The Panelists Prof. Ruth Gavison Dr. Ilan Saban Attorney Hassan Jabareen Prof. Ramzi Suleiman

Dr. Ilan Saban

Identities, Jurisprudence and Politics:
Interim Appraisal and Words for the Future

Dr. Saban is a lecturer in constitutional law at the Faculty of Law, Haifa University, Israel.

We celebrate today an event which fills the hearts of many of us, Arabs and Jews alike, with great joy: the tenth anniversary of Adalah.

I would like to congratulate Hassan Jabareen, a founder and the General Director of Adalah, and to congratulate others members of Adalah’s staff who are with us today, as well as others who are far away – in Belfast, New York and elsewhere.

You deserve not only congratulations, but profound thanks. Thank you for your great contribution to human rights; thank you for your contribution to Israeli society by bringing more fairness to certain aspects of its behavior; thank you for your contribution to the Palestinian people in its great distress; and thank you for helping to preserve the hope of a fairer coexistence in this tortured expanse of land.

As I see it, Adalah is one of the most important organizations of civil society in Israel. It is not only one of the most important organizations created by the Palestinian Arab minority, but one of the most important organizations of civil society in Israel as a whole. I say this not as a host complimenting his guests, but entirely frankly. What are my reasons? The main reason is that Adalah has changed the previous paradigm, the previous pattern of conduct in the public sphere in Israel.

I will start with a point which may seem trivial. Whereas in the past the more important legal actions and petitions concerning the Palestinian Arab minority were formulated by the Association for Civil Rights in Israel (ACRI), and were rather few in number – one item on ACRI’s crowded agenda – the founders of Adalah created a new, assertive and exceptionally professional legal organization, the agenda of which is entirely devoted to the grievances of the Arab minority.

The most important point, however, is that in 1996, the year in which Adalah was established, the new organization did not only bring more petitions handled by professionals, but also heralded the dramatic entrance of an entirely new approach: no longer a community receiving assistance from its well-wishers in the other community, but one which represents itself, expresses its desires in its own voice, and discovers and exposes its abilities – and those abilities are great indeed. Fluent voices, speaking Hebrew as well as we, the Jews, do; speaking English, often better than we do; and speaking Arabic, which we cannot. And beyond and behind the fluent and assertive voice is a clear, orderly and often convincing way of thinking.

One of Hassan’s great qualities is that he has always been able to call a spade a spade. From the beginning, he spoke of Adalah as one of those human rights organizations which are transformative; in other words, an organization with a bold vision, which strives for profound, rather than cosmetic, social change. And even more importantly, an organization with a powerful understanding that this change will not come from outside, and will not take place externally without material change within the group.

The results of the effort to achieve this material change within the minority community, as I see them, are not unequivocal. Its success is a partial one, and I will expand on this later in my presentation. But this insight and endeavors in this direction are definitively characteristic of a transformative organization.

The previous paradigm has also changed in other ways. Adalah has suddenly created an equal professional Palestinian Arab opponent, one which, from both the psychological and the professional standpoints, looks the advocates representing the state of Israel in the Supreme Court squarely in the eyes. Adalah’s attorneys have always been extremely conversant with the language and discourse of the courts, and have spoken that language courteously, but without subservience. They (together with ACRI) have exhibited the greatest degree of professionalism, and vast, profound knowledge of constitutional law, administrative law, international law and comparative constitutional law.

But Adalah has another great achievement, to which I alluded previously when I spoke of it as a transformative organization: it has changed things within the community from which it sprang. As a result, it has changed – to a certain extent – the political level of relations between the minority and the state. What I have just said is complex, and I will attempt to explain it briefly.

What Israel, and especially its majority community, experienced this summer was the shattering of a situation to which we had been accustomed since 1967, or at the very least, since the peace agreement with Egypt. This was a situation of hegemony: the capacity for unilateral management of the relationship between Israel and its rivals. Now, more than at any time in the past, it has discovered not only the determination and power of its enemies, but also the limits of its own power, the limits of its technology, and perhaps the limits of its culture. At this very moment, it may well be foreseeing the end of its hegemony. It is difficult to know how Israel will respond; moreover, this is not what we are here to discuss today. The point to which I must call attention is both close to and different from this.

In a way, Adalah also symbolizes a type of erosion of the hegemony in Jewish-Arab relations within Israel. But the important difference, which I wish to address, between the war in Lebanon and this occurrence lies in the fact that the setting for this erosion of hegemony is between partners in the same society, partners which share the same citizenship. Even more importantly, this erosion of hegemony involves a strategic choice: to utilize only democratic means in the struggle for a fairer inter-communal relationship. In other words, Adalah and its approach represent a path which leads both toward the erosion of the unfair aspects of Israeli society and diametrically away from any display of violence or support of violence.

