Who is Afraid of Historical Redress?: The Israeli Victim-Perpetrator Dichotomy 9781618110763

Citation preview

——————————————————— Introduction

———————————————————

Who Is Afraid of Historical Redress? The Israeli Victim-Perpetrator Dichotomy

Ruth Amir

—1—

 Introduction



Israel: Society, Culture, and History Series Editor: Yaacov Yadgar, Bar-Ilan University, Ramat Gan Editorial Board: Alan Dowty (University of Notre Dame, South Bend, Indiana) Tamar Katriel (University of Haifa, Haifa) Avi Sagi (Bar-Ilan University, Ramat Gan) Allan Silver (Columbia University, New York) Anthony D. Smith (London School of Economics, London) Yael Zerubavel (Rutgers University, New Brunswick)

—2—

 Introduction



WHO IS AFRAID OF HISTORICAL REDRESS? The Israeli Victim-Perpetrator Dichotomy

Ruth AMIR

Boston 2012 —3—

——————————————————— Introduction

———————————————————

Library of Congress Cataloging-in-Publication Data: A Catalog record for this title is available from the Library of Congress.

Copyright © 2012 Academic Studies Press All rights reserved ISBN 978-1-934843-85-7 On the cover: No Title, 2003, by Assaf Rahat, threads and plastic glue. Book design by Adell Medovoy Published by Academic Studies Press in 2012 28 Montfern Avenue Brighton, MA 02135, USA [email protected] www.academicstudiespress.com

—4—

——————————————————— Introduction

———————————————————

Table of Contents

Foreword

6

Introduction

7

Chapter One

Repairing Historical Injustices Chapter two

The Holocaust Reparations: A Template? Chapter three

23 57 83

The Yemeni Babies Affair Chapter four

123

The Tinea Capitis Affair Chapter five

162

Iqrit and Bir’im Chapter six

195

Back to the Future Chapter seven

Who is Afraid of Historical Redress?

235

Bibliography

251

Index

285

—5—

——————————————————— Introduction

———————————————————

Foreword

This book was conceived in Wolfville, Nova Scotia, during my visit to Acadia University in fall 2008. I thank the 2008 Faculty Enrichment Program of the government of Canada and the Israel Association for Canadian Studies for facilitating my stay at the Acadia Centre for the Study of Ethnocultural Diversity (ACSED). The warm welcome and hospitality of ACSED coupled with the treasures of bonny Nova Scotia provided the perfect setting for contemplating justice and the making of amends. The beautiful landscape and its bloody history were stirring. The Bay of Fundy and the Gulliver’s Cove retreat at Digby Neck provided yet more sources of inspiration as I completed the writing of the third and fourth chapters of this book during the summer of 2009. Over the past two years I have discussed the issues addressed in this volume with colleagues and presented some of the ideas in several conferences. I thank all those who read or commented on my work. In particular I would like to thank Yaacov Yadgar, series editor, for his trust and belief in the project, Hadas Yaron for her invaluable comments on the manuscript, and the Academic Studies Press team, Sara Libby Robinson, Sharona Vedol, and Kira Nemirovsky, for taking such good care of me and my manuscript. I also wish to thank Assaf Rahat for letting me use the image of his magnificent work of art on the cover of his book. The final words of gratitude are due to my spouse, Yosi, and to Elisheva, Danielle, Doron and Oran for their patience and unconditional support throughout this demanding project. I dedicate this book to Tamar and Aya, my two favorite distractions.

—6—

——————————————————— Introduction

———————————————————

Introduction

There is a secret agreement between past generations and the present one. Our coming was expected on earth. Like every generation that preceded us, we have been endowed with a weak Messianic power, a power to which the past has a claim. That claim cannot be settled cheaply.1

The powerful presence of the past in the present is overpowering. Walter Benjamin imagines the past as immanent: “As flowers turn toward the sun, by dint of a secret heliotropism the past strives to turn towards the sun which is rising in the sky of history.”2 This imagery is pertinent to the current global proliferation of the politics of historical redress, reparations, and public apologies. Benjamin’s message is almost prophetic; our future-oriented messianic power is indeed weak, weaker than the dangerous memories that occupy our present. Hence, the attempts to settle some of the wrongs from the distant or near past are indeed an appropriate finale to the gory twentieth century.3 This influx of claims for historical redress can be seen as the effect of the surfacing of painful memories in contemporary societies. For Benjamin,4 remembrance is vital: “For every image of the past that is not recognized by the present as one of its own concerns threatens to disappear irretrievably.” His insistence on treasuring those memories that flash at a moment of danger is part of his view of history and his subversive allegiance with the history of the vanquished. As Fassin and Rechtman5 suggest, trauma has become one of the established ways of 1

Walter Benjamin, Illuminations (New York: Schocken Books, 1968), 254. Italics in the original. In the sixth thesis, Benjamin reminds us, as part of his discussion of his model historian, “The Messiah comes not only as the redeemer, he comes as the subduer of Antichrist.” (thesis VI, 255). For Benjamin, redemption occurs through memory. The secret agreement with previous generations is the imperative “remember!” See also thesis B, ibid., 264. 2 Ibid., 255. 3 During the twentieth century, the death toll through ethnic conflicts amounted to over seventy million. See Michael Mann, The Dark Side of Democracy: Explaining Ethnic Cleansing (Cambridge: Cambridge University Press, 2005), 2. 4 Benjamin, Illuminations, 255. 5 Fassin and Richard Rechtman, The Empire of Trauma: An Inquiry into the Condition of Victimhood —7—

——————————————————— Introduction

———————————————————

individuals and collectives for relating to the past. The impact of trauma lingers on, for generations sometimes; it is constructed and reproduced through various representations as collective memories, a form of remembrance that ties together the collective identity of a nation or an ethnic group. Ron Eyerman6 explains: As opposed to psychological or physical trauma, which involves a wound and the experience of great emotional anguish by an individual, cultural trauma refers to a dramatic loss of identity and meaning, a tear in the social fabric, affecting a group of people that has achieved some degree of cohesion. In this sense, the trauma need not necessarily be felt by everyone in a community or experienced directly by any or all. While it may be necessary to establish some event as the significant “cause,” its traumatic meaning must be established and accepted, a process which requires time, as well as mediation and representation.

The imprint left by trauma, on both victims and perpetrators, restructures the cognitive and moral foundations of a society. Hence, the notions of postmemory and transgenerational transference concern the transmission of trauma and its reproduction through generations. Trauma can be transferred and reproduced consciously through education and cultural practices or through less conscious means such as identification and mimeticism.7 While a collective traumatic event provides the substance that consists in part of the experiences of individuals, its concretization is accomplished through the suffering of individuals.8 Three main sources of injustices have so far driven historical redress campaigns, namely WWII atrocities, former oppressive regimes, and colonialism.9 First, injustices perpetrated during the course of WWII, namely, massive killing sponsored by the state, forced labor or sexual

6 7 8 9

(Princeton, New Jersey: Princeton University Press, 2009). Ron Eyerman, Cultural Trauma: Slavery and the Formation of African-American Identity (Cambridge and New York: Cambridge University Press), 2. Dominique LaCapra, History in Transit: Experience, Identity, Critical Theory (Ithaca, New York: Cornell University Press, 2004). Fassin and Rechtman, The Empire of Trauma, 18. John C. Torpey, Making Whole What Has Been Smashed: On Reparation Politics (Cambridge, Massachusetts: Harvard University Press, 2006), 54–55. —8—

——————————————————— Introduction

———————————————————

exploitation10 by the Axis powers, unjust wartime internment of enemy aliens11 in the Allied countries, and the economic and political collaboration of allegedly neutral states such as Switzerland, the Netherlands, and France with the Nazi crimes. The philosophical-jurisprudential discourse offers extensive analyses of these cases within the context of universal human rights.12 Michael Ignatieff13 refers to the human rights culture that developed in the post-WWII era as a form of moral progress regardless of the motives of those involved in bringing it about. He argues that the Universal Charter of Human Rights of 1948 has granted individuals with international legal recognition. The lack of enforcement mechanism “had not stopped the villains, [but] it certainly has empowered bystanders and victims.”14 Elazar Barkan15 maintains that historical redress embodies the democratization of international law and its impact on domestic politics. Redress, he suggests, remains a central premise nowadays. Justice, morality, and human rights and their reciprocal tensions have become central to international politics in the twenty-first century. The emergence of international public law as key to a just global political order is manifest both in David Held’s16 version of cosmopolitan order and Jürgen Habermas’s17 cosmopolitanism. For Held, cosmopolitan democracy is a natural continuation of democracy at the level 10 For example, the sex slaves exploited by the Japanese government during WWII, termed by the Japanese derogatory tag “comfort women.” 11 The internment of Japanese American and Canadian citizens during WWII had been the subject of claims for restitution (see discussion about the difference between reparations and restitution in chapter 1.) Other cases are the internment of Canadian citizens of Ukrainian origin during WWI and of Italian-Canadians in WWII. 12 For a critical review of the human rights culture in the context of the third wave democratizations and transitional justice, see Robert Meister, “Human Rights and the Politics of Victimhood,” Ethics and International Affairs 16, no. 2 (2002), 91–108. 13 Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton: Princeton University Press, 2001), 7. 14 Ibid., 8. 15 Elazar Barkan, “Introduction: Reparation: A Moral and Political Dilemma,” in Reparations: Interdisciplinary Inquiries, eds. Jon Miller and Rahul Kumar (Oxford: Oxford University Press, 2007), 1–19. See also Elazar Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices (New York: Norton, 2000). See also Michael Ignatieff, The Rights Revolution (Toronto: House of Anansi Press, 2000); Jeffrey K. Olick and Brenda Coughlin, “The Politics of Regret: Analytical Frames,” in Politics of the Past: On Repairing Historical Injustices, ed. John C. Torpey (Lanham, Maryland: Rowman and Littlefield, 2003), 37–63. 16 David Held, Democracy and the Global Order (Stanford: Stanford University Press, 1995). 17 Jürgen Habermas and Max Pensky, The Postnational Constellation: Political Essays, ed. Max Pensky, trans. Max Pensky (Cambridge, United Kingdom: Polity Press, 2001), 58–112. —9—

——————————————————— Introduction

———————————————————

of the state. He notes that the overlapping and multilayered identities of individuals correspond to the globalization of economic forces and the new constructs of political power. These hybrid and multilayered identities provide individuals with the basis for participation in global civil society. Habermas links the vision of a postnational democracy to a shared cosmopolitan identity that is grounded in the moral universalism of human rights. Eder’s18 account of the construction of European identity also supports of this notion. The second source of claims for historical redress emanates from regime transitions to democracy. Seeking democratic legitimacy in the present is often coupled with a willingness to confront and shake off the transgressions of the past.19 For Ruti Teitel,20 Transitional justice offers a way to reconstitute the collective—across potentially divisive racial, ethnic, and religious lines—that is grounded in a political identity that arises from the society’s particular legacies of fear and injustice. While this is necessarily based on an evolving critical selfunderstanding, it nonetheless draws on a juridical discourse of rights and responsibilities that offers both a transcendent normative vision and a pragmatic course of action.

The cases populating this category are as follows: the demise of military dictatorships in Latin America, the collapse of Communist regimes in the Soviet Union and in Eastern Europe, and the end of Apartheid in South Africa.21 The activities associated with transitional justice are truth commissions, trials and purges of perpetrators and collaborators, 18 Klaus Eder, “A Theory of Collective Identity,” European Journal of Social Theory 12, no. 4 (2009), 427–447. 19 In recent years the scope of transitional justice seems to have broadened both as a concept and a set of remedy-offering practices. I suggest that the redress of injustices associated with WWII lends itself smoothly indeed to the conceptual framework of transitional justice. However, this is hardly the case of the redress of injustices associated with colonialism and postcolonial institutions. See Ruti G. Teitel, “Transitional Justice Genealogy,” Harvard Human Rights Journal 16 (2003), 69–94; Paige Arthur, “How ‘Transitions’ Reshaped Human Rights: A Conceptual History of Transitional Justice,” Human Rights Quarterly 31 (2009) 321–367. 20 Ruti G. Teitel, Transitional Justice (Oxford; New York: Oxford University Press, 2000), 225. 21 Ibid. See also Mahmood Mamdani, “Amnesty or Impunity? A Preliminary Critique of the Report of the Truth and Reconciliation Commission of South Africa (TRC),” Diacritics 32, no. 3–4 (2002), 33–59. — 10 —

——————————————————— Introduction

———————————————————

and claims for the restitution of nationalized property.22 Finally, the third source has been reparations claims of colonized peoples23 or claims against postcolonial institutions such as international lending agencies, the World Bank, and multinational corporations for the damages incurred by the economic, social, and environmental policies in the third world. Here, the preoccupation with the past has been affected by the diffusion of multiculturalism and the politics of identity,24 which concurred with the growing focus on victims and victims’ rights.25 The discourse of reparations brings to the fore the heinous atrocities inflicted by humans on fellow humans. The Holocaust and its impact reverberate powerfully in this discourse as an unprecedented evil.26 The reparations agreement between Israel and West Germany is the most famous and wide-scale case of historical redress that inspires Others seeking reconciliation and closure.27 The reparations agreement with West 22  23

24

25

26

27

In the Czech Republic and in Germany (on behalf of East Germany) there have been restitution programs for private property confiscated by the Communist government. The first reparations program to individuals or groups rather than states was created by Congress in 1946 in order to redress a wide range of claims pressed by Indian tribes, including violations of treaties for which no judicial remedy could be offered, and the loss of lands due to treaties signed under duress. See Stéphane Courtois, ed., The Black Book of Communism: Crimes, Terror and Repression, trans. Jonathan Murphy and Mark Kramer (Cambridge: Harvard University Press, 1999), 1–32. Also, the Komagata Maru affair, namely, the refusal of permission to disembark in Vancouver to a shipload of intending immigrants from India in 1914, the relocation of Innuit to the high Arctic in the 1950s, the sexual and physical abuse of Aboriginal students in churchrun residential schools, the removal of Doukhobor children from their parents in the 1950s, Africville (a black community on the outskirts of Halifax that was demolished in the 1960s), and the Chinese head tax. On the native Hawaiian claim for reparation, see Mari J. Matsuda, “Looking to the Bottom: Critical Legal Studies and Reparations,” Civil Rights Civil Liberties Law Review 22, (1987), 323–400. There are many more cases. James argues that although the politics of historical redress and multiculturalism are two logically distinct phenomena, one can justify the argument that redress politics are within the bounds of multiculturalism and the arena of political discourse and practice by virtue of their difference-conscious focus on group disadvantage, group restitution, and group responsibilities. See Matt James, “Do Campaigns for Historical Redress Erode the Canadian Welfare State?” in Multiculturalism and the Welfare State: Recognition and Redistribution in Contemporary Democracies, eds. Keith Banting and Will Kymlicka (Oxford: Oxford University Press, 2006), 222–246. See Torpey, Making Whole What Has Been Smashed: On Reparation Politics. See also Courtois, The Black Book of Communism: Crimes, Terror and Repression, 1–32. Fassin and Rechtman, The Empire of Trauma: An Inquiry into the Condition of Victimhood. Recently some researchers dispute the uniqueness of the Holocaust. See, in particular, Courtois’s introduction in Courtois, The Black Book of Communism: Crimes, Terror and Repression, 1–32. On the Holocaust as unique or universal, see Fassin and Rechtman, The Empire of Trauma: An Inquiry into the Condition of Victimhood. See, among others, David MacDonald, “First Nations, Residential Schools, and the Americanization — 11 —

——————————————————— Introduction

———————————————————

Germany set off heated debates on forgiveness, reconciliation, and the usage and allocation of the proceeds. These concerns continue to occupy Israeli public agenda to date and inspire Others seeking reparations for historical injustices. The consciousness of Israeli Jews and their daily lives are impregnated with the memory of the Holocaust and the ongoing conflict with the Palestinians. Both are taking their heavy toll on the populations; both have distinct effects on the shaping of Israeli and Palestinian society. Although the yearnings of Jews to return to the Holy Land are millenniaold, contemporary Jewish thought defends the legitimacy of the State of Israel mainly out of the need for Jewish political self-determination following the Holocaust. Israel’s proclamation of independence states,28 [T]he catastrophe which recently befell the Jewish people— the massacre of millions of Jews in Europe—was another clear demonstration of the urgency of solving the problem of its homelessness by re-establishing in Eretz-Israel the Jewish State.

For post-Holocaust Zionism, the ultimate lesson from the Holocaust is “Never again will Jewish blood be shed with impunity!”29 This particularistic lesson promotes a culture of victimhood.30 Emil Fackenheim, the influential Jewish theologian, demands that Jews have the holy obligation “not to give Hitler a posthumous victory.”31 In Fackenheim’s thinking, Jewish survival becomes sacred; it authenticates the good against the evil forces in the universe. This Manichaeistic thinking sets apart authenticity as loyalty from inauthenticity as betrayal. The dichotomy operates by the rule that it is either unconditional support for Israel or of the Holocaust: Rewriting Indigenous History in the United States and Canada,” Canadian Journal of Political Science 40, no. 4 (2007), 995–1015. 28 http://www.knesset.gov.il/docs/eng/megilat_eng.htm (accessed on August 14, 2009). 29 Leonard Grob, “‘Forgetting’ the Holocaust: Ethical Dimensions of the Israeli-Palestinian Conflict,” in Anguished Hope: Holocaust Scholars Confront the Palestinian Israeli Conflict, eds. Leonard Grob and John K. Roth (Grand Rapids, Michigan: William B. Eerdmans Publishing Company, 2008), 11. This slogan is attributed to Abba Kovner, poet and the organizer of the Vilna Ghetto revolt. 30 See Leonard Grob and John K. Roth, “Prologue: Haunted by the Holocaust,” in Anguished Hope: Holocaust Scholars Confront the Palestinian-Israeli Conflict, eds. Leonard Grob and John K. Roth (Grand Rapids, Michigan: William B. Eerdmans Pub. Co., 2008), 1–7. 31 Emil L. Fackenheim, To Mend the World: Foundations of Future Jewish Thought (New York: Schocken Books, 1982), 10. — 12 —

——————————————————— Introduction

———————————————————

the posing of a threat to Israel’s very right to exist.32 Hence, critique of the politics of the State of Israel is considered subversive and undermining Israel’s very survival. Evidence for the prevalence of this conception is abundant in both Israeli domestic politics and foreign policy. The sense of victimhood thus became an ever-increasing constituent of the Israeli collective identity and in recent years the keystone of Israel’s relations with other nations. With the Holocaust and the Palestinian-Israeli conflict resonating as a thick background, historical redress processes in Israel render a particularly challenging case for at least two reasons. First, the study of historical redress in Israel offers an aerial view of Israeli politics and society through focusing on the operating of the dialectical relationships of victim and perpetrator and their reproduction in the domestic field. The working of the Israeli victim-perpetrator dichotomy is intriguing. Most Israeli Jews view the world in dichotomous terms of actual or potential victims and perpetrators. In such world, Israel is an unreconciled and eternal victim. However, being a victim of past evil does not preclude one from being a perpetrator or immunize against becoming one in the future.33 Anita Shapira’s34 outline of the evolution of the offensive ethos that came to characterize Jewish life in Palestine before the Holocaust is suggestive of this complexity. While Israel is the victim vis-à-vis Germany, it is perceived as the perpetrator by both Palestinians and other domestic claimants.35 Every peace agreement or conflict resolution process with the Palestinians is likely to include some form of reparations or restitution. Domestically, Israel has employed processes, which no doubt fall into the jurisprudential and legal definitions of historical redress. Second, such study offers insights as to the capacity of an unreconciled victim community to overcome its anguish. Do victims look forward and 32 Didier Pollefeyt, “Between a Dangerous Memory and a Memory in Danger: The Israeli-Palestinian Struggle from a Post-Holocaust Perspective,” in Anguished Hope: Holocaust Scholars Confront the Palestinian-Israeli Conflict, eds. Leonard Grob and John K. Roth (Grand Rapids, Michigan: William B. Eerdmans Pub. Co., 2008), 135–153. 33 Ibid. 34 Anita Shapira, Land and Power: The Zionist Resort to Force, 1881–1948 (New York: Oxford University Press, 1992). 35 I wish to differentiate between domestic and foreign claimants. Thus, Palestinian citizens of Israel are herein considered domestic claimants. For a discussion of the Israeli incorporation regime, see Gershon Shafir and Yoav Peled, Being Israeli: The Dynamics of Multiple Citizenship (Cambridge: Cambridge University Press, 2002). — 13 —

——————————————————— Introduction

———————————————————

let go of their grief, or rather do they cultivate and employ it politically and become perpetrators? Furthermore, can victims master their past and make amends to wrongs they perpetrated on others? Many important questions arise with regard to the interactions between these roles, levels of analysis, processes, and their reciprocal effects. Israel provides a highly unique display of simultaneous involvement in past, present, and future redress campaigns as both victim and perpetrator. This book offers in-depth case studies of historical redress in Israel and an aerial view of Israeli society in the context of coping with its troubled past and present. In this, I touch the hard core of Israeli politics and society. I wish to explain why historical redress in Israel is limited to the juridical edifice of legal thought while other, more compassionate discourses are kept muted. While other studies concerning historical redress have focused on discrete cases from one or more countries, I examine whether and how such processes interact or spill over within a single country. Thus, my second objective is to analyze reparations politics in Israel at multiple levels and contexts. The analysis of highly detailed case studies, which are well-defined in time and scope but are nevertheless placed in a wider context, will contribute to the body of literature dealing with identity, collective memory, and public discourses of citizenship and interethnic group relationships. Such studies usually deal with the more researched high-level issues of Mizrachi and Ashkenazi Jews, immigrants and veteran Israelis, black and white Jews, or Palestinians and Jews. While there have been some accounts of the cases, they seem to offer an apparently “factual” account in the form of autobiographies and memoirs, or as attempts to either falsify or corroborate the establishment’s arguments regarding the case. The lesson learned from these processes and unique setting can help model the premises and principles surrounding future processes. I believe that bringing historical redress into Israeli public discourse and taking responsibility for past injustices can help change the terms and meanings of citizenship. This book deals with cases of historical injustices perpetrated by Israeli governments or agencies associated with the state. It offers an interdisciplinary vantage point into the political, social, and legal aspects of reparations politics. My purpose is to examine the forward-looking aspects of historical redress and whether redress campaigns spill over to one another. To this effect, I analyze five case studies. First, the three inquiry commissions formed in order to investigate — 14 —

