“Transitional Justice” in Israel/Palestine? Symbolism and Materialism in Reparations for Mass Violence

| January 2015
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shutterstock_114847849“Reparations” for the victims of mass atrocity and other large-scale human rights abuse are always high on our agenda as advocates and practitioners of “transitional justice,” counseling legislators and policy-makers around the world.* We understand these measures to be both “material” and “symbolic,” such as (respectively) monetary compensation for lost wages while unlawfully imprisoned and formal apology for official wrongdoing. Material reparations seek to enhance the wealth, health, and educational opportunities of victims. Symbolic reparation strives to express and communicate respect for the human dignity of victims, through acknowledgment that they have been wronged. Though defended in terms normative and philosophical, symbolic remedies serve purposes chiefly ‘sociological’: to raise the public stature of victims, once universally denigrated, and so accord them a more esteemed place among their fellow citizens.

We globe-trotting consultants adamantly insist that these two types of reparation are distinct, must never be conflated nor traded-off against each other. And yet, defeating our well-meaning counsel, our real-life experience with civil reparations reveals precisely how intertwined—confusingly, maddeningly so—they become at times. To observe this in practice, let us consider the question (unrealistic for now, admittedly) of what types of reparations might someday ensue from a peace agreement here in Israel/Palestine.

Those of us who sometimes advise on these matters rightly exhort that each type of reparations reinforces the other, renders it at once more meaningful to victims and politically legitimate to the international community. Symbolic remedies without accompanying material ones are “cheap talk,” victims report. Consider Indonesia, for instance, whose military for long years perpetrated massive crimes against humanity, causing great suffering to many thousands, still wholly uncompensated.1 The events themselves nevertheless receive fulsome verbal acknowledgement in the dust-gathering publications of that country’s commission of inquiry.2 Even South Africa has delivered embarrassingly little in this department, notwithstanding the vigorous urging of property restitution and other material reparations by that country’s much-acclaimed Truth and Reconciliation Commission.

Victims sometimes tell us that symbolic response without material accompaniment are in fact worse than nothing at all. A conspicuous “nothing” would at least be free of duplicity. It would more candidly disclose the hypocrisy of national leadership in refusing to act upon the abundant evidence of official illegality publicly disclosed by the reporting of its very own truth commissioners. One might even say that material reparations harbor a certain ‘symbolic’ significance within themselves: they lend credibility to such conventionally symbolic remedies as public apology and the annual, ritual commemoration of murdered victims. When money accompanies these other measures, it registers seriousness, symbolizes sincerity.3

Conversely, material remedies without symbolic, i.e., without measures acknowledging responsibility for grave misconduct, are simply “blood money,” intended to purchase victims’ silence.4 So decry these suffering souls, occasionally declining the offer, in fact. Look at Brazil. After thirty years of democracy, only last month did there finally appear a truth commission report, notwithstanding some two billion dollars in state compensation over many years to tens of thousands of victims, chiefly civil servants wrongly discharged for their alleged, “subversive” political associations.5

From one national experience to the next, as victims consistently recount their ambivalence (even disdain and disgust,6 at times) toward these one-sided programs, it becomes clear that either type of remedy without the other is insufficient. In philosophical idiom, victims frequently view their material and symbolic interests as incommensurable: no amount of attention to one may truly substitute for wholesale inattention to the other. Indeed, a government’s offer to this effect—supplanting money for symbols, or symbols for money—so profoundly misunderstands the genuine stakes as to risk aggravating the initial disagreement, and impede its satisfactory settlement.7

Where there are many victims and their dissatisfactions grow intense, winning sympathy from fellow citizens or foreign donors, imbalanced reparations programs of these sorts also regularly prove unsustainable, along initial lines, for very long. Even when acting under international court order,8 national leaders like to take political credit for offering such programs; so these are publically much-touted. What they splashily claim to accomplish therefore cannot help but call glaring attention to what they clearly decline to touch. Pressure sometimes accordingly builds to fill in the gaps, supplement existing measures with further remedial components that, until then, have been unduly slighted or overlooked entirely. Thus, for reasons both theoretical and practical, normative and prudential, a certain happy reciprocity has developed between symbolism and materiality in national responses to mass atrocity throughout the world.

We ostensible experts nonetheless insist that the purposes and methods of each type of civil reparation remain distinct. Each offers a separate instrument in the policy “toolkit,” as we modestly describe and market our wares. Policy-makers should construct programs of material reparations, for instance, to redress demonstrable damage to material interests alone. Symbolic remedies cannot fill those shoes, however scarce a country’s financial resources. Nor vice versa.

We rarely recognize, however, that the interests of victims do not fall inherently into either neat, conceptual cubbyhole; nor do we appreciate that it is therefore impossible to deduce a particular class of remedy from a given injury. Many injuries to particular concerns and interests—in land, the most obvious example perhaps—may be interpreted in either way. “Norm entrepreneurs” will regularly work to re-encode an issue from material to symbolic, moreover, or in the other direction, as suits their immediate political objectives.9 Once thus redefined, rhetorically re-encrypted, the victims’ interest in question will then, once abrogated, require a different species of remedy—previously symbolic, now material, or the reverse. (Examples to come.)

This greatly complicates how we must approach and negotiate the remedies attendant to political transition, from war to peace or authoritarian to democratic rule. Recent social science strongly suggests that most people are far less willing to compromise with their adversaries on issues and interests construed as “sacred” than on those taken as material in nature. “Sacred values are defined,” in these studies, conducted in several countries throughout the world,10 “by a taboo against measuring moral commitments along an instrumental metric.”11 Employing this understanding of the term, scholars have sampled Palestinians and Israelis, for instance, concerning possible trade-offs on issues relevant to any future peace agreement.12 National leaders of both groups often expressly describe key policy goals as “sacred” to their members.13

People will make concessions on sacred interests and issues of concern, but only in exchange for like concessions from the other side of the political barricades.14 If the opponent then adds a material incentive as well, people feel that this taints the prior concession on nonmaterial matters. Thus, in several experiments, respondents were given a choice between a simple “sacred-for-sacred swap” and a swap on the same terms, but with a pecuniary benefit then added to their ledger by the other side. Throughout the world, people far preferred the first option to the second. In their judgment, the intended material “sweetener” soured the deal.

These discoveries provide a crucial caveat to the common view, recently expressed (with respect to the conflict here) by prominent Israeli philosopher Moshe Halbertal, that “when you bring in the religious dimension, it absolutizes the conflict—you can divide land…but the sacred is indivisible.”15 The findings in social psychology suggest however that, though perhaps “indivisible” (whatever that may precisely mean) the sacred nonetheless proves—in a novel, curiously counter-intuitive sense—surprisingly ‘exchangeable,’ i.e., as long as proposed transactions do not dubiously conjoin matters material with those encoded as sacred.

Avoiding that conflation is precisely what often proves so infuriatingly difficult, however, as I will show in relation to the Israel/Palestine conflict. Because any given interest or issue of concern is susceptible to recoding, that issue/interest becomes an ever-moving target for peace negotiators. And while in motion, it is neither entirely material nor symbolic, but some uncertain amalgam of the two. The barter of sacred for sacred is also decidedly more difficult to negotiate and implement than that of material for material. Money is fungible, and the terms of trade in land—this piece for that—are normally easier to establish, as Halbertal intimates, than for interests represented and defended in the language of personal identity, ultimate values, divine or natural law. The upshot is that those who, for whatever reason, wish to prevent a peace agreement with their enemies, or simply to extract better terms in some such deal, regularly seek to recode interests widely conceived as material into terms now to be read as sacrosanct. Their success in so doing will prejudice possibilities for mutually beneficial trade-offs at the bargaining table.

shutterstock_122694223Those prioritizing peace will often seek to do the opposite, no less adamantly. To this end, for instance, did Israeli Prime Minister Yitzhak Rabin in 1993 suddenly abandon the longstanding taboo within Israeli politics on any meeting with Palestine Liberation Organization Chairman Yasser Arafat. What had been a near-unanimous national consensus gave way, nearly overnight, and in the ensuing Oslo peace negotiations, to a more materialist coding of the stakes in issue: the practical benefits of bargaining with a man hitherto deemed morally ‘untouchable’ outweighed the cost of adhering to the long-sacred principle, “never negotiate with terrorists.”Between those seeking to “sacralize” an issue and those de-sacralizing it, he who wins the struggle over ‘semiotic branding,’ if you will, much enhances his chances of seizing the political prize. To take these social-theoretical subtleties on board would seriously unsettle how we currently understand the stakes and possibilities in many countries today earnestly clamoring for transitional justice. How then must we revise our standard portfolio of policy guidance to diverse foreign leaders in light of these elusive yet inescapable vicissitudes, requiring as they do—for their adroit avoidance or clever exploit—the most fine-grained of local knowledge?16

The intractable conflict in Israel/Palestine offers almost too congenial a setting in which to examine these vexing questions. Some have argued that it is essential to treat the symbolically sacred aspects of this conflict as equal in significance to more strictly material ones.17 This contention, though a step in the right direction, does not go nearly far enough. For it presumes a stable, real-life demarcation—possible and desirable—between the two domains. It assumes that we may safely regard the line between them as relatively stable, well-settled for any relevant length of time.

There are two reasons one might so suppose. Some assume that the location of this line dwells in the essential nature of things: “land just is material,” a certain ingenuous view would have it.18 Others figure instead that, though humanly drawn, the line between what maps out as material and what as symbolic lies at a point in space upon which so many people have so long agreed that we may take it as a geographical “given,” a fixed point for purposes of reparations policy.

This cartographic consistency is an illusion, however, I shall show. The regularity with which this conflict’s partisans, on both sides, continue to reinterpret the issues, recode their interests in play, emerges strikingly from any close inquiry. This pliability ensures that seemingly ‘symbolic’ issues often meld imperceptibly into and out of more ‘material’ ones—the quotation marks now clearly essential (though implicit hereafter).

Where it is impossible, in practice, to convincingly disentangle the two sorts of issues/interests, there will never be any enduring agreement on those of land, security, and money—long assumed more substantial, weighty, obstructive to peace—without satisfactory solutions to “the symbolic issues” as well, more or less simultaneously. It also makes little sense to insist, as conventional wisdom in transitional justice consultancy now does, upon the analytical distinctness of material versus symbolic considerations. In real-world conflicts of any duration, the key action often lies precisely in the skirmish to position or reposition a given issue/interest from one side of the line to the other, with all that this entails in revised understandings of the remedies most suitably responsive to asserted rights-violations. (I’ll offer several examples in a moment.)

