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Refusing to address the past is not the answer to an impossible present

Jeremie Bracka
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Published: 25 November 2022

Last updated: 5 March 2024

In his new book, JEREMIE BRACKA argues an unofficial Truth and Empathy Commission could begin a process of transitional justice and conflict resolution for Israelis and Palestinians.

At the height of apartheid, a wide-eyed law student wrote a thesis on the role of truth-telling in post-conflict South Africa. He was dismissed by his professor as a "flowery nit-wit lubricating the implausible".

Five years on, Paul Van Zyl became the Executive Secretary of South Africa’s Truth and Reconciliation Commission (TRC), an institution, which despite its shortcomings, heralded in the rainbow nation. The TRC re-wrote history, gave victims a platform, and narrowed the range of permissible lies about institutional violence and gross abuses.

No doubt, such a venture remains utopian for Israel/Palestine. Recent political tidings do not bode well for peacemakers. It might seem crazy to contemplate an Israeli-Palestinian truth commission, when at present there is no end to the bloodshed.

Even in the most optimistic future scenarios, it is very hard to imagine that an Israeli or Palestinian government would sponsor, finance, and/or promote an investigation into its own excesses. But an Israeli–Palestinian Truth and Empathy Commission (IPTEC) spearheaded by civil society, could break taboos, propose counter-narratives, and carve out an "island of sanity" for peacebuilding.

My new book, Transitional Justice for Israel/Palestine: Truth-Telling and Empathy in Ongoing Conflict applies the dynamic field of transitional justice to conflict resolution in Israel/Palestine.

As the Northern Ireland, South African, and Latin American cases demonstrate, building civic bridges across the past is not the luxury of idealistic dreamers, but rather a task of political necessity.

Around the globe, diverse societies from South Africa to Colombia have pursued truth-telling, restorative justice, and reconciliation to end conflict. Yet the language of transitional justice, has been all but absent in Israel/Palestine. Until today, the post-Oslo diplomacy frames peacebuilding in practical and territorial terms alone. What’s more, the International Criminal Court (ICC) has overshadowed the region’s engagement with human rights abuses. Rather than avoiding questions of collective justice, memory and narratives, this book squarely addresses how transitional justice could contribute to conflict transformation and accountability.

Building on existing projects in the region, the book demonstrates how Israeli and Palestinian civic players could carefully craft a joint transitional justice mechanism to involve wide elements of both societies. Such a project is desirable because civil society remains the only feasible agent for peacebuilding at present.

The book submits that an unofficial truth-commission could serve Israelis and Palestinians as a platform for mobilisation and identity re-negotiation. Moreover, by applying transitional justice to intractable issues like the Palestinian right of return, the historical record of 1948 and other legacies of abuse, negotiators could draw on this transitional justice model to overcome the current stalemate.

Truth commissions are no silver bullets. But their restorative lens has offered hope and recovery from violent conflict in around 40 countries.

The best hope for Israel-Palestine lies in adopting a broader victim-centred restorative justice approach.This is because questions of history, memory and recognition of the past are essential to Israelis and Palestinians, and yet have been largely ignored by politicians and human rights lawyers alike. In essence, the demands of justice are more than just retributive, but rather involve national and historic claims, which are far better captured by a restorative view of justice.

For example, since 1948, Palestinians remain wedded to the justness of their claim to return to their homes. For Israelis, accountability for suicide bombings, soldier abductions and urban bombardment are paramount. No verdict at the Hague would assuage the Jewish state’s desire for acknowledgment, nor the Palestinian grievances from 1948 and onwards.

Truth commissions are no silver bullets. But their restorative lens has offered hope and recovery from violent conflict in around 40 countries. So why should Israel/Palestine be any different? True, any such mechanism needs to account for the complexities of the region and the challenges posed by ongoing asymmetrical conflict.

On the other hand, assuming that no comparison can productively be made or that no other national precedents apply leads to the trap of exceptionalism, which only perpetuates the violence and resignation to conflict. To this end, Israeli/Palestinian civil society is best placed to devise community-based processes that accommodate the unique context and culture of the parties.

The design, implementation, and work of the IPTEC demands bi-partisan collaboration between Israelis and Palestinians as equal owners, participants, and architects in the process. Like South Africa’s TRC, an IPTEC involves three committees and investigates abuses on both sides. Firstly, a historical committee provides a forensic as well as narrative account of the conflict. Secondly,a human rights committee staffed by legal practitioners would investigate the legal dimensions of the violence, and ultimately produce a comprehensive report on the most characteristic and gross human rights abuses committed during the conflict.

Many aspects of human rights law could be dealt with; the demands of Israeli national security, the involvement of external actors in 1948, the abuses by Hamas and other Palestinian non-state groups, and the responsibility of both the Israeli and Palestinian governments. Thirdly, a victims committee would hold special hearings to focus on groups like the 1948 Palestinian refugees, Israeli bereaved families, as well as abuses perpetrated by specific sectors of Israeli and Palestinian societies. 

Refusing to address the past is simply not the answer to an impossible present. Indeed, when despair prevails, when despite regional agreements there is scant hope of a comprehensive solution to Israel/Palestine, it is time to examine whether something akin to an IPTEC is possible. As the Northern Ireland, South African, and Latin American cases demonstrate, building civic bridges across the past is not the luxury of idealistic dreamers, but rather a task of political necessity awaiting all those entrapped by intractable conflict.

Years before South Africa transitioned, academics wrote papers about it and were regarded at the time as naive and irrelevant. But, as former US senator Wellstone once said, "Sometimes, the only realists are the dreamers."

The community is invited to a panel discussion about transitional justice and book launch for Transitional Justice for Israel/Palestine: Truth-Telling and Empathy in Ongoing Conflict at 7.30 pm on Thursday, December 1, at the Jewish Museum in Melbourne.

Photo: A scene from the play The Resurrection of the Condemned, produced by the Colombian Truth Commission and partners (EPA/Luis Eduardo Noriega/AAP)

About the author

Jeremie Bracka

Dr Jeremie M Bracka is an Australian-Israeli human rights lawyer and academic at Monash University (Melbourne). He lectures in constitutional law, torts, human rights law, international criminal law and transitional justice.

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