——————————————————— Introduction

———————————————————

the whereabouts of the babies and young children of (mostly) Yemeni36 immigrants in the 1950s who disappeared postpartum or while being hospitalized or cared for by the authorities. The families claimed that the children have been abducted in order to be adopted by childless families in Israel or abroad. The second case concerns the 1994 law enacting cash reparations to those mostly former immigrants suffering from fatal malignancies and tumors as a result of radiation treatment.37 As a cure for favus and tinea capitis, the treatment protocol involved shaving of the hair and irradiation directly to the scalp and then epilation of the hair by hot wax. The treatments were administered to children by the Israeli authorities or on their behalf in Israel or in the immigrants’ countries of origin (in Asia or Africa) or in Marseille, France, shortly prior to departure to Israel. Both these cases involve marginalized Jewish Others—Mizrachim. The third case is about the expropriation of native land of two Christian Palestinian villages of Iqrit and Bir’im. During the 1948 war, the inhabitants of both villages were ordered to evacuate their homes temporarily; they were never allowed to return. This has been the subject of several Israeli High Court rulings, following petitions of the evacuees to return to their villages. The most recent ruling ordered the government to pay reparations to the claimants. While the Israeli-Palestinian conflict seems intractable, the Iqrit and Bir’im case is prima facie a fairly “easy case” in which both victims and perpetrators are in agreement about the injustice. The requested remedy is barred allegedly because of the potential repercussions of such precedent on the Palestinian refugee problem. Two more cases, namely, reparations for Holocaust survivors and the excluded blood donations of Ethiopian immigrants, occupied public discourse during the 1990s. These two cases provide a wider perspective to the authenticity of Israel’s attempts at redress. The injustice in the recognition of Holocaust survivors in Israel can serve as a control case. The injustice in Israel’s implementation of the agreement is inherent in the Luxembourg Treaty of 1952. However, its ramifications reverberated and transformed throughout the whole 36

I use the current academic term “Yemeni(s)” instead of “Yemenite(s)” in reference to the people of Yemen, both Jews and non-Jews, unless it appears otherwise in citations. 37 Law of Tinea Capitis Reparations 5754-1994, Public Law 1478, The Book of Laws (1994), http:// www.df-law.co.il/page.php?pageID=79 (accessed August 25, 2009). — 15 —

——————————————————— Introduction

———————————————————

period in parallel to the changes in Israel’s dealing with the memory of the Holocaust. The injustice became salient in public and academic discourse during the 1990s for two main reasons. First, this is partly related to the Israeli soul-searching and revisionist accounts of the inaction of the Jewish settlement in Palestine amid the Holocaust and the treatment of Holocaust survivors in Israel. Second, during the 1990s immigrants from the Former Soviet Union (FSU) embarked on a political campaign in order to gain recognition as Holocaust survivors. This campaign propelled other groups, North African Jews, but also Jews from other Eastern European countries who sought the widening of the scope of the exclusive recognition of Holocaust survivors in Israel. Finally, the most recent case is the exclusion of blood donated by Ethiopian immigrants allegedly due to the risk of HIV. The blood was excluded based on ethnic profiling, and donors were unaware that the extracted blood would be disposed of. This injustice was perpetrated while Israel was attempting to redress the injustices associated with its immigrant absorption practices of the 1950s. These two cases, which I analyze with less detail, afford us with a more current perspective on Israeli citizenship discourse and the outcomes of redress campaigns. These cases are particularly relevant because they unfold the stark contrast among the groups and their place in the hierarchy of Israeli citizenship.38 In analyzing these cases I wish to deconstruct the patterns of the denial and suppression of the injustices perpetrated by the state. Part of this suppression and denial is the manner in which the official narrative constructs the events and delimits the injustice in a manner that preserves the power relationships. I point toward the fundamentals of Israel’s practices of exclusion. This research is based on both primary and secondary sources. Most of the historical records that pertain to the cases are inaccessible to researchers at the State Archives. While I used most of the relevant unrestricted documentation at the State Archives and the Central Zionist Archives, the scope of my data is limited to protocols of the Knesset and of Knesset’s commissions, legislation, court cases, court rulings, and the reports of the various investigative commissions. Invaluable additional resources were memoirs, newspapers, and academic studies. Disap38 Shafir and Peled, Being Israeli: The Dynamics of Multiple Citizenship. — 16 —

——————————————————— Introduction

———————————————————

pointingly, the protocols of the investigative commissions are classified and inaccessible. While interests such as the protection privacy and security are indeed justified, this comprehensive confidentiality and inaccessibility to primary data sources are symbolic of the denial and suppression of the injustices. My research is not an attempt to reveal new factual evidence that would establish guilt or innocence in a specific injustice. Rather, my purpose is to deconstruct the hegemonic story and reconstruct the story of the oppressed, the victims, and the colonized and to bring it to the fore. While Israeli history provides ample cases that fall within the bounds of this research, the cases analyzed in this book are specific discrete wrongs that can be clearly delineated in terms of beginning and end of a specific injustice. The end of this specific injustice does not imply that injustices inflicted on the group and its marginalization and exclusion are over. Quite the reverse, wrongs are oftentimes inflicted on groups that are continuously marginalized and excluded. All the cases but the case of Holocaust survivors fit in the general exclusion according to the fault lines of Occident versus Orient. Holocaust survivors during Israel’s formative stage were Others by virtue of their diasporic passivity and victimhood. It is quite ironic that the same Israel that early on constructed Holocaust survivors as Others, because of their perceived helplessness and actual victimhood, came to embrace this same victimhood as a resource for claiming justice in the moral economy of the time.39 The inclusion of Holocaust survivors and the growing sympathy with their trauma provide the concretization needed for nurturing the memory of the Holocaust as an essential component in its victimhood. Another important consideration behind the choice of cases is their variability in terms of the strategy for seeking or attempting redress. Each of the cases pursued a different trajectory: various types of investigative commissions, legislation, and legal actions or petitions to the High Court of Justice. The choice of strategy is crucial in the definition of the incidence of the injustice, the status of the victims, and the extent of their participation and involvement in the campaign and finally the types and ranges of remedies that the state is willing to offer. Thus, the choice of strategy is far from arbitrary; it reflects the power relations 39 See Fassin and Rechtman, The Empire of Trauma, in particular, 275–284. — 17 —

——————————————————— Introduction

———————————————————

between the aggrieved group and the perpetrators. While historical redress campaigns challenge the official narrative and collective memory, the practices of historical redress are often themselves exclusionary. Major Arguments Victimhood is a position of an individual or a collective in power relationships; it can be undertaken voluntarily or involuntarily by certain political or social realities that systematically victimize certain groups. The Jewish-Israeli collective is constituted as a community of victims. Engaged in a protracted reparations process as the victim, Israel clings to its victimhood as a justification for wrongdoing. Israel is not cognizant of its role as perpetrator toward Others from within, both those belonging to the Jewish-Israeli collective and those outside it. The official Israeli response to historical injustices perpetrated by Israeli governments and its affiliated organs is quite perplexing. When Israel finally admits the facts of the injustice, it is reluctant to acknowledge its responsibility for the wrongs and make amends. The uncommitted attempts at historical redress toward domestic groups were undertaken as a response to the disturbances of dangerous traumatic memories. The attempts at redress were not conducted as processes of self-reflection and do not promote coming to terms with the past for the victims. The same techniques of neutralization40 used to justify Israel’s “offensive ethos”41 have been employed toward Others from within and Others outside the Jewish collective. In all these cases the process had failed to establish the necessary link between the perpetrator and the injustice. This did not allow bivalent justice to take place and establish just and equal relationships between the victimized groups and society at large. Attempts at redress within the rigid juridical edifice, the exclusive political climate, and public discourse did not allow reconciliation and healing of the victimized groups. I offer two explanations for the above. The first concerns the dominant Zionist ethos, which is conveyed as a series of holy dramas. The post-Holocaust conceptions of victimhood that dominate Jewish thought are used for the political legitimation of Israel.42 The Zionist 40 Gresham M. Sykes and David Matza, “Techniques of Neutralization: A Theory of Delinquency,” American Sociological Review 22 (1957), 664–670. 41 Shapira, Land and Power: The Zionist Resort to Force, 1881–1948. 42 Pollefeyt, “Between a Dangerous Memory and a Memory in Danger: The Israeli-Palestinian — 18 —

——————————————————— Introduction

———————————————————

ethos uses victimhood in several ways. It serves as an integrative tool for the construction of a victim community; suffering and the struggle to overcome it are endowed with virtue. This victorious victimhood is thought to award a right to rule not only on themselves but also (and more significantly) on those considered a threat on Israel’s right to exist.43 As a matter of political choice, victimhood came to justify both the establishment of the State of Israel and the perpetration of injustices on Others. Dealing with guilt and shame and of coming to terms with the past gives rise to coping mechanisms such as projection and introjection44 and techniques of neutralization of guilt.45 The neutralization of guilt is linked to the deontological ethic of conviction46 in which the causal chain between action and outcome is broken. Weber’s ethic of conviction is most appropriate for the characterization of the stance toward responsibility in Israel.47 Hence, in Israeli discourses of victims and victimhood, pity for the victims rather than the protection of rights propels action. Second, I follow Habermas’s48 characterization of modern collective identity as a rickety balance between universalism and particularism. While in liberal democracies the balance has been shifted toward universalistic principles of justice, Israel has yet to balance the three partly contradictory commitments that constitute the hard core of Israeli political and social order: colonialism, ethnonationalism, and democracy.49 Hence, Israel seems to be light-years away from Habermas’s vision of the postnational state. The rhetoric of ethnonationalism and of colonialism, Struggle from a Post-Holocaust Perspective,” 135–153. 43 Meister, “Human Rights and the Politics of Victimhood,” 91–108. 44 Melanie Klein, Love, Guilt and Reparation: And Other Works 1921–1945 (New York: Free Press, 2002); Melanie Klein, “A Contribution to the Psychogenesis of Manic-Depressive States (1935),” in Love, Guilt and Reparation & Other Works, ed. R. E. Money-Kyrle, vol. 1 (New York: Dell Publishing, 1975), 262–289. 45 Sykes and Matza, “Techniques of Neutralization: A Theory of Delinquency,” 664–670; Marvin B. Scott and Stanford Lyman, “Accounts,” American Sociological Review 33, no. 1 (1968), 46–62. 46 Max Weber, “Politics as a Vocation,” in From Max Weber: Essays in Sociology, eds. H. H. Gerth and C. Wright Mills, trans. H. H. Gerth and Wright Mills C. (New York: Oxford University Press, 1946), 77–128. 47 Ibid. See discussion in the section on collective responsibility in chapter 1. 48 Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, Massachusetts: MIT Press, 1996). 49 Shafir and Peled, Being Israeli: The Dynamics of Multiple Citizenship. For a discussion of the globalization of Israel, see Uri Ram, The Globalization of Israel: Macworld in Tel Aviv, Jihad in Jerusalem (Tel Aviv: Resling, 2005). (Hebrew) — 19 —

——————————————————— Introduction

———————————————————

which are the direct opposite of universalism, is based almost entirely on exclusion. The halfhearted commitment to redress alongside the prevailing exclusionary patterns cast serious doubts on the prospects of any redress processes and hence on reconciliation among groups. This halfhearted responsiveness to claims for the redress of historical injustices in Israel can be seen as the rear guard battle of the hegemonic order to hold on to the remnants of monumental history and collective memory and for preserving the status quo. Adjustments in the prioritization of the above commitments are desperately needed to balance the ever-shrinking social dimension of citizenship under neoliberal globalization. Successful redress campaigns can bring Israelis to develop a sense of civic solidarity and responsibility to address the continued impact of injustices that have been silenced, repressed, or altogether dismissed as a thing of the past. Plan of the Book The first chapter offers a critical review of the various definitions of what constitutes historical injustices, the uniqueness of the claims, types of legal arguments, remedies, and claims. I deal with the legal and ethical questions arising in the context of historical redress in general and focus particularly on the various notions of collective and individual responsibility, guilt, and shame and on dangerous memories. The leading theme of this chapter is the uniqueness of reparations claims and the need to redress historical injustices through the consolidation of politico-social and juridical settlements. The second chapter reviews the debate surrounding the reparations agreement with West Germany and the theological aspects of redress, namely apology and forgiveness. In this chapter I lay the foundations for my argument regarding Israel’s victim mentality and the emergence of the post-Holocaust victim-perpetrator dichotomy. This chapter also highlights the political aspects of forgiveness. Each of the subsequent three chapters deals with a single case of political redress in Israel. In the third chapter I focus on the Yemeni Babies Affair. I begin with the Yemenis in Israeli historiography and the historical injustice inflicted on them by the Zionist establishment and by the newly formed State of Israel. I analyze the Yemeni Babies Affair using the reports of the three inquiry commissions, Knesset discussions, — 20 —

——————————————————— Introduction

———————————————————

newspapers’ coverage, and studies unfolding critical narratives. Chapter 4 focuses on the tinea capitis case. The redress process resulted in a statute for reparation. In this chapter I present the case in the context of the immigrant as the Other and of control through medicinal practices. Chapter 5 outlines the long legal struggle of the uprooted Iqrit and Bir’im. I present this case in the context of settlers-native societies. Although there is recognition of the injustice, cutting across political affiliations in the political arena and in the high court, the last ruling in 2002 denied the villagers’ return but recommended cash reparations in order to achieve finality in this matter. The ruling itself makes reference to the political implications of ruling in favor of the claimants, particularly on future claims for the right of return. In the sixth chapter I look into the more recent politics of redress in Israel. While the three cases discussed thus far transpired during Israel’s nascent years, attempts at redress have brought some kind of finality during the 1990s. The purpose of this chapter is to examine the effects of past wrongs on the present. The chapter focuses on two cases. First is the case of the state commission of inquiry headed by retired High Court Judge Dahlia Dorner50 that investigated the aid to Holocaust survivors. The commission’s report establishes the omission of Israeli governments as trustees with regard to the allocation of funds paid in reparations by Germany to Holocaust survivors who were not eligible to take legal action against Germany under the terms of the reparations agreement. Second, I examine the case of the excluded blood donation of Israeli Ethiopians. The medical issues associated with this case are somewhat similar to those of the tinea capitis case of the 1950s. Both cases involve injustices perpetrated on immigrants. Although Israeli governments have in recent years employed some measures of affirmative action with regard to Ethiopians in the public sector, they still face discrimination both by bodies that are affiliated with the state and the private sector. The final section of the chapter deals with the forwardlooking aspects of historical redress. The final chapter deals with the Israeli “offensive ethos” and offers an explanation of the operation of the victim-perpetrator dichotomy in Israel. I examine the relationships between victimhood and the perpe50 This state commission of inquiry submitted its report to the State Audit Parliamentary Commission on June 22, 2008. — 21 —

——————————————————— Introduction

———————————————————

tration of injustices and argue that the strong sense of victimhood as a major constituent layer in Jewish-Israeli collective identity is used as yet another technique of neutralization of guilt. The Manichaeistic division into either victim or perpetrator is therefore a false dichotomy. In this chapter I illustrate the symbiosis between victim and perpetrator. Introducing and acknowledging historical injustices, whether by reparations or even by formal apologies, is only a first step. While this could play an important role in bringing certain views about history and moral obligations to be more prevalent in Israeli public life, such campaigns should be based on transformative change and result in recognition, inclusion, and full and equal membership of all groups.

— 22 —

——————————————— Repairing Historical Injustices ————————————————

1. Repairing Historical Injustices

What Is Historical Redress? The idea that societies should redress injustices committed in the past has become prevalent in the 1940s. The Indian Claims Commission Act1 (ICCA) passed by the United States Congress in September 1946 had launched the first reparations program from states to individuals or groups.2 The commission was to review treaties and other evidence of land seizures or takings for which full compensation had not been awarded. It determined the value of the lands and requested that Congress appropriate funds to be given to Native Americans. However, the act authorized the commission to award monetary compensation only. In no case could the commission, and later on the Court of Claims, decide on the return of the actual lands in dispute to the claimants. The act permitted the tribes to seek legal counsel in order to press claims in a variety of issues.3 Nell Jessup Newton suggests that the establishment of the Indian Claims Commission (ICC) has been affected by the atrocities of WWII: 4 World War II and its aftermath dramatically affected the United States’ treatment of Indian tribes. Indian People fought in great numbers during the war, acquitting themselves with honor. The Holocaust in particular impelled policymakers 1

2

3

4

For the actual document, see Francis Paul Prucha, Documents of United States Indian Policy, 3rd ed. (Lincoln: University of Nebraska Press, 2000), 231–233. See also William N. Thompson, Native American Issues, 2nd ed. (Santa Barbara: ABC-Clio, 2005). Earlier cases of reparations were war-related. Reparations were paid to the victor/s by the defeated party. For instance, France paid Germany reparations following the war between Prussia and France in 1872, Germany paid France after WWI, and the Soviet Zone of Germany paid the USSR after WWII. Before 1946, the nations could seek legal counsel only with the approval of the Bureau of Indian Affairs. More than 614 individual claims were submitted to the commission, out of which 204 were dismissed and 342 were granted awards. The remainder was transferred to the U.S. Court of Claims after the Indian Claims Commission ceased to exist in September 1978. See ibid., 45–49. Nell Jessup Newton, “Indian Claims for Compensation, Reparations, & Restitution in the United States Legal System,” in When Sorry Isn’t Enough: The Controversy over Apologies and Reparations for Human Injustice, ed. Roy L. Brooks (New York: New York University Press, 1999), 262. — 23 —

——————————————————— CHAPTER One ———————————————————

to consider the human rights dimensions of its treatment of Native Americans. . . . Those arguing for fairer treatment of Indian land claims noted that Hitler himself had invoked the example of the treatment of Western Indians during the period of “manifest destiny” . . . as justification for the Nazi invasion of Czechoslovakia and Poland to get more lebensraum for the German People.

This consideration, however, did not hinder the policy of tribal termination that Congress was endorsing at the time.5 It took several decades for the sense of duty to redress historical injustices to ripen and materialize. Redress campaigns flared up globally toward the latter decade of the twentieth century, and Israel at the turn of the millennium was also part of this trend. In this chapter I deal with the legal, sociological, moral, and political aspects of the redress of historical injustices and with the discourse surrounding it. There is no standard term for the phenomenon referred to as historical redress, the politics of apology, redress of historical injustices, and reparations. In parallel, there is no proper definition of wrongs that constitute historical injustices. Torpey conceives of historical injustices as,6 claims for mending past wrongs that are . . . extremely varied running the gamut from specific rights abuses against individuals such as unjust imprisonment and torture to such diverse social systems as plantation slavery, apartheid and colonialism.