What I have just suggested stands at odds with how each side to peace negotiations between Israelis and Palestinians has approached the relation between the symbolic and material spheres of social life. Negotiators might have chosen, as certain academicians still encourage,19 to seek peace on the basis of a common historical understanding of what had gone wrong, as a kind of epistemic predicate for setting it right. They could have asked: whose collective narrative is closer to the truth? On each side, who are the true victims? The answers would have evident implications for delineating the proper terms for civil reparations. Such answers would also allow us to articulate and transmit a shared story about intersecting pasts, with a view to facilitating the task of living together upon this same land.

Preliminary conversations among negotiators quickly revealed, however, that because each party viewed issues and interests through the lens of its hallowed national narrative, nothing could be relinquished without intolerably besmirching its escutcheon. Plans for future peace had therefore best proceed with only a minimum necessary attention to perceived wrongs the past.20 Negotiators concluded that they would never find any nontrivial, common denominator in the conflicting characterizations of central events, notably the State of Israel’s creation. One side would insist on describing these in terms of a joyously triumphal, long-awaited ingathering of a fragile national group, indigenous to the area, preserving for many centuries its memory of forcible displacement; the other would angrily retort with a woeful tale of its own violent dispossession, at the ruthless hands of colonizing settlers, from territory consecrated through hard labor by generations of revered ancestors. Both bargaining partners determined that to engage such emotionally-charged questions, integral to each side’s sense of wounded identity, would only further exacerbate a controversy not altogether lacking, shall we say, in a certain modicum of passion.

My argument sits uneasily too with standard learning in bargaining theory. That field holds that negotiators must strive to disaggregate gargantuan conflicts into component parts, confronting each discretely, “on its own terms.” Difficulties in resolving one sub-issue will not then preclude agreement on others. With advancing progress from each to the next, from simpler to harder, mutual trust begins to grow, and momentum builds for scaling higher hurdles. This has been the strategy recently employed in Colombia, for instance, with notable early success in efforts to negotiate an end to that country’s civil war,21 nearly as longstanding as the Israel/Palestine conflict itself, and having killed far more people.22

Yet to maintain that a given issue should be treated separately from another at times wrongly presupposes that there exists a convincing way to satisfactorily disentangle the two, and that we face genuinely distinct issues at all, rather than merely one of uncommon complexity, at times indissolubly conjoining elements material and symbolic in ever-altering admixture. This would mean that, in the present circumstance at least (some others too, very likely), the effort to hold off discussion of symbolic reparations programs until after resolution of more hard-core material issues diminishes prospects for agreement on the latter. In short, without a peace agreement on shared modes of symbolization, there will be no peace at all.

The psychological studies I have mentioned warrant further reflection here, in their conclusion that what each side to intractable ethnoreligious conflicts most wants is that the sacred character of its concerns be acknowledged and negotiated as such. The only way for each party to effectively convey such acknowledgement to the other side, the research suggests, is to concede on issues to which it too ascribes, and is known to ascribe, rich symbolic significance, i.e., to offer in return something recognizably sacred to itself. This means that effective peace negotiators must concern themselves with identifying which issues each side currently codes as sacred, and therefore “non-negotiable,” if only presumptively, until the other side puts its such issues up for negotiation.

In the Israel/Palestine context, how might one imagine an exchange of symbolically sacred interests on one side for commensurable interests on the other?

It would require, at very least, a solemn Israeli acknowledgement of significant official wrongdoing in 1948, greatly (though perhaps not exclusively) contributing to the Palestinian exodus. That acknowledgement of what Palestinians consider sacred to their national identity would then have to be publicly memorialized and collectively narrativized in ways now standard to the repertoire of transitional justice, such as monuments to victims in public squares, restoring Arabic names to public streets, and revision of school history textbooks.23

In exchange, Palestinian leaders would have to formally acknowledge, symbolically register in some suitable manner, a proposition sacred to Israeli identity: that the creation of a State of Israel represented a legitimate exercise of national self-determination by the Jewish people, a people equally native to this land.24 That would be implicitly to abandon an assertion long sacred to Palestinian narrative: that Zionism was no more than a colonialist movement,25 particularly successful because particularly brutal. It may be necessary as well to formally acknowledge that Palestinian entities and individuals committed war crimes against Israeli civilians. Experience elsewhere is instructive here: in persuading South African whites to accept the end of apartheid, it was very helpful that the country’s new black leadership ultimately agreed to condemn—through its influence upon the country’s Truth and Reconciliation Commission—the war crimes of its own members, fellow militants in the African National Congress.26

The aim of such a symbolic swap, as it were, would be to persuade publics on each side to acknowledge the “legitimacy” of the other’s national narrative without having to “agree” entirely with it. A legitimate but unpersuasive narrative is one adjudged “true as far as it goes,” a common expression within ordinary language well capturing this singular mode of reckoning. Such a narrative, though not preposterous, remains incomplete in important respects, for it excludes certain relevant facts or considerations, and is therefore ultimately unconvincing in its most important inferences.

A more convincing account would have to continue a bit further, incorporating elements reflecting more sympathetically on the opposing group’s own relevant experience of victimization and attendant suffering. This revised narrative, enlarged in temporal and geographic scope, would invite a more generous appraisal of that group, and encourage remedial policies reflecting such reappraisal. The modified story would lack in partisan certitude, the sort enshrined in what each side initially offered and demanded of the other. This second, more ‘accommodating’ sort of recounting would require that those authoring the reports of truth commissions, in particular, seriously entertain and engage “conflicting views that fall within the range of reasonable disagreement” and “express respect for differing points of view without either endorsing them as clearly correct or rejecting them as clearly incorrect.”27 There is nothing particularly post-modernist, one might add, in so complaisant a narrative strategy, as an instrument for constructing a sense of national memory at once shared and multivalent. The quoted wording is that of two leading liberal political theorists.

It may seem a minor concession, to those unfamiliar with the history of this conflict, for one group to accept its antagonist’s narrative merely as legitimate, in this sense. Yet to take even that step here is already to de-sacralize one’s own narrative, by opening it to impartial discussion without emotional defensiveness against well-reasoned challenge. I take this to be the notable achievement, albeit short-lived, of the P.R.I.M.E. school textbook experiment in Israel, pairing conflicting Israeli and Palestinian narratives of 1948 on opposite pages of the same volume.28 That exercise left each group of children, Jewish and Israeli Arab, thinking in terms we may metaphorically describe as “secular.” Each departed with the view that our group’s position is correct, in the end, yet theirs is legitimate, in displaying some undeniable measure of significant empirical and logical support.29

It may be similarly auspicious that the very word “narrative” has crept into Israeli public discourse, including that of the country’s top military and security leaders, when comparing Israeli and Palestinian versions of past events and their present implications.30 This idiom harbors inescapable implications of interpretive plasticity, a notion deeply subversive to militants of all ideological stripes, resolutely committed to upholding their own preferred view of history.31 When we describe as “narrative” not only the other side’s version of events, but also our own, we tacitly confess to a measure of selectivity in picking and choosing—among a much larger class of pertinent facts and plausible interpretations—only those supportive of the partisan “case” we wish to press. A truly disinterested inquiry would attend more closely to that wider range of causal and moral complexity.

Having conceded even this much to one’s adversary—that we are both engaged in constructing narratives, each in our flattering self-image—one can no longer hold one’s ownsubstantive views in quite the same way. Questions that one had symbolized as sacrosanct, subject to taboo, requiring an attitude of unquestioning reverence, become intelligible instead in categories more profane (if never affectless, of course). This is most definitely not to say that what was long conceived as a near-apocalyptic struggle between unambiguous right and wrong agreeably morphs into just another reasonable disagreement about the scholarly interpretation of historical evidence and its uncertain relevance to more immediate concerns of the living. And yet, with such a de-sacralization, compromise does become somewhat easier over the terms of historical memory, now partly overlapping, at least, if never entirely coterminous (and destined to so remain).

This kind of compromise will establish no comforting, “harmonious closure,” in Dominick LaCapra’s term. Narration by any future Israel/Palestine truth commission, in particular, would have to admit some degree of irresolution and dissonance among alternative historiographies. Its published report would also studiously avoid any aim of a once-and-for-all, inter-group “healing.” It would seek instead, from each side, a posture toward the other, as LaCapra writes in another context, of “empathic unsettlement in the face of traumatic limit events…with one’s own unsettled response to another’s unsettlement never…entirely under control,”32 ours or theirs. A recounting of this sort resists the temptation to strive for any faux coherence, any myth-making meta-narrative.

It is unclear, however, whether a story so confessedly indeterminate in key respects—within whose capacious compass each former antagonist simply acknowledges the other’s account as legitimate—could significantly serve its essential purpose: securing an enduring end to longstanding violence, advancing “reconciliation” (in this limited sense). Yet this chastened notion of “truth” lies within more realistic reach, politically and epistemologically. In promising far less than many today demand from such commissions,33 it does not risk frustrating the expectations, often wildly exaggerated, of partisans and victim groups on both sides of recent violence. We in Western liberal societies, in any event, do not generally place great stock in shared symbolizations of ultimate values—nor in official, collective rituals for their invocation—to generate whatever measure of “mechanical solidarity”34 we consider essential to social cooperation. Thus, though symbolic remedies for victims of atrocity do play a unique and indispensable part in transitional justice,35 it is important not to place excessive weight upon their shoulders.

A related question is that of whether it may be possible for truth commissioners to write their country’s or region’s horrific recent history in a manner that at once acknowledges the state’s massive wrongdoing yet provides some meaningful basis for more than a smidgeon of collective self-affirmation. A story eliciting only all-round remorse and mutual recrimination is one that virtually no one wants to hear, not for very long, even as a ‘literary foil’ for an announced work in progress, gesturing at a more promising future.

And yet, within the very text and public testimony of a well-executed truth commission there necessarily emerges a more encouraging sub-text, a story about a ravished country or region struggling to rise from mass atrocity’s ashes. A natural way to embellish this account, it might seem, would be to integrate and accord symbolic pride of place to the story of active, organized resistance—whatever there may have been—to official rights-abuse. Few truth commissions undertake this task, however.36 This is presumably because it is rarely possible, with any verisimilitude, to recount an unambiguously glorious tale of meaningful moral struggle against overwhelmingly repressive odds.

