Legal Systems and Public Attitudes During Negotiations Towards Transition from Conflict to Reconciliation: The Middle East; 1992-1994

Legal theorists know that the enforcement and the stability of legal orders depend to a large extent on an extensive 'infrastructure' of community, beliefs and attitudes among the population subject to the law.' Law cannot rely exclusively on the imposition of sanctions, despite the Austinian attempt to define it in these terms. Law that depends only on sanctions for its operation cannot last. Any stable legal regime is based, primarily, on the legitimacy of its underlying authority, and on the acceptance of this legitimacy by most people subject to it.

In societies in deep and prolonged conflict, stability is threatened by the absence of this feeling of legitimacy shared by all the individuals subject to the law. Where societies are in a prolonged state of conflict, especially societies under siege or occupation or a tyrannical rule, there are groups that see law and law enforcement agencies as their protectors, and groups which see them as their oppressors.

This disparate perception of law is only one of the differences separating the groups participating in the struggle. Within each of these groups, the conflict generates perceptions of the other groups and their representatives that facilitate life within the conflict. There is among both groups a combination of anger, hatred, fear, suspiciousness and contempt. These emotions colour most interactions between representatives of the groups, and they are in turn used to aid in the acts of war and cruelty that the conflict seems to require, especially when it reaches a violent stage.

It is thus not surprising that advocates of peace or conciliation among the groups are not only concerned with the real parameters of the conflict and possible resolutions thereof. They must also be concerned with more subtle aspects of the conflict, such as a tendency to distance the enemy and to demonize and de-humanize its representatives. In addition, they must be concerned with the conditions which may make the process of negotiation, reconciliation and compromise possible.⁴ The identification of these conditions may suggest which are the conditions necessary for stability and legitimacy of legal orders and arrangements.

In democracies, legal regulation of the expression of opinions and the encouragement of demonized perceptions of the enemy is not easy to justify. The valid reasons for not prosecuting individuals who contribute to such attitudes should not blind us to the importance and the seriousness of this kind of activity. History proves that ideas should be taken extremely seriously. While an idea alone cannot hurt one, actions that can hurt are facilitated and triggered by an atmosphere of ideas and attitudes. Peace often cannot replace conflict if leaders, groups and individuals are not freed from their (mis)perceptions of the enemy, his actions and his motives. The transition from violent conflict to peace thus requires an accompanying change in the mutual perceptions and attitudes of the parties. They must be willing, at least, to accept a shared system of norms that will govern their relations and be viewed as legitimate by both. ⁵

However, the political process initiated in Madrid, with the Oslo and Cairo agreements, the peace treaty between Jordan and Israel and negotiations with Syria are hotly debated in all the affected communities. Groups objecting to these processes are fighting against them, each within its own constraints and possibilities. While signatories persist in re-affirming the agreements as binding upon them, the populations do not seem to be united behind them. Part of the intensity of the struggle against the agreements stems from the fact that they radically challenge the system of perceptions, expectations and evaluations that informed and governed the existence of many of the affected individuals and groups before them. In other words, the agreements are themselves a major transition from the period preceding them. Nonetheless, this transition has not been consolidated. The agreements are, in fact, a step in a process of transition. The prospects of this attempted transition depend on the ability and the willingness of the parties to accept a shared normative system within which they will pursue their interests.

Political transitions often create the need to decide about the treatment of those who acted on the basis of 'old' norms, perceptions or power structures, and whose activities may now have to be re-assessed and re-evaluated. There is extensive literature, on a variety of levels, on the treatment of the past in situations of political transitions.⁶ The post-war trials in Germany and Japan are still an important focus of such debates.⁷ Other aspects of the same set of problems are disclosed by the periods of 'popular justice' against 'collaborators' or agents of a defeated and hated regime.

These situations raise a variety of difficult questions. First is the problem of legality: the justification of imposing liability on individuals who acted in obedience to norms that were legal (or were even deemed desirable and mandatory) when they acted under them.⁸ There is also the issue of political prudence. The need to strike the right balance between the backward-looking interests and values of justice and desert and the forward-looking aspect of building a future without spending too much energy on a painful past. This consideration is made more weighty by the questions raised concerning the feasibility and justice of condemning today those who were on all levels of the administration of one's country before the 'transition'.⁹ There is also the question of the rights of the 'collaborators' to due process and public trial.