The legal scholarship has hardly been more accommodating.7 Wyman8 defines historical injustices as wrongs committed or authorized by collective agents such as governments and private corporations. The 5 6 7

8

On the Congress’s tribal policy, see Thompson, Native American Issues, 45–49. John C. Torpey, “Introduction,” in Politics and the Past: On Repairing Historical Injustices (Lanham, Maryland: Bowman and Littlefield, 2003), 5–6. See, for example, Charles J. Jr. Ogletree, “Repairing the Past: New Efforts in the Reparations Debate in America,” Harvard Civil Rights-Civil Liberties Law Review 38, no. 2 (2003), 279–320; Roy L. Brooks, “Getting Reparations for Slavery Right—A Response to Posner and Vermeule,” Notre Dame Law Review 80, no. 1 (2004), 7–18. Kathrina Miriam Wyman, “Is There a Moral Justification for Redressing Historical Injustices?” Vanderbilt Law Review 61, no. 1 (2008), 127–196. — 24 —

——————————————— Repairing Historical Injustices ————————————————

adjective “historical” denotes that the injustices took place in the past, sometimes decades or centuries ago. The wrongs referred to as historical injustices involve large-scale violations of fundamental human rights; they are targeted toward many individuals and involving invidious discrimination based on race, religion, or ethnicity. An interesting illustration of the bewilderment surrounding the definition of “historical injustice,” or rather, what constitutes such injustice, is the exchanges among Brooks,9 Muller,10 and Posner and Vermeule.11 Muller12 criticizes Brooks for grounding his definition of “historical injustice” in the present.13 Indeed, Brooks defines “human injustices” as the “violation or suppression of human rights or fundamental freedoms recognized by international law.”14 Here he makes direct reference to Article 55 (c) of the UN Charter, which commits the UN to the promotion of universal respect for and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. As Olick and Coughlin15 note, theories in the realm of universal human rights tend to be ahistorical. Hence, the universality of the rights pertains not only to their incidence and applicability but also encompasses the temporal dimension in which they operate. They argue that “[t]he strong position of human rights dismisses historical or cross-cultural contextualism as either theologically unacceptable . . . or philosophically dangerous.”16 In a blazing response to Posner and Vermeule,17 Brooks pinpoints his definition by asserting that reparations apply only to certain types of wrongs, namely, “gross violations of fundamental international human

9

Brooks, “Getting Reparations for Slavery Right—A Response to Posner and Vermeule,” 251–288; Roy L. Brooks, ed., When Sorry Isn’t Enough: The Controversy over Apologies and Reparations for Human Injustice (New York: New York University Press, 1999), 3–11. 10 Eric L. Muller, “Fixing a Hole: How the Criminal Law Can Bolster Reparations Theory,” Boston College Law Review 47, no. 4 (2006), 659–704. 11 Brooks, “Getting Reparations for Slavery Right—A Response to Posner and Vermeule,” 251–288. 12 Muller, “Fixing a Hole: How the Criminal Law Can Bolster Reparations Theory,” 659–704. 13 Hence, Muller implicitly rejects any sort of temporal defense. See my discussion of temporal defense in the following section, and ibid. 14 Brooks, When Sorry Isn’t Enough: The Controversy over Apologies and Reparations for Human Injustice, 3–11. 15 Olick and Coughlin, “The Politics of Regret: Analytical Frames,” 40–41. 16 Ibid., 41. 17 Eric A. Posner and Adrian Vermeule, “Reparations for Slavery and Other Historical Injustices,” Columbia Law Review 103, no. 3 (2003), 689–747. — 25 —

——————————————————— CHAPTER One ———————————————————

rights such as slavery, genocide, and apartheid.”18 Reparations claims, he argues, characteristically arise only in the context of an atrocity. Muller19 thereby comments that this definition is lacking because the primary example of reparations in the United States—the internment of Japanese Americans—remains out of its bounds. While Brooks’s definition may be somewhat wanting, it is more so because he merely replaces the vagueness of “injustice” with the vagueness of “atrocity.” The list of atrocities that Brooks provides in the appendix to the volume Atonement and Forgiveness clearly suggests that some gold standard was used for the selection of the atrocities. It is hard to pin down a proper definition for “injustice” or “atrocity”; such attempt could turn into a double-edged sword. An excessively inclusive definition could keep us very busy mourning and apologizing ad absurdum, while an overly exclusive definition may serve to vindicate the infliction of injustices. Often the practical solution to this dilemma seems to be the setting of some gold standard in the form of our “favorite” atrocity, the one that touches us the most. The gold standard then becomes an exclusive criterion for the acknowledgment and recognition of injustices and their severity. Such abuse of the gold standard, often by victims of atrocities according to their own suffering or the imagined suffering of their group, is dangerous. Its particularity may desensitize or build up indifference and callousness to atrocities or injustices endured by others. Definitional issues become crucial with the proliferation of historical redress campaigns. The haziness surrounding the definitions could be minimized if not fully resolved by embracing a relatively inclusive definition of what constitutes a historical injustice (e.g., Wyman’s20). Such definition should emphasize the injustice rather than the presumed extent of suffering it caused (as implicit by the use of the gold standard for the inclusion or exclusion of injustices). Once the focus is shifted from the suffering toward the injustice, an appropriate probative basis for such claims becomes essential. This shift could be realized by means of borrowing some inner categorizations for the injustice from the legal field. While not all grievances are momentous under the juridical edi18 Brooks, “Getting Reparations for Slavery Right—A Response to Posner and Vermeule,” 255. 19 Muller, “Fixing a Hole: How the Criminal Law Can Bolster Reparations Theory,” n. 44, 667. 20 Wyman, “Is There a Moral Justification for Redressing Historical Injustices?” 127–196. — 26 —

——————————————— Repairing Historical Injustices ————————————————

fice, the focus on the wrong rather than on the suffering of the victims conveys the message that individual human suffering defies hierarchical categorization. Historical Redress Claims There are two discourses of responses to historical injustices: a juridical/ legalistic discourse and a sociological/theological discourse.21 Although these discourses are not mutually exclusive, they vary by academic discipline, the issues invoked, and the types of claims and remedies considered and justified in the discourse In recent years, claimants in the United States seek legal action against insurance companies, banks, and other corporations for their role in assisting or taking part in slave trade, for direct involvement or indirect liability by providing services to the perpetrators, and for other infringements of human rights.22 This private law litigation can be broadly broken up into two categories.23 The first, under property or contract law, seeks the enforcement of some proprietary or contractual right that was expropriated or denied without compensation. The second is often constructed and submitted in terms of tort, unjust enrichment, or quantum meruit24 arguments. This class is referred to as the tort model.25 Both types of claims have been directed over the years against governments and industrial corporations or against the financial services industry for allegedly facilitating exploitation and oppression through providing financial services to the perpetrators or for failing to 21 Janna Thompson, Taking Responsibility for the Past: Reparation and Historical Injustice (Oxford, United Kingdom: Polity, 2002), 47–50. 22 Ogletree, “Repairing the Past: New Efforts in the Reparations Debate in America,” 279–320. Ogletree led the Reparations Coordinating Commission, a legal team targeted at filing suits for slavery and Jim Crow laws. 23 James Davey, From “Jim Crow” to “John Doe”: Reparations, Corporate Liability and the Limits of Private Law (Cardiff: Cardiff Center for Ethics, Law and Society, 2006), http://www.ccels.cf.ac.uk/ archives/publications/2006/daveypaper.pdf (accessed June 5, 2009). 24 Quantum meruit is a legal claim originating from the domain of quasi contracts. Quasi contracts represent a situation in which there was no contract on the one hand, but no specific agreement that there would be no value for the services rendered. Literally, quantum meruit means “as much as he deserves.” The minimum requirements for quantum meruit in an unjust enrichment claim are (1) the claimant conferred a benefit upon the defendant, (2) the defendant appreciated or acknowledged the benefit, and (3) the defendant accepted the benefit under such circumstances as to make the retention of the benefit inequitable without payment of its value. See Anthony J. Sebok, “Two Concepts of Injustice in Restitution for Slavery,” Boston University Law Review 84 (2004), 1405–1442. 25 Brooks, Atonement and Forgiveness: A New Model for Black Reparations, 98–140. — 27 —

——————————————————— CHAPTER One ———————————————————

honor banking and insurance agreements. In order to demonstrate the impediments of the tort model, my departure point consists of pinning down the distinction between torts under civil law and historical injustices as defined quite intuitively by various scholars above. A tort is a civil wrong, other than a breach of contract, resulting in injury or harm in which the injured party seeks remedy. Torts fall into three general categories: intentional torts, negligent torts, and strict liability torts. A tort allows the courts to award remedies such as a mandatory injunction, a prohibitory injunction, or damages.26 In Israeli law, the remedy offered to claimants is not penal. Moreover, it should not facilitate the unjust enrichment of the claimant. Tort law is at the same time backward and forward-looking. While some torts amount to crimes punishable with incarceration, tort law is intended not only to provide remedy for the damage incurred but also to deter others from perpetrating the same wrong. Nonetheless, the compensation imposed on the respondent is not intended to be punitive. Unjust enrichment is an essential constituent of restitutionary claims. Restitution is concerned with the return of specific items of real or personal property. Kull27 defines “restitution” as “the obligation to account for certain benefits (though not others) obtained at the expense of another party.” Kull argues that “[w]henever the remedy awarded according to the law is measured by the defendant’s gain rather than plaintiff’s loss, a duty to disgorge unjust enrichment will explain the defendant’s liability more readily and more completely than will a duty merely to refrain from injuring others.”28 Hence, the core principle of Kull’s definition of restitution—unjust enrichment—is backward-looking. Sebok29 notes that in recent decades restitution has become a power26 Jules Coleman, “Theories of Tort Law,” in Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta (Stanford: The Metaphysics Research Lab Center for the Study of Language and Information, Stanford University, 2003), http://plato.stanford.edu/entries/tort-theories/ (accessed June 9, 2009). Englerad Yitzhak, The Philosophy of Tort Law (Aldershot: Dartmouth Publishing Company, 1993). Benjamin C. Zipursky, “Philosophy of Tort Law: Between the Esoteric and the Banal,” in Blackwell Guide to Philosophy of Law and Legal Theory, eds. Martin Golding and William Edmundson (London: Blackwell, 2004), SSRN: http://ssrn.com/abstract=555705 (accessed June 9, 2009). 27  Andrew Kull, “Rationalizing Restitution,” California Law Review 83 (1995), 1191–1242. . Ibid., 1192. See also Dan B. Dobbs, Law of Remedies: Damages, Equity, Restitution, 2nd ed. (St. Paul: West Publishing Co., 1993). 28 Ibid., 1193. 29 Sebok, “Two Concepts of Injustice in Restitution for Slavery,” 1405–1442. — 28 —

——————————————— Repairing Historical Injustices ————————————————

ful tool for redressing mass injustices. He refers to two cases of litigation concerned with unjust enrichment: the first is forced labor during the Holocaust; the second consists of claims filed against tobacco companies. In both cases the claimants sought restitution from a private party, a corporation. The reparations amounted to the monetary equivalent of the property or labor that was taken. The wrongful act was considered normative at the time it transpired. Whereas the wrongs associated with forced labor involved the profiling of the population based on race, ethnicity, or religion, those involving the tobacco companies were not discriminatory. Substantial legal obstacles arise in the course of reparations litigation based on tort and unjust enrichment; these are widely discussed in the literature mainly in the context of the U.S. legal system.30 Whether these obstacles are procedural or doctrinal, they often result in a pretrial dismissal of claims. In order to overcome these impediments, the claimants must first establish a standing, must substantiate that the claims did not fall into the limitation periods, and finally, should gain recognition as a certifiable class. These provide grounds for numerous motions to dismiss. Hence, African-American reparations claims for slavery, for example, encounter considerable obstacles within the traditional individual rights paradigm of civil rights cases. They have to overcome the statute of limitations, the absence of directly harmed individuals, the absence of individual perpetrators, the lack of direct causation, the indeterminacy of compensation amounts, and finally, sovereign immunity when damages are sought from government.31 Scholars have put forward various litigation strategies and tactics for rendering these claims meritorious.32 One of the impediments of reparations litigation in the U.S. is the 30 For instance, Paige A. Fogarty, “Speculating a Strategy: Suing Insurance Companies to Obtain Reparations for Slavery,” Connecticut Insurance Law Journal 9, no. 1 (2002), 231–241. Sebok, “Two Concepts of Injustice in Restitution for Slavery,” 1405–1442; Eric K. Yamamoto, Susan K. Serrano, and Michelle Natividad Rodriguez, “American Racial Justice on Trial—Again: African American Reparations, Human Rights and the War on Terror,” Michigan Law Review 101, no. 6 (2003), 1269–2337. 31 Ibid., 1302–1303. See also Tara Kolar Ramchandani, “Judicial Recognition of the Harms of Slavery: Consumer Fraud as an Alternative to Litigation,” Harvard Civil Rights-Civil Liberties Law Review 42, no. 2 (2007), 541–556. 32 Among others, ibid.; Ogletree, “Repairing the Past: New Efforts in the Reparations Debate in America,” 279–320; Fogarty, “Speculating a Strategy: Suing Insurance Companies to Obtain Reparations for Slavery,” 211–252. — 29 —

——————————————————— CHAPTER One ———————————————————

political question doctrine. Choper defines a political question as a substantive ruling by the Justices that a constitutional issue regarding the scope of a particular provision (or some aspects of it) should be authoritatively resolved not by the Supreme Court but rather by one (or both) of the national political branches or by an organ of state government.33

The American legal system usually dismisses matters involving political questions during pretrial procedures on the grounds that they are nonjusticiable. However, as the U.S. Supreme Court’s rulings on affirmative action and on abortion suggest, this doctrine has not always been applied to every controversial issue in public debate. Normally, the decision on whether an issue is justiciable is left to the Supreme Court’s discretion. Brooks poignantly criticizes this conduct. In his words: “[T] he nonjusticiability, or the political question doctrine, may well hang over the slave-redress cases like the sword of Damocles.”34 In addition to the pretrial procedural barriers, reparations litigation faces yet more stumbling blocks. Recently, partisan historical revisionism attempts to deny the Holocaust, slavery, the internment of Japanese Americans, and McCarthyism.35 Paradoxically, however, this same denial bolsters the significance of these cases.36 Another doctrinal argument oft cited by those contesting reparations for historical injustices is that it is unfair to define and judge historical actions and policies by current legal and ethical standards. Rather, they argue that these should be reviewed according to the standards that prevailed historically. This disagreement corresponds with the debate between originalists and pragmatists over the proper interpretation of the American constitution. Muller compares this “originalist” argument to cultural defense in criminal and civil law,37 which the courts in the U.S. very rarely recognize 33

Jesse H. Choper, “The Political Question Doctrine: Suggested Criteria,” Duke Law Journal 54, no. 6 (2005), 1457–1524. 34 Brooks, “Getting Reparations for Slavery Right—A Response to Posner and Vermeule,” 106. 35 Muller, “Fixing a Hole: How the Criminal Law Can Bolster Reparations Theory,” 659–704. 36 Fassin and Rechtman, The Empire of Trauma: An Inquiry into the Condition of Victimhood, 18. 37 The cultural defense concludes that because a defendant behavior is culturally motivated, he is not morally blameworthy and hence should be partially excused. The cultural defense is based on the premise of criminal law that if a defendant cannot control his actions, he or she cannot be liable — 30 —

——————————————— Repairing Historical Injustices ————————————————

as a stand-alone defense to criminal liability.38 He puts forward a legal strategy termed “temporal defense”—a corollary of cultural defense— as a framework for the fair judgment of wrongful acts perpetrated by historical actors.39 As in the case of cultural defense, he maintains, the courts should exonerate a historical wrongdoer “only when the attitudes and urgencies of an actor’s historical era vitiate his mens rea.”40 Hence, the burden of proof is on the respondents. In order to be vindicated, the respondents must prove that the contested behavior was inevtiable at the time, that the expectations in that era were monolithic, or that there was no rival tradition. The sociological/theological discourse shifts historical redress toward the atonement model and farther from legal action and the courts of law. While current claims and social action display a growing proximity toward the atonement model, Brooks41 finds that some of the more successful redress campaigns are those undertaken by the legislature. While reparations litigation is structurally thorny, I would argue instead that Brooks’s argument is highly contextual. Whereas these two discourses and the strategy chosen for redress are not mutually exclusive, redress campaigns tend to focus on a single trajectory due to their paradigmatic clash. Based on Abram Chayes,42 Paige Fogarty43 retrieves and highlights the concept of public law litigation. She puts forward a scheme of quasi-public litigation as a means of vindicating public rights and values through judicial remedies. In the following section I review typologies of historical redress claims and embrace Muller’s call for dialogue among legal scholars, sofor them. See Alison Dundes Renteln, The Cultural Defense (New York: Oxford University Press, 2004). 38 Dundes Renteln argues that “a formal cultural defense would simply guarantee that cultural evidence could be presented in a court of law.” She maintains that cultural defense is necessary in order to protect minorities from a majoritarian bias in the courts. Ibid., 6. 39 Muller, “Fixing a Hole: How the Criminal Law Can Bolster Reparations Theory,” 661–662. 40 Mens rae, guilty mind, is a central distinguishing feature of criminal law. Criminal liability requires an act of offense, but also a particular state of mind with regard to causing this offense. See Paul H. Robinson, “Mens Rae,” in Encyclopedia of Crime & Justice, ed. Joshua Dressler (New York: MacMillan, 2002), 995–1006; 995–1006. On the borrowing from criminal law, see Muller, “Fixing a Hole: How the Criminal Law Can Bolster Reparations Theory,” 662–663. 41 Brooks, Atonement and Forgiveness: A New Model for Black Reparations. 42 Abram Chayes, “The Role of the Judge in Public Law Litigation,” Harvard Law Review 89, no. 7 (1976), 1281–1316. 43 Fogarty, “Speculating a Strategy: Suing Insurance Companies to Obtain Reparations for Slavery,” 247–251. — 31 —

——————————————————— CHAPTER One ———————————————————

ciologists, and philosophers, and I may add political scientists, to unite forces against partisan revisionism wishing to undermine the foundations of redress and reparations. Part of the effort should include the promising institution of quasi-public law litigation.44 Redressing past injustices calls for a more holistic addressing of unquantifiable aspects such as dignity, commemoration, values, and reconciliation.45 These claims are, after all, not all about money. Claims and Remedies Inasmuch as there is no clear demarcation of historical wrongs, there is considerable variance in what remedies are deemed appropriate as historical injustices. Generally, this can be attributed to the different foci of scholars from diverse academic disciplines and the corresponding discourse they undertake. The rift between the discourses of historical redress emerges from the various definitions of the claims and remedies. Much of the disagreement over the definition embodies the substantive differences between the liberal and transformative notions of the human rights culture that developed in the latter part of the twentieth century. The question then becomes this: is it sufficient to recognize certain practices of the past as wrong and recompense those injured, or should the human rights culture usher in transformative change by way of redistribution and restructuring of society? The apparently semantic differences between the singular and plural forms of the term “reparation” uncover the great divide between the liberal and transformative conceptions of historical redress. Reparation in its singular forms stands for the return of the status quo ante by means of restitution, compensation, and rehabilitation, all of which target the cessation of the injustices combined with assurances that they will not be repeated. This form is grounded in the Human Rights Resolution 2005/35 of the Commission on Human Rights.46 Reparations, on the 44 Chayes, “The Role of the Judge in Public Law Litigation,” 1281–1316. See also Richard B. Cappali and Claudio Consolo, “Class Actions for Continental Europe? A Preliminary Inquiry,” Temple International and Comparative Law Journal 6, no. 2 (1992), 217–292. Lesley K. McAllister, “Revisiting a ‘Promising Institution’: Public Law Litigation in the Civil Law World,” Georgia State Law Review 24 (2007), 693–734. 45 This is similar to what Brooks calls the atonement model. Brooks, Atonement and Forgiveness: A New Model for Black Reparations, 141–179. 46 The UN Commission on Human Rights, “Human Rights Resolution 2005/35,” The United Nations, — 32 —

——————————————— Repairing Historical Injustices ————————————————

other hand, denote compensation, mostly monetary, and are therefore characterized by backward-looking orientation. Most accounts of historical redress, however, use the term “reparations.” In their article entitled “Reparations for Slavery and Other Historical Injustices,” Posner and Vermeule47 offer what seems, at first glance, an operational definition of “reparations.” By defining “reparations” they actually avoid offering a concise definition of what constitutes historical injustices, although they provide a list of “major reparations programs”48 both in the U.S. and internationally. Posner and Vermeule point out that “there are no conceptual boundaries that demarcate reparations from ordinary legal remedies, on the one hand, and other large-scale government transfer programs, on the other.”49 Posner and Vermeule define “reparations” (both in kind and in cash) as 50 schemes that (1) provide payment to a large group of claimants, (2) on the basis of wrongs that were substantively permissible under the prevailing law when committed, (3) in which current law bars a compulsory remedy for the past wrong (by virtue of sovereign immunity, statutes of limitations, or similar rules), and (4) in which the payment is justified on backward-looking grounds of corrective justice, rather than forward-looking grounds such as the deterrence of future wrongdoing.

Brooks51 imparts fierce criticism of Posner and Vermeule’s definition of reparations arguing that it is far too inclusive. He argues that reparations apply to cases that invoke greater moral outrage. In the atonement model he proposes, reparations are associated with deep remorse by the

http://ap.ohchr.org/documents/E/CHR/resolutions/E-CN_4-RES-2005-35.doc (accessed May, 17, 2009). See John C. Torpey, “Modes of Repair: Reparations and Citizenship at the Dawn of the New Millennium,” in Political Power and Social Theory, ed. Diane E. Davis, vol. 18 (Oxford: Elsevier, 2006), 207–226. 47 Posner and Vermeule, “Reparations for Slavery and Other Historical Injustices,” 689–747. 48 Ibid. 49 Ibid., 691. 50 Ibid., 691. 51 Brooks, “Getting Reparations for Slavery Right—A Response to Posner and Vermeule,” 251–288. — 33 —

——————————————————— CHAPTER One ———————————————————

perpetrator, “a redemptive response to an atrocity.”52 He therefore suggests that “a reparation is the tangible act that transforms the rhetoric of apology into a meaningful material reality.”53 Brooks then notes in passing that not all the remedial actions that pertain to an atrocity constitute reparations. Matsuda54 defines reparations as outright cash grants in a highly visible arena, a one-way valve, flowing from top to bottom, directed at remedying wrongs perpetrated against the powerless. She adds that reparations doctrine supports group rights rather than individual rights. Matsuda acknowledges the transformative potential of reparations; by recognizing the crime of the powerful against the powerless, exploitation is condemned and society embraces a vision of a more just world. This is a forward-looking view of reparations. Brooks55 also finds forward-looking qualities in the case of the American slave redress. He is interested in shifting the focus from reparations toward forward-looking atonement and reconciliation among groups. His argument is stated as follows: “[We] must go back in time and place to right a heavy wrong and to make the present and future more racially harmonious.”56 In the same vein, Westley57 writes that remembering past injustices is essential in deterring others from committing these injustices in the future. Contra, Posner and Vermeule58 argue that compared to regular claims for damages or restitution, historical redress claims are characterized by a backward-looking orientation. The remedy is awarded in order to recompense for the past and not in order to serve some present or future objectives. Hence, increasing effectiveness, deterrence, or the endorsement of distributive justice should not be pursued through the remedy. While Posner and Vermeule seem to offer a highly inclusive definition, they in fact not only commodify the injustices but also decrease the chances of these claims to bear fruit due to procedural 52 53 54 55

Ibid., 255. Ibid., 275. Matsuda, “Looking to the Bottom: Critical Legal Studies and Reparations,” 393–394. Brooks, “Getting Reparations for Slavery Right—A Response to Posner and Vermeule,” 251–288; Brooks, Atonement and Forgiveness: A New Model for Black Reparations. 56 Ibid., 141. 57 Robert Westley, “Many Billions Gone: It Is Time to Reconsider the Case for Black Reparations?” in Should America Pay? Slavery and the Raging Debate over Reparations, ed. Raymond A. Winbush (New York: Amistad, 2003), 109–134. 58 Posner and Vermeule, “Reparations for Slavery and Other Historical Injustices,” 691. — 34 —

——————————————— Repairing Historical Injustices ————————————————

barriers. Such view, of course, seeks to preserve the status quo and the power relations. Sociologist John Torpey59 has offered a bidimensional typology of historical redress by the “meaning of money” in reparations claimsmaking. This typology conjures up the liberal view of historical redress. One dimension is a continuum spanning between commemorative/ symbolic and antisystemic/economic reparations schemes. The placement toward each of the poles concerns whether the claimants perceive their losses incurred by the historical injustices in economic or symbolic terms. Symbolic claims are those in which claimants seek redress in the form of commemoration, school curricula, self-rule, affirmative action, and other types of multiculturalism policies60 or public apologies61 that incorporate recognition and inclusion in collective memory. Another dimension of the typology spans between cultural and legal schemes. Here, the placement toward the cultural pole means that the claims have a deep cultural significance to their previous owners. Here the claimants seek to revive a lost culture. The meaning of a placement closer to the legal pole is that the unjust acts can be characterized as mundane62 and concern the restitution of property or land takings. In the following chapters I demonstrate some of the problems inherent in this typology.