Such resistance as may have occurred, as within military organizations whose superiors regularly ordered war crimes,37 has generally been de minimus. Alternatively, resistance members have themselves been too morally compromised to easily permit their canonization. That has been the case, for instance, with leading dissidents in several former communist states,38 as with many of the Latin Americans “disappeared” by former military regimes (victims, yes, but sometimes murderers too, or their accomplices, in pursuit of communist revolution).39 When such people are brought low, as in ancient Greek drama, their fate thus sometimes owes to internal moral frailties, not merely to others’ wrongs or unforgiving happenstance. Primo Levi’s notorious “grey zone”—occupied by those at once victims and accessories—has never been a congenial place to discover unadulterated heroes, those whose shining virtue in dark times provides compelling basis for the life-affirming mythologization often widely-sought, years later, when devising symbolic remedies.

Clear heroes and villains are always the chief dramatis personae of collective myth-making, a task properly falling to high commissioners within any new “regime of truth,” some might wryly say, even that of a constitutional democracy at peace. After all, with its stark chiaroscuros, the medieval genre of “morality tale” proves a far better stimulus to action, to the political change such commissions seek to inspire, than complex social drama, which today invariably renders both good and evil on each side to a given conflict, indeed often (as in classical tragedy)—in near-equal measure—within the central character himself. Sadly, it may be impossible to construct an effective, new “creation myth,” of national resurrection after fall from grace, except through so straightforward a tale of vice and virtue, with little room for the measure of moral or psychological complexity LaCapra desires.

Yet the very search for so simplified a story, for a sanctifying redemption saga to which all citizens should presumably adhere, is profoundly illiberal to the core. It is hence unworthy of official pursuit, certainly by those of us committed to constructing more liberal societies in places recovering from episodes of mass atrocity.40 This conclusion necessarily returns us to the very activity of truth commissioning itself—the sheer process of investigating and collectively narrativizing—as an undertaking of inherent value (irrespective of further results), through whose very efforts a country aims at “coming to terms” (as it’s often loosely said) with its horrible recent history. This can provide barely a brief epilogue, to be sure, perhaps only a long footnote, to a far bleaker chronicle. Even so, it is surely well worth the telling.

We think of truth commissions as a form of symbolic reparation. And through reparations of this general kind we employ the arts of cultural representation to effect a transvaluation of values, reproaching rampant irresponsibility among the high and mighty, rehabilitating the lowly, long-suffering innocents, scorned and mistreated. To this effect, with a view to a better future, we strive to rewrite a country’s recent history, celebrating and consolidating its commitment to values newly sacred, those of global human rights.

Yet almost inescapably, there emerges willy-nilly from nearly any thorough, fair-minded investigation into the truth of massive rights abuse a story rather more complex, its characters eluding naïvely moralistic dichotomies. In practice, the authors of these reports thus often reluctantly find themselves compelled to present their audience with a picture rather more ethically prosaic and painfully profane than these high-minded servants of truth first set out in anticipation of uncovering and depicting.

*       *       *       *       *

Everything I have observed thus far amounts to scarcely more than a few hypotheses—perhaps intriguing, guardedly encouraging—occasionally touching down at a few points in the more careful empirical findings of laboratory and survey researchers. There are two reasons, however, why this felicitous scenario of sacred for sacred transactions has not much come to fruition, nor is soon likely to do so.

First, there have been successful efforts on both sides of the Israel/Palestine conflict to ‘sanctify’ issues and interests long apprehended primarily in material terms. Second, and conversely, even the effort to ‘materialize’ issues hitherto sacrally understood may prove prejudicial to peace by strengthening the bargaining position of one or another side, disinclining it now to settle for material terms once considered satisfactory, terms previously offered by its counter-party. Thus, contrary to Halbertal’s widely-shared suppositions above, there is no inherent connection between secularizing a conflict (in the present sense) and de-escalating it. Those who engineer these respective cultural recodings seek to ensure that, if and when a peace deal eventually becomes realistic, its terms will be maximally advantageous.41 Yet the unintended consequence is to render the conflict intractable, prejudicing possibilities for such agreement at all.

shutterstock_196290800Let us start with the second of these recoding-types, i.e., from symbolic to material. A single, detailed example must suffice, though others might be chosen for the purpose.42 In recent years, the State of Israel has sought officially to reinterpret the post-1948 exodus of Jews from Arab lands, resignifying it from symbolic of sacred commitments to largely material in social meaning.43 The dominant narrative used to be that, once given the chance, most Mizrachi Jews migrated voluntarily, for love of Zion, the long-lost land of their ancestors. Today, the official narrative moves increasingly toward the view that these people fled, under conditions of virtual coercion, and were thereby wrongfully deprived of their property.

The objective of this narrative refashioning has been to enlarge the pile of chips on the Israeli side of the bargaining table, by increasing the range of materialist interests its hopes to pursue in negotiation. The anticipated argument will be that, if Palestinians are to receive compensation for their lost lands, so must these Jews, for their former properties in Arab states,44 from which they too were essentially expelled. Peace negotiators must therefore set-off and cash out the measure of Mizrachi loss against commensurable Palestinian claims. The same source of international law endorses the former no less than the latter.45

Palestinian representatives wholly reject this effort to enlarge the scope of relevant wrongdoing and compensable victimization. They observe that there is no defensible reason why poor Palestinians should be effectively forced to repay the sizable debts incurred by wealthier neighboring and regional states, over whose emigration policies they exercised no control and from which they only suffered. The Israeli effort to “up the ante” in this way will therefore only further imperil any possibility of an agreement acceptable to both sides.

De-sacralizing the issue here has done nothing at all to de-escalate the conflict, contrary to my armchair hypothesizing, reflective of conventional wisdom in the fields of bargaining theory and transitional justice. And if the Mizrachi departures were involuntary in substantial measure, as they surely were, then it would be natural and predictable for pressure to build within Israel for demands of apology from at least a half-dozen Arab states. The inevitable refusal to meet such demands could then only further stoke flames of mutual ire.46

The Israeli interest in “security,” from threat of Palestinian attack, today moves in the opposite direction, from secular to sacred, in significant respects. Israelis used to view the question, for instance, of whether to release an older Palestinian (above age 50), convicted for terror-related offenses, chiefly in terms of possible recidivism. Was it likely or not that the person, given his state of mind and body, would return to this particularly threatening form of criminality? To pose the question of security threat in this fashion is to conceive it in materialist categories: the potential, palpable harm that a given individual might be expected to inflict upon other persons and property, a question unsentimentally assessed in numerical probabilities.

Increasingly, though, Israelis sacramentalize the issue. They are inclined to view a criminal convict of this sort, irrespective of mental or physical decrepitude, chiefly through the social category of “terrorist,” a concept central within their political ontology. They observe that, by targeting Israeli Jews in virtue of their status as such, the Palestinian terrorist discloses his intention to attack the State of Israel itself. Thus, the nature of the security hazard he poses, even many years later, is not so much material as existential. For he continues to represent a threat to a value highly venerated by nearly all Israeli Jews: the State’s continued existence, in its specifically Jewish character.

Such a terrorist thus has “blood on his hands” in a particularly pernicious, uncleansable way, beyond that of an ordinary, garden-variety murderer, however numerous his victims. To release him into freedom would be not only to tarnish the shared memory of his particular Israeli victims, but to taint the very idea of Israel, for his very act violently repudiates its founding premise. As a form of sacrilege, then, the decision to grant him liberty—even when clearly at death’s door—threatens the country’s national securityin ways incommensurable with mundane statistical estimations of what he is or is not likely to do upon release.

It is noteworthy, though, that this revised, newly sacralized way of thinking about aged Palestinian inmates has not barred intermittent prisoner exchanges between Israel and its adversaries, Hamas and Hezbollah. These trades involve giving up something one regards as sacrosanct—the principle of never releasing convicted terrorists—in exchange for something one regards as equally so: regaining the freedom of captured Israeli soldiers. This latter principle today occupies an absolutely preeminent status within the collective conscience of most Israelis, more so than ever before (for a number of complex sociological reasons).47

When Israel agrees to a prisoner exchange—of 500 convicted Palestinians, for instance—it must devise a list of whom to release, among the considerably larger number of those incarcerated. If Israelis understood national security strictly in material terms, of statistical probability of threat to life and limb, they would sooner release a 70-year old convicted of murdering several Israelis in a terror attack—i.e., someone unequivocally with blood on his hands—than a 30-year old tried for purchasing bomb-making ingredients. The younger man surely poses the greater threat than the older, notwithstanding the lesser gravity of his legal offense. Still, most Israelis decline to interpret the matter of their security in this fashion. Without debating the question in exactly these terms, they are implicitly choosing to prioritize the symbolically sacred over the material in how they code the social meaning of prisoner release, at the likely expense of their immediate physical safety.

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Influential Palestinian narratives too have changed,48 drifting—as in this last Israeli example—from materiality to symbolism. Some research of recent years suggests that, though nearly all Palestinians insist upon Israel’s formal recognition of their right of return, only some ten percent would choose to exercise it.49 At least seventy percent would prefer either to remain in the West Bank and Gaza, or accept different parcels within current Israeli territory, along with monetary compensation for other losses. In this way, the demand for land restitution—seemingly the most material of interests—begins to lose its material, terrestrial basis.

This demand has apparently lost little of its symbolic resonance, however, because what it symbolizes remains very sacred in the collective consciousness of many Palestinians.50 It symbolizes their insistence upon the public acknowledgement, by Israel and the world at large, that something still profoundly meaningful to them was wrongly taken from their ancestors, to whom they owe moral debts, repayable only through demands for its restitution. On some accounts, the cultural resonance of this insistence grows still sharper precisely as the issue’s concrete territorial underpinnings recede.

The psychological dynamic at work here is perhaps somewhat opaque. Informed speculation suggests Palestinians today calculate that their symbolic assets, the interests they signify as sacred, now offer their strongest suit in any future peace negotiations.51 This is because their power in more material respects has much declined since last summer’s war, many thoughtful Palestinians privately concede (notwithstanding their public celebrations in the streets). For any party to a peace negotiation, its most important material asset is its continuing capacity to credibly threaten its enemy with physical harm, human and infrastructural.

According to recent polling among Palestinians in the West Bank and Gaza, the prevailing mood is one of helplessness and despair, because many people feel that Israel largely prevailed in the recent armed conflict with Hamas.52 Palestinians therefore regard the negotiating value of any military prowess they may retain, as demonstrated through shrewd use of underground tunneling, as less than they previously believed. That leaves them more dependent on, hence more inclined to clutch at, whatever assets they still bring to the bargaining table, those convincingly encoded as sacred, hence at least nominally non-negotiable.53

This is entirely rational, by no means mere emotional efflux. In seeking to extract more advantageous concessions (both material and symbolic) from an antagonist, there may sometimes be no better tactic than representing one’s concerns and interests in terms seen as sacrosanct, of near-infinite utility, whether or not they are truly so. Indeed, the line of psychological research I here draw upon itself suggests that “false expressions of protected [i.e., sacred] values are often used as negotiating ploys.”54 In other words, we sometimes invoke the sacred insincerely, for reasons largely strategic, with purposes essentially secular.