Transitions may be very different. While some of them are located in a dramatic point in history (the end of the war, the withdrawal of an army), others are the result of a long process of gradual reconciliation and negotiation (e.g. the transition in South Africa). Yet most of the transitions discussed in the literature share a structural similarity. The 'good guys' come to power (usually in the form of a freely elected democratic government) after a period in which power was held by the 'bad guys'. The bad guys committed crimes against humanity and terrible violations of human rights. The old regime left a large number of people dead, tortured and injured in various ways, often relying on terror and humiliation. The new regime now faces the question of how to deal with the people responsible for these crimes.

However, the simplicity and clarity of this description may be misleading. The period before the transition was a period of an oppressive dictatorship. While relatively small groups actually participated in executions and torture, large groups of people knew and were involved in the 'civil service', or belonged to the 'silent majority'. They lived under and with the dictatorial regime. Mostly they were not its victims, and did not participate in the active struggle against it. Mostly, they saw law-enforcement agencies as either neutral or as guards of safety and order. Many of them accepted the official declarations that the opposition was dangerous enemies of the people. Thus, before the transition, this was a society in conflict, with disparate and clashing visions of the law. After the transition, when all is presumably set right, the conflicts may well persist. A dramatic illustration is the situation in Chile, where the army negotiated its status before the transition, so that all those responsible for the atrocities are still holding the positions they held before democratization. Many societies after transitions have to deal with a combination of the issues raised by the transition and the need to deal with the past and with internal conflicts in the society.

The situation in the Middle East is unique in that it contains additional complicating factors which are usually missing from other transition situations. In most transitions, there is no serious attempt to reverse the change, because all parties accept the results of the process;¹⁰ similarly, there is no lively and open debate, during the process, of who are (or were) the victims and who are (or were) the oppressors or aggressors. The new phase is one in which the change is completed and accepted as justified by those who now have the power to mete out justice. The problem is how to deal with the past, but the present is relatively secure.¹¹ Moreover, the public norm is a condemnation of the previous atrocities, even if there is a reluctance to impose liability on their perpetrators for a variety of complex reasons. The 'good guys' now in power do not have to take into account the possibility that someone else sees the past differently. The transition means that power changed hands, but it does not require a change in perceptions of the winning side about the justness of its cause.

The situation is very different when leaders of two groups who have been in a prolonged and bloody conflict try to take a non-violent route towards resolving it. The leaders share some important short-term interests and perceptions, notably the fact that the route of negotiations is better than the continuation of violence. However, they also have readings of the past and hopes for the future, and these are often very different. Moreover, these readings of the past include evaluations of the conduct of the other party itself. Often, these histories breed anger, resentment and suspiciousness which may be fatal to the process of negotiation and peace. People who are interested in the success of the process should attend, therefore, not only to deeds but also to underlying sentiments. Moreover, the deeds often reflect not only rational negotiations but the ambivalence that even the leaders committed to the change experience. This ambivalence is obviously strengthened by the fact that people within their communities continue, at the same time, to try and undermine the budding agreement. It is hard enough to start seeing your one-time enemy as an ally. It is even harder to do that when you are not sure that the functionality of seeing that person as an enemy has indeed been removed. It is easy to see these difficulties and ambiguities when the parties seek to agree about dealing with issues generated by the period before the transition.

To make this discussion less abstract, let me take four groups of individuals in the Israeli-Palestinian context, whose status is clearly affected by the transition. The Israel-Palestinian conflict is singled out even among Middle East conflicts. The peace with Jordan (and Egypt before it) was relatively easy, because Israel and Israelis were not so attached to the land they had to give up for peace. Moreover, hostility and competitiveness were limited. The situation is very different concerning the conflict between the Jews of Israel and the Palestinian Arabs. Since 1967, Israel controlled both its own territory and the occupied territories. The Israeli Arabs belong to the same people, often to the same families, as the Palestinian population of the territories. Israel, the West Bank and the Gaza Strip formed one economic unit. While there are important differences between the legal regimes governing Israelis (especially Israeli Jews) and Palestinians, there are also many similarities in both law and practices. The settlements created a situation where the ethnic communities are interwoven and cannot be easily separated. Finally, the hopes and the aspirations of Jews and Arabs in Palestine are simply contradictory. Both want the whole of Palestine and Jerusalem as a capital. If one adds the fact that the respective histories written and taught by the two groups are almost as contradictory, one can sense how complicated it is to negotiate for a reconciliation under these conditions. The fact that Israel enjoys much greater strength and status just adds to the complexity of the situation. Obviously, no serious political change operates in a vacuum. The 'new' norms were simmering under the ground for some time; the 'old' beliefs and faiths are still very much there. In the Middle East situation, many do not accept yet that the change is irreversible, and they are trying to maintain the norms of the 'past' and re-make them valid and applicable to the present and the future. This combination of facts is what makes the decisions so delicate and so painful, and this is why we should be extremely cautious and creative in our use of legal tools.