59 Torpey, Making Whole What Has Been Smashed: On Reparation Politics, 54–70. 60 Such cases, of course, require transfers by the state. See Olick and Coughlin, “The Politics of Regret: Analytical Frames,” 35–62. 61 There are cases of political leaders apologizing to groups domestically or abroad, for historical injustices, where the apology stood alone and no operative steps were taken. In Israel, Ehud Barak, former IDF chief of staff and later government minister and prime minister, apologized to Oriental Jews, on behalf of Labor, for the injustices and the discrimination they suffered. In 1999 he apologized on behalf of the Israeli government for the suffering caused to the Palestinian people. Barak took care to acknowledge that the apology has nothing to do with a sense of guilt or responsibility. On apologies, see Tavuchis’s seminal work on apology and reconciliation. Tavuchis distinguishes between apologies among individuals to collective apologies. Nicholas Tavuchis, Mea Culpa: A Sociology of Apology and Reconciliation (Stanford, California: Stanford University Press, 1991). Empirical works on apologies are not within the bounds of my research. See, for example, Zohar Kampf, “The Pragmatics of Forgiveness: Judgments of Apologies in the Israeli Political Arena,” Discourse and Society 19 (2008), 577–597. See also Michael Cunningham, “‘It Wasn’t Us and We Didn’t Benefit’: The Discourse of Opposition to an Apology by Britain for Its Role in the Slave Trade,” The Political Quarterly 79, no. 2 (2008), 252–259. 62 Torpey uses Durkheim’s notions of mundane and sacred in the cultural-legal continuum. Mundane stands for goods that do not have any cultural meaning for the group, while sacred signifies culturally meaningful products for the group. See also Wyman, “Is There a Moral Justification for Redressing Historical Injustices?” 127–196. — 35 —

——————————————————— CHAPTER One ———————————————————

Following Nancy Fraser’s theory of bivalent justice,63 Matt James64 distinguishes between two types of redress campaigns. The first is a bivalent campaign in which an ethnocultural group both seeks redress and battles against misrecognition and socioeconomic inferiority, for example, the campaigns of Aborigines and African Canadians. The second consists of those cases that are pursued for the sole purpose of gaining public recognition, as was the case of the internment of Japanese Canadians. Here, the historical injustice has been discrete, and the group is not marginalized as a group nor is it socioeconomically worse off than other groups. In Torpey’s terms this would qualify as a symbolic claim with legal, mundane substance. Reparations litigation has been criticized by both opponents and proponents of reparations claims.65 Wyman contends that “this litigation is viewed best as impact litigation attempting to bolster what are fundamentally political movements for redress . . . redress is rarely provided in the United States as a result of judicial decision finding an actor liable for a historical wrong.”66 Torpey67 argues that “reparations politics is precisely that—a form of politics, of people mobilizing to frame facts in an effort to achieve or get things in the world.” He also suggests that reparations for African Americans are not conducive for achieving significant improvement in this group’s well-being. Brooks68 is well aware of these intrinsic limitations of the tort model in the context of Jim Crow and slavery litigation. His forward-looking atonement model is geared toward forgiveness and reconciliation. Some authors consider reparations a vulgar commodification of suffering.69 Matsuda70 refers to the argument raised by those opposing reparations that reparations can promote the idea that everything has 63 Nancy Fraser, Justice Interruptus: Critical Reflections on the “Postsocialist” Condition (New York: Routledge, 1997). 64 James, “Do Campaigns for Historical Redress Erode the Canadian Welfare State?” 222–246. 65 Jessup Newton, “Indian Claims for Compensation, Reparations, & Restitution in the United States Legal System,” 261–269. See also Ramchandani, “Judicial Recognition of the Harms of Slavery: Consumer Fraud as an Alternative to Litigation,” 541–556. Also, Davey, From “Jim Crow” to ”John Doe”: Reparations, Corporate Liability and the Limits of Private Law. 66 Wyman, “Is There a Moral Justification for Redressing Historical Injustices?” 134. 67 Torpey, Making Whole What Has Been Smashed: On Reparation Politics, 7. 68 Brooks, Atonement and Forgiveness: A New Model for Black Reparations. 69 Richard L. Abel, “Should Tort Law Protect Property against Accidental Loss?” San Diego Law Review 23, no. 1 (1986), 79–124; Richard L. Abel, “Torts,” in The Politics of Law: A Progressive Critique, ed. David Kayris, 3rd ed. (New York: Basic Books, 1998), 445–470. 70 Matsuda, “Looking to the Bottom: Critical Legal Studies and Reparations,” 394–398. — 36 —

——————————————— Repairing Historical Injustices ————————————————

a price and every wound can be healed by cash.71 Rabinbach argues72 that while the first government of the Federal Republic of Germany accepted political responsibility by paying reparations, the Germans tended to instrumentalize the issue of collective responsibility. By paying reparations, the new German state could see the account as settled, “as if giving money to the victims was in some way the final page of the Auschwitz trauma.”73 Matsuda74 argues that once reparations become an equivalent exchange for past wrongs, as per Posner and Vermeule’s75 argument above, any obligation to victim groups would end. Thus, the injury is transformed into a commodity and is rated according to the price paid. A reparations claim would become a dangerous stake for a victim once a claim is dismissed or no remedy is offered. In which case, others may construe that no injustice had been inflicted. Another risk concerns the transgenerational effects of trauma. Claimants who cash in at the earliest occasion and settle the claim too cheaply76 act to the detriment of future generations. Some victims decline reparations because of the political reality that whether and when any reparations will be awarded is contingent upon the powerful. Thus, Matsuda77 suggests that remedies should be decided by the victims and that the commitment to redress must be kept on until all remnants of the injustice are dead and buried. While this approach may seem quite unrealistic and hardly viable, it leads us directly toward the atonement model or to public law litigation. Disillusionment with the tort model seems to be mounting. For example, Sebok78 is reluctant about using claims for restitution in the 71 In the case of the military sex slaves, known as “comfort women,” used by the Japanese government during WWII, they have refused money from the Japanese Parliament because it was not accompanied by proper apology. 72 Anson Rabinbach, “Introduction: Reflections on Germans and Jews since Auschwitz,” in Germans and Jews since the Holocaust: The Changing Situation in West Germany, eds. Anson Rabinbach and Jack David Zipes (New York: Holmes and Meyer, 1986), 3–24. 73 Jean-Paul Bier, “The Holocaust, West Germany and Strategies of Oblivion,” in Germans and Jews since Holocaust: The Changing Situation in West Germany, eds. Anson Rabinbach and Jack David Zipes (New York: Holmes & Meier, 1986), 187. 74 Matsuda, “Looking to the Bottom: Critical Legal Studies and Reparations,” 394–398. 75 Posner and Vermeule, “Reparations for Slavery and Other Historical Injustices,” 689–747. 76 This was done in Israel to Holocaust survivors, who did not receive reparations directly from West Germany, but from the government of Israel as their fiduciary. 77 Matsuda, “Looking to the Bottom: Critical Legal Studies and Reparations,” 394–398. 78 Sebok, “Two Concepts of Injustice in Restitution for Slavery,” 1405–1442. — 37 —

——————————————————— CHAPTER One ———————————————————

litigation of reparation for slavery first because it trivializes the wrong and second because it might produce arbitrary outcomes. His criticism is based on the failure of claims to provide a clear normative judgment about the defendants’ conduct by representing the wrongs in terms of wealth production.79 Dagan’s80 response to Sebok’s concerns is that restitution claims do not commodify slavery because these claims are not about the value of work, but about the value of the work to the worker, i.e., the worker’s right to regulate his own work.81 Dagan offers methods for sustaining private litigation against corporations by formulating the claims in terms of gain-based unjust enrichment. The politics of historical redress has also been a target to the critique of postcolonial discourse aimed at liberal multiculturalism. Nancy Fraser82 criticizes multiculturalism in general and the politics of historical redress in particular for its effect on the welfare state and on social solidarity. Fraser argues that the focus on cultural or symbolic injustices thwarts attempts to deal with structural socioeconomic and political injustices. This is particularly detrimental in the era of neoliberalism. The accelerated economic globalization and the aggressive expansion of capitalism intensify inequality. Fraser argues further that preoccupation with recognition rather than with redistribution serves to displace and marginalize redistributive struggles. Struggles for recognition often simplify, reify, and essentialize particular collective identities. In her words: “[T]hey tend, rather, to encourage separatism, intolerance and chauvinism, patriarculalism and authoritarianism.”83 Thus, in Fraser’s theory of bivalent justice84 most collectivities are not subject to either cultural misrecognition or socioeconomic misdistribution but are rather bivalent.85 Fraser offers a socialist/deconstructivist 79 It is worthwhile mentioning here that restitution is not a remedy. It is merely returning a benefit that should have been paid in the past. See Kull, “Rationalizing Restitution,” 1192. 80 Hanoch Dagan, The Law and Ethics of Restitution (New York: Cambridge University Press, 2004). 81 This was the case of the German reparations and in the Luxembourg agreement in particular. The calculation of the reparations was based on the value of work and the value of a day spent at concentration camps. See Raul Teitelbaum, The Biological Solution (Tel Aviv: Hakibbutz Hameuchad, 2008). (Hebrew) 82 Nancy Fraser, “Recognition without Ethics?” Theory, Culture and Society 18, no. 2 (2001), 21–42. Nancy Fraser, “Rethinking Recognition,” New Left Review 3, no. 2 (2000), 107–112. 83 Ibid., 108. 84 Nancy Fraser and Axel Honneth, Redistribution or Recognition? A Political-Philosophical Exchange (London; New York: Verso, 2003). 85 According to Fraser, some collectivities such as exploited working class in capitalist economies fall victim to injustices arising exclusively from capitalism. Fraser, Justice Interruptus: Critical — 38 —

——————————————— Repairing Historical Injustices ————————————————

paradigm that addresses both sources of injustice and reconstructs both relations of production and recognition by means of affirmative and transformative remedies. Matsuda86 voices a somewhat similar argument from the point of view of critical legal studies. She claims that a critical theory of reparations recognizes both economic and racial injustices. She offers a normative argument suggesting that society, as a whole, is responsible to recompense those suffering from deprivation. This highly cosmopolitan message signals solidarity among fellow humans regardless of national or ethnic identities. In her account, reparations awarded to a group of claimants should be viewed as a step forward in the long journey toward substantive equality. Thus, she argues, progressive Hawaiians should not view the awards that were already made to Native Americans in the United States as a zero-sum game. The gains of this group should not be considered as a portion taken out of some limited funds that diminish the potential gains available for Hawaiians, but rather as increasing the chance of reparations for Hawaiians. This is also true with regard to the Holocaust reparations.87 She seems highly optimistic in arguing that with each separate commitment to reparations, new norms are internalized. Historical redress is often criticized for dwelling on the past rather than on the future. Yet perpetrators and the defenders of the status quo find it easier than the victims to ignore past injustices. Some warn that the danger of immersion in the past carries with it the risk of developing the psychological makeup of a victim. Others add that redress claims can induce opportunism even when the claimants’ grievances are just.88 Torpey laments that “[a]n excessive preoccupation with the past is usually a sign that something is amiss—whether in the manner of nostalgia or of failing to let go of past troubles—for individuals as well as for societies.”89 He suggests that in recent years the balance between Reflections on the “Postsocialist” Condition. 86 Matsuda, “Looking to the Bottom: Critical Legal Studies and Reparations,” 397–398. 87 Jessup Newton, “Indian Claims for Compensation, Reparations, & Restitution in the United States Legal System,” 261–269. 88 See Charles Maier’s discussion of this line of argumentation in Charles S. Maier, “Overcoming the Past? Narrative and Negotiation, Remembering and Reparation,” in John C. Torpey (ed.) Politics and the Past: On Repairing Historical Injustices (Lanham, Maryland: Rowman and Littlefield, 2003), 295–304. 89 Torpey, Making Whole What Has Been Smashed: On Reparation Politics, 18. — 39 —

——————————————————— CHAPTER One ———————————————————

past, present, and future has been upset.90 Other, more substantive theoretical arguments, by Liberals, concern the need to let go of the past for the prospects of a better present and future, and can be found in Waldron’s article.91 According to Waldron, everyone has a natural duty to come to terms with those sharing the civil union, whether or not he likes them or trusts them or shares with them a common culture or common understanding. He argues that reparations movements fail to consider the fact that the people, entities, and circumstances of the historical injustices have changed, and some of these changes result from the wrongs. Waldron does not advocate ignoring or reversing them; rather, he suggests that both attention and resources should be diverted to the suffering and deprivation over which we have some control. Wyman92 provides a different substantive argument pertaining to the difficulty of morally justifying redress. She suggests that the justifications of redress based on both Aristotelian justice93 and Nozick’s principle of rectification94 are dependent on the circumstances of the claim. Aristotelian restorative justice identifies at least three conditions that must be satisfied: first, both the victim and the perpetrator should exist; second, the claimant should prove that the perpetrator violated a protected interest; and finally, the violation should be remedial and the remedy is agent-specific, that is, the perpetrator is duty-bound to the victim. Nozick’s principle of rectification is similar in that it is based on two of the premises of Aristotelian restorative justice. First, the injustice must be a violation of a protected interest, and second, it must be remediable. There are two ways to determine whether the wrong is remedial. The best way is to transfer the improperly acquired object to the party that held it before the violation of justice. The second best can be accomplished by a scheme of distributive justice. Wyman appeals 90

91 92 93

94

This stands in contrast to the theory of the latency of the effects of the trauma. The delay between the traumatic event and the public awareness to the trauma is what distinguishes a trauma from other experiences. Fassin and Rechtman, The Empire of Trauma: An Inquiry into the Condition of Victimhood, 18. Jeremy Waldron, “Redressing Historic Injustice,” University of Toronto Law Journal 52, no. 1 (2002), 135–158. Wyman, “Is There a Moral Justification for Redressing Historical Injustices?” 134. Aristotle, ed. Roger Crisp, Nicomachean Ethics (Cambridge: Cambridge University Press, 2000). See Janna Thompson for a representation of the Aristotelian arguments: Thompson, Taking Responsibility for the Past: Reparation and Historical Injustice Robert Nozick, Anarchy, State, and Utopia (Oxford: Blackwell, 1975), 152–153; 230–231. — 40 —

——————————————— Repairing Historical Injustices ————————————————

to the proviso, a time limit that is embedded in Nozick’s principle of rectification that allows the accumulation of private holdings as long as the situation of others is not impaired. She further suggests that proponents of historical redress often call for corrective justice even when its underlying assumptions are not met. It seems, however, that by definition these conditions obliterate historical redress cases. The issue of reparations in transitional justice is also controversial. Transitional justice seeks to rest the claims on behalf of dead victims and to avoid backward-looking reparations. This view is rooted in the Kantian notion of history.95 Kutz’s96 analysis of reparations in the context of regime transitions in the former Soviet Bloc relies on Robert Nozick. First, he maintains that the value of monetary remedies diminishes quickly over time and across generations; also, the funds required for the reparations contend with other demands for social programs. Second, he maintains that reparations claims that rest on strong moral and political grounds should be based on distributive rather than restorative justice. Thus, he argues, reparations by the new regimes in Europe will not restore justice but, rather, will bring forth more injustice. Collective Responsibility For at least seven decades, scholars have elaborated on the relationships between individual and collective responsibility in various contexts and settings. One of the major issues concerns the responsibility of every member of a given national, ethnic, or cultural group for injustices committed by his or her group at the present or in the past. The focus has been on the moral and ethical aspects surrounding such responsibility outside the realm of law. Responsibility is an ever-present concern in most of the arguments for and against historical redress. As I have shown in the previous sections, the notion of responsibility affects the structuring of reparations claims, the type of claims, and the legal arguments. Responsibility is hard to establish in reparations litigation.97 95 Meister, “Human Rights and the Politics of Victimhood,” 99. 96 Christopher Kutz, “Justice in Reparations: The Problem of Land and the Value of Cheap Talk,” Philosophy and Public Affairs 32 (2004), 277–312. 97 See a legal definition at John Bouvier, “Responsibility,” in A Law Dictionary, Adapted to the Constitution and Laws of the United States and of the Several States of the American Union; with References to the Civil and Other Systems of Foreign Law, ed. Bryan A. Garner, 2nd ed. (Clark, New Jersey: The Lawbook Exchange, 2004 [1843]), http://www.constitution.org/bou/bouvier_r.htm (accessed June 12, 2009). Bouvier defines responsibility as the obligation to answer for an act done — 41 —

——————————————————— CHAPTER One ———————————————————

However, if we think of historical redress not only in terms of legal action but also in terms of repair, atonement, and reconciliation, we need not rely solely on a legal notion of responsibility. To this effect, Weber98 offers the most appropriate departure point for the discussion of collective responsibility. Weber provides distinction between two sets of ethical virtues, the ethic of responsibility (Verantwortungsethik) and the ethic of conviction99 (Gesinnungsethik). Under the ethic of responsibility, an action becomes meaningful only as the cause of an effect. The virtue lies in an objective understanding of the potential causal effect of an action and the calculated reorientation of the elements of an action in such a way as to achieve a desired consequence. Here, ethical questions are reduced to procedural ones. To wit, the ethical question comes to bear upon the technically correct procedure and the choice of the correct means by free action. Weber’s consequentialist stance stipulates an ethical integrity between action and its consequences. The deontological ethic of conviction stands in contradistinction to the ethic of responsibility. The former assumes a reality of an ethically rational cosmos where duties ultimately do not clash and values are hierarchically ordered. A good act is thus determined by the obedience to the demand or action in accordance with the order of things and the actor’s intention in obeying. Hence, “[t]he Christian does rightly and leaves the results with the Lord.”100 The consequences of the act do not matter, and the actor bears no responsibility for them; the actor’s responsibility is to obey. Starr101 refers to Weber’s inner categorization of the ethic of conviction into three forms. In its most extreme form, the ethic of conviction

98 99 100 101

and to repair any injury it may have caused. This obligation arises without any contract. The law provides the person who has suffered loss compensation in damages. According to Bouvier, no one is responsible for the acts of another unless he or she has, by some act of his or her own, concurred in them. However, when a person has authorized those acts, either explicitly or implicitly, this person is held responsible. There are cases where persons are made civilly responsible for the acts of others by particular legal provisions. Penal responsibility is always personal. See the extensive discussion of responsibility at Marion Smiley, Moral Responsibility and the Boundaries of Community (Chicago: Chicago University Press, 1992). Weber, “Politics as a Vocation,” 77–128. Gesinnungsethik has been translated by Gerth and Wright Mills as “the ethic of ultimate ends.” However, scholars use the more accurate term “the ethic of conviction.” Ibid., 120. Bradley E. Star, “The Structure of Max Weber’s Ethic of Responsibility,” Journal of Religious Ethics 27, no. 3 (1999), 407–434. — 42 —

——————————————— Repairing Historical Injustices ————————————————

is termed the ethic of the Sermon on the Mount, or the absolute ethic of the Gospel. This all-or-nothing position toward life declines the notion of means as an ethical concept. The third variant of the ethic of conviction is that of the revolutionary who embraces the use of force to bring about the desired end.102 All three variants share the disregard for consequences. Underpinning the distinction between the ethic of conviction and the ethic of responsibility, Weber writes,103 If an action of good intent leads to bad results, then, in the actor’s eyes, not he, but the world, or the stupidity of other men, or God’s will who made them thus, is responsible for the evil. However a man who believes in an ethic of responsibility takes account of precisely the average deficiencies of people; . . . . The believer in the ethic of ultimate ends feels “responsible” only for seeing to it that the flame of pure intentions is not quenched: for example, the flame of protesting against the injustices of the social order.

