The Ethical and Legal Challenges Facing Palestine

Today we hear a lot about legal challenges mounted against the wall in the West Bank . I would like to reflect upon a different wall, a metaphorical wall, the wall which remains ethically and legally unchallenged and whose foundations are actually, albeit unwittingly, being fortified by many of the very people who legally challenge the real, physical wall. The heart of the matter is what we might call the “wall within”, the psychic wall of unquestioned identification and uncritically accepted conventions about historiography which confines Israeli Jews, a wall that does not allow them to see the suffering and humiliation inflicted on others. (I refer to Israeli Jews, rather than Israelis, because it is necessary, in this context, to distinguish between the mind-set of the Jewish citizens of the state and that of its non-Jewish minority.) I would like to call for ethical and legal challenges which, even if not successful immediately, would have the effect of destabilizing this metaphorical wall. I must add at the outset, however, that any external challenges to the metaphorical wall will not, by themselves, be enough; their success must be measured by the extent to which they awaken the primordial challenge to this wall which comes from within Israeli Jewish society.

How deep does the legal challenge that faces Palestine go? I do not say the legal challenge that Israel faces but rather the legal challenge facing Palestine, because such a challenge embraces both oppressors and oppressed, both righteous and dispossessed, who, I presume would, at heart, like to find some form of hate-free togetherness in this land. Both will have to break the cycle of victimhood and hatred through the process of self re-interpretation and re-evaluation. What is the legal challenge that Palestine faces today given the fact that it is an important place for so many people of so many ethnic and religious orientations? What is the legal challenge that faces Palestine given that such a globally precious and beautiful land is governed by a state whose very self-definition prioritizes one ethnic group and religion? How is it, and is it legally significant, that such multiple longing and belonging, which could, and should, have been the place of mutual existence of so many groups ends up as a Jewish state and as a Jewish state which came to be, and is maintained only by inflicting harm of others by not treating them as equals?

To grasp the ambit of the legal challenge facing Palestine we need, briefly, to ask a deeper question. Anterior to any legal challenge, for example a legal challenge based on International Law provisions regarding Human Rights, there is an ethical challenge that emphasises our responsibility towards the other person’s uniqueness and inviolability. This includes a responsibility to recognise the situation of that other person; it demands empathy towards the other person’s longings, pain and fears without paraphrasing these pains and fears from one’s own perspective.

Ethical challenges are anterior to problem solving. When we resort to problem solving we are no longer attentive to the ethical challenge facing us. Ethical challenge perturbs our dormant reflection regarding problem construction. As the Jewish philosopher Jacques Derrida has taught us, it is in problem construction, when we are no longer so sure what the problem is, in this un-decidable moment of suspension of the given argumentative oppositions that already define the problem, that we are ethical. Of course, once a new problem is constructed, we will be trapped again in subsequent problem solving discussion and may well miss the point in the process. However, we must never neutralise the problem and keep ongoing the process of facing un-decidability. It is in facing the challenge of problem construction, a very anxious moment indeed, that we are able to deconstruct the identifications that make our identity stagnant and deaf to the richness of actuality. Only in moments of un-decidability do we critically interpret our own “story” and expose its contingency and arbitrariness. Ethical, and in turn, legal challenges come always as a surplus that is not yet conceptualized, as a residual imperative that demands us to face, and demolish the walls of the given.The ethical challenge does not stop, does not have walls and boundaries. No government and Parliaments are immune from that challenge however democratically elected. Nor should international bodies such as the UN and their pronouncements be immune from such challenge. Dare I say, even what we take as a justified representation of the very ethical standards we rely upon is constantly subjected to interpretative challenges.

But vast majority of Israeli Jews have never questioned either the practices of the Israeli state or the roots of these practices in the very conception of that state. The ethical challenge has never been allowed to undergo even the problem construction phase. Very few people, either in Israel or outside it, construe the very nature of the Jewish state as an international legal problem. The fact that the whole of Palestine is considered a “homeland” by two Peoples – one, whose understandable longing was transformed into a self-righteous, colonial, nationalist, expansionist movement as a result of persecution and a devastating holocaust, and the other, who formed the decisive majority of the indigenous population of that land, is not even in a position to become a problem worthy of focused international debate and concern. Indeed this problem has been repressed and marginalized by the international community since the first days of the British Mandate over Palestine .

