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

The Conflict Cannot Be Ignored

Prof. Ruth Gavison

Prof. Ruth Gavison is the incumbent of the Haim Cohn Chair of Human Rights at the Faculty of Law, Hebrew University of Jerusalem, and has been a Visiting Professor at the law schools of Yale University and the University of Southern California. She is a founding member and former Chairperson and President of the Association for Civil Rights in Israel.

I don’t know why Ilan [Saban] thinks it is only necessary to introduce the non-jurists, because it seems to me that, in view of the audience here (most of whom are not jurists), it might be necessary to introduce everyone. But I don’t need a special introduction because I have already been introduced by Hassan [Jabareen]. I am here in order to present a position, which is essential in order for the discussion to be balanced. I must say that this is a new role for me, but I will endeavor to fulfill it as well as I can. You know, it is said that the work of the righteous is done by others. Accordingly, I will do my best to refrain from expanding on things that have already been said – and I agree with the great majority of those things. I will especially endeavor to define or formulate things that are unique to me.

First of all, I am very pleased with the initiative of holding a celebration for the tenth anniversary of Adalah. I totally support everything said by Ilan, Hassan and Ramzi with regard to Adalah’s vast achievements. Adalah has certainly reached very high levels of professionalism, leadership and articulateness. All this is simply extraordinary. I am happy for Adalah; I am happy for Arab society; I am happy for Israeli society. I feel that my pride in Adalah’s professional achievements is also part of my civic pride as a citizen of the Jewish State. This is because the Jewish State does not only enable Adalah to exist, and does not only give the organization professional recognition and professional achievements, but also considers it as an important part of its civil society. In view of the conditions of the conflict, I do not consider this to be a trivial matter. I am glad of it, and I think this attitude is the correct one. I will tell you something that will be perceived as controversial here: I think it is part of the democracy of the state and part of its Jewishness as well. And I don’t like the attitude – which is very popular among representatives of the Arab minority, but not only among them – the attitude which holds that Israel can be either Jewish or democratic, but that these two descriptions cannot be reconciled with each other, and accordingly, that if the state of Israel becomes more Jewish, it will also become less democratic. One of the really nice things that happened here is that Hassan and Ramzi [Suleiman] demonstrated the sophistication of the positions currently expressed by Arabic-speakers in Israeli discourse. That sophistication is borne out by the fact that Hassan pointed out something of which many Jewish jurists are not aware.

Hassan is mistaken in his statement that the debate currently going on in Israel with regard to the relationship between the Jewish and the democratic aspects of the state exclusively concerns the Jewish-Arab conflict. It is, however, true that discussion of the Jewish-Arab aspect was suppressed in the past, and that it appeared that the tension between Jewishness and democracy was only an internal Jewish problem. Today, though, both of these debates occupy a central role: the Jewish-Arab debate, which is an extremely profound debate in the context of Israeli society, is no longer being suppressed.

I think this achievement is a dramatic one, one which results from joint efforts of Jewish and Arab forces, and is extremely important to Israeli society. The depth of this achievement is at times not entirely clear, precisely to more “progressive” Jews. I had the opportunity of participating in a discussion on Chaim Gans’s new book, From Richard Wagner to the Right of Return , and Chaim made a personally moving statement to the effect that he had been a Zionist Jew until 1967, and that 1967 had somehow alienated him from Zionism. I think it is interesting that Gans focused on 1967, because, in my opinion, the great achievement of the “proud”, “upright” Arab voice is that it has pointed out that the problematic tension between Jews and Arabs did not originate in 1967, but in 1948 with al-Nakba [“the catastrophe”, a term used by Arabs to refer to the results for them of Israel’s War of Independence]. The heart of the confrontation, or the conflict, or the dispute between Jews and Arabs concerns the question of self-determination in this territory, which is Palestine or the Land of Israel , and how we wish to handle this basic dispute. I am glad and grateful to Hassan and Ramzi for not placing the emphasis on the question of whether the State of Israel should give equal rights to its Arab citizens. They had the decency to admit that in Israel there is no political or legal debate with regard to the question of equal civil rights for Arabs. Yes, there is discrimination; people don’t always keep their commitments; there are large gaps between Jews and Arabs. But this is not true only of Arabs, but of many other groups as well. This is something no one can debate, from the standpoint of either values or politics. Yes, the reality is not a simple one. We must not confine ourselves to the ideological conflict; we must also take action against the manifestations of discrimination. But in a discussion such as this one today, the core, the heart of the matter, really concerns the question of the Jewishness of the state on the collective level.