It is often argued that the gulf between these two types of ethic is unbridgeable, as Weber suggests early in his lecture. However, Weber himself grows ambivalent about whether the two maxims can coexist within politicians or whether they are mutually exclusive. While admitting there is “abysmal contrast” between the “two fundamentally differing and irreconcilably opposed maxims,”104 Weber still insists that they should be forcefully brought together. Toward the end of this lecture he concludes, “The ethic of conviction and the ethic of responsibility are not absolute contrasts, but rather supplements, which only in unison constitute a genuine man—a man who can have the ‘calling for politics.’”105 In the last paragraph Weber writes that politics takes both

102 Weber offers the example of the Socialist Zimmerwald faction that during the war professed the principle “[I]f we face the choice either of some more years of war and then revolution, or peace now and no revolution, we choose some more years of war!” Weber dryly comments that for the modest result they are going to achieve, they are willing to face some more years of war. Weber, “Politics as a Vocation,” 121. 103 Ibid., 121. 104 Ibid., 120. 105 Ibid., 127. — 43 —

——————————————————— CHAPTER One ———————————————————

“passion and perspective.”106 The historical context of this distinction between the two ethics is highly significant. Weber developed it immediately following his participation as an expert in the negotiations over the Versailles Treaty. In these negotiations he suggested that the designated war criminals should voluntarily offer their heads to the enemy. Only then, he thought, the German officer corps could rise again to glory. He wrote a letter to Ludendorff and in their meeting confronted him with the political mistakes of the general staff.107 Explaining the virtue of the ethic of responsibility, Weber writes,108 Instead of searching like old women for the “guilty one” after the war—in a situation in which the structure of society produced the war—everyone with a manly and controlled attitude would tell the enemy, “We lost the war. You have won it. That is now all over. Now let us discuss what conclusions must be drawn according to the objective interests that came into play and what is the main thing in view of the responsibility toward the future which above all burdens the victor.”

This view is in line with the methodological individualism outlined in Economy and Society.109 There Weber notes that when referring to social phenomena, we often imagine social collectivities as individuals. Weber’s consequentialism resurfaces once again in his discussion of methodological individualism: In sociological work these collectivities must be treated as solely the resultants and modes of organization of the particular acts of individual persons, since these alone can be treated as agents in a course of subjectively understandable action.110 106 Ibid., 128. 107 Max Weber, Hans Heinrich Gerth, and C. Wright Mills, From Max Weber: Essays in Sociology (New York: Oxford University Press, 1946), 3–74. 108 Weber, “Politics as a Vocation,” 118. Quotes in the original. 109 Max Weber, Guenther Roth, and Claus Wittich, Economy and Society: An Outline of Interpretive Sociology (Berkeley: University of California Press, 1978). 110 Ibid., 13. See Joseph Heath, Following the Rules: Practical Reasoning and Deontic Constraint (Oxford: Oxford University Press, 2008). In chapters 3, 4, and 5, Heath offers an evolutionary argument in — 44 —

——————————————— Repairing Historical Injustices ————————————————

For Weber, only individuals possess premeditated states. In Economy and Society Weber argues that collective responsibility makes no sense both because we cannot isolate genuinely collective actions, as distinct from identical actions of many persons, and because groups, unlike the individuals that comprise them, cannot think as groups or formulate intentions of the kind normally thought to be necessary to actions. From among the critics of collective responsibility, Lewis’s critique is perhaps the most passionate.111 He argues that “[v]alue belongs to the individual and it is the individual who is the sole bearer of moral responsibility.” He further adds that “[n]o one is morally guilty except in relation to some conduct which he himself considered to be wrong.” He then sums up abruptly: “Collective responsibility . . . is barbarous.”112 Conversely, proponents of collective responsibility make a case that a group can also be held responsible and guilty in the same sense individuals are held responsible and guilty. Existentialists argue that membership in a group that causes great harm implicates each member including those who did not take active part in bringing about the harm. Jaspers considers the question of German guilt as “more than a question put to us by others, it is one we put to ourselves. It is a vital question for the German soul.”113 The four types of guilt, namely, criminal, political, moral, and metaphysical, correspond to four loci of jurisdiction and responsibility. Political guilt involves the acts of both the politicians and the citizenry who are all responsible. Arbitrary power is mitigated by political forethought and the acknowledgement of norms, which are applied as natural and international law. In defining metaphysical guilt, Jaspers refers to the solidarity among human beings that makes each member coresponsible for every wrong and every injustice in the world, especially for crimes committed in the individual’s presence or knowledge. In this case, an individual can be held accountable for his favor of the traditional Kantian view that there is an internal connection between being a rational agent and feeling the force of one’s moral obligations. 111 See, for example, Stephen Sverdlik, “Collective Responsibility,” Philosophical Studies 51 (1987), 61–76; J. W. N. Watkins, “Methodological Individualism and Social Tendencies,” British Journal for the Philosophy of Science 8 (1957), 104–117; R. S. Downie, “Collective Responsibility,” Philosophy 44 (1969), 66–69. 112 H. D. Lewis, “Collective Responsibility,” Philosophy 24 (1948), 3–6. Contra, see Joel Feinberg, “Collective Responsibility,” Journal of Philosophy 65, no. 21 (1968), 674–688. 113 Karl Jaspers, The Question of German Guilt (Westport, Connecticut: Greenwood Press, 1978), 123. — 45 —

——————————————————— CHAPTER One ———————————————————

or her failure to prevent. Jurisdiction, he argues, rests with God alone. Jaspers’s distinction is merely analytical; he alerts us that it is rendered invalid if we discount the projection and the consequences of each of the types on the others. Hence, existentialists argue that group membership, and membership in a community in particular, entails an increased moral responsibility. Hence, all Germans are politically, morally, and metaphysically guilty regardless of their individual action or inaction during the Nazi regime.114 Larry May115 argues that this view is not as extreme as it appears, since Jaspers himself distinguished between responsibility and guilt. In between these extremes, two types of arguments are presented by scholars who in principle contest collective responsibility but are willing to justify it under some restrictions.116 First, a person can be blamed for the wrongful act of others if he or she entered out of his or her own free will to relationships with these individuals. Individuals enter relationships in order to gain some benefits from the collective action. They become blameworthy because they could have chosen instead to abstain from these relationships altogether or deter others from committing the wrongful acts once they enter the relationships.117 Second, some scholars propose that groups and corporations can be considered individuals for moral purposes.118 To wit, they are cast in the role of the wrongdoer or the one who benefited from the wrong.119 Both these arguments assist in substantiating the link between the wrongdoer and the claimant and between the victim and the claimant. Most of the attempts to mollify collective responsibility have em114 Andrew Schaap, “Guilty Subject and Political Responsibility: Arendt, Jaspers and the Resonance of the ‘German Question’ in Politics of Reconciliation,” Political Studies 49, no. 4 (2001), 749–766. 115 Larry May, “Metaphysical Guilt and Moral Guilt,” in Collective Responsibility: Five Decades of Debate in Theoretical or Applied Ethics, eds. Larry May and Stacey Hoffman (Lanham, Maryland: Rowman and Littlefield, 1991), 239–254. 116 Posner and Vermeule, “Reparations for Slavery and Other Historical Injustices,” 689–747. 117 Muller uses this argument as a litigation strategy he proposes—the temporal defense. See Muller, “Fixing a Hole: How the Criminal Law Can Bolster Reparations Theory,” 659–704. See discussion earlier in this chapter. 118 Andrew Shorten, “Nation and State,” in Issues in Political Theory, ed. Katriona McKinnon (New York: Oxford University Press, 2008), 33–35. Miller argues that treating nations as independent entities requires that their members share responsibility for actions done on their behalf in the present, not only by their leaders. It also requires that they be responsible for the decisions of their ancestors, before they even came into this world. 119 See Meister’s discussion about the distinction between the perpetrators and those who benefitted from the wrong. Meister, “Human Rights and the Politics of Victimhood,” 91–108. — 46 —

——————————————— Repairing Historical Injustices ————————————————

ployed some form of delimitation of its incidence. Shorten120 conditions collective responsibility by the level of democracy. If members of a nation are to be jointly responsible for actions of the nation as a whole, its regime and state organs must be democratic. The idea that collective responsibility grows with the level of democracy can be traced to Jaspers: “[T]here can be no radical separation of moral and political guilt . . . every enlightenment of our political consciousness proportionately burdens our conscience. Political liberty has its moral aspects.”121 Similarly, Corlett,122 whose approach is closer to ethical individualism, suggests that so long as citizens support the political institutions that they have inherited from the past, they are liable for the past debts of the government. While courts of law embrace intergenerational responsibility in certain mundane circumstances, Abdel-Nour123 proposes an account of responsibility anchored in the mere sense of national belonging with regard to the actions of others whether dead or alive. Abdel-Nour does not refer to a metasubject or a collective agent; such notion, he maintains, reduces individuals to mere units of their national group, thereby essentializing the nation and embodying it. He refers instead to an individual bearing national responsibility. He writes, “[A]n individual incurs a national responsibility for actions performed by others . . . when she actively associates herself in a very specific way with these actions.”124 Abdel-Nour suggests that this load is not hereditary; an agent can free herself from the guilt of past generations by means of reflexivity and identification. Otherwise, he argues, this national bond allows individuals to conceive of themselves as having brought about outcomes in the distant past. An individual’s pride in the achievements of his nation connects him imaginatively to the actions of those who brought them about. This pride, however, carries with it national responsibility. “Where there is national pride, there is national responsibility . . . let the participants in national identity recognize that their fantasy opens the door to ‘the guilt of the fathers.’”125 120 Shorten, “Nation and State,” 33–35. 121 Jaspers, The Question of German Guilt, 77. 122 Angelo Corlett, Race, Racism, and Reparations (Ithaca and London: Cornell University Press, 2003), 201–202. 123 Farid Abdel-Nour, “National Responsibility,” Political Theory 31, no. 5 (2003), 693–719. 124 Ibid., 694–695. 125 Ibid., 713. — 47 —

——————————————————— CHAPTER One ———————————————————

While Abdel-Nour somewhat relaxes national responsibility of individuals, Virginia Held126 further extends the notion of group responsibility, not only to structured groups but also to a random collection of individuals. In both cases this responsibility is contingent upon the affective components of identification and solidarity respectively. For Held, a nation or a corporation is morally and legally responsible as long as it is characterized by a relatively coherent structure, decision-making procedures, and capabilities to act. This form of group responsibility does not entail that individual group members be automatically held responsible. Before considering the responsibility of individual members, that of officials and executives should first be established. Held extends this argument to unorganized groups; she makes an intriguing case for holding unorganized groups responsible for ethnic conflict (e.g., whites are responsible for racism). In such cases, she argues, although the group lacks any organizational structure, it cannot be considered a random collection of individuals. When a random group does not prevent harm, it can be held responsible for failing to transform itself into an organized group capable of action.127 Some researchers go as far as to hold mobs and rioters responsible for the death or suffering of others, regardless of their lack of structure. The rationale is that the mobs act like a group even though the individuals comprising them do not conceive of themselves as members of a group.128 Some of the justifications of collective responsibility draw on social solidarity. For Feinberg,129 collective liability is, under certain circumstances, a natural and prudent way of organizing the transactions of organizations. Organizations displaying high degree of solidarity expect their members to voluntarily undertake collective responsibility. Collective responsibility does not only convey solidarity; it also reinforces and enhances it. Group solidarity is based on mutual interests of its members who are attached by strings of affection and by a common lot; their 126 Virginia Held, “Group Responsibility for Ethnic Conflict,” Journal of Ethics 6, no. 2 (2002), 157– 178. See also Virginia Held, “Can a Random Collection of Individuals Be Responsible?” Journal of Philosophy 67, no. 14 (1970), 471–481. 127 Stanley Bates, “The Responsibility of ‘Random Collectives,’” Ethics 81, no. 4 (1971), 343–349. Smiley, Moral Responsibility and the Boundaries of Community. 128 Ibid. Larry May and Tuomela Raimo, “Actions by Collectives,” Philosophical Perspectives 38, no. 3 (2007), 471–496. Larry May, The Morality of Groups: Collective Responsibility, Group-Based Harm, and Corporate Rights (Notre Dame, Indiana: University of Notre Dame Press, 1987). 129 Feinberg, “Collective Responsibility,” 674–688. — 48 —

——————————————— Repairing Historical Injustices ————————————————

goods and harms are necessarily collective and indivisible. Such parties, in Finberg’s words, “are led (or forced) by circumstances to act in concert and share the risk of common failure or the fruits of an indivisible success.”130 The idea that groups possess a form of mental activity that guides action was also explored by psychologists and psychoanalysts. Melanie Klein131 argues, [A] group—whether small or large—consists of individuals in a relationship to one another; and therefore the understanding of personality is the foundation for the understanding of social life.

Wegner has developed a notion of transactive memory that relies on the analogy between the mental operations of the individual and processes within groups. Wegner, Giuliano, and Hertel132 define transactive memory system as a combination of individual minds and the communication among them, recognizing that 133 the observable interaction between individuals entails not only the transfer of knowledge, but the construction of a knowledge-acquiring, knowledge-holding, and knowledgeusing system that is greater than the sum of its individual member systems.

While Wenger, Giuliano, and Hertel focus on close relationships of intimate dyads, they maintain that similar observable effects can occur in pairs of people who do not share intimacy or have just met, or even in groups of people. They suggest that these processes and organizational capacities can also be attributed to whole societies.134 In other 130 Ibid., 677. 131 Melanie Klein, “Our Adult World and Its Roots in Infancy,” Human Relations 12, no. 4 (1959), 291, http://hum.sagepub.com (accessed April 19, 2010). See also Fassin and Rechtman, The Empire of Trauma: An Inquiry into the Condition of Victimhood. 132 Daniel Wegner, M. T. Guiliano, and Hertel P, “Cognitive Interdependence in Close Relationships,” in Compatible and Incompatible Relationship, ed. W. J. Icks (New York: Springer Verlag, 1985), 253– 276. 133 Ibid., 256. 134 Ibid. — 49 —

——————————————————— CHAPTER One ———————————————————

words, they consider transactive memory synonymous with culture. Scott and Lyman’s135 speech communities consist of human aggregates that interact on a regular basis: “They mark off segments of society from one another, and also distinguish different kind of activities.”136 This substantiates the notion of group mind and can be useful for explaining group solidarity or other processes in random collection of individuals. I would argue that a people sharing collective national identity are all drawing from a shared ethos, narrative, myths, and collective memory. These have created cognitive cues, shortcuts for interpreting reality, or shibboleths that are employed for the encoding or decoding of information. These transform transactive processes among strangers into transactive processes among near-intimates. These processes occur not only among the guilty party (the perpetrators) but also, and perhaps more readily so, among the innocent party (the victims). Guilt and Shame In their seminal article “Techniques of Neutralization: A Theory of Delinquency,”137 Sykes and Matza elaborate on rationalizations of deviant behavior that protect the individual from self-blame and the blame of others. Durkheim138 saw crime as a constitutive component of all societies; in his account crime is a normal behavior performed by normal individuals living in normal social settings. Sykes and Matza explain how delinquents resolve their calculated lawbreaking. They suggest that delinquents employ neutralization techniques designed to alleviate anticipated guilt. The normative system of society is, according to Sykes and Matza, marked by some degree of flexibility; its rules are not binding under all circumstances.139 The cognitive techniques of neutralization include the denial of responsibility, the denial of injury, the denial of the victim, the condemnation of the condemners, and the appeal to higher loyalties.140 135 136 137 138

Scott and Lyman, “Accounts,” 237. Ibid., 237. Sykes and Matza, “Techniques of Neutralization: A Theory of Delinquency,” 664–670. Emile Durkheim and Steven Lukes, The Rules of Sociological Method, 1 American ed. (New York: Free Press, 1982). 139 Thus, for example, the moral imperative against killing is not applicable to the enemy in times of war. 140 Sykes and Matza maintain that delinquent behavior is not necessarily derived from a set of deviant values and norms and that many delinquents experience a sense of guilt and shame. — 50 —

——————————————— Repairing Historical Injustices ————————————————

Similarly, Scott and Lyman141 focus on linguistic devices that they term “accounts,” which consist of justifications and excuses. Accounts are employed whenever an action becomes the subject of valuative inquiry. Justifications are accounts in which one assumes responsibility for the acts in question but denies its negative qualities; excuses are accounts in which one admits that the act is wrong but denies full responsibility. Scott and Lyman pinpoint the difference between justification and excuse by arguing that justification of an act asserts its positive value despite claims to the contrary. Although the notions of techniques of neutralization was developed and observed among a specific microlevel population, Scott and Lyman extend the incidence of accounts to the level of groups suggesting to extend their theory to human aggregates in frequent and regular interaction.142 While the authors hypothesize that such behavior will be prevalent among speech communities, other ethnic, national, and religious communities sharing collective memory and identity are also likely to display it. While sentiments of guilt and shame may not be shared by all members of the perpetrating collectivity, all of them are likely to be affected in one form or another by the resonance of collective guilt. Arendt143 has written that an evil past cannot be mastered; we cannot really be selective of the past by appropriating the good and disposing of the rest. In the same vein, Nietzsche, Jaspers, Habermas, and Benjamin144 all maintain that since we all are a product of previous generations, we are not entirely free from their past. Nietzsche145 writes that the history of Western morality is the transformation of debt to guilt. He suggests that the initial concept of guilt had no moral connotations. Guilt, for 141 Scott and Lyman, “Accounts,” 46–62. 142 On the link between the collective and the individual with regard to the relations between the culture and the psyche, see Fassin and Rechtman, The Empire of Trauma: An Inquiry into the Condition of Victimhood, 18. 143 Hannah Arendt, The Origins of Totalitarianism (New York, New York: Schocken Books, 2004), 674. See also Hannah Arendt, Men in Dark Times (New York: Harcourt, Brace & World, 1968). 144 Jaspers, The Question of German Guilt, 123; Benjamin, Illuminations; Friedrich Wilhelm Nietzsche, Unmodern Observations, ed. William Arrowsmith (New Haven: Yale University Press, 1990), 102–103. See in particular “On the Use and Disadvantage of History for Life.” Friedrich Wilhelm Nietzsche, On the Genealogy of Morals: A Polemic: By Way of Clarification and Supplement to My Last Book, Beyond Good and Evil, trans. Douglas Smith (Oxford; New York: Oxford University Press, 1997). Habermas and Pensky, The Postnational Constellation: Political Essays Benjamin, Illuminations. 145 Nietzsche, On the Genealogy of Morals: A Polemic: By Way of Clarification and Supplement to My Last Book, Beyond Good and Evil. — 51 —

——————————————————— CHAPTER One ———————————————————

Nietzsche, is etymologically derived from ancient personal interactions between seller and buyer, debtor and creditor. A person in debt was considered guilty, and the creditor could punish him in return for the debt. Punishment was cruel but cheerful: no hard feelings remain after the act; it was intended to bring pleasure to the creditor. For Jaspers, [i]t is up to the victor to decide what shall be done with the vanquished. . . . The vanquished can either die or do and suffer what the victor wants. . . . (here are the roots of the fundamental master-servant relationship as profoundly illustrated by Hegel).146

Feinberg’s analysis of vicarious guilt suggests that even if guilt is separated from liability, “there can be no such thing as vicarious guilt.” He explains that “[t]heologians have found it easy to speak of vicarious guilt only because the concept of guilt has always had the double sense of actual sin (intentional transgression), on the one hand, and payment, atonement, redemption, etc. on the other; and it is at least logically intelligible for concepts of the latter kind to transfer.”147 Jaspers’s account of guilt is based on compassionate identification. “The growth of metaphysical guilt results in a transformation of human self-consciousness before God. . . . The outgrowth of moral guilt,” he writes, “is an inner development, then also taking effect in the world of reality.”148 The purification of Germans relies on the realization of moral and metaphysical guilt by means of public communications. This is said to deepen and enhance collective morality. In contrast, Hannah Arendt distinguishes between the self and the world. She discards guilt in the realm of politics. In The Human Condition she writes that like other selfregarding sentiments, guilt limits the capacity of individuals to respond politically.149 Political action should be inspired from without, by a principle and not by a particular motive. Guilty subjects remain in the subjectivity of their own singular experience, she argues. The same can be said of the victims. Memories of catastrophe of great suffering and injustice are often146 Jaspers, The Question of German Guilt, 37. 147 Feinberg, “Collective Responsibility,” 676. Emphasis in the original. 148 Jaspers, The Question of German Guilt, 36. Italics in the original. 149 Hannah Arendt, The Human Condition (Chicago, Illinois: University of Chicago Press, 1958), 58. — 52 —

——————————————— Repairing Historical Injustices ————————————————

times excluded from the hegemonic narrative, especially if they entail guilt and shame by the majority group. Psychologists, historians, theologians, and Holocaust researchers have all elaborated on the notion of dangerous memories.150 Dangerous memories resist the mastering of the hegemonic historical narrative, constituting a destructive practice of and from memory.151 Traumatic memories of the slave, the colonized, the marginalized, and the oppressed remain alive for generation although they are out of the bounds of history told from the point of view of the official collective narrative.152 Memories of trauma possess a certain latency that keeps these memories alive for many generations.153 For Benjamin, the danger of memory becoming a tool of the ruling classes is even greater than the destructive practice of dangerous memories. In every era, he argues, the attempt made anew to divert the past away “from a conformism that is about to overpower it.”154 Benjamin offers an insight into the working of memory based on an experience he characterizes as “a chaos of memories.”155 This is how he describes this resistance to narrative ordering and control: 156 I find in my memory rigidly fixed words, expressions, verses that, like a malleable mass which has later cooled and hardened, preserved in me the imprint of the collision between a larger collective and myself in which isolated words have remained in place as marks of catastrophic encounters. 150 Steven T. Ostovich, “Epilogue: Dangerous Memories,” in The Work of Memory, eds. Alon Confino and Peter Fritzsche (Urbana, Chicago: University of Illinois Press, 2002), 239–256. Johannes Baptist Metz, ed., The Future in the Memory of Suffering (New York: Herder and Herder, 1972), 9–25. Pollefeyt, Between a Dangerous Memory and a Memory in Danger: The Israeli-Palestinian Struggle from a Post-Holocaust Perspective, 135–153. Also see Johannes Baptist Metz, Faith in History and Society: Toward a Practical Fundamental Theology (New York: Seabury Press, 1980). Metz, The Future in the Memory of Suffering, 9–25.; Johannes Baptist Metz, “In the Pluralism of Religious and Cultural Worlds: Notes toward a Theological and Political Program,” Cross Currents 49 (1999), 227–236. 151 Ostovich, “Epilogue: Dangerous Memories,” 239–256; Micholinos Zembylas and Zvi Beckerman, “Education and the Dangerous Memories of Historical Trauma: Narratives of Pain, Narratives of Hope,” Curriculum Inquiry 38, no. 2 (2008), 125–154. 152 Fassin and Rechtman, The Empire of Trauma: An Inquiry into the Condition of Victimhood, 16. 153 Ron Eyerman, Cultural Trauma: Slavery and the Formation of African American Identity (New York: Cambridge University Press, 2001). 154 Benjamin, Illuminations, 255. 155 Walter Benjamin, ed., Selected Writings, trans. Rodney Livingstone, vol. 2 (Cambridge, Massachusetts: Belknap Press, 1996), 486. 156 Ibid., 602. — 53 —

——————————————————— CHAPTER One ———————————————————

Relying on Benjamin, Johannes Baptist Metz157 offers a critique of taken-for-granted memories and the mechanisms through which such memories promote feelings of fear, anger, and revenge toward others. He distinguishes between two types of memories: first, recollections remembered from the perspective of the self; second, dangerous memories158 in which earlier experiences break through the centerpoint of our lives and reveal new and dangerous insights for our present. They . . . show up the banality of our supposed “realism.” They break through the canon of all that is taken as selfevident . . . [and] subvert our structures of plausibility. Such memories are like dangerous and incalculable visitants from the past. They are memories we have to take into account: memories, as it were, with future content.

