Emilia Vassiliades*

Read Part I here.

Building a Historical Record and Establishing the Truth

Truth and historical record are complex and nuanced concepts in Israel-Palestine.[1] Narrative bridging and reformulation is required to address opposing and irreconcilable claims of history that underpin cyclical violence.[2] For example, Israel justifies the events of Al Nakba (1948) and the Six-Day War (1967) as an attempt to reclaim their homeland and essential defensive actions against antisemitism, divorcing themselves from responsibility for the subsequent large-scale displacement of Palestinians.[3] Masalha and Glazer have contended that this is one part of a wider effort to erase Palestinian claims to self-determination by curating a single-narrative version of historical events.[4] Conversely, many Palestinians perceive the Second Intifada and the 7 October attacks as necessary acts of resistance, while Israel characterises them as unprovoked terrorist acts.[5] Therefore, it is imperative to implement discursive mechanisms that forge an authoritative bridging of historical records as a prerequisite to enduring peace and reconciliation. Thus, acknowledging the entire ambit of victims’ suffering. Kiss corroborates that truth commissions present the opportunity to generate authoritative historical accounts, affirming the value of ‘narrative’ and ‘forensic’ forms of truth.[6] In this way, a truth commission offers the greatest opportunity to begin to reclaim distorted narratives of truth and establish an authoritative historical record.

However, attempting to synthesise narratives from contradictory sources can be a treacherous exercise that risks further entrenching pre-existing divides.[7] Where acknowledgement of group suffering has historical precedence in various post conflict societies, acknowledgement of a perceived adversary’s historical interpretation of suffering presents deeper challenges. Consequently, a truth commission risks escalating such disagreements on temporal scope. Nevertheless, the ongoing colonisation of Palestine negates ‘a clear need to narrate counter-hegemonic narratives.’[8] A more complete historical record of 1948, 1967 and the Second Intifada are vital to frame ongoing violations of human rights in the region through the wider lens of history.[9] Without such efforts, false notions of unprovoked conflict that necessitate disproportionate retaliation can be given credence. The incremental approaches to truth commissions proposed by Dudai and Bracka offers neither the remit to address the necessary temporal scope nor the liberty to fully break free of institutional narratives with the tool of historical context. It is for this reason, that an all-encompassing mechanism such as the SATR is preferable.[10] This type of truth commission offers the best opportunity to give victims ample space to voice their narratives in full, receive validation for their stories, and demand reparations.[11] Hence, affording the opportunity to create emancipatory narratives, combatting malicious attempts to control history. Without addressing the historical root of conflict, chains of historical injustice cannot be severed and neither true accountability, nor enduring peace can be achieved.[12]

Lack of developments at the ICC have made truth commissions more advantageous in this regard. It has traditionally been argued that rendering a historical verdict necessitates a ‘moral sifting’ akin to the examination of a criminal trial;[13] therefore, it is perilous to allow a less scrupulously investigated truth and historical narrative to take precedence over prior international criminal proceedings. Nevertheless, truth commissions, on their own merits, can meaningfully implicate state authority in systemic violations through their establishment of a historical record in pursuit of truth. For example, the South African Truth and Reconciliation Commission (SATRC) established an official record of the experiences of white and black South Africans from 1960 until 1990.[14] In fact, the more complete documentation of truth commissions and abundant witnesses can make them sharper tools of historical investigation.[15] Trials as an adversarial process are inherently limited in their ability to document the whole truth of historical events that accounts for systemic issues.[16] By engaging more meaningfully with victims and society, a truth commission can better lay the groundwork for enduring peace. A truth commission alone cannot achieve this narrative reformulation; thus, it ought to be part of a multifaceted approach. Nevertheless, the ICC has so far failed to make any attempt to do so and is limited in its jurisdiction to only examine crimes committed after 1 July 2002.[17] Hence a truth commission presents the best forum for an accurate and retrospective historical account to be recorded.