The first group I want to look at is that of Palestinians who committed acts of violence against Israelis as part of the Jewish-Palestinian conflict. The second group is that of Israelis who committed acts of violence against Palestinians for similar reasons. The third group is that of Palestinians who 'cooperated' with the Israeli authorities during the occupation - the so-called 'collaborators'. The fourth is that of Jewish settlers, who built their homes in the occupied territories, in part with the encouragement and financial help of Israeli governments, on the assumption that Israel will never relinquish its hold over them. For all these groups, many of the background assumptions that they made, and that governed their activities, are now changing. To some of them, this change may be welcome, but to many it is devastating. The way they see the process, and the way they are perceived and treated by both parties to the process, are an important part thereof.¹²

In principle, the decision concerning the right way to treat the past, the period before the transition, must seek to avoid two dangers. One is that of a total loss of continuity and a sense of justice, of right desert. The other is that of letting the past rule us so that all chances for a real change are jeopardized. The need to maintain this delicate balance affects the attitude towards change of perceptions. While these must change if conflict is to become a stable compromise, the change cannot be so radical as to threaten one's sense of self-identity and purpose. We are bound to have temporary tensions between actions, agreements and perceptions. If the process is successful, these tensions lessen. If the process is stagnated, the tensions may intensify and threaten the process itself.¹³

One could have expected that negotiating the balance between popular support under present perceptions and a change that presupposes and requires a significant change in these perceptions might be hard in a democracy, which is known to make unpopular moves very hard to pass. Interestingly enough, a similar problem manifests itself among the Palestinians as well. The fight over changes of perceptions, as well as for a new political approach, is being conducted both within each community, and in the inter-community relationships.

I. Amnesty for Ideological Users of Violence?

I take it that the right to life is a prime human right, and that intentionally taking the life of another human being is the ultimate violation of this right. It is always difficult to compromise and thus give up something that is very important to one. It is much harder to negotiate and reach reconciliation with people who are responsible for killing members of one's group. It is even harder to agree, as part of such negotiations, to let those responsible for the killings go unpunished and 'get away with it'. Between Israeli Jews and Palestinians there is a blood account. It is not surprising that one of the most charged issues for the negotiating parties is that of the release of prisoners, especially those with 'blood on their hands'.

The account above sounded symmetrical, and in some ways it is: Palestinians were killed by Jews, Jews were killed by Palestinians as part of the conflict between the two peoples. But there are many important sources of asymmetry. They are dramatized by the fact that at this stage (before the implementation of the agreements and with regard only to prisoners held for actions done before the agreements were signed), only Israel holds prisoners. It holds many Palestinians, and a very small number of Jews (all civilians) convicted of killing Palestinians.¹⁴ Israelis who use 'official' violence, as members of the security services or army units, are rarely disciplined in any way. There have been serious problems of enforcing the law against Jewish settlers who use violence, including occasional killings.¹⁵ So the disparity in numbers of prisoners does not attest to the fact that only Jews were killed by Palestinians. Rather, it reflects the fact that only Israel had the political power to pass judgement on those among the Palestinians who killed (just as - after 1967 - only Israel had the political power to commit 'official' killings or to subject Jewish violence to the law or to deport and evacuate and confiscate land). This asymmetry also explains why Palestinian killing of Jews is primarily intentional murder, while many of the Palestinians killed by the security forces were killed during attempts to disperse demonstrations and in similar circumstances.

In thinking about the way to handle users of violence in a process of negotiation there are at least two distinct issues. One is the question of evaluating the conduct of users of violence from the two camps. The other is the question of what should be done with them now, once the political process has started. It is important to see that the two are interconnected in important ways, but they are nonetheless independent.. Part of the difficulty is internal tensions, in parts of both communities, between answers to the two questions.