Memories of trauma defy the order of smooth-flowing narratives and disrupt the realm of normalcy.159 For Metz, dangerous memories upset the hegemonic order by calling for solidarity with others on the basis of common human suffering. They are also critical, challenging, but hopeful at the same time, as they invoke individual and collective consciousness into a new process of narrativization. Reclaiming forgotten connections with others calls for compassion, self-criticism, and resistance to the status quo. Memories of trauma can be destructive when they are kept particular and centered on the self or when they are used as a justification for retribution and wrongdoing. According to Jacqueline Rose,160 up to the 1960s the Holocaust had been a source of shame in Israel. Like the pogroms in exile, the Holocaust “required an act of self-assertion . . . , which because of the internal humiliation—nothing can, or will stop (ruthlessness always has an undercurrent of pain).” Thus, she argues that in the Israeli case shame triggered violence. Similarly, Metz notes

157 Metz, The Future in the Memory of Suffering, 9–25. 158 Ibid., 15 . 159 Ostovich, “Epilogue: Dangerous Memories,” 239–256. 160 Jacqueline Rose, The Question of Zion (Princeton: Princeton University Press, 2005), 137. — 54 —

——————————————— Repairing Historical Injustices ————————————————

in the context of violence and hatred in former Yugoslavia,161 [T]he memory of suffering became a shroud for the whole nation and a stranglehold on any attempt at interethnic rapprochement. Here a particular people have remembered only their own suffering, and so this purely self-regarding memoria passionis became not an organ of understanding and peace, but a source of hostility, hatred and violence.

This quote provides a vivid example of Arendt’s caveat.162 In her discussion of “The Social Question,” Arendt differentiates pity from solidarity: 163 Solidarity partakes of reason, and thus it is able to comprehend a multitude conceptually, not only the multitude of a class or a nation or a people, but eventually all mankind. But this solidarity, although it may be aroused by suffering, is not guided by it . . . compared with the sentiment of pity, it may appear cold and abstract, for it remains committed to “ideas”—to greatness, or honor, or dignity—rather than to any “love” of men. . . . Moreover, by virtue of being a sentiment, pity can be enjoyed for its own sake, and this will automatically lead to the glorification of its cause, which is the suffering of others.

Arendt suggests that forgiveness is the only way one can break free from the feeling of helplessness following an act over which one had no control.164 Her notion of worldliness suggests that through a common identity individuals feel a sense of shared responsibility that leads them to act politically in order to rectify past wrongs. Citizens are drawn into reconciliatory processes by a common care for the world they all live in. For Walter Benjamin, memory has transformative and liberating quali161 Metz, The Future in the Memory of Suffering, 230; Metz, “In the Pluralism of Religious and Cultural Worlds: Notes toward a Theological and Political Program,” 227–236. 162 Hannah Arendt, On Revolution (London: Penguin Books, 1965), 350. 163 Ibid., 84. See a similar idea in Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. 164 Arendt, The Human Condition, 233, 237. — 55 —

——————————————————— CHAPTER One ———————————————————

ties. It can create what Benjamin terms “constellations,” timeless ideas that unite scattered events from the past and present and connect the victims and the dead of the past with the oppressed of the present.165 Habermas’s166 notion of cosmopolitan solidarity that is grounded in the moral universalism of human rights167 expands Arendt’s notion and adjusts it to the postnational constellation. Whether the global swell of historical redress campaigns will promote cosmopolitan solidarity remains to be seen.

165 Charles Davis, “Walter Benjamin: The Mystical Materialist,” in Truth and Compassion: Essays on Judaism and Religion in Honor of Rabbi Dr. Solomon Frank, eds. Howard Joseph, Jack N. Lightstone and Michael D. Oppenheim (Waterloo, Ontario: Wilfrid Laurier University Press, 1983), 75–90. 166 Habermas and Pensky, The Postnational Constellation: Political Essays, 58–112. 167 See Hanna Arendt’s argument of the right to have rights in Arendt, The Origins of Totalitarianism, 674. See the discussion at Seyla Benhabib, The Rights of Others: Aliens, Residents and Citizens (Cambridge: Cambridge University Press, 2004), 49–70. — 56 —

————————————— The Holocaust Reparations: A Template? —————————————

2. The Holocaust Reparations: A Template?

Consider the following hypothetical situation: an agreement between two states, A and B, is the product of a collective reparations claim made by state A and by a group of organizations representing members who are affiliated with the state through their religious denomination but are not its citizens. The claimants are victims of genocide perpetrated by the previous regime of what is currently state B on the religious group represented by state A and the organizations in relation to a war between the previous regime of state B and its allies, namely, coalition of state C and coalition of state D. State A was never in a declared state of war with the perpetrator; it was established few years after the atrocities ended. When state A was established, it replaced the UN mandate held by one of the members of coalition D, who also happened to occupy the perpetrator. The claim itself, including material information, had been kept secret from the individual victims until an actual agreement had been negotiated. According to this hypothetical outline the Holocaust reparations are a case of transitional justice. The norm for defeated nations to pay reparations for waging unjust war was established in the aftermath of World War I. Soon after the World War II broke out, Poland’s government in exile decided to seek reparations from Germany, and others followed suit.1 In October 1939, Shalom Adler-Rudel, a Jewish activist, wrote a memo about the need to collect and document information to be used after the war in order to claim reparations from Germany. In late 1940, Ben-Gurion received this memo but dismissed it. Chaim Weizmann, president of the World Zionist Organization, had met with Adler-Rudel and promised him to communicate this idea to the heads of the Jewish organizations in America.2 In 1941, Jewish organizations in the U.S. showed interest in 1

2

The governments-in-exile of Czechoslovakia, Belgium, Greece, Norway, Luxembourg, Yugoslavia, and France. In 1936, a group of Jewish lawyers who managed to flee from Germany in 1936 contemplated the idea of seeking reparations for confiscated property. Teitelbaum, The Biological Solution, 58. (Hebrew) Ibid., 58. — 57 —

——————————————————— chapter two ———————————————————

the idea of reparations to German Jews. The Institute of Jewish Affairs was established in New York under the auspices of the American Jewish Congress and the World Jewish Congress3 on February 1, 1941, based on proposals made by Jacob Robinson to the American Jewish Congress in 1939 and 1940. Its charter was to conduct a thorough investigation of Jewish life over the preceding twenty-five years to establish the facts of the position of the Jews during WWII, to determine their causes, and to suggest how Jewish rights might be reclaimed in a postwar settlement. The international community made clear of its intent to claim reparations from Germany. This was first expressed in the Inter-Allied Declaration against Acts of Dispossession Committed in Territories under Enemy Occupation or Control, issued in London on January 5, 1943. A decentralized process of restitution began soon after the war, when the occupation powers (except the Soviet Union) enacted laws in their control zones for the restitution of private property confiscated by the Nazis.4 In November 1944, when the victory of the Allied powers seemed close and the murder of millions of Jews became common knowledge, the World Jewish Congress5 summoned an emergency conference. Nahum Goldmann, in his capacity as acting president, declared in his keynote address that the Jewish people as a whole should be regarded as heirs to the Holocaust victims. The conference called for reparations for the Jewish communities and for individual survivors. Heirless property was to be handled by a Jewish international reconstruction commission. Similar proposals were drafted by Georg Landauer of the Jewish Agency in Jerusalem and by Siegfried Moses of the Association of Central European Immigrants.6 The Potsdam Agreement of August 2, 1945, recognized the need to recompense, on a nation-to-nation basis, the victims of the Nazi regime for their losses and suffering. A collective Jewish demand for Holocaust 3 Herein after WJC. 4  Ronald W. Zweig, German Reparations and the Jewish World: A History of the Claims Conference, 2nd ed. (London; Portland, Oregon: F. Cass, 2001). 5  The World Jewish Congress was formed Geneva in 1936 by veteran Zionist rabbi Stephen S. Wise and Nahum Goldman in order to unite the Jewish people and mobilize the world against the Nazi atrocities on the Jewish people. According to its mission statement, its purpose is to be the diplomatic arm of the Jewish people. 6  Shlomo Shafir, “Nahum Goldmann and Germany after World War II,” in Nahum Goldmann: Statesman without a State, ed. Mark A. Raider (Albany: SUNY Press, 2009), 207–232. — 58 —

————————————— The Holocaust Reparations: A Template? —————————————

reparations was first brought up in September 1945 by Chaim Weizmann, then president of the Jewish Agency.7 In a letter addressed to Bevin, the British foreign secretary, and to the governments of the United States, USSR, and France, Weizmann requested that the British government, as the mandate holder in Palestine, consider the issue of reparations for the Jewish people.8 Weizmann claimed both compensation for damages to individuals and restitution of property.9 He estimated the damages in $8 billion and demanded that heirless property be transferred to the Jewish Agency. This move, however, did not bear any fruit10 since strengthening the Jewish Agency was hardly in the interests of Britain at the time.11 The Jewish organizations, the particularly those in the U.S., sought to obstruct the Zionist movement’s attempt to represent the entire world’s Jewry including non-Zionists. This was part of the ongoing rivalry among the Jewish organizations that were concerned primarily with control over money and resources. In this enmity, the personal and the political became interlaced; the personal relationships between the leaders Weizmann and Goldmann had been complex and for some time turned antagonistic.12 It is thus reasonable to assume that their efforts in pursuing the reparations agreement were not coordinated. On December 21, 1945, at the Paris Conference on Reparations, the Final Act was issued.13 The Final Act states that the funds will not be al7  The Jewish Agency was established by the World Zionist Organization in August 11, 1929, as a partnership between the World Zionist Organization (WZO) and non-Zionist Jewish leaders. The agency was set up in accordance with the stipulation in the League of Nations Mandate for Palestine (1922) that a Jewish agency comprised of representatives of world Jewry assist in the establishment of the Jewish National Home in Palestine. 8  From Chaim Weitzmann to Ernest Bevin, September 20, 1945. Meyer Wolfe Weisgal, ed., Letters and Papers of Chaim Weitzmann, vol. 22 (Piscataway, New Jersey: Transaction Publishers, 1993), 51–54. Meyer Wolfe Weisgal and Joel Carmichael, Chaim Weizmann: A Biography by Several Hands (New York: Atheneum, 1963). 9  Shafir, “Nahum Goldmann and Germany after World War II,” 207–232. 10  The occupying powers had agreed to allocate only $25 million that were used for humanitarian purposes. The money was divided between the Jewish Agency and other Jewish welfare organizations. It took several years till the money was actually paid. See Nana Sagi, German Reparations: The History of Negotiations (Jerusalem: The Magnes Press, 1980), 36. 11  During these years the battle over Palestine was about to be decided. Tom Segev, The Seventh Million: The Israelis and the Holocaust (Jerusalem: Keter, 1991), 180. (Hebrew) 12  See the detailed account of the relationships in Jehuda Reinhartz, “Nahum Goldmann and Chaim Weitzmann,” in Nahum Goldmann: Statesman without a State (Albany: SUNY Press, 2009), 125– 138. Weitzmann’s letters contain no mention of Goldmann’s negotiation with the West German government on the Holocaust reparations during 1951. 13  “The Final Act: Paris Conference,” http://www.ena.lu/final-act-paris-conference-reparation-21— 59 —

——————————————————— chapter two ———————————————————

located on an individual basis. By then, the Allied powers became aware that the survivors need to be resettled and undergo rehabilitation. The proceeds from the seized German assets were to be used to this effect. Since the majority of Holocaust survivors were Jewish, the Jewish organizations (the Jewish Agency and the American Jewish Joint Distribution Committee) were to receive 90 percent of the original assets, both monetary and nonmonetary, and 95 percent of heirless accounts seized by the Allies. The Paris Reparations Agreement, signed on January 14, 1946, was thought to cover all the claims of the states and of their nationals against former Germany or the agencies associated with it. At this point, the Jewish settlement in Palestine was in mayhem. The cumulative effect of the horrors of the Holocaust coupled with concerns about the future of Palestine,14 the developing confrontation with the British mandate authorities, and the conflict with the Arabs and internal political struggles were overwhelming.15 These and the political struggles within the Jewish settlement deferred any action with regard to the reparations. Goldmann himself was primarily preoccupied with the negotiations over the UNSCOP Partition Plan of Palestine during 1946–1948. After 1948, with the surges of immigration of Holocaust survivors, there was a sense of urgency in the newly established state. Should Israel take control over the process on behalf of the Jewish people?16 Should the claims be pursued collectively or individually? The main tenets of the negotiations had touched on the prominent issue of the representation of the victims. Israel had to deal with the practicalities associated with its perceptions of the Diaspora or, more precisely, the negation of exile as a formative component of Zionism.17 On the one hand, Israel had absorbed the majority of Holocaust survivors. As a Jewish state, Israel’s image is that of the safe haven of all Jews. On the other hand, the Jewish organizations tended to Holocaust survivors in places other than Israel. These organizations, which represented Diaspora Jews, had dissimilar needs and priorities. These disagreements pertained to december-1945-020302555.html (accessed September 10, 2009). 14  The Partition Plan of Palestine was opposed by the Arabs, by the British, and by most of the Zionist movement. See Reinhartz, “Nahum Goldmann and Chaim Weitzmann,” 125–138. 15  Ibid., 132. 16  See Zweig, German Reparations and the Jewish World: A History of the Claims Conference, 67–88. 17  Leah Rosen and Ruth Amir, “Constructing National Identity: The Case of Youth Aliyah,” Israel Studies Forum 21, no. 1 (2006), 27–51. — 60 —

————————————— The Holocaust Reparations: A Template? —————————————

the fundamental issues of justice in reparations. To further complicate matters, there had been a heated debate in Israel on whether a reparations agreement should at all be pursued and whether the state should become involved in individual reparations for the victims. The following sections focus on the process of pursuing the agreement and the public discourse surrounding it. My primary concern here is analytical rather than archival. I analyze the case of Holocaust reparations as the thick background to the cases of historical redress that will be examined in the following chapters. The Holocaust Reparations: Negotiate with the Perpetrator! Actual negotiations for restitution for the crimes perpetrated by the Nazis begun soon after the founding of the Federal Republic of Germany in 1949; by then, Israel was already an independent state. On May 10, 1949, Michael Amir,18 a diplomat stationed in Brussels, sent a memo to the Legal Department of the Ministry of Foreign Affairs in which he suggests to embark on diplomatic negotiations with West Germany in order to guarantee Israel’s inclusion as a recipient of reparations.19 The reparations issue was launched in the form of a query made by Finance Minister Eliezer Kaplan on behalf of the Restoration Commission.20 The commission inquired about Israel’s official position with regard to the restitution laws of the Federal Republic of Germany21 and in particular with the transfer of the value of private funds in the form of goods purchased in FRG. Such transfers were banned due to Israel’s boycott on Germany, the Germans, and everything related to it. The only German goods allowed entry into the country were those brought in by Jewish immigrants. The government voted in favor of Kaplan’s proposition to allow the private transfer of German goods to Israel. Toward the end of this year, following a reception by Jewish personalities in West Germany, Adenauer declared in an interview to the chief editor of a Jewish newspaper in Germany that the State of Israel and the Jewish people should be offered financial assistance of 10 million 18 Segev, The Seventh Million: The Israelis and the Holocaust, 233; Teitelbaum, The Biological Solution, 65. 19  Amir’s memo was kept on record but did not invoke any response. 20  The government meeting was held on June 7, 1949. See meeting protocol at the State Archives. The Restoration Commission had been formed in order to attend to Jewish property that was encroached during the war. 21  Herein after FRG. I use FRG, West Germany, and Germany interchangeably. Any reference to East Germany would be made explicitly. — 61 —

——————————————————— chapter two ———————————————————

marks and up to 50 million ex gratia.22 In early 1950, Finance Minister Eliezer Kaplan and Foreign Minister Moshe Sharett had formed a commission that was to deal with the transfer of Jewish capital from Germany. MK Peretz Naftali, Ben-Gurion’s economic advisor, headed the commission.23 Other members were representatives of the foreign affairs, finance, and commerce and industry ministries together with representatives from the Jewish Agency and the Jewish National Fund. Naftali was in support of lifting the ban on Germany, and the commission’s decisions reflected the underlying assumption that direct negotiations between the governments of Israel and West Germany could not be shun. Two arguments were used to justify this position. First, the transfer of Jewish capital through exports from West Germany would be feasible only on the basis of bilateral agreements. Second, direct negotiations with West Germany were advisable from the point of view of Jewish honor and the honor of the State of Israel.24 The commission stated that its decisions should be reported to the minister of finance and are to be used as a reference material for the purpose of government decision making in the matter. These recommendations were certainly intrepid given the moral dilemmas and emotional difficulties that such direct negotiations entailed. The Israeli government discussed the recommendations of Naftali Commission on February 15, 1950. Finance Minister Eliezer Kaplan who chaired the meeting in the absence of Ben-Gurion referred to the 1949 decision regarding the transfer of capital from Germany. Kaplan argued that direct negotiations with Germany were vital for the largescale transfers. Referring to Adenauer’s commitment in the November 22  This was Adenauer’s first interview as chancellor. The interview with Karl Marx, chief editor of the Allegemeine Wochenzeitung der Juden in Deutschland, took place on November 11, 1949. Quoted in Karl Marx, “Konrad Adenauer’s First Interview,” in The German Path to Israel: A Documentation, ed. Rolf Vogel (Chester Springs, Pennsylvania: Dufour Editions, 1969), 17–19. Karl Marx wrote to Adenauer in September 1949, offering his services as advisor to the government on Jewish issues. According to Jay Geller, Adenauer received the questions in advance and was allowed to review the interview prior to its publication. See Jay Howard Geller, Jews in Post-Holocaust Germany, 1945– 1953 (Cambridge: Cambridge University Press, 2005), 79. 23  Naftali has been a senior Mapai member. He immigrated to Palestine in 1933 from Germany, where he was a senior member in the SPD. Naftali objected the total ban on Germany and supported the renewal of the relationships between Mapai and the German SPD. See Gabriel Sheffer, Moshe Sharett: Biography of a Political Moderate (Oxford; New York: Clarendon Press, 1996), 524. 24  The Decisions of the Commission for Transfer from Germany, January 6, 1950 (HZ 2417/A1. National Archives, 1950). (Hebrew) — 62 —

————————————— The Holocaust Reparations: A Template? —————————————

11, 1949, interview, Kaplan said, “The Germans are waiting for someone to negotiate with them on an agreement, as it were.”25 He added that many Jews from Israel and other countries traded with Germany despite the ban. Kaplan proposed that a representative would embark on negotiations with West Germany over the payment of reparations. However, due to the uncertainty surrounding the actual sums that Germany was willing to pay and the public’s reactions, the decision was suspended. Kaplan warned the ministers that the further delay of the negotiations with Germany might jeopardize the chances of salvaging the money. In order to reassure the ministers, he presented the proposed decision as a minor incremental step, as a follow-up that required to address problems arising from the previous decision to embark on the negotiation. Sharett took a highly pragmatic and assertive stance that Israel should put an end to the boycott and enter direct and formal negotiations with Germany. He argued, I think we have no choice but to start direct and formal negotiations with the government of Germany. This means we have to know it and face the storm in Israel and abroad with open eyes. . . .26

As part of the attempts to promote the negotiations with Germany, Sharett insisted that Israel’s willingness to negotiate stemmed from its commitment to the individuals. He further argued that the government could not act like a bystander and abandon its citizens. In hindsight, this concern with individual reparations seems jarring, in the light of the last-minute concession that the Israeli representatives made regarding the payment of damages for bodily harm to individuals. Perhaps aware of this atypical concern with individuals, Sharett regained his composure and emphasized the collectivist interest in recovering the assets of Jewish communities and of heirless victims. He suggested that in many cases “only the Jewish collective would be able to salvage them, and for