I will summarize the first part of my speech by again stating that Adalah is a great asset. I am glad to be here in order to congratulate Adalah and to take joy in its achievements. Adalah is a unique, excellent and professional organization, and I hope it will continue its important activity in the future.

I will now focus on three principal matters: the strengths and limitations of legal professionalism ; the context of the Jewish-Arab debate in Israel , which concerns the struggle for self-determination of Jews and Palestinians; and the meaning of the fact that Adalah operates as a human rights organization.

We have already said that one of Adalah’s sources of strength lies in its legal professionalism. Today, human rights are primarily protected through litigation before the Supreme Court. I believe that this entails great power, but it also constitutes a great limitation. I have argued on this point endlessly within ACRI (the Association for Civil Rights in Israel ). I believe that it is impossible to hold a true struggle for human rights, and especially for the human rights of the group, without addressing the social background of the group’s status. There is always some confusion between the struggle for the status of the group and the rights discourse , and this confusion is not a good thing. An entity which speaks of the status of the Arabs should and can do things which are not part of rights discourse. An entity which handles rights cannot always restrict itself to promoting the rights of the Arabs, because human rights are universal and indivisible. Accordingly, it may well be that the rights of the Arabs are on a par with the rights of the Jews, and then – as a human rights organization – it is not always correct to promote only the rights of the Arabs. Obviously, it is entirely legitimate, and important, to be an entity which is committed to the interests and status and to the rights of a certain group , just as – and this is a good thing – there are organizations which promote the rights of women. But anyone who establishes a human rights organization committed to a single group and acts within such an entity must be aware of the internal tensions between commitment to human rights, which are universal, and commitment to the group, because it’s not always the same thing, and this can give rise to difficulties in action. In fact, Adalah is committed to legal action and promotes the rights of the Arab minority. The organization is committed to the Arab group and to the rights discourse. In our context, this is not a simple thing.

At this point, I would like to go back to what I said earlier. The commitment of Adalah to the Arab minority is an extremely important matter. Adalah successfully provides that minority with a model of leadership . I repeat: it is exciting and a real cause for rejoicing that we have such a group today, which can give Israel ’s Arab minority so many role models. I am going to talk about Hassan, because I am more familiar with him and his work, and I am not very conversant with Ramzi’s specialization. One of the most beautiful and impressive things about Hassan is that the level of his sophistication in the legal and social discourse of the state of Israel, including meta-legal discourse, discourse on the role of the law and the role of the courts, and discourse on rights and criticism, is higher than that found in the discourse of most “hegemonists”. Hassan contributes to the analysis of the conflict an intellectual perspective in which many of the best speakers anywhere in the world would take pride. When I come, from time to time, to teach Hassan’s students in his course, I see what excellent work he is doing. I myself teach my own students texts which I have written together with Hassan’s texts, and this poses a serious challenge for my students. Hassan’s texts are excellent and important. I want to repeat - it is a very good thing for a minority group to have such spokespersons. I entirely agree with what Ilan said about how important it is that such statements are made authentically, from the inside, and not patronizingly from the outside. This is so even if the “outside” is one which is very sympathetic to the Arab cause, for example, the Association for Civil Rights in Israel . We in ACRI have struggled (and continue to struggle) for the rights of Arabs, and we believe our struggle for these rights comes neither from a sense of superiority or from being patronizing. Nonetheless, it is not good for an entity the majority of the members and activists of which are Jews (although it has always had Arab activists and employees), and at least some are not ashamed to still be Zionists as well, to take upon itself the representation of the Arab minority, because we must remember that the Arab minority is not supposed to be Zionist. And this is the other side of the same argument. The Association for Civil Rights in Israel must also take other rights, such as the Jews’ right to self-determination, into account.

It is this complexity that I want to talk about – and this is the one-quarter that, as I see it, is missing from the glass. In this regard, I support Ilan entirely. The three things that I want to talk about are actually the three things to which he alluded. I would like to bring them into focus.