Reconciliation and Addressing Settler-Colonialism

The ongoing policies of settler-colonialism practiced by Israel in historic Palestine evoke a plethora of issues on justice which remain unresolved due to ‘Israeli intransigence’ and ‘international complicity’.[18] It is disputed whether a truth commission ought to or can address settler-colonialism. Nonetheless, settler-colonialism underlies the cyclical nature of conflict in Israel-Palestine.[19] Therefore, how a truth commission reckons with this determines whether it is advantageous in pursuing the wider goals of transitional justice. There is precedent for such an approach in the Commission of Historical Clarification in Guatemala which examined the systemic causes of conflict, including colonialism and institutionalised racism, which allowed members of the armed forces to brutalise Indigenous peoples and communities.[20] Reconciliation is a normative goal of transitional justice. Yet it is often ill-defined. Rouhana argues that in Israel-Palestine, if a truth commission is part of an ‘integrative transitional justice solution’ that promises a ‘radical transition’, reconciliation may be framed as decolonisation.[21] However, this is conditional upon acknowledgement of and reconciling with the power asymmetry between colonised and coloniser.[22] Thus departing from notions of decolonisation as armed resistance, moving towards enduring peace and reconciliation.

Yet, it has been argued by some scholars that truth commissions, as a measure of transitional justice, pursue a ‘false equivalency’ by the designation of both Israeli settler-colonial violence and Palestinian anti-colonial resistance as conflict.[23] Thereby, perpetuating harmful settler colonial narratives. Parallels between the Israeli occupation of Palestine is often drawn with the apartheid in South Africa.[24] Correspondingly, there is an emerging body of literature which seeks to reexamine the SATRC, through the lens of settler-colonialism.[25] Park maintains that although the SATRC has previously been hailed as a miracle,[26] its narrow scope of gross human rights violations resulted in a fundamental failure to remedy the structural and systemic inequality inherent to apartheid and settler colonialism. Furthermore, its ‘ambivalent denial’ actually contributed to the contemporary state of partial decolonisation.[27] Therefore, if silent on issues of decolonisation a truth commission risks only propagating a veneer of justice whilst ultimately assisting the erasure of Palestinian identity, reinforcing the goals of the settler-colonial project. Nevertheless, a truth commission that reckons with this properly can be instrumental in long-term reconciliation.

It may be argued that the lack of advancements at the ICC renders a truth commission more beneficial in this regard. Regardless of future efforts at the ICC, a narrow conception of justice and focus on perpetrators and criminal convictions cannot meaningfully address the institutionalisation of settler-colonialism necessary to achieve true reconciliation. Thus, by seeking to heal societal division, truth commissions are better suited to advance transition from social conflict underpinned by historical injustice to more equitable societies.[28] Nevertheless, whilst injustices persist and there is limited chance for institutional reform or accountability, this may stir renewed violence.[29] Where the Guatemalan CRC faltered was its failure to realise the promise of its final report and recommendations on institutionalised racism and settler-colonialism.[30] Hence, a truth commission as part of a wider restorative justice approach presents the best option to address issues of settler colonialism needed for long term reconciliation, contingent upon the strength of and adherence to its recommendations.

Healing

In providing a space for victims and communities to tell their stories, a truth commission can serve as healing for individuals, and the wider community by humanising victims and perpetrators in one another’s eyes. Minow contends that the restorative power of truth-telling is pivotal to recovery for those who have endured trauma.[31] The continuing nature of conflict in Israel-Palestine has resulted in significant psychological and social intergenerational suffering, particularly in children and young people.[32] ‘Communal discursive processes’ surrounding collective memory are essential to the healing of individual victims and wider society.[33] Therefore, a truth-commission provides a victim-oriented platform that can amplify their voices, which has not yet been provided.

However, as Shaw contends, while some victims are empowered by telling their stories, others are left feeling angry and re-victimised.[34] These feelings were evoked in Sierra Leone, where the Western conception of truth-telling as therapeutic was questioned.[35] Nevertheless, the Chilean TRC reflected that memory repression was shown to have adverse psychological effects.[36] Moreover, as has occurred in the past in Bosnia and Rwanda, without fundamental psychological healing, violence is likely to be renewed.[37] Hence, although the cathartic nature of truth-telling has been challenged, a great deal of literature supports its healing effects.

The stagnation in progress at the ICC underscores the necessity for a platform dedicated to the healing of victims. The victim centred approach of truth commissions prioritises healing, over the retribution pivotal to criminal proceedings. However, some may contend that without the ‘absolute justice’ of criminal prosecution, victims will feel as though they cannot completely heal. Nevertheless, as Edward Said wrote ‘no one gets absolute justice… but there are steps that must be taken, like the ones taken at the end of apartheid.’[38] Criminal trials punishing Israeli perpetrators will possibly never see the day.[39] As such, appetites for this retributive form of ‘absolute justice’ will not be satiated. A relative type of justice offered by truth commissions that promotes individual and societal healing fills this void and more.