There is something intolerable for any human being about being dependent on the good will of another – of another who is not predominantly or consistently characterized by good will. The difficulty which people feel in such a situation is the psychological reflection of Kant’s categorical imperative. People feel humiliated and often frightened when they become pawns, a means used in the service of another’s purposes and in the calculation of another’s benefit. It is accordingly very welcome when people find a way out of such an unbecoming hierarchical relationship in a way which does not involve bloodshed. And indeed, some of the power gaps, and some of the feelings of humiliation which accompany weakness and dependence on the Jewish majority community, dissolved within the Arab minority when Adalah arrived on the scene. First of all, it became a definitive type of inspiring role model and a source of justifiable pride. Secondly, it assumed the role of coordinator and organizer for the other forces of the minority, and thereby affected the direction of its course, not only on the juridical plane, but socially and politically as well. Thirdly, the metaphor I have in mind is that of a Judo wrestler, using her/his opponent's weight/power: Adalah made use of the power embedded in the law, which the majority community had crystallized for its own substantive and rhetorical needs. In short, Adalah helped to consolidate the minority as a player which is no longer negligible vis-à-vis that of the State.

I would like to put my previous arguments in slightly less abstract terms by means of an example. This concerns Adalah’s role in the response of the Arab public to the events of October 2000. At the worst nadir in Jewish-Arab relations in Israel in the last generation, Adalah was the entity which recovered faster than any other. It organized a broad and impressive network of Arab attorneys to represent the hundreds of Arab detainees; it represented both the families of the victims and the Arab leaders who received warnings before the Or Commission; it raised arguments which were clearly echoed in one of the most important documents generated in Israeli society with regard to the inter-community relations within it – the report of the Or Commission; Adalah monitored the Police Investigations Unit (“Mahash”) and filed reports which disputed its findings and procedures. In brief, Adalah is the entity which does not allow Jewish-Israeli society to cast a veil of forgetfulness over that bleak period of its recent history, and it continues to do all this with no sign of the exhaustion, which is natural in protracted, difficult struggles.

After this long introduction, I would like to open the panel. After all, we are not here only to give and to hear compliments, justified though they may be. Standing before you are people with at least two things in common. We are very concerned with human rights and we are very concerned with "the Israeli condition". The following questions will therefore be an important part of our personal analysis: How should Adalah act, how should the Palestinian Arab minority act, and how should Israeli society act, in view of the rather bleak horizon before us all?

These are demanding questions. I will limit my efforts to wrestle with them here to two points:

Firstly, the need for Adalah to be a consensual organization (within its community) is a natural need, but it entails disadvantages which are not inconsiderable. Is there no better way of coping with the tension which appears here? More specifically, I would like to raise the following question in this regard: why does Adalah not take action (or alternatively, why does it not, at the very least, make its moral voice heard) on questions which concern the weaknesses of the community from which it springs? I am primarily thinking of the status of women in that community, the status of gays and lesbians, and the disproportionate power of the extended family in local politics in Arab society.

A human rights organization cannot remain silent on such issues. Thus, for example, Hassan, it is difficult for me to understand Adalah’s decision to oppose the amendment concerning the Family Courts [an amendment which enabled Arab Muslim women, with regard to some issues of family law, to approach the civil courts and not only the Shari‘a courts].

Furthermore, as an organization of social change, your relative passivity on these issues appears problematic to me. In this connection, I refer both to the arguments advanced by As’ad Ghanem and to my own conclusions from observing another society – Canadian society. The real transformation of Canadian society took place with the “quiet revolution” among the French-speakers of Quebec in the 1960s. This was a transformation of modernization, of secularization. I know, as do others, that some of the factors which enabled that transformation do not exist here, in the case of the Arab minority in Israel. Still, this does not indicate to me that modernization and the advancement of human rights within the community are not the right direction.

Secondly– and this is actually my main point – concerns the search for paths which can give rise to a change for the better in Jewish-Arab relations within Israel.

As I stated at the beginning of my presentation, Adalah has two, and perhaps three, principal spheres of influence: the legal, political and cultural. On the legal level, Adalah has a function of inestimable importance, in the function of mediator. After all, most of its activities concern Israeli jurisprudence, and Israeli jurisprudence is rooted in the paradigm of the Jewish and democratic state. Accordingly, Adalah’s professional expertise, with the material assistance of the Supreme Court, succeeds (from time to time) in pushing apart the walls of this paradigm. Together, they succeed in making the Jewish and democratic state more hospitable, and at times more generous, to the minority within it. To put it differently, Adalah succeeds in preserving an intermediate option, somewhere between the pole of Israel as an ethnocentric, discriminatory, hopeless state, and the pole where the great hope of the minority lies – that of the bi-national state. This latter option, from the standpoint of the Jewish majority community, is frightening, and thus an intermediate option may indeed be needed.

