The dignity of the human in Israel

by Alligator Staff, 2nd February 2009

The Alligator's Middle East correspondent, Ben Judah, interviews Alon Harel, currently the Phillip P. Mizock & Estelle Mizock Chair in Administrative and Criminal Law at the Hebrew University. Harel is a leading human rights activist in Israel and commentator for several Israeli newspapers as well as a prominent figure in the Association for Civil rights in Israel. After the dust has settled on the war in Gaza a vital question is whether Israel has become a society inured to conflict and complacent in its attitudes to the human rights of Palestinians.

Judah: What chance is there that the IDF committed war-crimes as defined under international law in the recent Gaza Operation?


Alon Harel, the Phillip P. Mizock & Estelle Mizock Chair in Administrative and Criminal Law at the Hebrew University. (image source)

Harel: To be frank, this is a question that I’m not going to be able to answer form for three reasons. Firstly, I’m not sufficiently well versed in the legal complexity of international law as it currently stands, secondly I don’t as yet know all the facts and primarily the main thing you have to remember about the standards of international law is that they are incredibly vague, ill defined and subject to interpretation. Therefore it’s very difficult to assess for instance what the concept of ‘proportionality,’ meaning how many innocent civilians you are ‘allowed to kill’ as collateral, actually means. It falls under the vague category. Some things however, are emerging quite squarely from my viewpoint as war crimes. What I have in mind is the killing of Hamas policemen, very early on in the recent wave of violence. They had just completed some form of training course and were at a ceremony when they were attacked, and as non-military officials this would contravene international law. Yet the Israeli line would be that the distinction is not sharp enough, another illustration that the norms are far too vague.

The long conflict has desensitized many Israelis to the horrors that it generates towards the Palestinians. Of course the rockets do this; the insecurity makes it worse and the whole feeling of living on the edge that pervades modern Israel. None of this is very conducive to ‘peaceful sentiments.’

Judah: How are actions such as these tolerated by Israeli society and is it taken seriously enough by the political and military elites?

Harel: My stance is that it’s not being taken seriously enough, that is taken only as things that are to be avoided in a strictly lawyerly manner. The thinking is along the lines of “now we’ve done it, how do we get out of it.” My impression is that the political elites view international law as some kind of nuisance, so they get people to help them get out of it. They view it as just a hassle and don’t inculcate and instil the values and norms of into the system, rather treating it something to avoid. They are simply not taking it seriously and for me this is deeply frustrating. Recently in the high-brow Israeli broadsheet Ha’aretz, there was a piece showing how military lawyers co-operate in erasing military acts. There was a lot of discussion on how to prevent Israeli officers from being stopped by foreign authorities as a result of actions recently committed in Gaza. The newspaper claimed that the military lawyers were behaving legalistically, yet only in the sense that they were telling the army how to avoid it. They treated international law in the manner that I don’t think military lawyers should, that is they behaved like a criminal’s advocate might and did not internalise its core principles. And this is disappointing.

Judah: Are the checks on the excesses of war strong enough in Israel?

Harel: The war indicates that they are not. I think that the way the way to do this is to make sure that the press brings the horror of violence to every home in Israel. This could not happen as the Government blocked reporters entering Gaza and this was wrong. The war was rather popular in Israel and the press went along with it, with the possible exception of Ha’aretz, but their stance was not picked up on by the rest of the media. However though there were some annoying limitations on reporting from the conflict-zone itself, anybody could publish anything he wanted in Israel about the violence.

Judah: Are Israelis seduced by war?

Harel: I don’t think that Israelis have a special sympathy for violence – but the long conflict has desensitized many Israelis to the horrors that it generates towards the Palestinians. Of course the rockets do this; the insecurity makes it worse and the whole feeling of living on the edge that pervades modern Israel. None of this is very conducive to ‘peaceful sentiments.’ This has engendered a culture of fear, insecurities and a little bit of paranoia that leads Israelis to view themselves as righteous, as the victims of the whole affair. And this is not desirable in the Israeli context. Yet things can change if you modify this context. The right journalists, thinkers and of course leaders are what you need. What I have said however is completely different what the questions suggest. There is a tendency to ‘psychologise’ modern warfare and especially the Israeli-Palestinian conflict. There are a lot of theories, which are very popular in Britain, that the Zionist movement is somehow ‘prone’ or ‘inherently’ violent. I don’t think that is supported by the evidence, much of which is dubious and is all highly disputed, and certainly doesn’t stand up in a comparative analysis with other nationalist or post-nationalist movements. Imposing a psychological paradigm on any complex society and its decision and implementation procedure is flawed, unhelpful methodology. I don’t see how any psychologising of this conflict can be useful.

Of course a lot of Jews are hostile when Arabs come and live amongst them, but this isn’t a universal. Haifa is famously un-segregated, or less than other places, whilst Jaffa is highly divided.

