on the Peace Process
Human rights, the rule of Law must govern the peace process
By James Silk
On May 14, 1948, the State of Israel was established. In December of the same year, the United Nations adopted the Convention on the Prevention and Punishment of the Crime of Genocide and the Universal Declaration of Human Rights. The histories — and the destinies — of the modern system of international human-rights law and the state of Israel have been inextricably woven together since they emerged, more or less together, from the Holocaust and the world’s reaction to it.
Israel’s founders proclaimed that the new state would be “a light unto the
nations.” The Declaration of the Establishment of the State of Israel expressed
this ideal, embodying the fundamental human-rights principles soon to be set out
for all the world in the Universal Declaration. Israel, it said, “will be based
on freedom, justice and peace. . . ; it will ensure complete equality of social
and political rights to all its inhabitants irrespective of religion, race or
sex; it will guarantee freedom of religion, conscience, language, education and
culture;. . - and it will be faithful to the principles of the Charter of the
United Nations.”
Israel today is, for its Jewish citizens, a vibrant democracy, dizzyingly and
sometimes frustratingly vibrant. It protects civil liberties, although not
without problems, including constraints, for both Jews and non-Jews, on
religious pluralism. Its Supreme Court, despite the lack of a written
constitution or bill of rights, developed a rich human-rights jurisprudence,
based first on the fundamental values inherent in a democracy and, since 1992,
on the basic law: human dignity and liberty.
For Israel’s Arab minority and the Palestinian population of the occupied
territories, now under Israeli military administration for 38 years, the story
is very different.
In the occupied territories, Israeli policies affecting every area of life have
undermined the dignity of all Palestinians. Abuses include the demolition of the
houses of families of terrorists; restrictions on freedom of movement that
deprive Palestinians of access to health care, education, religious institutions
and even their own families; humiliating checkpoints dividing the land of the
West Bank: the
torture and cruel, inhumane and degrading treatment of Palestinian detainees;
the extra-judicial killing of a suspected terrorists; and the use of lethal
force that has resulted in the death or wounding of hundreds of innocent men,
women and children. Israel has also maintained an economic a stranglehold on the
territories that has prevented Palestinians from exercising even their most
basic economic and social rights.
In 2001, the Israeli Supreme Court considered the use of torture by Security
officials. The case squarely presented the issue that is at the crux of the
future of Israel and the future of human rights. The court held that torture is
illegal, at all times and in all circumstances. It suggested that an official
who decides to use torture may be able later to invoke the defense of necessity
if he can show that his conduct prevented an act of terrorism and saved lives,
but it also acknowledged how rare this so-called ticking-bomb situation occurs.
The Israeli Supreme Court’s decision sought to balance two Imperatives, national
security and human rights. These imperatives have long been seen in the Israeli
context as fundamentally in tension with each other. Since Sept. 11, 2001,
Israel’s dilemma has become the world’s dilemma as some would say, in a world
where terrorism has such extraordinary weapons at its disposal, can we afford
human rights?
Israel’s dilemma
This is Israel’s dilemma, and the ‘ dilemma facing the world. How can - we trust a handful of documents, part of some vague concept known as international law, and their idealistic words, to stop tyrants and butcher? But Jews are a people of the law, and Judaism is an ethos of law.
Raphael L,emkin, a Polish Jew, a lawyer and scholar who fled the Holocaust and
ended up in the United States, coined the tern “genocide” during World War II
and then worked, as a private citizen, to get genocide included as a crime in
the indictments for the Nuremberg trials and to make it part of international
law as a crime against humanity in the Genocide Convention.
Since the Holocaust, Jews have faced a fundamental choice: to build a safe home in the law, Lemkin’s dream, or a safe home in the land of Israel. Israel’s future depends on the choice: to defend security through the use of force and repression, at an enormous cost in lives, funds and respect, or to protect the dignity of all and build — in the state, in the region and in the world — a culture of e justice, rights and peace.
The Israeli Supreme Court’s decision in the torture case goes to the very heart
of the supposed tension between human rights and security. The court’s starting
point was the “difficult dilemma,” articulated by a Commission of Inquiry
established by the government to look at the use of torture, “between the
imperative need to safeguard the state of Israel’s very existence and the lives
of its citizens, and preserving its character — that of a country subject to the
Rule of Law and holding basic moral values.’" The court discussed at length the
difficulty of Israel’s security situation, but concluded: “This is the
destiny of democracy as not all means are acceptable to it, and not all
practices employed by its enemies are open before it. Although, a democracy must
often fight with one hand tied behind its back, it nonetheless has the upper
hand. Preserving the Rule of Law and recognition of an individual’s liberty
constitutes an important component in its understanding of security. At the end
of the day, they strengthen its spirit and its strength
and allow it to overcome difficulties.”
Israel has a right and a duty to defend itself, but there can be no peace in the
Middle East, no lasting security for Israel, until Palestinians enjoy the basic
human rights that we in the United States take for granted: the right to
determine our own destiny and to choose our own government; the right to move
about freely, the right to live without fear of indiscriminate military
violence; and the right to earn a living and promise our family a safe home.
Israeli and U.S. officials complain that the Palestinians offer no reliable
partner for peace. Oppression, intimidation, humiliation and deprivation can
never breed the trust and hope without which neither partnerships nor peace can
ever take root.
James J Silk is associate clinical professor of law at the Allard K.
Lowenstein International Human Rights Clinic and executive director for the
Orville H. Schell Jr Center for International Human Rights at Yale
University Law School