25  “Proceedings of the Israeli Government Convention on February 15, 1950. Convention 29/310 Article 9,” in Moshe Sharett and the German Reparations Controversy, Collected Documents, ed. Yaakov Sharett (Tel Aviv: The Society to Commemorate Moshe Sharett, 2007), 55. (Hebrew, my translation, RA) 26  Ibid., 56. (Hebrew, my translation, RA) — 63 —

——————————————————— chapter two ———————————————————

our part, the state of Israel can appear as their redeemer.”27 Sharett then moved on to discuss the dilemmas and attitudes invoked by the issue, pointing to the inherent contradiction of two popular slogans: the first raised the banner of total boycott of Germany and the second espoused the idea that those villains should pay reparations for what they have done. These two don’t go hand in hand, he argued, insisting that the state should be the negotiator. He referred to the moral duty to “extort everything we can from Germany.” However, he reassured his audience that negotiations do not imply recognition or establishing diplomatic relationships with Germany. Several events in 1950 had catalyzed Israel’s decision to embark on direct negotiations with Germany. The Korean War that started on June 25, 1950, furthered Germany’s inclusion in the Western Bloc. In July, the three occupation powers had announced the end of war with Germany. This signaled the international community’s willingness to rehabilitate Germany. The sense of urgency invoked by these international developments pushed Israel to the negotiating table. The minutes of a meeting dated August 1, 1950, at the Foreign Office28 clearly convey this sense of an opportunity that should not be missed. The participants in the discussion noted the large number of claimants, namely, individuals, groups, attorneys endowed with individual or collective power of attorney, various Jewish agencies both Israeli and international, and finally the State of Israel. The multiplicity of claimants and their diverse interests were perceived in Israel as chaos that would only be mustered through Israeli monopolization of the JewishIsraeli claims. The attendants thought that since the status of West Germany was to be decided by the three occupying powers, immediate action was required. Again the participants stressed that Israel should take the initiative of pursuing all the Jewish claims in cooperation with all the Jewish agencies in general and the Jewish Agency in particular. In October 1950 the powers implored Israel to join the announcement.29 27 Ibid. 28  Yehoshua Freundlich, ed., Documents Pertaining to Israel’s Foreign Policy, vol. 5 (Jerusalem: State Archives, 1988 [1950]), 452–455. (Hebrew) 29  In 1950, with the impending end of the state of war between the occupying powers and West Germany, and the powers’ letter to Israel to follow suit by revoking laws pertaining to trade with Germany, Ben-Gurion had considered in the proclaiming that since its establishment Israel had been at war with both East and West Germany. The government’s legal advisors issued a memo stating that there had never been a state of war between Israel and Germany. The — 64 —

————————————— The Holocaust Reparations: A Template? —————————————

While no party had made a public first move, it became clear that the status quo must be broken off. Adenauer had for some time been pondering on the issue of reparations. He initiated a secret30 meeting with David Horowitz in Paris.31 At the meeting,32 Adenauer wanted to convey the message that he was interested in an early conclusion of a reparations agreement. The amount of the settlement was to be left for negotiation. The $1.5 billion that Israel demanded from the occupation powers was more than half the amount that Germany had received under the Marshall Plan.33

30 

31 

32 

33 

economic division at the Ministry of Foreign Affairs held the opposite view. This was in contrast to Ben-Gurion’s pragmatic policy regarding West Germany. There already had been informal negotiations on a reparations agreement. A year later, Ben-Gurion himself used the term “the other Germany” to distinguish West Germany from Nazi Germany. “Proceedings of the Israeli Government Convention on October 30, 1950. Meeting 10/311, Article 53,” in Moshe Sharett and the German Reparations Controversy, Collected Documents, ed. Yaakov Sharett (Tel Aviv: The Society to Commemorate Moshe Sharett, 2007), 55–63. (Hebrew) See Shafir, “Nahum Goldmann and Germany after World War II,” 213. The government had not been informed; only Sharett and Ben-Gurion shared this highly confidential information with Horowitz and Fischer. Dean Acheson, Secretary of State in President Harry S. Truman’s administration, was updated. According to Horowitz, a journalist, Alex Raviv, who travelled from Israel to London after the meeting, updated Israelis at a social gathering in a hotel room that the Israeli newspapers reported Horowitz’s meeting with Adenauer. Raviv added that because the story had sounded so absurd, no one believed it to be true. See Horowitz, In the Heart of Events, 90. (Hebrew) The German embassy in Paris has summoned the meeting. Morris Fischer, the Israeli ambassador in Paris, attended the meeting as the Israeli side, Adenauer was accompanied by Blankenhorn. Blankenhorn was a member of the Nazi party since 1938 and was placed in Germany’s embassy in London during the late 1930s. After the war, he had a thriving diplomatic and political career. Horowitz was director general of the Ministry of Finance; in September 1950 he prepared a proposal claim of $1.5 billion, based on the expenses incurred to Israel by the absorption of 500,000 refugees. Two-thirds were to be paid by FRG and a third by DDR (DDR failed to pay its part). Adenauer had received the memorandum dated March 12, 1951. See the proposal in the Knesset Proceedings, No. 8, Protocol of convention 237, “Proceedings of the First Knesset Convention 237 on March 13, 1951,” in Moshe Sharett and the German Reparations Controversy, Collected Documents, ed. Yaakov Sharett (Tel Aviv: The Society to Commemorate Moshe Sharett, 2007), 131–137. The document had been prepared by Horowitz on the basis of the September 1950 proposal. The two documents had been very similar. See David Horowitz, In the Heart of Events (Tel Aviv: Massada, 1975), 79–82. (Hebrew) In his book Horowitz does not mention the exact date of his meeting with Adenauer; however, he quotes several paragraphs from Haim Yachil’s article that states that the meeting took place on May 6, 1951. See ibid., 93. (Hebrew) Weitz writes that this meeting took place in April. Yechiam Weitz, “Introduction: Moshe Sharett and the Reparations Agreement with Germany 1949–1952,” in Moshe Sharett and the German Reparations Controversy, Collected Documents, ed. Yaakov Sharett (Tel Aviv: The Society to Commemorate Moshe Sharett, 2007), 14. (Hebrew) Tom Segev refers to April 19, 1951, at the date of the meeting. See Segev, The Seventh Million: The Israelis and the Holocaust, 183. (Hebrew) Charles Williams, Adenauer: The Father of the New Germany (New York: Wiley, 2000), 371. — 65 —

——————————————————— chapter two ———————————————————

In Germany, however, only a small minority of lawyers, civil servants, and politicians were in favor of the financial burden of the reparations. They were supported by a small group of intellectuals, journalists, and church people who were supported and sometimes pressured by the U.S. government. These, who named themselves the “lonely few,” saw the reparations as a moral obligation.34 The federal Ministry of Finance, which was responsible for enacting the reparations legislation, stood as their most resolute opponents and acted mainly behind the scene. When Goldmann learned about Horowitz’s meeting with Adenauer, he was furious that Israel had failed to update him about the meeting. I would assume he had been informed of the meeting by Noah Barou (chair of WJC in London). Barou, an economic consultant, had sustained business relations with the FRG.35 According to Shlomo Shafir, Blankenhorn36 “became Barou’s and later Goldmann’s most important interlocutor.”37 In his discussion with Sharett, the latter assured him that Israel would cooperate with the WJC regarding the reparations. Such cooperation was to serve Israel’s domestic interests for two interrelated reasons. First, Israel preferred to defer its own direct and overt involvement in the negotiations as long as the outcome was uncertain; second, Israel sought the support of world Jewry as a shield from those opposing the negotiations in Israel. In June 1951 Nahum Goldmann, in cooperation with the government of Israel, formed the Claims Conference onJewish Material Claims (CJMC).38 The Claims Conference was to represent the Jewish 34  Christian Pross, Paying for the Past: The Struggle over Reparations for Surviving Victims of the Nazi Terror (Wiedergutmachung), (Baltimore: Johns Hopkins University Press, 1998), 3–7. 35  In its plenary assembly in July 1948 in Montreux, the WJC radicalized its position toward Germany and demanded that the Jewish people will never again settle in Germany. This was the majority position of both Zionists and pro-Zionists in WJC. There were even calls for an all-out boycott on Germany. See Shafir, “Nahum Goldmann and Germany after World War II,” 209–210. 36 Ibid. 37  Ibid., 211. 38  The Claims Conference or CJMC (Conference of Jewish Material Claims) was formed in June 1951 and was officially convened in October 25, 1951, following Adenauer’s declaration. The CJMC is a nonprofit organization that represents world Jewry in negotiating for compensation and restitution for victims of the Nazi persecution, and their heirs. On September 2, 1951, representatives of the Israeli government have met the representatives of twenty-three Jewish organizations. The parties agreed that a joint body of Jewish organizations will be formed for the purpose of representing the Jews in the negotiations with Bonn, lending support to Israel on that matter, and assisting in mobilizing support for the Holocaust reparations in Israel. The participants made clear that these talks were to be limited to a discussion of material claims, and thus the organization that emerged from the meeting was called the Conference on Jewish — 66 —

————————————— The Holocaust Reparations: A Template? —————————————

organizations in the negotiations with Germany.39 The establishment of the Claims Conference was to send a clear message to Israelis that the negotiations for reparations were a collective Jewish effort and to display a united front amid the domestic and international opposition. Both Israel and the organizations maintained a low profile by keeping the negotiations top secret and limiting the rank of the negotiators. This was primarily due to the potential opposition to the negotiations and the uncertainty surrounding the outcomes. Behind-the-scenes negotiations between Noah Barou and Herbert Blankenhorn, Adenauer’s closest advisor on foreign policy,40 had already been taking place. After the establishment of FRG, both Barou and Alex Easterman, political director of WJC in London, were convinced that reparations from Germany could be obtained only through direct negotiations. This, however, had been the minority position within the WJC. The WJC had set prerequisites for the talks. First, that Germany would acknowledge its responsibility for the Holocaust, that it would take concrete steps to prevent anti-Semitism, and that it would be prepared to offer reparations to individuals, the Jewish people, and the State of Israel. In the summer of 1951, both Goldmann and Adenauer were staying at the same resort in Burgenstock. Goldmann had resisted earlier attempts by Blankenhorn to arrange a meeting with Adenauer until Germany would publically acknowledge the principle of reparations. Weizmann had turned down an offer to meet Adenauer at the same resort in 1950. By June 1951, Goldmann was already working on drafts for Adenauer’s Bundestag statement.41 The statement was made on September 27, 1951, after several iterations and revisions by Jewish, Israeli, and German protagonists.42 The statement read, 43 Unspeakable crimes have been committed in the name of the

Material Claims Against Germany—the Claims Conference. The board of directors of the new conference consisted of groups that took part in its formation, with each member agency designating two members to the board. 39 Williams, Adenauer: The Father of the New Germany, 371–375. 40  Shafir, “Nahum Goldmann and Germany after World War II,” 207–232. 41  Several Israeli officials were also involved in the process of the preparation of the statement. 42 Segev, The Seventh Million: The Israelis and the Holocaust. 43  Konrad Adenauer, “Declaration,” in Documents Pertaining to Israel’s Foreign Policy, ed. Yemima Rosenthal, vol. 6 (Jerusalem: State Archives, 1991 [1951]), 665. (Hebrew, see also Zweig, German Reparations and the Jewish World, 21.) — 67 —

——————————————————— chapter two ———————————————————

German People, calling for moral and material indemnity, both with regard to individual harm to Jews and to the Jewish property for which no legitimate individual claimants still exist. . . . The Federal Government are prepared, jointly with representatives of Jewry and the State of Israel, which has admitted so many homeless Jewish fugitives to bring about a solution of the material indemnity problem, thus easing the way to the spiritual settlement of infinite suffering.

In the statement, the apology is kept at the level of government, making atonement more politically acceptable to politicians than a personal or individual apology. The atrocities had been perpetrated in the name of the German people and the federal government takes on political and moral responsibility. Adenauer made clear that in any future negotiations with Israel and Jewish organizations, Germany would not attempt to take the edge off Germany’s moral guilt with cash payments. In his meeting with Adenauer, David Horowitz emphasized the Israeli and Jewish standpoint that the reparations are merely restitution for an encroachment and constitute only a small part of the loss. In the declaration, Adenauer acknowledged the collective responsibility of the German people to the crimes perpetrated in their name. This was definitely not ex gratia compensation. Notwithstanding the display of collaboration between Israel and the Jewish organizations, Sharett declared at the government meeting of October 25, 1951,44 that there should be only one claimant—the State of Israel—since Israel absorbed the half-million Jews and rehabilitated them. He said that unlike America and its individualistic ethos, Israel is committed to the survivors and mortgaged its future for their sake. Naturally, the Jewish organizations could not endorse this position. The negotiations over the agreement unveiled the conflicting interests of Israel and the Jewish organizations on the one hand, those among the organizations on the other. During the winter of 1951–1952, before the launching of the Wassenaar talks, two disparate views emerged in the Claims Conference regarding the nature of their claim.45 The European-based member organizations, which were engaged in active 44  Proceedings of the Government Convention, October 25, 1951, 5/312, Article 7 (Jerusalem: The Government Printer, 1951). (Hebrew) 45 Zweig, German Reparations and the Jewish World: A History of the Claims Conference, 33–34. — 68 —

————————————— The Holocaust Reparations: A Template? —————————————

relief, restitution, and rehabilitation, were interested in a large detailed claim.46 Conversely, the Commission of Experts in New York opted for a restricted restitutionary claim. In order to attend to the individual claims, the Claims Conference thought to exert pressure on Germany to ameliorate its legislation on restitution and indemnification. The conference’s experts came to the conclusion that only a large global claim based on heirless assets would address the needs of the organizations. On the contrary, the Israeli position was that a global claim submitted by the conference might clash with the Israeli global claim and thereby jeopardize both. Goldmann managed to reconcile these diverse interests. In December 1951 Israel agreed to allocate one-third of the money to the organizations in the Diaspora. Only 45 percent of these sums (15 percent of the total claim) were to be spent outside Israel and the remainder, 55 percent (18.3 percent of the total), were to be spent by the organizations in Israel, according to the organizations’ own programs. Although Goldmann’s proposal was approved, the Claims Conference decided to press its own global claim of $500 million. The claim was based on the value of heirless assets and on the past and expected future expenditures of the Jewish relief organizations.47 This guaranteed the continued organizational life of the Claims Conference after the completion of the negotiations. Adenauer’s declaration facilitated the meeting between Goldmann and Adenauer; it took place at the Claridge Hotel in London on December 6, 1951.48 The most significant accomplishment was Adenauer’s 46  The organizations in Europe had spent $1.1 billion between 1933 and 1951 and needed $20–$30 million every year for maintaining the minimum services to the refugees that had not been resettled. See ibid., 33–34. 47  Ibid., 33–34. 48  According to Goldmann, in his meeting with Adenauer, he formally represented both the world Jewry and the Sstate of Israel. Ben-Gurion gave him power of attorney to represent the State of Israel. See Nachum Goldmann, The Autobiography of Nahum Goldmann. Sixty Years of Jewish Life. Translated by Helen Sebba (New York, Chicago, San Francisco: Holt, Rinehart and Winston, 1969). Tom Segev argues that in the meeting, Goldmann represented the Claims Conference. Horowitz’s account also supports Goldmann’s view. See Segev, The Seventh Million: The Israelis and the Holocaust, 187. (Hebrew) Other sources refute Segev’s claim. Goldman demanded an Israeli backing, and to this effect he had met Ben-Gurion before his meeting with the chancellor. Israel preferred to defer a formal meeting until the matter was decided by the Knesset. The Claims Conference had already decided in favor of negotiations with Germany on October 26, 1951. See also Horowitz, In the Heart of Events, 89. (Hebrew) Horowitz notes that although Goldman suggested a joint meeting with Adenauer, he himself preferred not to attend the meeting, as he — 69 —

——————————————————— chapter two ———————————————————

commitment to pay $1.5 billion, as per Horowitz’s calculation, as the basis for negotiations. Of these, the share of FRG would be $1 billion, and DDR was to pay $0.5 billion.49 Following Goldmann’s request, Adenauer issued a written commitment to pay reparations. During the meeting, Goldmann dictated the letter to Adenauer’s secretary. It was dispatched to Barou immediately.50 On January 7, 1952, Ben-Gurion announced in the Knesset that the government was willing to enter direct negotiations with Germany. The Knesset decided to authorize the Parliamentary Committee for Foreign Affairs and Security to decide on the matter. A tumultuous debate stirred the Knesset. Opposition to the negotiations with Germany had been strong and at times even turned violent. The government was attacked by both the Left and the Right. The Left (Mapam and Maki) opposed. Mapam argued that the negotiations desecrated the memory of the Jewish underground. Maki claimed that the negotiations proved that Israel had become enslaved to the imperialistcapitalist bloc that was the continuation of the Nazi-Fascist bloc. Both parties were interested in establishing relationships with East Germany. On the opposite side stood Herut; it considered the Germans the modern Amalekites. Negotiating with the Germans thus meant compromising national pride. Herut’s leader, Menachem Begin, declared a civil revolt and threatened to push the country into civil war. “This will be a war of life or death” was the theme of his speech in Jerusalem on January 7, 1952.51 “There will be no negotiations with Germany! We are all ready to give our souls for this.”52 In this emotional and excited debate, the General Zionist party contested the imbalance between the injustice and the remedy and dismissed the government’s argument that the money was needed for building the country.53 The party representatives saw the reparations as commodification of the suffering that

49  50  51 

52  53 

wanted to avoid another “mental agitation.” See Horowitz’s report on the meeting with Adenauer in ibid., 86–98. (Hebrew) This was in line with Israel’s reluctance from entering direct negotiations with the Germans, at least until the outcomes are guaranteed and positive from Israel’s point of view. DDR and the Soviet Union did not respond to the claim. Ibid., 230–239. Menachem Begin, “This Will Be a War of Life or Death,” in Moshe Sharett and the German Reparations Controversy, Collected Documents, ed. Yaakov Sharett (Tel Aviv: The Society to Commemorate Moshe Sharett, 2007), 882. (Hebrew, my translation, RA) Ibid., 883. (Hebrew, my translation, RA) This argument is supported in Bank of Israel Report: The Reparations and their Effects on the Israeli Economy (Tel Aviv: Government Printer, 1965). — 70 —

————————————— The Holocaust Reparations: A Template? —————————————

would impair solidarity and national pride and would not constitute a fair settlement. During the Knesset deliberations, thousands of people tried to force their way into the building; dozens were injured in clashes with the police force. Stones were thrown some of which penetrated the assembly hall, injuring a Knesset member. At the end of the debate, the government’s proposal passed by a majority of 61–50. The other parties, Orthodox Jews, both Zionists and non-Zionists, all of which were members of the government coalition were divided. Such divisions existed even within Mapai. The pragmatists who favored the negotiations argued that Israel’s economy was collapsing and that immediate action was required in order to seize the window of opportunity. They also argued that Israel should disallow the Germans’ unjust enrichment. This was a strictly backward-looking consideration; the reparations were said to be merely restitution of what was taken unjustly. The proponents added that reparations should not be interpreted as forgiveness for crimes that are unforgiveable. This clearly exemplifies the operating of the tort model and its narrow focus of reparations as compensation, restitution, but not reconciliation and forgiveness. The negotiations between the Israeli and Jewish delegations to the Germans in Wassenaar opened on March 21, 1952.54 The reconciliatory discourse of Adenauer’s declaration soon dissipated as the bargaining over money was launched. Pross’s critical account55 highlights the continuous resistance within the German government and the public to the reparations. Publically, the Germans linked the reparations agreement with the outcomes of the London Commission that discussed the German national debt and liabilities. The Israelis and the Claims Conference had been surprised to learn that the Germans considered the Holocaust reparations one of several claims submitted by other countries. Another controversy evolved around the German refusal to quote a lump sum for the reparations and to commit to a timetable for the payments. The most disconcerting aspect of the Wassenaar negotiations was the Israeli concession to a demand put forward by the German delegation 54  Yechiam Weitz, “The Path to the Other Germany—The Attitude of David Ben-Gurion towards Germany, 1952–60,” in Independence—The First Fifty Years, ed. Anita Shapira (Jerusalem: Shazar Center, 1998), 245–266. (Hebrew) After being suspended and resumed, the agreement was reached in June and was signed in Luxembourg on September 10, 1952. 55 Pross, Paying for the Past: The Struggle Over Reparations for Surviving Victims of the Nazi Terror. — 71 —

——————————————————— chapter two ———————————————————

that Germany be released from the duty to pay reparations for bodily damages to survivors who already became Israeli citizens.56 According to the Israeli foreign minister’s letter, which was appended to the Luxembourg Treaty,57 the State of Israel agreed that Israeli citizens who arrived or would arrive to Israel before October 31, 1953, would not be eligible for reparations from Germany for health damages. This concession became part of the German Federal Restitution Law (BErgG). According to this provision, citizens of a state that received collective reparations for the absorption of survivors would only be allowed to claim reparations for the loss of liberty and as survivors of persecuted victims.58 Israel acted as fiduciary for the survivors without seeking their consent. In retrospect one might argue that reparations for individuals were not the primary concern of those involved in the negotiations.59 This concession trampled over the rights of many survivors who could otherwise claim reparations for bodily damages from Germany. Officially, Israel argued that the costs of this concession were underestimated at the time.60 In fact, however, Israel received in reparations almost twice the proceeds paid to individual survivors for bodily damages.61 Commodification or Atonement and Forgiveness? The Holocaust reparations invoke the numerous moral, ethical, legal, political, theological, emotional, and social issues raised in the previous chapter. The analysis of this case highlights several ambiguities and inconsistencies in the conceptualization and accounts of historical redress. As a case of transitional justice, the Holocaust reparations constitute part of the postwar political conditions and international aims.62 This postwar legacy of criminalizing state-sponsored wrongdoing as part of a universal rights scheme had an unprecedented effect in form56  The concession is first acknowledged in an appendix (Letter 1A) to the Luxembourg Treaty. “Agreement between the State of Israel and the Federal Republic of Germany,” in Treaties, vol. 3 (Jerusalem: Government Printer, 1952), 75. 57 Ibid. 58 Pross, Paying for the Past: The Struggle Over Reparations for Surviving Victims of the Nazi Terror. 59 Teitelbaum, The Biological Solution. 60  The cost was estimated at 20 millions DM. See The Report of the State Investigative Commission on the Aid to Holocaust Survivors (Jerusalem: Government Printer [2008]). High Court 5263/94 Hirschson Abraham v. the Minister of Finance, 1996(5) 837, at 837. 61  The Report of the State Investigative Commission on the Aid to Holocaust Survivors, 32. (Hebrew) 62  Ruti G. Teitel, “The Law and Politics of Contemporary Transitional Justice,” Cornell International Law Journal 38 (2005), 839. — 72 —

————————————— The Holocaust Reparations: A Template? —————————————

ing the basis of human rights law.63 Although this reparations scheme is often referred to as a model for future reparations claims, it also differs from more recent claims in many respects.64 Pross’s account suggests that these reparations represent both a model and a warning.65 In this, attempts to classify this case are often reductive and coarse. Torpey dismantles the injustices of the Holocaust into various types according to “‘the meaning of money’ in the reparations claims making.”66 He classifies the Holocaust reparations for survivors, for forced labor, and for private artworks as belonging to the symbolic rather than the economic pole and as legal rather than cultural. Torpey’s justification of this placement is that67 despite the notion that the Holocaust amounted to the “destruction of European Jewry,” one has little sense that “Judaism” suffered greatly, perhaps because Jewish history is so extensively bound up with stories of persecution and persistence.