On the first question, the two societies do not have a serious internal debate, and their visions are conflicting. For the Palestinians, all their prisoners are heroes, people who paid a serious price for participating (or being suspected of participating) in their people's struggle for liberation. While there are important political divisions among the Palestinians, Israel and the occupation clearly were - until the agreements - the enemy of all. It was widely felt among Palestinians of all affiliations that Israel will only leave if it hurts. Making Israel hurt seemed to many a legitimate way of achieving national liberation. While some groups were willing to limit violence to the security forces, seen as the paradigm of the hated occupation, and the settlers, others saw Israel as a whole (and at times Jews in general) as the target.¹⁶

The Israelis, on the other hand, see the people who actually used violence as 'terrorists' - people who are a serious threat to life and order. Those who participated in killings are regarded as murderers. Even those sympathetic to the predicament of the Palestinians and who acknowledge that they did not have many non-violent tools at their disposal for changing their situation condemn these activities. There has never been a serious voice in Israel speaking against the use of the harshest legal measures against Palestinians who murdered Jews for ideological reasons. Israel's approach to the killing of Palestinians by the security forces and by Jewish civilians is more divided and much more nuanced and ambivalent. A majority of Israelis see a person like Goldstein, the man who committed the Hebron massacre, as a fanatic murderer. However, when Jewish settlers were arrested for murder and for conspiracy to murder - their terrorist activities involving the blowing up of a number of Arab buses - it took some courage and determination to indict them. The then Prime Minister Shamir was quite reluctant to condemn their actions and those who were not convicted for murder (which requires a mandatory life imprisonment) got light sentences. The murderers themselves were all pardoned by the President and released after relatively short periods. Most of the investigations against soldiers who kill Palestinians are concluded without indictment.

For the Palestinians, therefore, there is no tension between their moral evaluation and their practical stand in the negotiations. They think the Palestinians should not have been in prison to begin with, but there is no question in their eyes that they should be released now that a process towards peace has started. Their continuing imprisonment is, therefore, a persistent reminder of the fact that 'Israel is still the controlling power, and that nothing has 'really' changed. More than that, some of these prisoners are the natural leaders of the new Palestinian entity. They were involved in the Palestinian struggle, and 'earned' their leadership status by hard work, charisma and determination. It seems strange that the people now move towards self-determination without acknowledging their debt to these leaders and soldiers, and without recruiting them into the new emerging governing elites. In the Palestinian context, their absence may also be a serious factor in tensions between 'local' and 'Tunis' leadership. Last but not least, the release of the prisoners is a tangible benefit of the change that the Palestinian leadership can present to their people. As popular support for the agreements dwindles, and as economic benefits take longer to materialize than the parties hoped and expected, the need to show progress on the release of the prisoners grows.¹⁷

For the Israelis who support the peace process, there is a tension between heart and head. They understand that peace negotiations and continued imprisonment of those who fought to achieve independence for their people are incompatible. On the other hand, it is not easy to let convicted prisoners, especially killers, go. There is a strong sentiment which sees their release as an offence to the victims, as a serious additional violation of the victims' right to life.¹⁸ There is something very upsetting in seeing those who willfully took the life of one's dear ones leave their prisons as welcome heroes.

The release of killers presents more than a psychological difficulty. Within the realm of principles, such action creates a tension between the idea of right desert and accountability for one's deeds, and the understanding that a radical change requires the willingness and the ability to look forward and let bygones be bygones.¹⁹ It is interesting to note that there are situations of transition in which people who used violence against the dictatorship are not released after the democratization.²⁰

Clearly, no such tensions exist for those Israelis opposing the process.

The Israeli picture is made even more complex by the fact that many are not sure that the agreements will be effective. Release of prisoners, especially those committed to violent action and having the competence and the know-how to perform it, may lead to more murders committed by these people themselves. This fear is strengthened by the fact that the Palestinian demand for release covers members of all groups, including those - like Hamas and The Islamic Jihad - who voice a political objection to the political process and are not willing to condemn terrorism or even to declare that they will give it up. On the contrary - as we have seen -they well know that terrorism is an effective tool in democracies, and Israel's vulnerability on this score creates a serious incentive to use terror to defeat the political process.

Israel's dilemma is highlighted by the fact that the 'transition' may take-some time. When Palestinians are killed during terrorist activity now, they are referred to as 'shahids' by many of their compatriots. Palestinian change in relation to Palestinian terrorism is slow and incomplete. To many of them, there is a continuity between those who killed before the agreements and the 'new' terrorists. But some change is visible; Palestinian leaders now openly condemn acts such as the blowing up of the bus in Tel-Aviv and the shooting in Jerusalem in November 1994. In the aftermath of the murder in Beit Lid in January 1995, Arafat publicly affirmed that there will be a Palestinian effort to curb Palestinian terrorism. These moves may well reflect political constraints rather than changed moral perceptions. If condemnation and some efforts to fight terrorism are not demonstrated, the process may come to a complete halt. Nonetheless, acting against organizations committed to terrorism will probably create within Palestinian society a more nuanced attitude towards violence as a political tool.