First of all, human rights discourse is indivisible. Anyone struggling for human rights cannot struggle only against the harm to human rights which is perpetrated against their own group from the outside. They must also direct their attention to problems of human rights within their own group, as well as to the harm to human rights which is committed by members of their own group against outsiders. This is not only because of the nature of human rights, but also because of a social concept – a profound social concept – of the character of those who struggle for human rights precisely in the name of a group. This principle does not only apply to the attitude displayed by some parts of Arab society to women and children and family honor, and the problematic structure of Arab communities, and all the other difficult areas which any proud Arab intellectual must concede and address. There are also tensions within the Arab group, between members of the different religions and persons adopting different approaches, between the more secular and the less secular. All these are very serious matters, and generally speaking, Arab intellectuals – including members of Adalah – do not speak of them, at least not on the public level. It is important to admit that there is a problem when a human rights organization condemns, denounces, courageously struggles against the discrimination perpetrated against its group by the state, but does not devote resources, attention or civil courage to severe problems involving harm to human rights within its own group. This applies to the group of the Arab minority, not only in the area of relations between individuals and within Israel , but also in the context of the greater national dispute between Jews and Palestinians. There is a problem with an organization which vigorously condemns the events in Beit Hanoun – and indeed, it is a terrible thing when so many civilians are killed – but does not speak of the events in Sderot. There is a problem, and this must be taken into account.[1]

Another unique characteristic of the rights discourse is the institutional aspect. The protection of rights is a matter which is supposed to be entrusted to the courts, whereas the protection of interests is entrusted to the democratic political system. Accordingly, it is natural for those who feel that their position in the political system is weak to want to expand the rights discourse. Yes, it is important to remember that human rights are for everyone, and that they do not depend on the will of the state to grant them. I also very much agree with what all of the speakers here have said: human rights discourse which restricts itself to the rights of individuals is a very “thin” discourse. We must maintain a broad perception of rights discourse; rights discourse covers both individual rights and group rights. Individual rights include both the individual’s rights to life, equality and freedom and the right to enjoy the culture of his or her group. A state must recognize the rights of individuals and the rights of groups. A state cannot discriminate against persons solely because they belong to a group. Such discrimination is wrong, both at the level of individual rights and because it does harm to the group. Discriminating against a person because he or she belongs to a group may cause a person to stop being proud of his or her group affiliation, perhaps to conceal it, perhaps to evade the issue of whether he or she belongs to the group. The Jews experienced this during the long years of exile.

I believe the state of Israel recognizes the fact that human rights include a component of individual rights and a component of group rights. In any event, human rights organizations certainly recognize this fact. And this is where the institutional aspect comes in. On the institutional level we distinguish between the questions of “What is the proper arrangement?” and “Who should give the answer to the first question?” It is often said that where clearly evident human rights are concerned the appropriate institution for protecting them is the courts. This is because the courts are not elected and are not directly accountable to the electorate. It is important because rights do not depend on majority preferences; rights are something to which people are entitled – and this applies to both individual rights and group rights – simply because they are human beings. And because they are human beings, they are also members of groups: cultural groups, religious groups, national groups, etc. Rights are not a matter to be determined by the majority. This is why the court is the entity which is supposed to settle such matters, even against the will of the majority in exceptional cases. Interests, however, are a different story. Both individuals and groups have interests, and at times, they conflict with each other. All states must provide mechanisms through which conflicts of interests are resolved without violence. In a democracy, conflicts are decided by means of a majority vote (within constraints) or through negotiations. Naturally, the majority will tend to promote its own interests. This is acceptable as long as it respects the human rights of the minority. And this, I think, is at the heart of the problem which concerns us all today.