Judah: The Israeli Government recently announced that it would offer protection to IDF soldiers accused of war-crimes. What is the likelihood of us seeing people in the dock and was this the right decision for the Israeli Government to make?

Harel: I think that if war-crimes were committed then those involved should be prosecuted. If this were done properly at home, then no international body would be needed as Israel herself could be trusted. Some of the alleged war-crimes, and by alleged I am stressing that we need further investigation and fact-gathering from Gaza, were taken by very high-up officials so this is why the Government is unkeen and seeking to offer protection. Israel needs to interrogate these claims, but you should not forget that there is scope for doubt here. This further stresses that it needs to be inculcated that war has become legalised and that this needs to be taken constantly into account when you do things. Israel needs to instil the values, norms and values of international law into the upper ranks or the army and political establishment. That would be the right decision to take. Of course there can be debates and discussions, but behind the complexities and legal sophistication things need to be undertaken in spirit. And this had not occurred.

Judah: How did the Israeli Supreme Court emerge as such a pro-active force in modern Israel? How this start and what has this achieved?

Harel: the Israeli Supreme Court filled a void and this was partly due to the weakness of both the legislature and the Government, as they both suffered from a critical lack of legitimacy. Key jurists pulled forward the process, engendering great hostility towards the Courts, which became seen as political, sectarian or serving sectional interests. I think the Israeli Supreme Court, when using the powers of judicial review that it has at its disposal has, in fact been highly responsible and professional. Now the Court managed to achieve this position by enjoying great legitimacy at certain chosen periods, when other institutions were tarnished as their leaders had become perceived as self-interested, corrupt and no longer reflective to Israeli society. This was congruent with the energy and dynamism of Justice Barak, and his great convictions about the role of judges in modern societies and especially in Israel. I personally think the claims of the Israeli Court being over-active, yet this is very hard to evaluate. Comparing court activism is such a multi-dimensional and slippery process and I have never seen clear, persuasive evidence that the Court is indeed over-active. Yet, many people challenge and resent its decisions. That’s why there are many people who hate the court.

Judah: Would you qualify Israel as a segregated society?

Harel: First of all voluntary segregation is not necessarily bad, letting people as it does choose to live amongst those that share their values and preferences and to be frank Israel, excluding the West Bank which is not part of the state, is in my opinion not necessarily any more segregated than other Western countries. Take the United States, deeply segregated along line of race, class and faith and of course France. Now, voluntary segregation is not a bad thing as long as it doesn’t become enforced segregation and thus a form of oppression. There is obviously a lot of segregation, on the case of the Israeli-Arabs for example there were restrictions that have been dismantled by the court and any attempts by some political figures to bring elements of them back have been fired down. However segregation is mostly to do with the fact that there is a different language being used. Of course a lot of Jews are hostile when Arabs come and live amongst them, but this isn’t a universal. Haifa is famously un-segregated, or less than other places, whilst Jaffa is highly divided. There is willingness on the part of some and not of others and the Israeli-Arabs are not free of blame for the worrying deterioration of in the relationship between the two communities. They have been highly provocative and made challenges to certain basic values and beliefs of the Jewish community. Yet, there is no question however that the relationship has deteriorated in the past fifteen years and that there is economic and unconscious discrimination practised in Israel by the majority in a very similar manner that is practised in Western countries. Given Israel has become less of a social-welfare state - this has hurt the Israeli-Arabs more. Where is this going? That’s hard to know, harder to predict. There is a lot of goodwill, especially amongst the young, lots of groups and, at least in the labour market, a lot of interactions. Personal relationships however are still very segregated. For example I first interacted with Israeli-Arabs when I went to University and even there the Israeli-Arabs tended to stick amongst themselves. Before then I had barely met anyone from that community.

Judah: Could you elaborate on the forms of legal, political and social discrimination that exist in Israel today affecting non-Orthodox Jews and Israeli-Arabs? How are things developing and what can be done?

Harel: Family law is outdated and quite horrible, with many people resenting this. However thanks to the Courts if you live with someone you can now achieve as may rights and benefits as you need or want, but marriage is of course different. Israeli-Arabs face a lot of discrimination but they are not the only ones, Ethiopian Jews do as well. Degrees of intolerance like this are almost inevitable ion highly heterogeneous societies. Socially, we need structures that offer a little more inclusion. We need a new situation and a will to be able to achieve this and overcome existing barriers. There are of course factors that are trying like the Courts, with their insistence of legal authority and groups such as the Association of Civil Rights. Some are trying to work through the Courts to achieve real change, others via public opinion. However there have not been changes for the better in recent years, like there was during the Second Rabin Government, which was highly effective on those issues.

Judah: With the rise of Yisrael Beitanu and the opinion polls suggesting a swing to the Likud, is this coming election a test of human-rights and tolerant pluralism in Israel?

Harel: No the election is not a test of anything…


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