Conclusion

The implementation of transitional justice in Israel-Palestine remains in its infancy and a truth commission has thus not yet been attempted. Although there are no ideal conditions to establish a truth-seeking mechanism, Israel-Palestine is progressing further into conflict, diminishing current prospects. Fractured political governance, polarised public opinion, security risks, and political inertia all contribute to these limited prospects at present. Meanwhile, Palestinians suffer daily under the occupation without any recourse to justice, further  hindering prospects for any meaningful attempts at healing. Moreover, the perceived reliance on the ICC as the primary avenue for justice has not only fostered disillusionment but also perpetuated divisions within both societies. Nevertheless, the failure of the ICC to quash an atmosphere of impunity or address the complexities of the conflict, effectively underscores the need to consider alternative radical and integrative approaches to transitional justice, if the region were to eventually transition into a post-conflict society. Under this scenario even where measures of criminal justice do not come first, a truth commission is advantageous and best placed to build a historical record, lay the groundwork for reconciliation by addressing settler-colonialism and promote healing, contingent upon its ability to reckon with systemic issues and realisation of its recommendations. Ultimately, the establishment of a truth-seeking mechanism in Israel-Palestine should be viewed as part of a broader, multifaceted approach to transitional justice—one that acknowledges the historical and society roots of conflict, affirm accountability, give recognition to victims, and seeks to build a foundation for lasting peace and reconciliation.

*The author writes in an independent capacity and the views contained here are her own.*

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[1] Jeremie Bracka, Transitional Justice for Israel/Palestine (Springer 2021) 201.

[2] Zinaida Miller, ‘Settling with History: A Hybrid Commission of Inquiry for Israel/Palestine’ [2007] 20 Harvard Human Rights Journal291.

[3] ibid.

[4] Nur Masalha, The Politics of Denial: Israel and the Palestinian Refugee Problem (Pluto Press 2003) 67–8; Steven Glazer, ‘The Palestinian Exodus in 1948’ [1980] 9(4) Journal of Palestine Studies 96, 97; Nur Masalha, ‘60 Years After the Nakba: Historical Truth, Collective Memory and Ethical Obligations’ [2009] 3(1) Kyoto Bulletin of Islamic Area Studies 39.

[5] Jeremie Bracka, Transitional Justice for Israel/Palestine (Springer 2021) 223.

[6] Elizabeth Kiss, ‘Moral Ambition Within and Beyond Political Constraints’ in in Robert I. Rotberg and Dennis Thompson (eds.), Truth v. Justice: The Morality of Truth Commissions (Princeton University Press 2000) 70.

[7] Robert I. Rotberg and Dennis Thompson (eds.), Truth v. Justice: The Morality of Truth Commissions (Princeton University Press 2000) 70.

[8] Masalha (2012: 256). In Brendan Ciarán Browne, ‘Disrupting Settler-Colonialism or Enforcing the Liberal ‘Peace’? Transitional (In)Justice in Palestine-Israel’ [2021] 20(1) Journal of Holy Land and Palestine Studies 1.

[9] Jeremie Bracka, Transitional Justice for Israel/Palestine (Springer 2021) 223.

[10] Nadim Khoury, ‘Transitional Justice in Palestine/Israel’ in Leila H. Farsakh (ed.) Rethinking Statehood in Palestine (University of California Press 2021) 165.

[11] ibid.

[12] Patrick Wolfe, ‘Settler Colonialism and the Elimination of the Native’ [2006] 8(4) Journal of Genocide Research 387; Nur Masalha, ‘Remembering the Palestinian Nakba: Commemoration, Oral History and Narratives of Memory’ [2008] 7(2) Holy Land Studies 123, 151.

[13] Robert I. Rotberg and Dennis Thompson (eds.), Truth v. Justice: The Morality of Truth Commissions (Princeton University Press 2000) 268.

[14] Truth and Reconciliation Commission of South Africa Report (1999) (‘SATRC Report’).

[15] Ariel Meyerstein, ‘Dreaming an Israeli-Palestinian Truth Commission’ [2003] Journal of Church and State 45(3) 457, 478.

[16] Martti Koskenniemi, ‘Between Impunity and Show Trials’ [2002] Max Planck Yearbook of United Nations Law Online 1.