Think of such Supreme Court rulings as the National Priority Areas case; the Tibi and Bishara case, which invalidated the disqualifications by the Central Elections Committee; the Bishara case, which concerned the parliamentary immunity reserved for statements by a Member of Knesset; and the Bakri case (about the film “Jenin, Jenin”, represented by Attorney Avigdor Feldman). Think also of the ruling on the use of Arabic in municipal signposting in the mixed cities. Think of the report of the Or Commission. Think of the ruling in the case of Benzi Sau case (a Border Police commander involved in the October events). All these and more are rulings which contain more than conciliatory words and declarations. They reflect a state which (sometimes) holds democratic values dear, and which is prepared to pay at least part of the price they involve.

The greatest difficulty is that these rulings do not represent the entire picture. Adalah has failed quite a few times in the Supreme Court. In many cases, it has not been granted relief which would have changed reality; on some occasions, its failure has been even more definitive. I will mention the grimmest and most frightening example of all – the Citizenship and Entry into Israel Law, which prohibits the family unification in Israel of Arab citizens with their Palestinian spouses (of certain ages) and children. This law has remained in force, by a vote of six Supreme Court Justices to five.

Which Israel, then, looks back at us through the bleak clouds above, and what will happen when the situation with the Palestinians deteriorates still further? Is it the Israel of the Citizenship and Entry into Israel Law, or the Israel of the Or Commission Report? And what has happened to the spirit of that report, three years after its publication?

I suggest to Adalah and to the Arab minority as a whole, as I suggest to myself and to others: let us not despair. First of all, the hope for change is not lost. Human societies often act dialectically, and I believe Israel still has the power to recover. Secondly, we do not have the privilege of losing hope and sliding into passivity, or waiting for an outside force to rescue us. There are not many rescuers waiting in line. It does not seem that anyone can save us from ourselves but ourselves.

What am I proposing for Adalah, for the minority and for Israeli society as a whole? This is a proposal directed toward Adalah’s political function; a proposal for those who represent an important part of the intellectual elite within the minority, who advise Arab political leadership and entertain discourse with the Palestinian leadership, with Marwan Barghouti in prison and others.

You are not only Palestinian by nationality and Israeli by citizenship. And you are not only an organization which promotes social change and human rights. You are also – and this is no poetic overstatement – men and women with humanism burning in your bones, as it burns in the bones of other humanists. Accordingly, we may speak of an objective which can hardly be surpassed in importance: the end of our human sacrifices to Moloch, the Moloch of our exaggerated fears, of our quest for absolute security or for absolute justice.

What is the direction in which I aim in all this?

First of all, it took me a while to understand, but I have understood and internalized the fact that asking, of all people, the Palestinian Arab minority in Israel to serve as the vanguard for painful compromise between the Palestinian people and the Jewish Israelis is very problematic. It is difficult to ask people who were not uprooted from their homeland and did not become refugees, who are accused of selfishness, of spinelessness – that precisely they should head the process of waiving the right of return to Israel. It is a very difficult request. However, I will return to this request in a moment.

Secondly, I have also understood, and accept as correct, that the little that Israel’s Arab citizens can do is to share the outcry of their people and feel a strong sense of solidarity with them. I also understand that one of the most powerful expressions of that solidarity is the unwillingness to take part in both military and civilian national service. The “deal” that some parts of Jewish-Israeli society are prepared to offer the minority is something like this: “Give up your solidarity with your people and in return we will be less suspicious of you and will improve your status.” Or: “If you want equal rights, assume equal duties: at least do national or civilian service.” But people with dignity cannot be expected to agree to such a deal. Not serving (in either framework) is one of the only ways in which members of the minority community can express a non-violent protest against what their state has been doing to their people, which has been under its military occupation for almost forty(!) years.

Thirdly, I also understand (although I do not agree to accede to) the desire of a "homeland minority" for an arrangement which is no less than full partnership. In other words, I understand that they are striving – in principle, at the level of justice – to attain full “power-sharing” rights in a bi-national state (either within pre-1967 borders or in greater Palestine/ Eretz-Israel).