Within Israel, approaches to violence against Palestinians already vary. However, with the intensification of Palestinian terror, the responses from the Jewish street are far from re-assuring. There are open calls for counter-terrorism, and the voices saying that this conflict is unlikely to be won by force are not much stronger than they were before the agreements.

Some Israelis resent the fact that there is no parallel on the Palestinian side to the massive release of prisoners by Israel. They see this as yet another proof of the weakness and irresponsibility of Rabin's government. Release of prisoners is indeed an area where most of the burden -- political and emotional - lies with Israel. However, this is because of the asymmetry between Israel and the Palestinians which the political process is aimed at changing. It is true that the Palestinians do not have prisoners they can release. But the process involves a change of perspectives on their part which is no less radical than that required from the Israelis and which makes the release of Palestinian prisoners necessary, almost inevitable.

Moreover, Israelis cannot expect Palestinians to be harsher on their terrorists than we were on 'ours'.²¹ As mentioned above, many Israelis are quite ambivalent about Jewish terrorism. Many Jews regard Goldstein as a hero and a saint.²² How is that different from seeing Palestinian 'terrorists' who die in action as shahids!²³ At present, there is much more Arab terrorism than Jewish terrorism.²⁴ Throughout the occupation, more Jews were murdered in terrorist attacks than Palestinians in Jewish terrorist attacks. However, the number of Palestinians killed by Jews in 'non-terrorist situations' during the occupation is much larger than the number of Jews killed by Palestinians in the same period.

This, in fact, is one of the changes introduced by the process. It creates symmetry where until now there was total asymmetry, and it highlights an inner tension that now exists for both communities. Policing violence committed by members of your own group against members of the other group is extremely hard. There are strong incentives to either do nothing or to treat these people very leniently. The peace process has created an independent incentive to fight one's own terrorists where before there was none or a weak one. Goldstein and Hamas do not want merely to hurt and kill Arabs and Jews respectively. They want to kill the political process itself. The leaders of the two peoples who have made a commitment to the political process now have to negotiate the very delicate line between undermining the effort to de-rail the process without losing the support of too large a part of their community. Moreover, the peace process creates, for both parties, an internal ambiguity within the security forces. Until now only Israel had security forces, and they had a relatively simple task; their role was to fight the enemy. And the enemy usually came from the other group. They enjoyed support and respect in their group for fighting that enemy. They usually got away with violating the rights of innocent Arabs, who were all seen as 'others' and 'potential enemies'. They did not use harsh measures against violent Jewish groups. It was a bad situation, with an attractive simplicity. The simplicity is gone now not because of a moral conversion, but because it has become the interest of both parties to control the excesses of their own people.²⁵

Clearly, the attitudes described above affect law enforcement and the protection of human rights. In addition, a few legal questions emerge. All concede that the issue of release of prisoners is primarily political, and is determined in political negotiations by the government. Once a political decision of release is made, the meted sentence must be mitigated so that it is legal for prison authorities to actually let the people go. This may seem as a mere formality, but it may not be. The large majority of prisoners are held by the military and those charged and convicted were tried in the military courts. The military commander has the power to mitigate punishments and the Israeli High Court of Justice (HCJ) is unlikely to intervene.²⁶ In the rare cases in which Palestinians were charged and tried by Israeli courts, the presidential power of pardon will be invoked. It is unlikely that the president will refuse to pardon in such circumstances, or that the HCJ will intervene.²⁷ The political authorities can thus ensure that whatever they decide to do on this issue will indeed be done, and they are unlikely to encounter opposition from either the President or the Court.²⁸

Is this situation right? Shouldn't there be a more serious involvement of the administration of justice system in such decisions? Are the effectiveness and respectability of the judicial system not hurt if its decisions can be set aside by political negotiators? Should prisoners, especially murderers, be released without any public input or debate? In the past, the HCJ has protested when the President used his pardoning power, for political reasons, to mitigate a punishment imposed by the court soon after the court's judgement. The current president has voiced misgivings about some aspects of the pardoning power, especially the power to mitigate life imprisonment for murder to a term sentence (which entitles the prisoner to leave and to a deduction of a third for good behaviour). Why should ideological offenders be released through pardons that are mere rubber stamps to political negotiations?