When we speak of the Jewish State as a nation-state – rather than a Jewish theocracy – we say that the state of Israel was established within the framework of a vision which stipulates that there are in Israel two national groups, both of which require protection of the national rights and the individual rights of their members. And the solution, because of the conflict between those groups – a conflict which has not yet been resolved – was to divide up the territory. This is the nature of the UN resolution of November 1947. What is this Jewish State? What is the Arab state which was supposed to be created alongside it? These are two nation-states; that is, states in which the majority consists of members of one group, but which ensure complete equality, representation and prosperity for members of the other people residing within their borders. This is the vision. One may say that this vision is not a good thing; one may always say that this vision is not realistic, but that is what the vision was. And this vision was based on symmetry, at the level of individual rights and at the level of collective rights. Each of the collectives would have a state, in which it would enjoy hegemonic rule by virtue of its majority status. Every individual would have the right to live in his or her own place in each of the states, but some people would live in a state in which their nationality constituted the majority, and would thereby benefit from this unique state of affairs, the fact that they were living in a state in which they were the majority. Accordingly, the language of the state would be their language, its culture would be their culture, and its holidays would be their holidays. And this is a tremendous advantage. The others would be living in a state in which they were not the majority, and if their culture was different from the culture of the state, they would feel somewhat alienated. Nonetheless, they would be living in a state which was supposed to be democratic, under the UN resolution, and to grant them both individual and collective rights. The only right which the members of the minority group would not have, according to this plan, according to this vision, within the nation-state of the other people, is the right to state-based self-determination. And why would the minority group not have it? Because, by granting them the right to self-determination as a state, we would have taken that right away from the second group.

In my opinion, under the conditions in which we live, this model is the only model which gives full protection to the individual rights and collective rights of both peoples. It is certainly possible to say that this vision is not a good thing. However, an organization which is committed to human rights must explain how the model which it proposes provides a response to the rights of all groups, and not only to the rights of the group which it represents. In this sense, I am very glad at the rise to power of Hamas. First of all, I think it is a very impressive movement. It has clear thought processes and, in certain spheres, the power to implement them as well. Admittedly, I am not excited about some of the messages it conveys. I perceive it as a very, very determined adversary. And I consider the fact that it is very consistent, and that it says what it has to say very clearly, as an advantage. On the subject which concerns us here, for example, Hamas clearly states that it is not in the Arabs’ best interests to be in favor of 'two states for two peoples', and that this is in the Jews’ best interests. Hamas also declares that it is in favor of progress, but that their deep interests are in Greater Palestine, as an Islamic state.

This is a clear objective. It is a legitimate interest of Hamas and it is a good thing that they declare it so clearly. But it should also be clear that I, as a Jew – who thinks it is also justified for the Jews to have a state, which will grant full equality to the Arabs living in it, but which will be the nation-state of the Jewish people – see this as a strategic threat to myself. And I must prepare for that threat and take action to reduce its chances of coming to pass. I will not deliberately harm Palestinian citizens in order to promote the Jewish state, but I will definitely look for ways of preventing Hamas from fulfilling its vision, which is a threat to me. That threat will affect my conduct. It must affect it.

Any discourse within Israel , whether by Jews or by Arabs, which ignores the conflict between Jews and Palestinians over this land and suggests that we act as if the conflict did not exist, is, in my opinion, a misleading discourse. It would not be realistic or justified to rely exclusively on it. Nonetheless, a large part of the discourse of the Arab minority within the State of Israel is a discourse which ignores the conflict and its intensity. I understand this approach, but I cannot accept it. The conflict cannot be ignored; the conflict especially cannot be ignored when positions such as those we have heard today are stated. Those positions emphasize – and rightly so – the fact that Arab Israelis are not only individuals, but also a collective, and demand the empowerment of a collective. However, they ignore the fact that the narrative and aspiration of this collective is to correct the 'colonial first sin' of the creation of the Jewish state. A reinforced national collective could, in principle, subsequently implement its desire to eliminate the Jewish nature of the state against the will of the majority within the state. Accordingly, the state of Israel, while it should recognize and empower the Arab collective, should also act to reduce the threat posed by this collective to the character of the state as a Jewish state. It seems to me that some of the members of the Arab collective believe that any hesitation on the part of the state to recognize the Arab minority and to justify its demand for the elimination of the Jewish nature of the state constitutes harm to their human rights and a denial of their claim to equality and dignity. I am afraid that they do not understand that this position could constitute a double-edged sword, because it gives rise to a feeling among Jews of being threatened and may reduce willingness to act toward the elimination of discriminatory arrangements. As retired President of the Supreme Court Aharon Barak repeats, a constitution is not a suicide pact. Some of the statements made here today 'invite' the Jews to see their commitment to dignity, equality and human rights for all as a tool to advance their own demise.