The likelihood of some such posturing in current Palestinian representations regarding the right of return should not be discounted. More innocently perhaps, the attitudes of many Palestinians on the issue may simply resemble those of most North Americans and Europeans toward environmental protection. We wealthy Westerners initially tell survey researchers that we value a pristine natural environment unequivocally, above all else in the realm of public policy. We take sharp offense at the suggestion that the environment is, in economic terms, merely another “public good” like any other.55 Until we are then asked whether we would agree to pay X number of dollars in additional taxes to secure it, an amount well short of what so ambitious an objective would actually require. We then demure.56 Demands which we earnestly championed just a moment before as inviolable turn out to reflect rather weaker commitments which we are quite prepared, when push comes to shove, to reconsider in more profane, materialistic terms.

So too, perhaps, with the Palestinian right of return. To synthesize the survey results, pollsters consistently confirm that this right remains sacred in the Palestinian consciousness when described abstractly and without reference to concrete alternative options likely to be more materially appealing to many respondents in the here and now. When presented with these latter possibilities on the same platter, as it were, respondents prioritize their commitments in ways more conducive to a politically-realistic peace deal. This is one eminently plausible way, at least, to interpret the data here described.

Their demands for the return of pre-1948 territories is now the Palestinians’ chief such sacred ‘asset,’ putatively non-negotiable, in any future negotiations. In exchange for its abandonment, they may reasonably expect to extract greater concessions on a host of other issues, both symbolic and material. These prominently include such sacred matters as an Israeli apology for decades of misconduct in the territories and national sovereignty over certain physical sites, in East Jerusalem and the West Bank, holy to members of both faiths. In this way, an asset that we Westerners generally understand in material terms—land, viewed as something to be tilled, grazed or built upon—has been largely recoded as ‘extra-terrestrial,’ virtually celestial, if you will. Lacking in stronger playing cards of a material sort, its dispossessed claimants demand it back from current custodians with all the greater intransigence.57

Regarding these holy sites, it is in fact the symbolic dimension of the issue, not the material, which today obstructs agreement. Negotiators long ago settled upon how to organize and schedule alternating periods of availability. The sticking point has instead been the question of which political entity shall officially exercise sovereignty over these places. This formal question of international law is wholly tangential to the practical problem of providing concrete ways for Muslims and Jews to visit these locations in turn, so that members of neither faith perilously cross paths with the other.

Still, there is profound symbolic import in the strictly juridical issue of “who owns” these places, i.e., whether the State of Israel may ever do so, however “generous” the terms of access it may provide to Muslims and Christians. It is the moral principle embodied in the symbolic right to exclude others, rather than any threat of actual exclusion, which has assumed supreme significance. Most sacred of all to Palestinians—far more than the sheer number of hours they may reserve to themselves for prayer at such sites—is the principle of national sovereignty itself, a principle logically entailing the juridical entitlement to exclusive territorial possession. To abjure any nonfrivolous claim to such entitlement is—in many eyes, Palestinian and Israeli alike—implicitly to acknowledge one’s uncertainty about the strength of one’s claim to sovereignty itself.

Sophisticated conceptions of property today view it as a “bundle of sticks,” susceptible to disaggregation in complex and variable ways, in light of competing but equally valid claims and considerations. Such intellectual refinement altogether misses the point, however, when claimants themselves encode the relevant article of property in strictly binary terms: this land will be either ours or theirs. We often associate so dichotomous a mode of thinking with the religious worldview, because it is in the nature of religiosity, on certain influential accounts,58 to insist upon and seek militantly to police a distinction between the sacred and the profane. The line between the two domains is categorical, in this view, inadmissible of degree. Seen from a religious perspective, then, a particular piece of land must fall on one side or the other. Those of such religious sensibility thus often tell us straightforwardly: what makes this property sacred in the first place is also what makes it ours—that God has given it tous, not to others.

In recent years Israelis have sacralized the issue of holy sites no less than Palestinians, and in increasingly confrontational ways. Following the 1967 war, most Israeli rabbis and the Chief Rabbinate—a government authority—held that Hebrew law forbade Jews from entering any part of the Temple Mount59 for fear of treading upon the portion (an inner sanctuary) of the First and Second Temples permissible only to High Priests. Today, however, ever more rabbinical leaders and their followers believe that Jews may not walk upon only that very small portion itself, which archaeologists have claimed to pinpoint. The remaining areas of the Mount should be open to Jews, who may indeed have a duty, in some accounts, to pray there.60

On this basis, a number of Israeli parliamentarians have entered the area in symbolic assertion of its sacred significance to the Jewish people, and implicitly the state’s permanent sovereignty over it.61 Their actions to this effect greatly contributed to igniting both the Second Intifada and the most recent spate of violence, of late 2014. In these deliberate provocations, one finds at once a sincere affirmation of the sacred perhaps, as these leaders understand its requirements, and some shrewd secular calculation; for such acts of “trespass” upon lands clearly coded as highly sacred among Muslims amount to willful profanation in Arab eyes and, for this very reason, elicit support among certain ultra-religious, right-wing voters.

Palestinians may be correct that their own strategic recoding of lost, pre-’48 land from material to symbolic will serve their interests, enabling them to strike a better bargain on matters of both kinds, once at the negotiation table. Yet that recoding also diminishes their chances of ever finding themselves sitting at one. For in light of just how sacred the formal right to pre-1948 lands is in the hearts of many Palestinians,62 it is unclear whether Israel possesses anything equally sacred to its own citizens which it might offer in exchange—except that very same land itself, of course, today clearly coded in this way (all of it, both pre-’67 lands and ancient “Judea and Samaria”) by the increasing numbers of ultra-orthodox.

A prospective Israeli proposal for Palestinians to abandon their first principle of a right to return, in exchange for mere apology and monetary compensation (remedies respectively symbolic and material) is simply a non-starter, according to many Palestinian intellectuals, at least. Historian Adel Manna, a Palestinian citizen of Israel, thus mocks such inflated Israeli expectations,63 slowly enunciating them in the serenely patronizing, faintly infantilizing tone of, say, television’s “Mr. Roberts”: now children, “first you tell your story and then we tell ours; you apologize for your sins, then we for ours.”64 Thereafter, as friendly neighbors, in separate states, we will live happily ever after. As if, he implies, our respective wrongs reached near moral equivalence, as if our separate stories bore comparable correspondence to relevant historical facts.65

There has been a second important shift in the Palestinian narrative, again from secular to symbolically sacred. Palestinian leaders once universally represented the saga of their people as one of heroic, energetic combatants, an entire nation firmly united in triumphant anti-colonial struggle, necessarily violent, gloriously so.66 This was a fight to regain their land, and to build a strong nation-state upon it.

shutterstock_84775879Today, Palestinian leaders instead advance a humanitarian narrative, of tragic personal victimhood and hopeless, of immobilizing passivity under the continuous onslaught of human rights violations and systematic war crime.67 This rhetorical reframing extends even to views of the Holocaust held among certain Palestinian thinkers, including Edward Said. That episode and the world’s response to it came to newly be understood as providing the sacred “creation story” for the modern human rights movement, from whose achievements Palestinians themselves now stood greatly to gain.68 Under the rising, beneficent star of international human rights, the Nakba would provide a compelling account of collective catastrophe invaluable to someday founding a State of Palestine,69 just as the Shoah had done for the State of Israel. It would hence be counter-productive to “deny” the Holocaust or minimize its significance, as many Palestinian intellectuals long had done.

This representational turn reflected a change in political strategies, an Iranian scholar shows.70 It strives to reposition the Palestinian cause, and its claims for foreign support, in relation to a “changing discursive global environment,” as she calls it. That environment is today far more receptive to images of individual vulnerability, of concrete human suffering, than to nationalist narratives of heroic guerrillas in comradely toil for world revolution.

The Palestinian narrative also transmutes from one about the struggle of a particular national group for property and power—consummately material affairs, we generally think—to one about the defense of moral values sacred to a much larger “international community.” Preeminent among these values is the human right to a basic measure of personal dignity, especially the freedom from unlawful state violence. Any serious threat to this right should therefore evoke global sympathy, current leaders calculate, and hopefully diplomatic or other more practical support as well. Indeed, in this telling of the tale, the international community, more even than Palestinians themselves, becomes the active agent of change, of salvation from profanation of their beloved lands, from decades of war crime and human rights violations.

You may observe that reconceiving Palestinian claims in such terms sacralizes matters once taken as mundanely material; and according to a common view, this conceptual move would diminish prospects for inter-group reconciliation, a central goal of most ventures in transitional justice. Yet this particular profane-to-sacred recoding is nonetheless salutary in at least some of its implications for peace negotiations. A narrative about the way that unlawful governmental conduct has directly engendered simple human suffering is one to which thorough training in (and effective enforcement of) human rights law for police and military officers could conceivably attend, given the requisite political will. A flamboyant, inflammatory epic about global revolution, by contrast, does not exactly lend itself to compromise, surely not through such milquetoast modes of redress, such inoffensive “bourgeois liberal reformism,” in the idiom of earlier days. In this respect, then, we might actually expect a sacramentalization of interests and issues of concern to help deflate this conflict, not aggravate it.

That said, the concurrent recoding or translation of Palestinian claims and interests into the lexicon of international criminal law represents a brake upon this salubrious process. For it sacralizes in ways for which no such anodyne accommodation is possible. Like the law of human rights, this legal field elevates our concern with essential human dignity to the status of sacred first principle, inhospitable to trade-offs against considerations of realpolitik or social-utilitarian advantage, both of which frequently counsel against prosecution. To label one’s opponent a war criminal or genocidaire is not particularly conducive, however, to discovering common ground on issues of mutual concern, material or symbolic. This second strand of sacralization—no less than the language of “human rights for Palestine”—today garners enormous global attention, prominently including that of the International Criminal Court.71

For the rhetoric of national revolution, at least, all goals were achieved, all scores settled, with the creation of a promising, new nation-state, its people finally freed from colonial domination. The discourse of international criminal law instead prioritizes “an end to impunity.” So its writ runs far further, demanding in principle the prosecution of all parties “most responsible” for grave global crimes, potentially long after any settlement of the political or military conflict giving rise to them. There is no reason why so exacting a legal and moral requirement should suddenly dissipate simply upon establishing a new sovereign state whose people—their leaders, almost certainly—were long criminally victimized by the leaders of another.