Indeed, a group of right-wing academics has called upon senior members of the judiciary in Israel to do all in their power, including resignation, to prevent release of Palestinians convicted of murder. The rhetoric is apolitical and professional. While it seems clear that the move is politically motivated, the plea does attest to a real problem.

Israel sometimes makes the release of prisoners dependent on their signing a statement declaring support of the peace process or an undertaking not to use violence. One may question the wisdom of this decision. But is it legal? Does it violate the human rights of the prisoners? A lawyer within ACRI (The Association for Civil Rights in Israel) argued that the practice was not legal, since it violated the prisoners' right to freedom of conscience and belief. I beg to differ. Prisoners whose freedom was attained through a political process do not have a human right to be set free. Presumably, the court that judged them operated lawfully, and the punishment is legal. Nothing in the political decision to release the prisoners casts doubt on that. If one does not have a right to be set free, the power granting freedom may demand that some prior conditions are met. However, I think there is a difference between requiring a declaration of support of the process, and requiring an undertaking of non-violence. People should have the political freedom to express their political opinions and to change them. I do not think it is legitimate to ask a person to make a commitment to have a certain attitude towards the process even if it is the process that obtained his release. On the other hand, I see no problem (although I see also no great gain) with asking prisoners to sign a declaration of non-violence as a condition of release.²⁹ However, it is not clear how one can check these observations. A prisoner may refuse to sign. Israel may refuse to let him go. The issue can then be discussed politically. But it seems that the prisoner cannot demand in court that he be released despite his refusal to sign (or that he can demand to be released even if he did sign, for that matter). Similarly, I doubt that he can challenge the requirement to sign as a violation of his rights.

Which leads me directly to a related question: Once Israel has released all (or some) of the Palestinians who took the lives of innocent, helpless others, what should it do with the small number of Jews who were convicted of murdering Arabs and are now still in its prisons? All but marginal groups in Israel condemned these acts of violence.³⁰ In the past, attempts to enact legislation designed to pardon these prisoners were defeated. Even after the exchange with Gibril's group, in which thousands of Palestinian prisoners were released to obtain the return of a few Israeli soldiers, pressures to pardon these prisoners were refused. The reason always was that an amnesty might send the message that taking the life of Palestinians is something we treat as different from any 'regular' murder.³¹ Should the beginning of the political process and the release of Palestinian murderers change this approach?

On the one hand, the answer seems negative. Why should these individuals benefit from the fact that a process of reconciliation and appeasement has started? Clearly, we are concerned with those whose actions contributed to the violence and the desperation of the conflict. On the other hand, the release of Palestinian prisoners as a part of the process reflects more than the acceptance that the political process cannot move forward unless this is done. It reflects a deeper willingness to 'open a new page' on the violent phase of the conflict. It seems permissible to open this new page symmetrically. When those left in prison are anyway the more marginal elements of Jewish violence against Palestinians, their release despite the fact that they have no lobby fighting for them might, in fact, be an act of public decency.

We should recall that due to the specific structure of the negotiations here, Palestinians do not have the power over those who allegedly violated their human rights before the transition, be they settlers or security forces, whereas Jews have no new incentive to police and punish the past. Thus a problem that often exists in periods of transitions is muted here by the unique structure of the process.³²

II. Moral and Legal Aspects of 'Collaboration'

People seen by Israel as terrorists were seen by many Palestinians as freedom fighters. People seen by many Israelis as heroes, fighting in special army and Security Service units, were seen by Palestinians as the paradigm of humiliation and occupation. The political process does not require a change of these perceptions (although it may require some willingness to see the other side's perspective), but it requires their disregard in some actions, e.g. the willingness to release prisoners, or the willingness to cooperate now with those regarded until very recently as bitter enemies.

There is no similar tension between changing perceptions and action concerning collaborators, although the moral and legal challenge they present is serious and urgent. Occupation, especially a prolonged one requiring a very close monitoring of elements within the population under occupation, must rely on collaborators. However, neither party likes collaborators or respects them.³³ For the Palestinians they are traitors, motivated either by fear, by greed or by political naïveté. For the Israelis they are an indispensable source of information, or an opportunity to manipulate the population politically by using Palestinians to promote their own goals.

Some of the violence in the territories has always been an inter-Palestinian matter. People suspected of being collaborators were often attacked and sometimes brutally killed. There was some debate about the human rights aspects of these exercises of field justice. Clearly, there was a denial of due process. Some argued that the punishment was anyway not proportional to the deeds, and that the principle of legality was offended. There have been claims that at least in some cases, the absence of due process did result in violence being used against the 'wrong' people.³⁴ Israel, of course, tried to protect 'its' collaborators. Such protection, however, proved impossible in many cases. And often the collaborator's effectiveness required that they remain in their homes at least until they were 'burnt'.