Fourthly, I agree that Jewish Israeli society must understand that it cannot ask either the minority or the Palestinian people as a whole to waive its concept of justice or its historical narrative. One can nonetheless hope for political decisions which are less rigid than the original positions.

Fifthly, all that Israel can do, if it wishes to do the right thing, is to impose requirements and limitations on the actions taken in the name of the minority’s concept of justice. It is entitled to demand that the Palestinian minority in Israel take pains to remain within the framework of the political means open to its public struggles (and these paths must remain open to it). Violent means – terror and armed struggle – are off limits. The majority must not be ambivalent toward terror, because this ambivalence is both morally wrong and obscures and distorts this "third identity" of the Arab-Palestinian minority; that of people who are Palestinians and Israeli citizens at the same time. If that identity is obscured and distorted, the option of dividing the land into two states will become even less real, and what will be left? Probably an extremely destructive, “all-or-nothing” struggle.

Sixthly, at this point it is important to note that parallel duties have arisen, which must be addressed to the state of Israel. The most important of these is the duty to demand that the state must content itself with limiting means, by contrast to limiting purposes. Section 7A of the Basic Law: The Knesset, in the context of Israel’s national character, is not justified and should be repealed. Just as we do not impose conditions on the activity of ultra-Orthodox Jewish parties in the Knesset because of their support of a state based on Jewish (Hallachic) law, which would abolish Israel’s democratic nature, so we should not make the activities of the Arab parties contingent on their acceptance of Israel’s Jewish nature.

I would like to conclude with a question which will undoubtedly be difficult for the Palestinian Arab population, one to which I have already alluded. It is addressed to the intellectual and professional elites of the minority, including Adalah. Does the fact that you are “1948 Arabs” prevent you from acting as intellectuals and humanists – yes, humanists – and telling both of the peoples with which you are bonded from birth, the Palestinian people and the Jewish-Israeli people, that waiving the right of return to Israel, 60 years after the Nakba, is the action which must be taken in order to prevent the terrible bloodshed from continuing? In other words, telling them that it will be necessary to compromise, to accept two states for two peoples, within the 5 June 1967 borders, and that, in principle, it will be necessary to waive the right of return to Israel? (Please note that I am not talking about the issue of the Arab citizens who are internal refugees; the uprooted persons within Israel. This, as I see it, is a very different issue, since it does not entail any demographic change.)

The immediate response which I expect is this: “If you are claiming to be an intellectual humanist, convince your own people [Jewish Israelis] to allow the Palestinians’ right to return to Israel, and then the bloodshed will stop.” While this response is legitimate, I do not consider it to be profound, for the following reason: if we truly try to act as if we were behind a veil of ignorance, where we do not know whether we are Jews or Palestinians, but only know something of human nature and the present circumstances of Israel-Palestine, and know a bit about comparative politics and a bit about contemporary history, I think that, under such circumstances, we will agree that it is not possible to strive for the right of return as a precondition for the cessation of violence without this precondition giving rise to terrible violence. Similarly, there cannot be a single bi-national state of Israel-Palestine, because it will collapse like Cyprus in the 1960s or Yugoslavia in the 1990s. It is enormously difficult to find an example of a viable bi-national state that sprang out of the ashes of profound distrust and recent violence, such as that which we are experiencing.

The possible path may not be that of South Africa in 1994. It is much more likely to resemble the Balkan wars of the 1990s [1]. Admittedly, when those wars ended, Serbia remained battered and curtailed in area; at the same time, it did not become bi-national and it certainly did not cease to exist. And look what the price was in terms of bloodshed! Do we not all have the duty – the humanistic duty – of moderating our ambitions for justice, whatever they may be, if their foreseeable price is intolerable in terms of human suffering? Allowing the refugees’ right of return to part of their homeland – the Palestinian nation-state which will arise, Insha'Allah, quickly and in our own lifetime – may not appear to be the complete attainment of justice; but going that far and no further will mean a great many fewer lives lost, and a great many fewer families bereaved.

I might be asked further: "Isn't what you are proposing actually to threaten us – in the name of humanism – with the violence of your own people, and thus gain unfair concessions?" I reject that. The Balkan disaster frightens me no less than it frightens you. We have to analyze dilemmas with a persistent effort towards both fairness and a sense of realism. Thus, humanism leads me personally to be less emotional about nationalism, but still to recognize its firm grip upon most people involved in this protracted conflict. It also leads me to seek bridging solutions (which still meet the standards of basic fairness) for these national conflicts and inner tensions.[2]

In short, we – Arabs and Jews, the daughters and sons of this land and this state – have important things to say in the name of humanism. I hope that Adalah and others in both communities will find the strength to say them.