The problem, then, is that Israel ’s infringement of Human Rights is inexorably linked to the very nature of the Israeli state, as backed up by the international community. Israel itself, its very status as a Jewish state in a place where the indigenous population was expelled and kept out, as well as its daily practices which involve abuses of Human Rights towards Arabs in its midst, all seem to be immune to any challenge. The anomaly and hypocrisy is that abuses by Israel towards external and internal Palestinian refugees as well as towards non-refugee Palestinian Arabs who live in the Israeli state are both somewhat recognized but somehow obscured by shallow “pragmatic” approaches to problem solving; the result is that the root cause for all these abuses, that holy cow, the necessarily blind and oppressive preservation of a Jewish demographic majority in Palestine, Zionism, is not touched upon. As time goes by without Zionism being challenged, the pain of millions, of a wholly forgotten and dispossessed People is added to the historical reservoir of “shelved” and “dust-covered” suffering. Problem solving logic entrenches the pain of millions by conceiving those few people who point towards the root cause of the suffering as unreasonable, unrealistic, extremist, self-hating and, last but not least, anti-Semitic.

Every rights-based democracy today has gone though the ethical realization that the democratic challenge is far from being satisfied by majoritarian rule. But the idea of democracy has a deeper ambiguity. By its implicit insistence on, and crave for, consensus, the ideal of democracy can easily degenerate into the hegemony of a given form of life, not allowing for the dynamism of genuine difference to pose a challenge and to be sustained. The label “democracy”, then, encapsulates inherent tension and paradox — any conceptualization of it must itself be subjected to constant ethical evaluation. Understood thus, a democracy should always entertain ethical challenges to every given tenet of the political society in question; it should never erect barriers to the questions that such challenges might pose.

In Israel , ethical challenges to tenets of the polity are totally blocked, by a popularly internalized Zionist ideology- totally imprisoned within a mental wall, in this sense, Israel is not a democracy. A state with so many ghosts in its cupboard, with the forgotten lives of 750,000 people who were expelled, ethnically cleansed, from its territory, with tens of thousands of internal refugees in its territory, with the inevitable discrimination that is inherent in its ethnically-based definition, is not democracy in any true sense.

But what is intolerable is that none of the so called “mature democracies”, no political leader in the world, no legal institution, no weighty international organization seems able even to contemplate the possibility of averting abuses by legally challenge the root cause of all these acts of abuse, Zionism. Existing legal challenges never venture to destabilize and ethically question the premise that ” Israel has a right to exist as a Jewish state in safe borders”. Such a premise is indeed being protected by a real wall today.

For the international community, by and large, the problem “to be solved” is Israeli practices in the Occupied Territories (and it is worth noting that, despite Israeli claims, the Gaza Strip is still occupied). Yet, the all too obvious illegality of acts in the Occupied Territories is being used to divert attention from the root problem. The problem is presented as the occupied “territories” so as to make it digestible for the Israeli public. No one bothers to hold the mirror to their faces. Underneath the “road map” agenda is the intention to postpone dealing with the real problem in the hope that realpolitik will never allow it to rise again. The very few commentators who do recognize the real problem but at the same time subject the problem construction to a “road map” (first the problem of the Occupied Territories; then maybe the problem of the refugees; then maybe the problem of the nature of the Jewish/democratic state) run the risk of occluding the issue behind a cloud of sophistication. To limit, or to negligently postpone, problem construction, highlighting the problem merely as the illegality in the “Occupied Territories”, ignoring the need for a prompt challenge to the racist ideology that led to the occupation of the whole of Palestine, to do this is to create a wall. The overall effect is that, unless they are carefully formulated, legal challenges to the physical wall will serve the desire of Zionism to encircle itself with a mental wall so that it is never subjected to ethical and with it, legal, challenge.

The whole rationale of the Zionist left, one of the most vocal constituencies promoting the so called two states “solution” and the inauthentic pragmatism that justifies such a solution, is not to dismantle the wall – perhaps to dismantle the physical wall, – but only the better to place a wall around the construction of the real problem: Zionism. For the Zionist left, legal challenge, in the name of fundamental human rights, is allowed only outside the Zionist metaphorical wall. The Zionist left can even murmur something about a “Just solution to the refugee problem”. But this is again to pretend that the problem can somehow be constructed and solved without subjecting Zionism to a sincere challenge. Some illustrations of such insincere challenges to Zionism: Dr. Meron Benvenisti has paid lip service to challenging Zionism, suggesting in a Haaretz article to build a refugees town in the Galilee – yet another “wall”; the residents of the artists’ village at Ein Hod, erected on, and with the use of, the remains of the Arab village of Ayn Hawd, masquerade as active protestors against treatment and predicament of Israeli-Arabs. From a moral standpoint the difference between the Zionist left and insincere challenges to Zionism is insignificant. Both contain a blind spot, the preservation of which is to be imposed on the other side as a façade of reasonableness.