What will happen to the collaborators once Israel withdraws from the territories? Should Israel guarantee their life and rights against 'popular justice'? Can it do it? How should Israel seek to do it?

Some of the collaborators want to stay where they are. They either hope their actions are unknown, or that with time they will be reintegrated into their society. Possibly, there could be an agreement regarding their security and a guarantee by the Palestinian Authority not

to harm them, and to protect them against attempts to take revenge by individuals.³⁵ The tendency to 'purge' and to punish those seen as collaborators with the enemy is universal.³⁶ It is well known that the process claims innocent victims,³⁷ and that even those who were indeed collaborators are often punished, sometimes killed, despite the fact that they could not have been convicted of any offence. Seeing to it that people suspected of collaboration enjoy due process is a serious problem for the Palestinians to deal with.³⁸

Other collaborators are too afraid to stay among the Palestinians. Israel grudgingly accepts responsibility.³⁹ Many of them were given Israeli citizenship or at least are allowed to reside in Israel. However, since this is a rather large group of people, who are despised and feared by Israelis, both Jews and Arabs, relocating them has become a serious problem.⁴⁰

This is not only a serious practical problem. It creates a different kind of tension between past and present. These people (someone mentioned a figure between twenty and fifty thousand once the West Bank is evacuated) live in a nowhere land, outside their old community and with no welcome into another.⁴¹

Notes

1 In the concept of law. (Oxford. 1961). H.L.A. Hart emphasized these elements of legal stability when he claimed that law (as distinguished from regimes of terror) presupposed acceptance on the part of the population.

2 Austin defines law as a command accompanied by a sanction. In justice to Austin one must recall that he defines the sovereign as the entity which does not obey anyone, and to whom the population has a 'habit of obedience'. This habit may in fact be based on more than fear alone.

3 In terms of legal theory, this fact creates a problem for all sophisticated theories which build on the perspectives of 'participants' rather than 'observers'. O.W. Holmes was laulted because he proposed a 'Bad Man Theory of Law' while not all individuals were 'bad'. Similarly, if one's sole point of view is that of segments of the population subject to law. One’s theory of law must be distorted. The very same legal system will be seen as a tool of oppression by its victims and as a source of legitimacy by those using it. This may be an argument for observers' theories of law, or for an acknowledgement that, on some levels, a unitary description of a legal system may be impossible.

4 One of the great attractions of a military victory is that it may seem to make this long and complex process redundant. But this may be an illusion: A stable peace usually requires more than a (temporary) military superiority.

5 It should be noted that this requirement is minimalistic. It does not contain as a condition the requirement that parties agree on the history of the conflict, or even on their goals within the negotiations.

6 See the comprehensive discussion in S. Cohen, 'State Crimes of Previous Regimes: Knowledge, Accountability, and the Policing of the Past', Law and Social Enquiry, (March 1995).

7 See e.g. the analysis of J. Sklar, Legalism: Law, Morals and Political Trials, (Harvard U.P., enlarged edn, 1986).

8 In the case of the Nuremberg trials there were those who sought to avoid this difficulty by denying the legality of German laws during the Third Reich. Others who justified the trials argued that it is better to concede the legality of the norms, to acknowledge the retroactivity of imposing liability in such cases, and to justify it by the nature of the atrocities committed by the Nazis. Cf. The Hart-Fuller debate, Harv. L. Rev (1958).

9 For a discussion of these problems in the context of East Germany see The Past is Another Country', The Economist, 4 February 1995.

10 More accurately, the factors that created the transition and made it inevitable are very much there, so there is no real option of reversing the change. 11 In some of the situations (e.g. Chile), the newly elected democratic regime is not powerful enough, and depends on an army that was involved in the human rights violations that preceded it. In such situations, the new government may fear that too much retroactive law enforcement may undermine its stability and the chances of democracy.

12 I thank Eyal Benvenisti for drawing my attention to the fact that many other groups are affected. An example is IDF soldiers, who were used to a certain way of treating both Jewish settlers and Palestinians, and are now requested to change their attitudes. Their reported anxiety suggests the importance of our theme here.

13 I must confess I am writing this paper not as an academic. Rather, I am writing it as an individual who believes that a negotiated compromise is the only hope for the region. I was becoming more apprehensive as I was writing the paper. Unfortunately, it now seems (May 1995) as if the process is indeed stagnating to an extent which is threatening to its prospects.

