish you luck.

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