Friday, October 5, 2007

Ruth Gavison on Right of Return and a Jewish State

Ruth Gavison is one of Israel's most prominent law professors (constitutional law, philosophy of law). She used to be closely identified with human rights, and in the late 1990s she was even the Chair of the Association for Civil Rights in Israel. Since then, however, she has been branded a heretic by her previous allies, because she has become critical of the political agenda of the ideological Left. A few years ago Zipi Livni, at the time minister of justice, tried valiantly to have her appointed to the supreme court, but this was blocked by Chief Justice Barak who made no secret of his displeasure with her opinions regarding the scope of what the court should be dealing with. No-one, by the way, doubts her capabilities; it's her opinions which are the problem.

As can be seen in this article, where she takes on two accepted themes of parts of the so-called "peace camp" (so-called by itself, that is). First, she warns, Israel must be very careful not to give the Palestinians legal basis for future claims by agreeing to accept the principle of a Palestinian right of return in exchange for a willingness not to demand it in practice. The legal implications of the Israeli agreement would set the stage for future Palestinian claims, irrespective of what they might say at the moment of the agreement.

Her second point is that Israel has as much right to a nation state (for the Jewish nation) as anyone else has, such as the Palestinians. You'd think this would be self evident, but of course it's anything but.

10 comments:

Lydia McGrew said...

I was just reading last night the bit in your book where you said that Barak was doing something that sounded like this at Taba. I couldn't figure out what it meant. This post clarifies this. Are they nuts? Allowing them a legal right of return with their fingers crossed or something? This is crazy. I certainly hope no one does such a thing.

Yaacov said...

Are they nuts? I don't think so. But that's material for a future post of its own.

Erez K said...

My understanding from discussions with Palestinian activists at US Universities is that the right of return they demand can be resolved in monetary terms. I will be the first to say that this may be an American perspective on the Middle East situation. It fits an American sense of justice to assign financial reward to someone who has been wronged. Therefore instead of allowing Palestinians back into Israeli territory to the detriment of Israel's Jewish democratic identity, a solution could be found in restitution. If the German government could give Israel BMW busses because of the Holocaust, why couldn’t Israel do something similar for the Palestinians? Of course, I believe that that PA might truly want to attack Israel in the ballot box. At which point, they must either compromise that desire or call off any negotiations as useless.

Lydia McGrew said...

If people are entitled to reparations for lands taken from their ancestors generations ago, there are a lot of Indians in the United States who have big-bucks financial claims against the present U.S. taxpayers. I consider this a reductio.

Yaacov said...

Three points:
1. Unfortunately, many Jewish organizations, followed eventually by Israel's government, have lent credibility to the Palestinian claims for restitution by demanding restitution for Jewish property lost in the Holocaust. Demanding this from Germany's government in the early 1950 was morally problematic but probably justified. Demanding it from the newly democratic governments of Poland or Romania in the 1990s, or from financial entities, also in the 1990s, was not wise.
2. If the Palestinians deserve restitution for property lost in 1948 (a big IF, when you remember that they instigated that war and intended to commit genocide), then Israel is justified in demanding restitution for the Jewish property left behind in many Arab countries in the late 1940s and early 1950s. This, the Pallestinians will say, is not their business - but since they say the negotiations over Jerusalem are of pan-Arab interest, and the war in 1948 leant heavily on pan-Arab support, the case still stands.
3.Ultimately, we're taking politics - the art of the achievable - not justice. If peace with the Palestinians can be achieved with restitution for fourth generation descendants of refugees, maybe it's worth it, and justice (one way or the other) be damned. HOWEVER, and here is Gavison's point, this can be achieved on a pragmatic level, not a legal one. If Israel ever recognizes a legal Palestinian right (to return, to restitution, whatever), this will boomerang, no matter whether the Palestinian negotiators say they mean it or not. The legal right, once there, is there, and will inevitably be demanded sometime in the future.

Lydia McGrew said...

Yes, she seems to have an excellent practical point. In which case, I don't see how Israel can afford to give a penny in restitution pragmatically, either. I mean, once they start doling out the money, that looks like recognizing the thing legally, whether they've said it in so many words or not.

Lydia McGrew said...

I should add that this seems to me to come up repeatedly: Actions that are, in terms of justice, unreasonable for the Palestinians to demand of the Israelis seem to be _also_ extremely unwise, unlikely to bring peace, etc. I really doubt that there is in practice a real conflict here--that Israel is likely actually to profit pragmatically in terms of getting peace by giving in to what are objectively speaking unreasonable or unfair Palestinian demands.

erez k said...

I think the nature of compromise is that you have to give in to unreasonable or unfair demands. Take for example the infamous 3/5th compromise of American history. Counting blacks as a percentage of a person is both unreasonable and unfair. However in that case both sides had to give in to the demands of the other side. I simply don’t see that happening between Israel and the Palestinians. The Palestinians are full of demands, and now I hear a rumor that a divided Jerusalem may be on the table. But when Israel demands a cessation of violence the answer always seems to be that the Palestinians can not control the myriad of splinter militant groups. Since Arafat the answer to Israel's demand for an end to violence has been that it is not only unreasonable but politically impossible. If the PA can’t respond to Israel's demands, any discussion of how Israel could address the Palestinian demands is purely academic.
Maybe I am missing something, very likely from my seat in California, but I just don’t see the Palestinians able to stop the violence.

Peter H said...

Her second point is that Israel has as much right to a nation state (for the Jewish nation) as anyone else has, such as the Palestinians.

Sorry, but the right to a nation-state does not mean denying the right of return (a right guarunteed by international law) so that Israel can preserve its Jewish demographic majority.

Yaacov said...

Peter - this is worth a post of its own, which I will try to put up within a day or three.