*       *       *       *       *

Implicit in what I have said thus far vaguely hovers the question—sounding deep echoes within modern social thought—of whether the material dimension of our lives rules over the symbolic. So it is worth recollecting that the last quarter-century witnessed a major reorientation away from long-dominant materialist understandings—specifically, “historical materialist”72—of the relation between culture and political economy.

We now appreciate that the workings of cultural representation, in Durkheim’s term, display varieties of coherence all their own.73 And we recognize that these workings regularly prove more labile and receptive to influence, through our adroit intercessions, than the lumberings of broad institutional and socioeconomic structures. We have re-learned, from Max Weber and others, that such cultural dynamics pervasively permeate and at least intermittently alter the direction of these otherwise-sluggish behemoths.

We know as well that cultural life sometimes submits itself to deliberate re-engineering, as through the recodings amply illustrated in the preceding analysis, and that such recodings always require some entrepreneurial artifice. Those laboring at the cultural benches of transitional justice—rewriting a country’s history textbooks, for instance, or designing its commemorative monuments—often cleave insistently to their own distinctive tropes and intellectual traditions, moreover. Given half a chance, these people will struggle to elude attempts at their political manipulation, to distance themselves from the seeming constraints of environing social structures.74

In sum, we no longer imagine that shifts in cultural representation necessarily mirror anything allegedly more profound, a “base” beneath its epiphenomenal “superstructure,” or an all-powerful elite masterminding its course, without significant contest, from high above. Yet our antiquated thought-ways nonetheless unconsciously persist, at times insidiously, in roundabout ways quite remote from Marxism as such. Many people mistakenly imagine, for instance, that once Palestinian and Israeli negotiators someday reach agreement on questions of land, money, and security, then remaining matters of symbolization will only then arise, and be quickly resolved. As in South Africa, a truth commission, firmly under the thumb of its political masters—by then both Palestinian and Israeli—will at that point construct a convenient, overlapping narrative. It will be satisfactory enough, for most Israelis and Palestinians, to marginalize potential “spoilers.” And it will be precisely tailored, meticulously scripted, to legitimate a peace agreement’s true and more essential contents. Surely no one at that point would wish to fight and die over whether there will be, for instance, an annual moment of silence among Israelis in honor of long-dead victims across former battle lines. Or whether to give Palestinian names to streets—like “King George,” a major avenue in Tel Aviv—still often denominated by little-loved, long-departed emperors.

To acknowledge all this is not in the least to depreciate the significance of a wide array of cultural considerations in the process of designing and implementing reparations programs. The published reports of national truth commissions are necessarily narrative constructions, and therefore cultural products in themselves—at times, indeed, little more than that. Yet they regularly exert noteworthy influence over the direction of other, further transitional justice measures within a given country, remedies more tangible, by no means “merely symbolic” in the pejorative sense.

In fact, as several of my illustrations have shown, such “ethereal,” “literary,” even aesthetic considerations, if you will—as, for instance, how capacious a truthful tale to tell, whom to cast as its villains and heroes (or as characters all tragically flawed in their fashion)—can importantly influence the prospects and direction of transitional justice. In Israel someday, perhaps a long way off, these same considerations will influence the course and fate of future peace negotiations, at which the question of reparations will inevitably again be on the table.

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To summarize, following episodes of massive human rights abuse, plans for reparations to large numbers of victims emerge everywhere as integral to all serious forays in transitional justice. Such reparations assume material and symbolic form, both essential, each analytically distinct in principle from the other, never to be conflated in practice. Yet this simple, widely-endorsed way of thinking and policy-making does not recognize just how greatly the real-life experience of reparations, on the ground, remains ever hostage to the human practices of cultural representation through which the pertinent players construe their shifting stakes. These parties will seek—through symbolizing processes at once malleable yet often causally murky—to code and recode the central issues, as earthly or exalted, from one time-frame to the next, as suits their altering strategic aims. Matters which they today took to be material may tomorrow turn symbolic, then later double back again.

Compounding the difficulties is the fact that symbolic dynamics and material forces—insofar as we may even delineate their respective boundaries, for a time—each regularly influence the other. In fact, the causal arrow may sometimes appears to travel in both directions at once. This suggests that, contrary to prevalent assumptions among peace negotiators in this region, “progress on sacred values might open the way for negotiations on material issues, rather than the reverse,”75 as the psychological researchers themselves conclude. In that possibility, there is some modest basis for hope, through cleverly-conceived truckings of sacred for sacred.

Even for a country’s leaders, intimately familiar with nuances of its political culture, these near-infinite intricacies greatly complicate the process of settling upon a suitable bundle of civil reparations. For a foreigner to assume responsibilities of policy guidance in the face of such elusive contextual, ethnographic imponderables, is at the very least to presume a great deal—impertinently so, i.e., unless we address our local interlocutors at a level of glittering generality so superficial (hence almost useless) that they could readily discover our “sage counsel” more quickly and cheaply online,76 in a heartbeat. What value do we foreigners, then, truly add if we lack any serious familiarity with the local singularities essential to intelligent intercession, yet—by way of more general knowledge—carry in our toolkit only the most abstract of hortatory nostrums and overbroad formulae for action? For in regard to civil reparations, there would seem to be nothing of much interest to say, practical or theoretical, about the relations between the material and symbolic, at a level of generality any higher than the particulars of those relations at any given place and time.

My conclusions here will surely disappoint and frustrate those who believe that a defensible agenda for transitional justice generally, and for civil reparations in particular, requires that we first establish a coherent, conceptually compact framework, then convince others to follow it through to its logical conclusions. Such a framework would be at once specific in its guidance, firmly grounded in steadily accumulative learning from other efforts elsewhere, readily portable from one place to another (and no doubt intellectually elegant to boot).77 The present approach imagines a far more modest, realistic scenario. It envisions a group of people—mostly locals, of course, though sometimes a few of us non-locals too, on the margins—sitting down over coffee, conversing informally about the several dimensions, sometimes inseparably material and symbolic, of a particular post-conflict situation; in so doing, we remain attentive both to shifting national circumstances, in the here and now, and a wide range of prior experiences, extending over many years, from other lands.

It may be too much to speak of any genuine “lessons” to be gleaned from other experiences in negotiating conflicts inextricably sacred and profane. Earlier ventures onto this uncertain terrain may sometimes yield faint if illuminating inferences, telling hints, if only in oblique ways. Such “teachings” will never be more than mildly suggestive, along the lines of: “You might like to take a close look at how the Rwandans tackled this…and perhaps think twice about the way the Guatemalans confronted that….” So casual and unpretentious an angle of approach disavows crisp concepts, watertight categories, confident theories. The contribution it may offer is no small one, just the same.

My aspiration today has been more to pose a few novel queries—at once unsettling and invigorating—than seek seriously to answer them. In conversation with those we encounter in our travels, we should thus inquire: what cultural encodings of contested issues—as symbolic vs. material in character—currently hamper prospects for agreement here over civil reparations to victims of rights abuse? Which of your now-sacred codings might match up well in an exchange on interests and issues of concern that we ourselves so encode? Which recodings—from sacred to material, or in the reverse direction—may be advantageous in promoting such a policy-program? How might one undertake that task, through which reinterpretive measures, in the foreseeable face of what hermeneutic counter-maneuvers from those resisting reparations, opposing this indispensable element of any serious attempt at transitional justice? These are the right questions, at least, to begin asking.

