Transitional Justice: A solution to the issue of the Right to Return in Israel-Palestine?

Salmaan Saalim - 21 June

Image credit: Fred Csasznik (Wikimedia Commons)

Transitional justice (TJ) is a mechanism used by societies to recover from episodes of mass atrocities and human rights violations. The process normally involves truth commissions designed to allow a discussion of the past, alongside compensation for victims and punishment of perpetrators. Two of the most common examples of transitional justice being applied are South Africa following the end of apartheid and after the Rwandan Genocide both occurring in 1994.  Overall, these two examples illustrated both the strengths and limitations of transitional justice as a mechanism for initiating a process of peace and reconciliation following an era of violence.

The principle of the right to return following the mass displacement of the native Arab population raises the question of whether transitional justice can be applied to resolve the continued conflict between Israel and Palestine and lead to peace and reconciliation in the area.  Ultimately, in the unique settler colonial context of Israel-Palestine, the type of transitional justice pursued in previous contexts such as Rwanda and South Africa would not be applicable. Instead, a radicalised version of transitional justice needs to be applied which both calls on the legitimacy of the state of Israel and seeks to resolve the question of the Palestinians' right to return.

Transitional justice is deeply embedded in liberal ideas of state and society and is tied to assumptions about reconciliation, punishment and remembering the past. As a result, it currently cannot be used to overcome settler-colonial contexts such as in Israel-Palestine, as it does not fundamentally transform societies. Consequently, Augustine Park introduces the idea of radical transitional justice, which entails "a crisis of legitimacy for the settler state, forcing the settler state and settler society to confront the fact of ongoing colonialism and raising existential questions of what to do about it". The framework of radical transitional justice articulated by Park can therefore be used to resolve the issue of the right to return of Palestinians. 

For instance, measures that can be pursued include the state of Israel officially acknowledging its settler colonial underpinnings and the consequences this has had for the Palestinians, alongside offering compensation to those affected by mass displacement in 1948 which could be in the form of financial payments or being given the right to return, (albeit practically this would only be symbolic). Such measures would generate a crisis of legitimacy for the state of Israel and therefore represents a stark contrast to conventional versions of transitional justice as it will initiate a radical transformation of Israeli society, leading to decolonisation. Conventional versions of transitional justice do not normally lead to a widespread and holistic transformation of societies.

Before exploring some of the transitional justice mechanisms pursued so far in Israel-Palestine, it is first important to understand the history of the 1948 Nakba from the perspective of the native Arab population. In 1948, 700,000 Palestinians became refugees overnight,  which was nearly 77% of the native population that was displaced (Ahmad Sa’di and Lila Abu-Lughod, 2007:3). Ilhan Pappe argues that the 1948 Nakba should be seen as an act of ethnic cleansing, thereby supporting Palestinian refugees’ legitimate claim for their right to return, rather than just focusing on punishing individual perpetrators. Therefore, understanding the history of the 1948 Nakba as an instance of ethnic cleansing is crucial in driving the process of transitional justice which allows the right to return for Palestinian refugees and leads to a crisis of legitimacy for the Israeli state. 

One suggested transitional justice template to help restore peace and bring justice in Israel-Palestine is the Good Friday Agreement. This peace process that was used to end hostilities in Northern Ireland has been advocated by many as a useful model to follow in resolving the Israel-Palestine conflict. However, Brendan Browne and Elaine Bradley criticise the application of the Northern Ireland peace process in the context of Israel-Palestine. They argue that the Good Friday Agreement itself was "based on selective amnesia and a limited articulation of the sources of conflict, excluding as it does colonial underpinnings". Therefore, not only was the Good Friday Agreement flawed in resolving the colonial histories of conflict in Northern Ireland, it is also extremely inappropriate when it comes to the unique settler-colonial context of Israel-Palestine. This is due to the conventions of transitional justice that emphasise institution-building rather than the complete transformation of societies to help them overcome the legacies of settler-colonialism.