[17] Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002)  2187 UNTS 38544.

[18] Brendan Ciarán Browne, ‘Disrupting Settler-Colonialism or Enforcing the Liberal ‘Peace’? Transitional (In)Justice in Palestine-Israel’ [2021] 20(1) Journal of Holy Land and Palestine Studies 1.

[19] ibid; Lorenzo Veracini 2019, ‘Israel-Palestine through a settler-colonial studies lens’ [2019] 21(4) Interventions: International Journal of Postcolonial Studies 568.

[20] Greg Grandin, ‘The Instruction of Great Catastrophe: Truth Commissions, National History, and State Formation in Argentina, Chile, and Guatemala’ [2005] 110(1) The American Historical Review 46.

[21] Nadim Rouhana, ‘Decolonization as Reconciliation: Rethinking the National Conflict Paradigm in the Israeli-Palestinian Conflict’ [2018] 41(4) Ethnic and Racial Studies 643.

[22] ibid.

[23] ibid.

[24] Christopher J. Lee, ‘South Africa, Israel-Palestine, and the Contours of the Contemporary World Order’ [2004] 5 (1-2) Safundi 1.

[25] Augustine S.J. Park, ‘Settler Colonialism and the South African TRC: Ambivalent Denial and Democratisation Without Decolonisation’ [2022] 31(1) Social & Legal Studies 216; Dumisa B. Ntsebeza, ‘The Uses of Truth Commissions’ in Robert I. Rotberg and Dennis Thompson (eds.), Truth v. Justice: The Morality of Truth Commissions (Princeton University Press 2000)

[25]; A Clarno, Neoliberal Apartheid: Palestine/Israel and South Africa After 1994 (University of Chicago Press 2017).

[26] Augustine S.J. Park, ‘Settler Colonialism and the South African TRC: Ambivalent Denial and Democratisation Without Decolonisation’ [2022] 31(1) Social & Legal Studies 216.

 [27] Nadim Rouhana, ‘Decolonization as Reconciliation: Rethinking the National Conflict Paradigm in the Israeli-Palestinian Conflict’ [2018] 41(4) Ethnic and Racial Studies 643

[28] Sigriður Guðmarsdóttir, Paulette Regan, Demaine Jason Solomons, (eds.) Trading Justice for Peace? : Reframing reconciliation in TRC processes in South Africa, Canada and Nordic countries (AOSIS 2021) 2.

[29] Jack Snyder and Leslie Vinjamuri, ‘Trials and Errors: Principle and Pragmatism in Strategies of International Justice’ [2004] 28 (3) International Security 5.

[30] Jeff Corntassel & Cindy Holder, ‘Who’s Sorry Now? Government Apologies, Truth Commissions, and Indigenous Self-Determination in Australia, Canada, Guatemala, and Peru’ [2008] 9(4) Human Rights Review 465.

[31] Martha Minow, ‘The Hope for Healing: What Can Truth Commissions Do?’ in Dennis Thompson and Robert I Rotberg (eds), Truth v. Justice (Princeton University Press 2000) 235.

[32] Abdallah Abudayya, Geir Tarje Fugleberg Bruaset, Hedda Bøe Nyhus, Radwan Aburukba, Randi Tofthagen, ‘Consequences of war-related traumatic stress among Palestinian young people in the Gaza Strip: A scoping review, Mental Health & Prevention’ [2023] 32 Mental Health & Prevention 1.

[33] Jeremie Bracka, Transitional Justice for Israel/Palestine (Springer 2021) 113.

[34] Rosalind Shaw, ‘Rethinking Truth and Reconciliation Commissions: Lessons from Sierra Leone’ (Special Report no 130, United States Institute for Peace 2005) 6.

[35] ibid.

[36] Robert Ame and Seldu Alidu, ‘Truth and Reconciliation Commissions, Restorative Justice, Peacemaking Criminology and Development’ (2010) 23(3) Criminal Justice Studies 253, 258–9.

[37] Rafi Nets-Zehngut, ‘Passive Healing of the Aftermath of Intractable Conflicts’ [2009] 14(1) International Journal of Peace Studies 39, 39.

[38] Edward Said, Power, Politics and Culture (Vintage 2001), 449–50.

[39] Nadim Khoury, ‘Transitional Justice in Palestine/Israel’ in Leila H. Farsakh (ed.) Rethinking Statehood in Palestine (University of California Press 2021) 160.