* This essay is based on two presentations by the author: “Lessons for Transitional Justice in Israel/Palestine,” Buchmann Faculty of Law, Tel Aviv University, sponsored by the Minerva Institute for Human Rights, Nov. 16; followed by “Transitional Justice in the Context of Palestine,” Hebron University, College of Law, Palestine, Nov. 19. The latter event was sponsored by Hebron University, the U.N. Development Programme, and the University of Johannesburg. The author expresses his thanks to all these institutions. The text has been revised in light of questions from these two audiences and conversations with the following Israeli and Palestinian scholars: Michal Ben-Josef Hirsch, Eyal Benvenisti, Leora Bilsky, Ziv Bohrer, Sigall Horowitz, Adel Manna, Munir Nuseibah, Howard B. Rhodes, and Maya Steinitz.
  1. Amnesty Int’l, Indonesia: Setting the Agenda, Human Rights Priorities for the New Government, (April 2014): 1, 12, accessed Jan. 9, 2015 http://www.amnesty.org/en/library/info/ASA21/011/2014/en (finding that the Indonesian Government has failed “to establish a comprehensive and effective reparation program for victims of human rights abuses”).
  2. Por Memoriam Ad Spem¸ Final Report of the Commission of Truth and Friendship: Indonesia and East Timor, Denpasar, Indonesia (March 2008): i, xiii-xiv, accessed Dec. 15, 2014, http://www.cja.org/downloads/Per-Memoriam-Ad-Spem-Final-Reeport-of-the-Commission-of-Truth-and-Friendship-IndonesiaTimor-Leste.pdf.
  3. This observation already suggests a certain porousness at the border between the material and symbolic components of civil reparations programs. This porousness is central to the ensuing analysis.
  4. One encounters this theme in some of the current discussion concerning the possibility of reparations for descendants of U.S. slaves. Ta-Nehisi Coates, “The Case for Reparations,” Atlantic Monthly, June 2014. Coates argues that African-Americans deserve “more than a handout, a payoff, hush money, or a reluctant bribe.” They deserve as well a form of penance, a “reckoning.”
  5. Paulo Abrão and Marcelo Torelly, “The Reparations Program as the Lynchpin of Transitional Justice in Brazil,” in Transitional Justice Handbook for Latin America, ed., Félix Reátegui (Brasilia: Brazilian Ministry of Justice, 2011): 443, 444.
  6. Social psychologists meet with precisely the same sentiment when they invite respondents to give up objects or values deemed “sacred” in exchange for substantial material gains. Jeremy Ginges and Scott Atran, “Noninstrumental Reasoning Over Sacred Values: An Indonesian Case Study,” Psychology of Learning and Motivation 50 (2009): 193, 199 (describing respondents’ reactions to such invitations as ones of “disgust”).
  7. There exists a considerable scholarly literature, with credible empirical support, on this “the backfire effect,” as psychologists describe it. Ginges and Atran, “Noninstrumental Reasons,” 204. The mental mechanism by which this effect arises is telling: “If the central taboo surrounding sacred values is the prohibition against sacred-secular trade-offs…, greater incentives…arouse greater opposition as they make the taboo behavior more salient” in mind (emphasis supplied). The first and seminal piece in this continuing line of active research was Jeremy Ginges, Scott Atran, Douglas Medin and Khalil Shikaki, “Sacred Bounds on Rational Resolution of Violent Political Conflict,” Proceedings of the National Academy of Arts and Sciences of the U.S.A. 104 (May 1, 2007): 7357. A recent synthesis of results to date is Ginges and Atran, “Sacred Values and Cultural Conflict,” in Advances in Culture and Psychology, eds., Michele Gelfand, et al., 4 (Oxford, U.K.: Oxford Univ. Press, 2014): 273. Their most accessible and policy-focused piece is Scott Atran and Jeremy Ginges, “How Words Could End a War,” N.Y. Times, Jan. 25, 2009, accessed Dec. 24, 2014, at http://www.nytimes.com/2009/01/25/opinion/25atran.html?pagewanted=all.
  8. The Inter-American Court of Human Rights regularly orders sovereign states, held liable for large-scale atrocities and related rights abuse, to establish official programs of reparation.
  9. This is not to deny that most such attempted recodings fail. One should hence not exaggerate the pliability of shared self-understanding through such semiotic maneuver.
  10. Psychologists have surveyed respondents in Nigeria, Indonesia, Lebanon, Iran, India, Afghanistan, Iraqi Kurdistan, Israel, as well as the Palestinian West Bank and Gaza strip. Ginges and Atran, “Sacred Values,” 273.
  11. Ginges and Atran, “Noninstrumental Reasoning,” 193. This way of viewing the nature of the sacred captures only the smallest fraction of what religious believers, at least, understand it to entail. For the social scientists, sacred interests and issues of concern do not so much correlate empirically with personal reactions of intense aversion to trade-off, but are all but defined in terms of such aversion. Believers, as well as theologians and scholars of comparative religion, would undoubtedly respond that the sphere of the sacred distinguishes itself from the profane in more profound ways that help account for such aversive intensity, in fact. Whatever occupies this protected domain of life at a given place and time—objects, individuals, ideas, practices—envelops itself in a particular kind of aura, eliciting in adherents moods of reverence and wondrous awe in the presence of what are felt to be powerful, unfathomable forces and ineffable mysteries. The persons and objects we supremely revere in this fashion further induce in us attitudes of uncritical deference to their expectations, however onerous. In this respect, the rules and rituals governing the workings of the sacred differ categorically from those regulating everyday life. These additional features of the sacred, beyond those captured by the psychologists, are methodologically elusive to empirical inquiry, however, and hence find themselves excluded from the positivist social science on which I otherwise here rely. This is entirely defensible, however, since these scholars clearly envision a much broader territory of the sacred, encompassing many human commitments that, however intense and uncompromising, would be more conventionally classified as “secular,” carrying no nimbus of the numinous.
  12. See, e.g., Ginges, et al.,“Sacred Bounds,” passim; see generally Kate Jassin, Hammad Sheikh, Nadine Obeid, Nichole Argo, and Jeremy Ginges, “Negotiating Cultural Conflicts Over Sacred Values,” in Models for Intercultural Collaboration and Negotiation, eds., Katya Sycara, Michele Gelfand and Allison Abbe (Berlin: Springer, 2013): 133, 138-141. This tradition of inquiry now regularly employs both survey and experimental methods.
  13. Palestinian leaders, in particular, frequently employ the term in reference to a “right of return” to pre-1948 lands. See, e.g., Khaled Abu Toameh, “Palestinians: Right of Return is Sacred.” Jerusalem Post, Nov. 27, 2006, accessed Dec. 15, 2014, http://www.jpost.com/Middle-East/Palestinians-Right-of-return-is-sacred (quoting Hamas leader Musa Abu Marzouk and Fatah leader Dr. Abdullah Abdullah to this effect); no author, “President Abbas: Right of Return is Sacred, Never Be Delayed,” (sic) Palestinian News & Information Agency (WAFA), May 28, 2008, accessed Dec. 15, 2014, http://english.wafa.ps/?action=detail&id=11698 (same, for Palestinian Authority President Mahmoud Abbas). Palestine Liberation Organization Chairman Yasser Arafat and Nabil Shaath, his senior advisor, employed the same wording. Max Abrahms, “The ‘Right of Return’ Debate Revisited,” Middle East Intelligence Report, Aug.-Sept. 2003, accessed Dec. 15 2014, http://www.washingtoninstitute.org/policy-analysis/view/the-right-of-return-debate-revisited; (quoting both men, to identical effect).
  14. Ginges and Atran, “Sacred Values,” 298 (“…making symbolic concessions of no apparent material significance…appears to increase support for compromise even among leaders and militants, reduce support for violence, and thereby open the possibility for negotiations over specific material issues and disputes.”).
  15. Jodi Rudoren, “In Jerusalem’s ‘War of Neighbors,’ the Differences Are Not Negotiable,” New York Times, Nov. 18, 2014. Halbertal employs the word “sacred” in a more narrowly religious sense than does the scholarship in social psychology or, for that matter, many of the pertinent political actors themselves. It may be that those who code a particular interest or issue as sacred in a specifically religious sense do not as readily abandon this understanding for a new coding as those who understand the sacred simply in the social scientific sense, as a taboo against measuring a moral commitment along an instrumental metric. Those who understand the sacred in terms not conventionally construed as religious, however, often display no more inclination than the church-going to compromise on such fundamental commitments as those today often articulated in the language of international human rights.
  16. For the moment, I can only perfunctorily pose this question, as I do again at the end of this article, seeking to answer it in a forthcoming, book-length work. Mark Osiel, Choosing Our Responses to Mass Atrocity: The Law of Transitional Justice.
  17. See, e.g., Michal Ben-Josef Hirsch, “A Pragmatic Rationale for Using Symbolic Reparations in Conflict Negotiation: Insights from Israel/Palestine,” unpublished manuscript, Belfer Center for Science and International Affairs, Harvard University, Oct. 24, 2013.
  18. Such a view fails to appreciate that some sort of prior interpretive activity must persuade people to conceive their land in materialist terms, e.g., as the kind of valuable ‘good’ amenable to market exchange and commercial exploitation. For purposes of this essay, however, I employ the word “symbolic” to refer more specifically to the representational practices by which certain concerns become coded as sacred, therefore incommensurate with others deemed profane.
  19. See, e.g., Ron Dudai, “’Does Any of This Matter?’ Transitional Justice and the Israel-Palestinian Conflict,” in Crime, Social Control, and Human Rights, eds., David Downes, Paul Rock, et al. (Portland, Oregon: Willan Publishing, 2007): 339; see generally Christine Bell, Peace Agreements and Human Rights (Oxford, U.K.: Oxford Univ. Press, 2000) (suggesting how, in order to resolve a political conflict, it is sometimes necessary to address a larger “meta-conflict” underlying it, i.e., a “conflict about what the conflict is about.”).
  20. William Quandt, “Israeli-Palestinian Peace Talks: From Oslo to Camp David II,” in How Israelis and Palestinians Negotiate, ed., Tamara Cofman Wittes (Washington, D.C.: U.S. Institute of Peace, 2005): 15. At the negotiations leading to both the Oslo and Camp David accords, both sides deliberately dodged issues of a sort that I am here describing as symbolically sacred. These later briefly emerged at the 2001 Taba Summit and in the 2003 Geneva Initiative, though little of import came of these conversations. At Taba, the government of Ehud Barak was reportedly prepared to issue, as part of a broader agreement, a public statement expressing Israeli “regret” for post-1948 Palestinian suffering and acknowledging some share in causing it. The first, truly public hint of Israeli ‘softening’ on such issues came with the 2003 Or Commission, a panel of inquiry appointed to investigate an incident in 2000 during which police, amid demonstrations, killed 13 Israeli Arabs. The Commission, chaired by a High Court Judge Theodore Or, not only criticized Israeli police authorities for policies encouraging the use of excessive force. The Commission Report also accorded official acknowledgement to key features of a broader Palestinian narrative about dispossession, persistent discrimination, and attendant suffering. In this respect, at least, the Commission came to resemble a national truth commission. Sigall Horowitz, “Strategizing for Transitional Justice: Civil Society’s Role in Promoting Transitional Justice in Argentina, Congo, the Balkans, and Israel” (2014, manuscript on file with author): 1, 14-20. The next significant development occurred in 2007, when then-President Ehud Olmert openly expressed sympathy—though he did not explicitly apologize—for Palestinian suffering, aspects of which he described in poignant detail. Most recently, in November 2014, current Israeli President Reuven Rivlin publicly acknowledged responsibility and expressly apologized for the 1956 massacre by Israeli border guards of 48 Palestinian workers and children at Kfr Qasim.