And it is the Zionist left and their lawyers who mount a challenge in the name of the defence of universal values and Human rights, it is these people who fortify the metaphorical wall most effectively. Let me ask how many of the Zionist left would protest against the wall, as forcefully as they are, if it was erected on the Green line? Apart from an idle objection to “walls” would anything bother the Zionist lefties once the real wall corresponded to the metaphorical one?

Zionism itself should be subjected to a legal challenge. It is because of Zionism that Israel is a racist state and will ever be. Zionism is committed to the preservation of a Jewish majority and character, and because of these commitments it can not contemplate acknowledging, apologizing for and making restitution for its dark actions. Zionism is the stumbling block to the return of (the descendants of the) three quarter of a million refugees that were ethnically cleansed in its name, destined to live in refugee camps outside the borders of pre-1967 Israel or even outside Palestine. Israel enacts laws with impunity, unchallenged by its own Supreme Court, that prevent even those refugees who were displaced from their homes but who remained within that part of Palestine which became pre-1967 Israel, internal refugees, to come back to their villages. A racist policy of de-arabisation masquerading as the need for security leads to laws declaring internal refugees absentees even if as a matter of fact they have never been absent. Such laws mean that their property, their dignity, their memories, their longings can be robbed by the state. But the problem construction should not be end with addressing problem of Palestinian refugees. The ethical challenge will not be at an end, even if the refugees, both internal and external, are allowed to return. For even then a Zionist state would have to be ruled by a minority tyranny. As long as Zionism itself is not subjected to challenge there will be people who are not citizens in the proper sense of the term, and will not experience equality of worth and equality of stake. As long as Zionism persists, Palestinians will always be subjected to inbuilt instrumental and symbolic discrimination-as second class citizens. To name few examples: can Palestinians who live in the Israeli state ever be united with their families in the same way Jewish citizens can?; a question that is often asked in a situation of a hung parliament in Israel is how the fate of Israel can be determined by the votes of Arab; many benefits that accrue only to those who can serve in the Israeli Army are therefore denied for Palestinians.

The ethical and in turn, the legal, challenge should also question the premise that Jewish suffering and persecution, can be used to legitimize the infliction of a catastrophe on other people; that it can be used as a carte blanche justification for the entrenchment of a racist political structure; that it can be used to impose a monopoly over memory in Palestine making Palestinians, as Hannan Ashrawi has observed, the last victims of the Holocaust. No one turns into a Holocaust-denier by challenging the monstrous self-righteousness that is nourished by unreflective memory of it.

I can make sense of the Israeli right wingers. Accepting the Zionist ideology without question, they are not interested in challenges posed by Ethics and Justice. They also manage to come out as “realistic” by manipulating the cycle of victimhood and hatred into a justification of policies through the generation of fear. But I can not understand the Zionist left whose members want to have the cake and eat it. On the one hand, they appear to be self-questioning, seemingly alert to injustice; but on the other hand, they allow their questioning to atrophy when it comes to the racist nature of their state. How could the moral intuition of people have walls like this? It is members of the Zionist left that I would seek to convince, by argument, but if necessary, by a boycott or an external legal challenge. I am angry mainly with them because we do share the same premise of support for human rights but they drop it at some point. It is in the name of this ethical premise that we have in common that they challenge the administrative arrests, the legal dualism in the Occupied Territories, the house demolitions, the collective punishments, the tortures. I call them to think about the coherence of their position.