Moreover, Brendan Browne warns that any transitional justice process that marginalises "the role of decolonisation" is in danger of providing "a ruse of peace" rather than an adequate solution that would address the roots of the violence; chiefly the displacement of the Palestinians in 1948. Thus, the concept of decolonisation must be at the heart of any transitional justice process implemented in the Israel-Palestine context. Only then the root causes of the conflict, notably, acknowledgement of Israel's settler colonial underpinnings and the subsequent mass displacement of Palestinians, will be sufficient in offering a possible path towards long-standing peace.

There has not been a formal transitional justice process as part of negotiations to realise a two-state solution. Nevertheless, there have been attempts by local civil society actors and NGOs in Israel to educate their people about the mass displacement of Palestinians during the 1948 Nakba. For instance, Zochrot, an Israeli NGO, has sought to educate people in Israel about the 1948 Nakba by establishing "formal truth recovery models and [spearheading] the creation of a truth commission on the responsibility of Israeli society for the events of 1948-1960 in the Negev”.

However, the Israeli government has used  law to counter such efforts and to continue its policy of denying the Palestinian perspective of the 1948 Nakba. For example, in 2011 the Israeli government introduced the Nakba law which forbids organisations and institutions in Israel from discussing the consequences of the 1948 Nakba from a Palestinian perspective. In addition to utilising the law to suppress Palestinian voices, the Israeli state has also used propaganda to erase perspectives that are critical of the official narrative espoused by the State relating to the events of 1948. The official Israeli narrative has been deeply ingrained in the consciousness of the local population and as Nur Masalha puts it, has served the purpose of denying "the historical injustice" suffered by the Palestinian people during "the ethnic cleansing" of 1948. Thus despite efforts made by local Israeli NGOs, including Zochrot, in publicising the Palestinian perspective of the 1948 Nakba, the government has used  this law, as well as propaganda, to suppress critical voices which challenge the foundational myth of the creation of the state of Israel. This has ensured that the Israeli people continue to participate in the denial of historical injustice suffered by the native Arab population in 1948.

A reconsideration of the dominant historical narrative relating to the 1948 Nakba needs to be a fundamental element of any future peace-building efforts between Israel and Palestine. Reconsideration of the dominant historical narrative would therefore empower the Palestinian people in their struggle for liberation from Israeli occupation. This is because by challenging the dominant historical narrative of the 1948 Nakba propagated by Israel and instead viewing the mass displacement of Palestinians as an act of ethnic cleansing would lead to widespread acknowledgement of Israel’s settler colonial underpinnings, leading to a crisis of legitimacy for that country. Ultimately, a reconsideration of the dominant historical narrative relating to the 1948 Nakba would therefore lead to a crisis of legitimacy for the state of Israel as it would be apparent that it was founded upon the ethnic cleansing of the native Arab population and therefore is an occupying settler colonial state. Such a narrative would therefore challenge the myths propagated by the Israeli state and empower Palestinians struggle for freedom during a future process of transitional justice. By having an alternative narrative of the 1948 Nakba as part of any future process of transitional justice would be beneficial in aiding the Palestinians quest for self-determination and freedom from occupation.

In addition to a reconsideration of the dominant historical narrative, there must be the establishment of a radical transitional justice process that emphasises decolonisation to bring the legitimacy of the state of Israel into question, particularly by exposing its settler colonial underpinnings as articulated by Park. A radical idea of transitional justice needs to take a victim-centred approach and should encompass compensation for Palestinian victims of the mass displacement of 1948.  Additionally, this approach could emphasise  the right to return (perhaps symbolically) for Palestinians, alongside an official acknowledgement of their narrative from the state of Israel. Ultimately, traditional versions of transitional justice rooted in liberal logic relating to peacebuilding are insufficient in resolving the right to return  in Israel-Palestine, one of the key obstacles to peace.  

In conclusion, a radical version of transitional justice as articulated by Park needs to be pursued. This would bring the legitimacy of the state of Israel into question  as it exposes the settler-colonial nature and colonialist histories. This would resolve one of the key obstacles to peace in Israel Palestine which is the right to return of Palestinian refugees ethnically cleansed in 1948. Traditional versions of transitional justice rooted in liberal ideals about peacebuilding are insufficient in leading to decolonisation. Decolonisation, in this instance, would mean catalysing the destruction of the current settler-colonial regime in Israel. Only then can the issue of the right of return of Palestinian refugees be resolved and a path towards long-lasting peace in the region be paved.