  21. See generally, “Q&A: Colombia Peace Talks,” B.B.C., Nov. 18, 2014, accessed Dec. 15, 2014, http://www.bbc.com/news/world-latin-america-19875363.
  22. Standard estimates of Colombian conflict-related deaths stand at approximately 220,000.
  23. Already nearly a decade ago, Israel revised many of its school history texts, read by some seventy-five percent of the country’s youth, in light of research results from the country’s “new historians” into the origins of the Palestinian refugee problem. Michal Ben-Josef Hirsch, “From Taboo to the Negotiable: The Israeli New Historians and the Changing Representation of the Palestinian Refugee Problem,” Perspectives on Politics 5, June 2007: 241, 247.
  24. Robert Rotberg offers an analogous formulation in “Building Legitimacy Through Narrative,” in Israeli and Palestinian Narratives of Conflict: History’s Double Helix, ed., Robert Rotberg (Bloomington: Indiana Univ. Press, 2006): 1, 17.
  25. At this point in the Hebron University lecture, a young Palestinian law student rose from his seat, began shouting and raising his arm at me. A security guard escorted him from the room.
  26. Truth and Reconciliation Commission, Truth And Reconciliation Commission of South Africa Report, at 326–66 (Vol. 2, 1998), accessed Dec. 20, 2014, http://www.justice.gov.za/trc/report/finalreport/Volume%202.pdf.
  27. Amy Gutmann and Dennis Thompson, “The Moral Foundations of Truth Commissions,” in Truth v. Justice, eds., Robert Rotberg and Dennis Thompson (Princeton: Princeton University Press, 2000): 22, 41.
  28. Peace Research Institute in the Middle East, accessed Dec. 15, 2014, http://vispo.com/PRIME/.
  29. Or Kashti, “Who’s Afraid of the Nakba? New Research Challenges the Way History is Taught in Israeli High Schools,” Haaretz, April 28, 2013, accessed Dec. 15, 2014, http://www.haaretz.com/news/features/who-s-afraid-of-the-nakba-new-research-challenges-the-way-history-is-taught-in-israeli-high-schools.premium-1.517884.
  30. Nancy Partner, “The Linguistic Turn Along Post-Postmodern Borders: Israeli/Palestinian Narrative Conflict,” New Literary Hist. 39 (2009) (quoting, to this effect, the current Israeli Defense Minister, Moshe Ya’alon, and former Mossad Director, Efraim Halevy): 823, 823-24.
  31. Certain Israeli elites, such as leading journalist Israel Harel, therefore take umbrage at any use of the word in reference to prevailing Israeli interpretations of events. Partner, “The Linguistic Turn,” 823.
  32. Dominick LaCapra, Writing History, Writing Trauma (Ithaca: Cornell Univ. Press, 1997): 102-103.
  33. Unduly ambitious approaches to post-atrocity commissions of inquiry meet with compelling criticism in the recent study Can Truth Commissions Strengthen Peace Processes?, co-sponsored by the Int’l Center for Trans. Justice and the Kofi Annan Foundation (June 2014), accessed Dec. 15, 2014, http://kofiannanfoundation.org/sites/default/files/ictj-report-kaf-truthcommpeace-2014.pdf. The study’s authors admonish, for instance: “Beware of Aiming to “Reconcile” a Divided Society,” i.e., in a more demanding sense than simply discouraging a return to recent violence: xii.
  34. This term refers to the type of social cohesion created by widely-shared beliefs on matters that people consider morally fundamental. When mechanical solidarity is at work, people get along with one another because they act and think alike. Émile Durkheim, The Division of Labor in Society, ed., Steven Lukes, W.D. Halls, trans. (1893) (New York: Free Press 2014): 57-87, 105-123.
  35. Danielle Celermajer, “Mere Ritual? Displacing the Myth of Sincerity in Transitional Rituals,” Int’l J. of Trans. Justice (2013): 1 (deploying several traditions in social thought to suggest how, even within modern Western societies, such public rituals as official apology may help reshape collective memory in morally salutary ways).
  36. Bronwyn Anne Leebaw, “Transitional Justice and the Memory of Resistance,” (2010), accessed Dec. 15, 2014, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1580831.
  37. I offer a sustained account of obedience and resistance to unlawful military commands in Osiel, Obeying Orders: Atrocity, Military Discipline & the Law of War (New Brunswick: Transaction Publishers, 1999).
  38. See generally Monica Nalepa, Skeletons in the Closet: Transitional Justice in Post-Communist Europe (Cambridge, U.K.: Cambridge Univ. Press, 2010).
  39. See Lisa LaPlante, “The Law of Remedies and the Clean Hands Doctrine: Exclusionary Reparations Policies in Peru’s Political Transition,” Amer. U. Int’l L. Rev. 23 (2007): 51.
  40. I defend a philosophically liberal theory of transitional justice and of law’s contribution to collective memory of atrocity in Osiel, Mass Atrocity, Collective Memory, and the Law (New Brunswick: 1977): 36-58.
  41. Alternatively, of course, they may seek simply to scuttle any such deal, whatever its terms, anticipating that they will fare better in the next round of battle than at any peace table. In such terms, some have ungenerously interpreted the recent decision of Prime Minister Benjamin Netanyahu to insist, during spring 2014 peace discussions—and for the first time in the history of Israeli/Palestinian negotiations—that Arab negotiators formally acknowledge, as a condition of any final agreement, the specifically Jewish character of the State of Israel. Herb Kainon, “Netanyahu: For Peace, Palestinians Must Recognize Jewish Homeland,” Jerusalem Post, Oct. 6, 2013, accessed Dec. 23, 2014, at http://www.jpost.com/Diplomacy-and-Politics/Netanyahu-Palestinian-recognition-of-Israel-as-a-Jewish-state-is-crucial-condition-for-peace-328038. That proposition, to which nearly all Israeli Jews subscribe, has always been integral to the country’s official narrative. However, the novel political calculation to put so sacred an Israeli issue/interest explicitly on the bargaining table clearly reduces chances for any agreement. This fact would not have been lost upon the present Israeli Prime Minister, of course.
  42. See, e.g., my earlier discussion supra of how Israeli political life and leaders recoded the question of possible contacts with P.L.O Chair Yasser Arafat.
  43. I do not mean to suggest that Israelis are unified in adhering to this new narrative. In fact, among its Jewish citizens, collective memory concerning the State’s origins is today considerably more divided than a generation ago. Yael Zerubavel traces the emergence of this mnemonic conflict in Recovered Roots: Collective Memory and the Making of Israeli National Tradition (Chicago: Univ. of Chicago Press 1995): xxx, 18, 30-31, 35, 96, 235.
  44. Estimates vary significantly concerning the proper valuation of such properties. For one such attempt, seeMarc Perelman, “Study Estimates Assets of Arab Lands’ Jews,” The Forward, April 10, 2008 (“a Holocaust restitution expert estimated that the losses amounted to $6 billion.”), accessed Dec. 15, 2014, http://www.campus-watch.org/article/id/4991.
  45. UN General Assembly Resolution 194 provides that, in regard to people who then fled their homes under duress in 1948, “compensation should be paid to those choosing not to return…made good by the governments or authorities responsible” for their departure. Many interpret this language as covering both Mizrachi Jews and Palestinians.
  46. The Mizrachi departures implicate not only the material issues of compensation on which Israeli leaders now dwell. They also reflect the denial of human rights and the crime against humanity entailed in forcible population transfer. The modern world culturally encodes such matters in terms fairly characterized as sacred, in the social scientific sense of the term here employed. Charles Taylor, A Secular Age (Cambridge, MA.: Harvard Univ. Press, 2007): 419, 532, 598, 658, 701, 716, 726, 745. Like many others, Taylor views our contemporary belief in the importance of international human rights as increasingly the functional equivalent of religious faith in providing a central basis for social and moral order. It would seem to follow from the sacrosanct character of these entitlements that such specifically symbolic remedies as official apology should ensue from their violation.
  47. Ziv Bohrer and Mark Osiel, “Proportionality in War: Protecting Soldiers from Enemy Captivity, and Israel’s Operation Cast Lead—’The Soldiers Are Everyone’s Children,'” S. Cal. Interdisciplinary L. Rev. 22 (2013): 637, 641-46.
  48. Rashid Khalidi recounts several such changes, over the last hundred years, in his Palestinian Identity: The Construction of Modern National Consciousness (New York: Columbia Univ. Press 1997): 9-34.
  49. Palestinian respondents were presented with a hypothetical situation: ‘The Palestinian leadership had accepted a solution to the refugee problem whereby only “a small number of refugees” would be allowed to “return” to Israel. Those who opted against relocating to Israel were promised “fair compensation.”’ Results varied somewhat by location: West Bank and Gaza, 13%, Jordan 5%, Lebanon, 23%, overall, 10%. These results received some criticism from both Jewish and Palestinian scholars, observing that the choices offered to respondents seemed designed to minimize the number of those desiring to exercise a right of return. Pollster Khalil Shikaki’s apparent intent, critics suggested, was to assuage Israeli concerns over the demographic implications of formally acknowledging such a right. Ali Abunimah, “Who Said Palestinians Gave Up the Right of Return?” Electronic Intifada, July 23, 2003, accessed Dec. 15, 2014, http://electronicintifada.net/content/who-said-palestinians-gave-right-return/4697/; Abrahms, “The ‘Right of Return’ Debate Revisited.” Yet as Shikaki replied, the possible answers available on his survey instrument were designed to directly track the terms of the particular alternatives then on the table in active peace discussions. There is even reason to think that his data may actually somewhat underestimate Palestinian willingness to forego the exercise of a right of return. The very question of how few takers might exist for such offer remains taboo among Palestinians. This no doubt depressed the number of those prepared to tell the pollster, a fellow Palestinian refugee, that they would accept monetary compensation, in addition to apology and other symbolic remedies, in lieu of in-kind restitution. Cf. James Bennet, “Palestinian Mob Attacks Pollster,” N.Y. Times, July 14, 2003, accessed Dec. 15, http://www.nytimes.com/2003/07/14/world/palestinian-mob-attacks-pollster.html, reports that “A mob attacked an eminent Palestinian political scientist today as he prepared to announce a striking finding from a regionwide survey of Palestinian refugees… He was struck, shoved, and pelted with eggs,” his office “wrecked.” Shikaki replied to journalists, “They are trying to send a message that the right of return is sacred, and that you who are negotiating are on notice.” Leaflets distributed by the rioters themselves, on the letterhead of the Palestinian Liberation Organization, pronounced that “our right of return is a sacred right.” No later polls have asked any such questions, and the 2003 results themselves, formerly at http://www.pcpsr.org/survey/polls/2003/refugeesjune03.html, have been taken down from the website of the polling organization, the respected Palestinian Center for Policy and Survey Research, in Ramallah.
  50. In opinion polling, between eighty and ninety-five percent of Palestinians in the West Bank, Gaza, Lebanon, and Jordan consistently agree with the statement that “the right of return” is a “sacred right that can never be given up.” Palestinian Center for Policy and Survey Research, Poll No. 51, March 22, 2014, accessed Dec. 15, 2014, http://www.pcpsr.org/en/node/188​ (finding 95%). Still, in the most recent such surveys, only one third profess agreement with the proposition that “the right of return is the most vital goal for Palestinians today” (emphasis supplied). A significantly larger percentage consider “most vital” the goal of “establishing a Palestinian state in the West Bank and Gaza.” Id.
  51. Michal Ben-Josef Hirsch, personal communication, Nov. 10, 2014.
  52. Palestinian Center for Policy and Survey Research, Poll No. 53, Sept. 26, 2014, accessed Dec. 15, 2014, http://www.pcpsr.org/en/node/498 (finding that fewer than half of respondents, in both the West Bank and Gaza, express satisfaction with the war’s achievements, when compared to human and material loss).
  53. So contends Prof. Michal Ben-Josef Hirsch, a political scientist and scholar of the conflict. Personal communication, Nov. 2014.
  54. Jonathan Baron and Sarah Leshner, “How Serious Are Expressions of Protected Values?,” J. of Experimental Psychology: Applied, 6 (2000): 183, 183.