A legal challenge to Zionism is urgently needed as a mean of awakening an internal challenge in Israel and generating hope among Palestinians who were dispossessed by that state. A legal challenge should demand reparations for injustices done, while striving to minimize harming the population subsequently settled in Palestine . But in addition, the Zionist enterprise should be declared unethical and illegal by that very challenge. The challenge should call for the deconstruction of Zionism and its reconstruction as an ideology which reflects a shared belonging Such a challenge should be phrased in a manner designed to elicit resonance from within Israel . Thus, though some antagonism to the challenge against Zionism is inevitable, such antagonism must not be too intense or it would fortify the metaphorical wall even further. The challenge to Israeli Jews should be to deconstruct the accepted tenets of their sense of belonging so that it reemerges without the craving for a state which ensures a preferential treatment for this belonging. For their part, Jewish people who live in Palestine ought to be willing to create conditions which will enable them to live peacefully as a minority if necessary after an individuation and restitution of the injustices done to the Palestinian people took place. Injustice must never be generalised but rather be individuated so that each refugee is given the time and public space to articulate the particular injustice done to his/her family. A Truth and Reconciliation Commission, similar to the one established in South Africa is urgently needed. To implement the result of such an ethical reflection may take years, indeed perhaps it ought to, given the emotions at the heart of the conflict. But to create the conditions for heat to dissipate from the conflict an international action is needed now. It would be necessary spell out now the true ambit of the challenge.

Only after going through such a process would Palestine have had the prospect of being a true spiritual centre for the Jewish people. Furthermore, I would argue that Palestine could never become a true spiritual centre for Jewish people as long as Zionist ideology defines a Jewish state there. Further, the feelings towards, and the well-being of, Jews in the world is hardly enhanced by the despicable acts of Zionism which are carried out in the Jewish name. Only by challenging Zionism could Palestine be said to belong to Jews, not exclusively and hence critically. By “critically” I mean that they would have what they ought to have, not on the back of injustice and self-justifying self-righteousness. The moment Jews, religiously and ethnically, are able to share the country, as a minority if necessary, the label “Zionist”, if one wants to adhere to it, would be truly deconstructed.

Again, it was the Jewish philosopher Emmanuel Levinas who saw in infinite responsibility towards the other person a first philosophy. I keep mentioning Jewish philosophers in order to note the dissonance between their views and Zionism. Human rights lawyers from all the world, first and foremost Jewish ones, ought to examine their conscience and to mount a legal challenge to the state of Israel, challenging its Zionist foundations, challenging that kind of thinking, (in which the UN has been also imprisoned in 1947) that an ethnically diverse land can at the same time be divided according to racial or religious criteria and somehow achieve lasting peace. International lawyers should not defend the right of Israel to persist in its stagnant self-interpretation by fiat. They ought to subject, to the same legal challenge that would apply elsewhere in the contemporary world, both Israel and all the UN resolutions that recognized its self-definition while at the same time paying lip service to the reparation owed to Palestinian refugees (such as in Resolution 194).

Such a legal challenge would constitute a challenge to International Law itself as it would expose the partisan ideological foundation of international law despite its growing pretensions to universality, especially under the banner of “International Law of Human Rights”. That Zionism remains legally unchallenged is an indictment of the partiality of International Law and the fact that International Law remains subservient to the interests of powerful political allies.

It is not only the practices of Israel which are illegal outside and inside it. It is the very definition of the state as a Jewish state which is at the root of any justification of illegality. Any recognition of such illegality, going back to the Balfour Declaration should be reassessed according to standards of Human Rights. It is time to face, and legally respond to the root of the conflict – to use the international legal machinery, to construct the problem and to demolish walls. I am not advancing an argument about who has the monopoly on truth; instead, I am arguing about the need to be truthful, the need to prevent continuing suffering, hatred and bloodshed.

In Hebrew there is an etymological connection between the words ELEM which connotes being silent, not being able to speak out, ALIMUT which connotes violence and belligerence, and ALAMUT which connotes an establishment through rape and imposition, without permission. As long as what needs to be thought about and be talked about is being evaded, as long as measures are taken to force one side to remain silent by the sophisticated tyranny of solving already a “clear” problem, violence would continue to haunt and wound Palestine . A tragedy is unfolding, as if by sleepwalking, whereby the land of milk and honey, in which Jewish people would have liked to live peacefully, cherishing their common longings and spiritual focus, is rapidly degenerated into the land of lead and blood. It is time to admit, before it is too late, that Zionism has succeeded at the price of both inflicting a calamity, catastrophe, Nakba, on another People, preventing just restitution, and maintaining systematic daily legal oppression and domination. It is time to admit that Zionism is an ethical failure, as well as the recipe for the persistence of such failure. As such Zionism should be declared illegal as the root cause for unethical practices of everyday life in Palestine .

* An Initial version of this paper was delivered in an international conference organised by Palestine Solidarity Campaign (PSC), on the 22nd of October 2005 in London . (

Dr. Oren Ben-Dor grew up in Israel . He teaches Legal and Political Philosophy at the School of Law Southampton University, United Kingdom.

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