14 The complexity is highlighted by remarking that some of the Palestinians are held for killing Palestinian collaborators, and the group of the Jews discussed in this context includes, for example, the man who threw the hand grenade that killed a man and injured a few in a 1982 Peace Now demonstration demanding that someone be held accountable for the Sabra and Shatila massacres.

15 The complexity of the issues may be exemplified by the fact that it is very difficult to say anything factual on these issues without being challenged. These statements are based on the findings of the Shamgar Commission of Inquiry Report.

16 It is interesting to note that it was Hamas, the more radical and fundamentalist group, with a clear religious-political aspiration to the whole of Palestine, that at the first stage limited themselves to violence against Israel in the territories and against the security forces.

17 In the beginning of January 1995, after some lull in terrorist activity against Israel, the issue of release of prisoners got very high visibility. Nabil Sha'th announced that he would not participate in negotiations unless more prisoners were released. He declared that the peace process was incompatible with the fact that 6000 Palestinian prisoners, sent by their people to various missions, were still prisoners. It seemed as if negotiations were indeed leading towards the release of more prisoners when the Beit-Lid suicide-murder changed the situation once again.

18 The problem may be highlighted by the fact that Israel has already agreed to release Palestinians who were convicted of murdering other Palestinians. The group hardest to release are not 'murderers' but those who killed Jews in terrorist activities. 1" Both elements of

19 internal tension exist in many situations 19 of political transition. The Middle East situation has the complexities of negotiated transitions, in which the old regime has the power to ensure some degree of amnesty for its own officials. But it has the additional complexity that the political process itself requires impunity to be bestowed upon convicted Palestinians who committed murders. Those tortured and killed by the military juntas were victimized because they protested and seemed to be a threat. They did not use violence themselves.

20 This is the case, for example, in Chile.

21 In fact, before some legitimate rule is established among the Palestinians, Arafat's ability to deal with Palestinian terrorists must be weaker than Israel's ability to deal with its own offenders.

22 in a ceremony to commemorate a year since the massacre, a few hundred persons gathered to pay Goldstein their respects. On his stone he is described as the 'saint', some of the participants openly endorsed what he did.

23 There is also a symmetry between the Palestinians' seeing their victims of the conflict at large as shahids, and the Jewish habit to affix 'hashem yikkom dammo' to the names of Jewish victims of the conflict.

24 This is the reason given by the court to justify its upholding the decision of the military authorities to blow up the family house of the man who exploded himself aboard the Dizengoff bus. When people asked that Goldstein's house be blown up, the State replied that it did not ordinarily blow up the houses of terrorists who died, so as not to impose punishment on the family of the offender. When asked why the Arab family was 'discriminated' against, the court responded that the needs of deterrence were not as powerful among Jews.

25 This effect exists not only for Palestinian security forces but for their human rights organizations as well. Gone are the days in which it was easy to concentrate all efforts in documenting and fighting the violation of rights of all Palestinians by Israel. The new era means that some of the energy has to be directed against human rights violations by the Palestinian Authority. At the moment this may be an all-Palestinian affair, with its own complexities. Soon it may become a question of protecting the human rights of Jews as well.

26 See HCJ 1414/91, Federman v. Minister of Defence PD 45 (2) 774, where the court indicated that it will not intervene in a decision to release prisoners.

27 The presidential power was invoked in some of  the cases included in the Gibril exchange transaction. There was an attempt to stop the release (see note 26 supra), but the court refused to intervene. Israel's current President supports the peace process. It might be interesting to think what would have happened had the President been committed to positions and visions inconsistent with it.

28 This paper was initially written in October 1994. In the meantime, in the wake of terrorism against individuals in Tel-Aviv and Beit Lid, the President issued a call to stop the process and re-think it. On the other hand, Palestinians present the issue of release of prisoners as urgent and critical. The present President, Mr. Ezer Weizmann, has already expressed an independent position about the use of his pardoning power. What seemed a far-fetched theoretical possibility three months ago may seem now a plausible development.

29 It is interesting to note that the Israeli authorities did just that in the case of Uddi Adiv. In his case it worked, Udi Adiv left the country and all political activity.

30 The cases which were more controversial, e.g. the murders by the 'Jewish Underground', were treated differently. All those convicted as members of that group, including the murderers, have been released a long time ago.

31 One may point out, however, that this message was indeed sent by the early pardons of those convicted in the Kfar Kassem killing and those of the J