  55. Jonathan Baron and Mark Spranca, “Protected Values,” Org. Behavior & Human Dec. Processes, 70 (1997): 1, 6.
  56. Julie Irwin, “Buying/Selling Price Preference Reversals: Preference for Environmental Changes in Buying versus Selling Modes,” Org. Behavior & Human Decision Processes, 60 (1994): 431, 452. More precisely, survey respondents proved unwilling to purchase a right to environmental protection at nearly as high a price as they insisted upon when asked how much they would demand if selling such a right.
  57. I do not mean to imply here that the sacred value which Palestinians today claim, with special militance, to attach to particular parcels of land arises entirely from such secular calculations of strategic advantage. Nor does this superordinate value spring wholly from the special place within their collective consciousness of a longstanding “national project” of resistance to what they view as a continuing colonial presence on their land. There is some ethnographic evidence to the effect that, as in other non-Western societies, many Palestinians view their relation to real property chiefly in terms of moral debts to generations of ancestors who once tilled it (or even, in urban areas, operated small commercial establishments upon it). A credible informant tells me that, owing to such views, his fellow Palestinians have traditionally been quite reluctant to part with family-owned lands through any variety of commercial transaction, even in sale to fellow Palestinians. (Munir Nuseibah, personal communication, Nov. 18, 2014.) This is essentially to say that land is conceived in ways incommensurable with money, so that anything except its gift-exchange entails an unacceptable commingling of sacred with profane. And yet, throughout human history, the most common method for honoring debts to ancestors has been through social and religious ritual, often including periodic visits to places where they are buried or once resided. It is not difficult then to imagine a future ritual whereby many Palestinians engage in annual pilgrimage to the location of destroyed villages where earlier generations of their families lived before 1948, locations ceremoniously marked by Israel with bronze plaques listing the names of every family so displaced. Such plaques might well also include a solemn, official state apology for such wrongful dislocation. (To similar effect, one encounters plaques on dozens of buildings throughout Paris dedicated to the memory of Jews deported from these particular locations during the Second World War.) Also pertinent here: anthropologists find that the mnemonic practices of Palestinian refugees have been extraordinarily successful, by any measure, in preserving popular ‘recollection’ of lost properties even among the two ensuing generations of descendants who have never seen nor set foot upon them. Laleh Hkalili “Commemorating Contested Lands,” in Lesch and Lustick: 20.
  58. Mircea Eliade, The Sacred and the Profane: The Nature of Religion, Willard R. Trask, trans. (New York: Harcourt, Brace, 1959): 11-18 (defining religion in these terms).
  59. Muslims describe the site as Haram el-Sharif, the Noble Sanctuary.
  60. Moshe Dann, “Should Jews Enter the Temple Mount?” accessed on Dec. 22, 2014, at http://www.jpost.com/Opinion/Should-Jews-visit-the-Temple-Mount-382098.
  61. Formal sovereignty today lies with Israel, according to most legal authorities. Jordanian authorities retain managerial control over the site, however, pursuant to the 1994 “Treaty of Peace Between the State of Israel and the Hashemite Kingdom of Jordan.”
  62. We Westerners experience great difficulty in fully apprehending the place of pre-1948 lands within the Palestinian social imaginary. We can readily observe and acknowledge the duration and intensity of this abiding attachment, of course. We nonetheless continue to find it puzzling, at best, bordering on incomprehensible, indeed almost clinically obsessive in character. In theological terms, this land seems to have been transposed from an object of a certain veneration into a species of totem or fetish, i.e., an object endowed with near-magical powers. Even Edward Said goes so far as to describe this hyper-veneration, on both sides of the Israel/Palestine conflict, as approximating “idolatry.” The Landscape of Palestine: Equivocal Poetry, eds., Ibrahim Abu-Lughod, Roger Heacock, Khaled Nashef (Birzeit: Birzeit Univ. Publications, 1999): back cover, quotation from W.T. Mitchell. (Yet this is to employ a scholarly term of art quite imprecisely, indeed incorrectly, insofar as social scientists generally understand idolatry to entail the worship of an iconic representation of some nonmaterial original, usually a god.) We privately view this species of land/man bond among such “pre-moderns” in terms of a quaint if curiously powerful call to tradition, history, ancestry, myth, ritual, and other equally doomed antiquarianisms (as we often see them, i.e., when present in others). Hence, for instance, the culturally tone-deaf formulations of certain Israeli thinkers, candidly offered by leading moral and legal theorist Alon Harel, articulating views apparently not entirely his own (though he strikes me as somewhat equivocal in that regard). Thus, with respect to lost lands, “when an object is removed from a person’s actual sphere of experience and it is only the remote memory of the object or merely stories concerning the object that provide the basis for the interest in acquiring it,” as for Palestinian refugees, “it is typically easier to satisfy the interest in possessing it by means of a substitute.” All else is a “sentimental matter,” mere “whim,” hence unworthy of legal recognition, at least at face value. Alon Harel, “Whose Home Is It? Reflections on the Palestinians’ Interest in Return,” Theoretical Inquiries in Law 5 (2004): 333, 350, 352, 356. Yet it surely cannot have escaped such serious thinkers that they do not stand before others entirely “typical” in moral sensibilities, i.e., people sharing their own conventional, apparently unquestioned, Western intuitions of reasonableness. Far more than Harel’s tin-eared wording would allow, our own notions of reasonableness are deeply imbued by contemporary Western culture, hence utterly contingent upon specificities of time and place. In any event, if only from a purely prudential perspective, concerned with negotiating a reparations package tolerable to both sides, the other’s notion of reasonableness—informed by more than a hint of the reverentially sacramental—is surely, unavoidably, no less relevant than one’s own. The cited psychological studies reveal, after all, that when we insist—as does Harel’s language here—on secularizing interests which others continue firmly to regard as sacred (and who demand that we too acknowledge this very sanctity), we significantly diminish our chances of agreement with them on even the most practical and ‘material’ of matters.
  63. Manna’s views here do not stand up well empirically, however, in light of Shikaki’s close scrutiny of the question, described above, in his 2003 polling data, of which Manna was (in my conversation with him) apparently unaware. It is nonetheless possible that Manna’s uncompromising stance accurately reflects that of some portion of the Palestinian upper middle class, people who enjoy sufficient material comfort that they can—more easily than less fortunate brethren—afford to spurn, on grounds of sacred principle, an Israeli offer of fulsome apology plus alternative lands or monetary compensation for those long lost.
  64. Personal communication, Nov. 18, 2014.
  65. There are, of course, a number of equally hard facts relevantly in support of Israeli narratives concerning the State’s creation and its later policies toward Palestinians. I am here simply describing Palestinian critiques of such narratives, as these critiques have entered into current Palestinian narratives themselves.
  66.  In this respect, Palestinian discourse until recent years resembled and drew generously from the contemporaneous writings of far-left intellectuals in Southeast Asia, Africa, and Latin America.
  67. Adel Manna contends, with eminent plausibility, that most of his fellow Palestinians have always viewed their story, ever since 1948, as chiefly one about raw suffering, personal and familial. See also Lena Jayyusi, “Iterability, Cumulativity, and Presence: The Relational Figures of Palestinian Memory,” in Nakba: Palestine, 1948, and the Claims of Memory, eds., Ahmed Sa’di, and Lila Abu-Llugod (New York: Columbia Univ. Press, 2007): 14. It was only the Palestinian intellectual elite, Manna believes, who at any time saw fit to conceive such elemental human agony chiefly in terms of the fertile soil it once seemed to offer for nationalist and social revolution. Personal communication, Nov. 18, 2014.
  68. Ilan Gur-Ze’ev and Ilan Pappé, “Beyond the Destruction of the Other’s Collective Memory: Blueprints for a Palestinian/Israeli Dialogue,” Theory, Culture & Society 20 (2003): 93, 95-98.
  69. Whether this strategic incorporation of the Holocaust into a revised Palestinian narrative is itself any less cynical an “instrumentalization” of that historical episode than its early Zionist invocation—a frequent Palestinian refrain—is admittedly much open to doubt. Nakba is the Arabic word for “disaster,” which Palestinians employ in reference to the circumstances of their post-1948 exodus from former homes and lands.
  70. Laleh Khalili, “Heroic and Tragic Pasts: Mnemonic Narratives in the Palestinian Refugee Camps,” Critical Sociology 33 (2007): 731.
  71. Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on Concluding the Preliminary Examination of the Situation Referred by the Union of Comoros: “Rome Statute Legal Requirements Have Not Been Met,” International Criminal Court (Nov. 6, 2014) (concerning the May 31, 2010, Israeli naval action against a Turkish flotilla bound for the Gaza Strip), accessed Dec. 15, 2014, http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/otp-statement-06-11-2014.aspx.​ See also Jodi Rudoren, “Palestinians Set to Seek Redress in a World Court,” N.Y. Times, Dec. 31, 2014.
  72. Two widely-read texts of that earlier epoch, employing sophisticated versions of neo-Marxism, were Marshal Sahlins, Culture and Practical Reason (Chicago: Univ. of Chicago Press, 1978) and Raymond Williams, Problems in Materialism and Culture: Selected Essays (London: Verso, 1980).
  73. This is the central theme, for instance, of the self-described “strong program” in cultural sociology, much influenced by structuralist anthropology. See, e.g., Social Performance: Symbolic Action, Cultural Pragmatics, and Ritual, eds., Jeffrey Alexander and Bernard Giesen, et al., (Cambridge, U.K.: Cambridge Univ. Press, 2006).
  74. Forensic anthropologists, for example, when excavating the victims of mass atrocities, will formally operate under a specific legal mandate imposed by a governmental commission of inquiry. Yet these people are also independent professionals, trained and self-governed according to their own scientific protocol, developed largely from within their ranks. They generally seek to practice their vocation in accordance with settled understandings of how to uncover relevant truths, and what kind of truths counts as relevant, understandings generated over many years through experience in circumstances with no profound political ramifications. These standards provide an epistemic touchstone for resistance by such professionals to possible pressures from appointive masters to reach politically acceptable conclusions. This becomes especially important wherever it is possible to press the same set of bones into service of rather different stories. On the Argentine experience in this respect, see Mauricio Cohen Salama, Tumbas Anónimas: Informe Sobre la Identificación de Restos de Víctimas de la Represión Ilegal, (Buenos Aires: Católogos Editora, 1992).
  75. Atran and Ginges, “How Words Could End a War.”
  76. As, for instance, at the succinct page on “Reparations,” on the website of the Int’l Center for Trans. Justice, accessed Dec. 15, 2014, http://www.ictj.org/our-work/transitional-justice-issues/reparations. See generally “What is Transitional Justice?, Int’l Center for Trans. Justice, accessed Dec. 15, 2014, http://www.ictj.org/about/transitional-justice.
  77. Pablo de Greiff offers one such comprehensive effort, with regard to civil reparations, in “Justice and Reparations,” in The Handbook of Reparations, ed., Pablo de Greiff (Oxford, U.K.: Oxford University Press, 2006): 451.
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