I think that Adalah, as an organization of leadership, must provide itself and its society – the society which it represents with such great success – with a true report on what its vision of the future in our area really is. It must explain, to itself and to the entire public, what a “state of all its citizens” really means: why a proud Arab can be a national humanist, but a Jew cannot be a national humanist; why a Jewish state is essentially different from a Palestinian nation-state (and I assume that Adalah is calling for the establishment of such a nation-state). For example, what does this vision have to say about the status of Jews in a Palestinian state? I imagine that the Palestinian state, according to Adalah, will also have to be committed to the equality, freedom and dignity of all its citizens and residents. Why shouldn’t we allow the Jews who are willing to live there to remain, for example, in Hebron ? They would be under Palestinian law, but why should they not be given the right to self-determination at the sub-state level, as well as freedom of language, religion, worship, and protected prayer time in the Cave of Machpelah?

I believe that this is a very interesting point, which belongs in Ramzi’s department. I feel that our colleagues in the Arab minority in the state of Israel are – correctly – emphasizing the history of exploitation and the problems, the discrimination and the prejudice. They are presenting a picture – which does have a basis in the facts – of a weak, persecuted minority, hounded by a strong and unjust state. But they are ignoring the fact, which has also echoed in our ears, and even more strongly after the Hizbollah War, that many of them have quite a different picture of the situation. It says that the formerly dominating force of Zionism has begun to decline, and that eventually the Jews will be like the Crusaders. Eventually, according to that approach, time will work to the Arabs’ advantage. This represents a combination of a feeling of injustice and weakness and a feeling of power. Many Arabs hold both pictures, and will act on the hope that the second one will prevail.

We are not discussing what history will have to say in the future. What we are discussing are the norms which the state of Israel should adopt, what it should do now and how it should consider the Arab minority within. This, in my opinion, is a great challenge. As I see it, the vision of the two states is the framework for discussion. It gives rise to serious questions concerning the state of Israel and the status of the Arab minority within it. In my opinion, there is only one possible model: the model of full and equal Israeli citizenship for Jews and Arabs in Israel , while preserving its Jewish majority and its nature as the nation-state of the Jewish people, which recognizes the individual and group rights of the Arab minority. I hope that Adalah is willing to support this vision. If so, I propose the establishment of a civil project on the state level, and the support of the project by Adalah and other Arab leaders, toward full citizenship. But full citizenship includes sharing the burden: not just civil rights, but civil responsibilities as well. There can be no national insurance without national service, because nothing can build the texture of a society without a sense of partnership. Some Arabs say that civic partnership between Jews and Arabs in Israel depends upon the loss of 'Jewish hegemony'. That means, as I see it, that there would be nowhere on earth where the Jews would be a majority, and where they could control such critical matters as public culture, language, immigration and security. I as a Jew object to such a program. But I am not certain that this arrangement would be stable enough to ensure that the Arab minority – which would perhaps no longer be a minority – would retain in it the rights, the well-being and the power to grow, develop and examine its way of life that it now enjoys as an Arab minority in the state of Israel .

I fear that there are not many members of the Arab public, including in Adalah, who accept this vision. Why am I sometimes optimistic? It is true that Israel is a state which wants to remain both Jewish and democratic, and wants the Arab minority within it to accept the fact that it is possible for a state to be both Jewish and democratic. It is true that this is quite difficult for most of the Arab leaders. I am optimistic because I think that, in spite of everything, we have a true deal here. This vision provides important advantages for both the Jewish majority and the Arab minority. Israeli citizenship is significant for the Arab citizens of the state of Israel . It is not perfect, but it is significant. They do not want to lose it. Accordingly, the Arab citizens – and not only the state of Israel and its Jewish majority – have an interest in reinforcing trends which ascribe significance to the common citizenship.

This is a very great challenge of leadership for Adalah, and I hope Adalah will meet that challenge; not by dissolving the Arabs’ collective, but by introducing the importance of collective Arab rights into a broader discourse the viewpoint of which includes the regional, humanist and global contexts. Adalah must continue to promote the collective rights of the Arabs, but it must do so on the basis of an understanding that Israel will not be a stable state which can protect the Arabs unless the collective rights of the Jews are also protected.