Law, Justice, and Reconciliation
in the Israeli-Palestinian Conflict:
Comments and Questions
from a Visiting Critical Psychologist
Birzeit Legal Encounter
Birzeit University Institute of Law
December 19, 2006
presented a preliminary version of this talk at Birzeit University in
the West Bank during a 10-week visit to Israel and Palestine. At
Birzeit I taught a series of workshops for researchers in the Law and
Society Department. I also lectured at Al Quds University in Abu Dis,
and taught a five-week graduate seminar on Psychology, Law, and Justice
at Ben Gurion University in Beer Sheva. There are more details on my blog, and photos also.
Parts of the paper have been incorporated into a 2011 paper, Competing Narratives about Competing Narratives: Psychology and Palestinian-Israeli Conflict.
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
Law, Justice, and Reconciliation in the Israeli-Palestinian Conflict:
Comments and Questions from a Visiting Critical Psychologist
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.
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
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.
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.
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
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
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
Reconciliation - Version B: Understanding and Empathy
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
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
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
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
reconciliation mean more than simply the absence of war and a patently
unfair compromise that institutionalizes injustice? If so, what does it
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
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
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
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
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
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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