The Holocaust reparations cannot be reduced to the Luxembourg Treaty or the BEG. The reparations program established in the Luxembourg Treaty started out as a case of transitional justice, but the Holocaust reparations process is prolonged and dynamic. Various categories of survivors and human rights violations have been added and enacted over the years. New court rulings and changes in legislation and public policy are still part of ongoing processes of historical redress in both Germany and Israel. With the passage of time, the emergence of the global human rights discourse, and changes in legislation, the case that started out as transitional justice has later evolved into a case of historical redress. Reparations are backward-looking in the restitution that they provide the victims and forward-looking in advancing peace and reconciliation. Both discourses of the responses to injustices, namely, the juridical/legalistic discourse and the sociological/theological discourse, and 63  Louis Henkin, The Age of Rights (New York: Columbia University Press, 1990). 64  Teitel, “The Law and Politics of Contemporary Transitional Justice,” 837–862. 65 Pross, Paying for the Past: The Struggle Over Reparations for Surviving Victims of the Nazi Terror. 66 Torpey, Making Whole What Has Been Smashed: On Reparation Politics, 57. 67  Ibid., 59. Quotation marks in the original. — 73 —

——————————————————— chapter two ———————————————————

their interplay were employed in Israel over the years with regard to Holocaust survivors.68 Whereas Israel’s initial motivation for pursuing the reparations was economic,69 the official stance was moral and legalistic. It concerned rights and obligations, restoration and restitution. This position, however, was biased toward the interests of the state; it compromised those of the individual victims in Israel and abroad. The hegemonic pragmatic discourse led by Ben-Gurion and his disciples justified the negotiations with Germany, stressed the economic necessity, and curbed all opposing arguments that the reparations represent the commodification of the Holocaust. The Holocaust reparations were structured in Israeli public discourse mainly as backward-looking. The reparations were not only restitutionary but also operated as retribution and sublimated revenge. A forward-looking discourse of reconciliation and forgiveness was not part of the material settlement. It was perhaps too early and too overwhelming, unconceivable in light of the scale and magnitude of the Holocaust. Israel insisted on a formal apology and contrition by the Germans as a precondition for entering formal negotiations over the reparations. Israel sought the acknowledgment of guilt by the German chancellor in order to justify the negotiations to the public. Goldmann’s active involvement in the phrasing of the declaration was to guarantee its reception by the Israeli public. All the while, at the home front, Israel remained a nonreconciled victim, insisting that there would be no reconciliation and certainly no forgiveness. Adenauer’s declaration started a dynamic that neither the Israeli leadership nor Germany could or even want to resist or restrain. The negotiations and the execution of the Luxembourg Treaty required cooperation and the establishment of mechanisms for regular interaction at various ranks and levels. Similar constraints were imposed by the common membership in international organizations. While the hesitant relationships between Israel and Germany evolved and intensified, memories of the horrors of the Holocaust were kept alive, boisterous and tenacious but incapable of derailing this fastmoving train. The advancement of the bilateral relations between Israel 68  On the discourses of responses to injustices, see Thompson, Taking Responsibility for the Past: Reparation and Historical Injustice, 47–50. 69  On the economic situation in the Jewish Settlement in Palestine, and the newly established State of Israel, see Horowitz, In the Heart of Events. — 74 —

————————————— The Holocaust Reparations: A Template? —————————————

and West Germany had been far from smooth. Israeli political leadership endured two domestic crises concerning the sensitive issue of arms trade with FRG. In 1957, Israel negotiated with West Germany the purchase of two submarines for the Israeli navy; two years later, Israel was already selling arms to West Germany. This had an overwhelming symbolic significance. Full diplomatic relations with West Germany were established only in 1965. Ben-Gurion justified this realpolitik, saying that “[n]ow we are a sovereign state, a sovereign state does not get wrapped up in mysticism; it must concern itself with politics.”70 It seems that the cautiousness with which Ben-Gurion treated the survivors and those opposing the agreement gave way to arrogance, exclusion, and nullification. He ridiculed Begin’s “false and theatrical rhetoric, void of inner truth,”71 accusing him of subjecting the Holocaust to political manipulation. Moments later, Ben-Gurion objectified and appropriated the six million, patronizingly mobilizing them in order to justify the sale of arms to Germany: 72 If the six million slaughtered were capable of looking from their grave or from heaven, they would probably rejoice and be merry and would find consolation to their deep sorrow in witnessing the resurrection of Israel, in the existence of the Israeli Defense forces and in our military industry that even the Germans value.

For some time it seemed that Israel, out of sheer pragmatic interests, was more eager than FRG to establish full diplomatic relations.73 There are numerous accounts of the relationships between Israel and Germany, most of which describe the relationship as abnormal.74 These 70  Quoted in Weitz, “The Path to the Other Germany—The Attitude of David Ben-Gurion towards Germany, 1952–60,” 245–266. (Hebrew) On the memory of the Holocaust in Israel, see Anita Shapira, “The Holocaust: Private Memories, Public Memory,” Jewish Social Studies: History, Culture, and Society 4, no. 2 (1998), 40–58. 71  Proceedings of the Israeli Knesset Convention 27, June 29, 1959–July 1, 1959, 27th sess., 1959, 2360. (Hebrew) 72  Ibid., 2371–2373. (Hebrew) 73. FRG was reluctant to establish diplomatic relations with Israel because of its involvement in Egypt and in other Arab countries. See Asher Ben Nathan, “The Road for Establishing Relationships: The Israeli Perspective,” in Normal Relationships: Israel-Germany Relationships, eds. Moshe Zimmermann and Oded Heilbrunner (Jerusalem: The Magnes Press, 1993), 24–32. (Hebrew) 74  Just to mention a few: George Lavy, Germany and Israel: Moral Debt and National Interest (London: — 75 —

——————————————————— chapter two ———————————————————

are, however, beyond the scope of this chapter. One of the most intriguing questions, however, concerns reconciliation and forgiveness and the moral and ethical issues that surround them. Israel and Germany had been in morally asymmetrical positions. The reparations agreement provided Germany with the opportunity to cleanse its moral taint; Israel, in contrast, was thrown into a moral dilemma: on the one hand, formal Israel stated the desperate need of the money in order to rehabilitate the Holocaust victims, absorb the mass immigration, and salvage its shaky economy. On the other hand, many Israelis felt that the agreement was at odds with their conscience; they thought that the apology and the compensation for the loss of so many lives and the misery suffered were inapt. The apology from the many to the many75 by the German government corresponded to the shared interest of both Israel and Germany. In a sense, the failure of Adenauer’s declaration to recognize the individual victims was a precursor to the orientation of the treaty. The declaration raises concerns pertinent to the moral issue of collective responsibility. Tavuchis portrays apologies from the many to the many as such in which individuals become attendants rather than active participants. Sorrow, which is an essential component of interpersonal apologies, is either precluded or sketchy. Without some form of reparations, symbolic or tangible, apology becomes merely “cheap talk.” As a form of speech, an apology pleads from the victim redemption, forgiveness, and acceptance that serve to restore the offender’s sense of reality and place in a moral order.76 Tavuchis writes, “[A]n apology is emblematic of the offender’s socially liminal, ambiguous status that places him precariously midway between exclusion (actual or threatened) and rehabilitation.”77 Once apology is offered, the power resides with the victim;78 it is up to the victim to forgive and grant the perpetrator with redemption and reconciliation needed to restore the perpetrator’s previous position. Indeed, many of F. Cass, 1996); Moshe Zimmermann, German Past—Israeli Memory (Tel Aviv: Am Oved, 2002) (Hebrew); Lily Gardner Feldman, The Special Relationship between West Germany and Israel (Boston: George Allen & Unwin, 1984). 75 Tavuchis, Mea Culpa: A Sociology of Apology and Reconciliation, 98–117. 76 Ibid. 77  Ibid., 31. 78  For Simmel, forgiveness is the only affective process which is assumed to be subordinate to the will. Georg Simmel, Conflict (Glencoe, Illinois: Free Press, 1955), 117–118. — 76 —

————————————— The Holocaust Reparations: A Template? —————————————

the voices in the Knesset debate over the reparations in Israel, regardless of their position in favor or against the Luxembourg Treaty, wished that Germany be ousted from the family of nations. Both the postwar international constellation and Israeli foreign policy took instead a pragmatic turn. It is somewhat abstruse to conceive of forgiveness as a collective phenomenon, even more than to conceive of collective responsibility or apology. In his book The Art of Forgiving, Smedes79 offers six statements that elucidate what is forgiveness by contrasting it with what it is not. Forgiveness does not mean that the wrong is tolerated; it does not mean that the wrong was forgotten or excused; it doesn’t take off the edge of the evil; it does not surrender the right to justice, nor does it facilitate to repeat the wrongful act. Scholars suggest that forgiveness is essentially restorative;80 it is the overcoming of resentment.81 Michael Henderson82 argues that forgiveness requires the victim to surrender the desire for revenge, to move beyond the selfish desires and needs, and to change the way one thinks of oneself and of the perpetrator. Meir Dvorjetski, a historian and physician who was imprisoned in Estonia and lost all his family in the Holocaust, said at the Mapai caucus discussion, 83 If you ask me what I want to receive from the German people I would say . . . six million slain Germans for six million slain Jews. But we cannot do this, so at least we should do something historic that will hurt us as does the pain of blood—to spit in their faces along with all the payments that could indeed help us, but we shall yet not accept. 79  Lewis B. Smedes, The Art of Forgiving: When You Need to Forgive and Don’t Know How (Nashville, Tennessee: Moorings, 1996). 80  Paul Lauritzen, “Forgiveness: Moral Prerogative or Religious Duty?” Journal of Religious Ethics 15 (1987), 141–154. See also Paul Lauritzen, Religious Belief and Emotional Transformation: A Light in the Heart (Lewisburg: Bucknell University Press, 1992), 91–92. 81  Jeffrie G. Murphy and Jean Hampton, Forgiveness and Mercy (Cambridge; New York: Cambridge University Press, 1988). Also, Weitz, “The Path to the Other Germany—The Attitude of David Ben-Gurion towards Germany, 1952–60,” 245–266. 82  Michael Henderson, Forgiveness: Breaking the Chain of Hate, 2 rev ed. (Portland, Oregon: Arnica Pub., 2003). 83  “Minutes of the Meeting at the Mapai Caucus on December 31, 1951,” in Moshe Sharett and the German Reparations Controversy, Collected Documents, ed. Yaakov Sharett (Tel Aviv: The Society to Commemorate Moshe Sharett, 2007), 221. (Hebrew, my translation, RA) — 77 —

——————————————————— chapter two ———————————————————

Minister of Agriculture Pinhas Lavon, who was in favor of the negotiations, argued,84 The word “vengeance” is meaningful when it has import. Otherwise, it is just empty. I would understand if we had two choices: to annihilate 40 million Germans or reparations. As long as we are discussing, I think I would favor the annihilation . . . but this is not an option, not today, not tomorrow, not in a generation or even generations.

Smedes85 describes vengeance as having a videotape planted in the victim’s soul, constantly replaying the painful event and bringing up pain. Only forgiving, he argues, turns it off and sets the victim free. Rabbi Marc Gopin86 claims that forgiveness has to be a critical adjunct in rational negotiations and justice seeking, because in any type of conflict, there was never complete justice—nothing can recover lost lives or the pain and suffering of torture. Thus, in the context of mourning what cannot be restored, forgiveness and the creation of new bonds with those who once fought in the past can offer some form of comfort for irrevocable losses.87 In the case of the Holocaust, forgiveness was not part of the apparent normalization process. Adenauer’s formal apology was indeed offered as a precondition for embarking on the negotiations, but forgiveness was not granted. The passage of time and the apparent normalization of the relationships did not offer this comfort to the survivors. Forgiveness does not entail a quasi-contractual promise to be granted following the perpetrator’s atonement. While atonement is necessary for granting forgiveness, forgiveness is not always possible, nor is it immediate or even politically desirable. Lauritzen88 argues that forgiveness can never be a moral imperative. Forgiveness makes an effort to restore a relationship following a breach by one of the parties. It seeks to fill the moral gap created by the violation and restore the equal moral positions of the parties. According to Lauritzen, religious belief is one of the ele84  Ibid., 236. (Hebrew, my translation, RA) 85 Smedes, The Art of Forgiving: When You Need to Forgive and Don’t Know How. 86  Quoted in Henderson, Forgiveness: Breaking the Chain of Hate, 6–7. 87  Ibid., 6–7. 88  Lauritzen, “Forgiveness: Moral Prerogative Or Religious Duty?” 141–154. — 78 —

————————————— The Holocaust Reparations: A Template? —————————————

ments that construct our ethical duties.89 For Robert Solomon90 emotions are not limited to the realm of the individual. They constitute part of an elaborate network of experiences and beliefs formed by a community. Jewish tradition regards forgiveness as one of God’s most essential qualities. Lewis Newman’s91 analysis of the Jewish view of forgiveness suggests that Judaism implicitly rejects the assumption prevalent in much of Western moral philosophy that individuals are autonomous beings who relate to one another on the basis of some contractual model. Judaism does not conceive of individuals as autonomous moral agents but rather as members in a covenanted community. Hence, the moral obligations of Jews derive from their membership in such community. Jews are expected to be compassionate for humankind and imitate the divine love. Forgiveness is also an eminently political process; it is not confined to the realm of religious and personal ethic.92 Maier’s93 notion of political reconciliation is grounded in liberal proceduralism. For Maier, reparation imposes a duty on those who accept the settlement to agree to a degree of closure. Closure, perhaps, but not forgiveness. However, the expectation that forgiveness granted in some political form can prevent the debris of the past from obstructing the relationships between nations or among group within nations is perhaps too ambitious. A political consensus that the past was evil suppresses an implicit statement that the past should be put behind.94 Do backward-looking reparations provide justification for erasing the past? Benjamin’s95 caveat about the danger of memory becoming a tool of the ruling classes is highly germane here in several forms. The Holocaust is remembered in Israel primarily as a particularistic Jewish event.96 It 89 Lauritzen, Religious Belief and Emotional Transformation: A Light in the Heart, 50–67. 90  Robert C. Solomon, True to Our Feelings: What Our Emotions Are Really Telling Us (New York; Oxford: Oxford University Press, 2007). 91  Louis E. Newman, Past Imperatives: Studies in the History and Theory of Jewish Ethics (Albany: State University of New York Press, 1998), 83–100. 92  Donald W. Shriver, An Ethic for Enemies: Forgiveness in Politics (New York: Oxford University Press, 1997). 93  Maier, “Overcoming the Past?” 94  See Meister, “Human Rights and the Politics of Victimhood,” 91–108. With regard to the politics of victimhood in the context of transitional justice, this argument can be extended to historical redress in general. 95 Benjamin, Illuminations, 257. 96  Daniel Levy and Nathan Sznaider, The Holocaust Memory in the Global Age (Philadelphia: Temple University Press, 2006). — 79 —

——————————————————— chapter two ———————————————————

also serves to reaffirm the Zionist premise of the negation of exile. Zionism is said to grant redemption from the futile life in the Diaspora; thus, the practical imperative of the Zionist negation of the Diaspora was immigration to the Land of Israel.97 Raz-Krakotzkin98 deems the negation of exile a central axis in a viewpoint that defines the self-consciousness of Israeli Jews and shapes their view of history and collective memory. Zionism perceives a natural sequence between the return to national independence in Israel and the Jewish sovereignty in the days of the Second Temple. The two thousand years in exile are regarded as abnormality; this was a partial and defective existence. Raz-Krakotzkin99 links the negation of the Jewish European past to the ongoing practice of negating both the Jewish Oriental past and the Palestinian past. The role of Holocaust as a major component in Israeli collective identity intensified since the midseventies. As Fassin and Rechtman100 suggest, latency is typical in cases of individual and collective trauma. The Holocaust pervades the consciousness of Israelis and resonates strongly in every important political aspect. The sense of victimhood has also become increasingly salient. Moshe Zimmermann101 argues that the Holocaust is ever present in public discourse surrounding war and peace, the relationships between secular and orthodox Jews, or among ethnic groups. The Holocaust is not only becoming increasingly salient over the years, its traumatic effects also touch the Palestinians and the Arabs. Zimmermann argues that the mythic effects of the Holocaust are intensified with time, thwarting any normalization of the relationships between Jews and non-Jews and between Jews and Arabs in Israel. In the Zionist metanarrative one can easily trace the post-Holocaust Jewish thinking of Emil L. Fackenheim.102 In his book To Mend the World, Fackenheim argues that German Christians and Christians at large can97  Ibid. 98  Amnon Raz Krakotzkin, “Exile within Sovereignty: A Critique of the Concept ‘Negation of Exile’ in Israeli Culture,” Theory and Criticism 5 (1994), 114–132. (Hebrew); Amnon Raz Krakotzkin, “Exile within Sovereignty: A Critique of the Concept ‘Negation of Exile’ in Israeli Culture,” Theory and Criticism 4 (1993), 23–53. (Hebrew) 99  Ibid. (Hebrew); Raz Krakotzkin, “Exile within Sovereignty: A Critique of the Concept ‘Negation of Exile’ in Israeli Culture,” 114–132. 100  Fassin and Rechtman, The Empire of Trauma: An Inquiry into the Condition of Victimhood. 101 Zimmermann, German Past—Israeli Memory, 196–214. (Hebrew) 102 Fackenheim, To Mend the World: Foundations of Future Jewish Thought, 362. — 80 —

————————————— The Holocaust Reparations: A Template? —————————————

not “get behind” Auschwitz. They can get beyond it, at best, only if they identify with the State of Israel as being a house against death and the last Jewish refuge. Christians must relate positively to Jews not despite the Jewish nonacceptance of Christ but because of it. Fackenheim103 argues that the Holocaust has been unprecedented not only as a historical event but also as a threat to Jewish faith.104 He argues that Diaspora Judaism is unable to overcome this threat. Fackenheim suggests that post-Holocaust Judaism is based on the duty to resist the persecutors and return to Zion. He argues that the aspects of this view are moral and political and that their inner source is spiritual and religious. Fackenheim refers in particular to the sanctification of life rather than to the sanctification of death. The State of Israel thus becomes the product of Jewish fidelity and will to live. Amid this view of the Holocaust as a paradigm for the Jews, a novum incomparable to any other atrocity, the Holocaust has been subjected to political manipulation in Israel, both internally and externally. Internally, groups interested in drawing attention to their own misery take on the mantle of the victim and embrace the binary opposites of victim and perpetrator.105 The use of the Holocaust as an atrocity tale enables the group to identify with the victim and accuse the opponent of acting like a Nazi.106 The Holocaust was constructed in Israel as the exclusive ordeal of European Jews and the persecution of Jews in North Africa following the Wannsee Conference was forgotten and denied until quite recently. Thus, the term “holocaust” when used in other contexts is intended to convey intense suffering and victimhood, as if a holocaust grants inclusion into Israeli society.

103  Emil L. Fackenheim, “Holocaust,” in 20th Century Jewish Religious Thought: Original Essays on Critical Concepts, Movements, and Beliefs (Contemporary Jewish religious thought), eds. Arthur Allen Cohen and Paul R. Mendes-Flohr (Philadelphia: Jewish Publication Society, 2009), 399–408. 104  According to Fackenheim, the Holocaust was unprecedented for Jews in exile because the enemy was cold and calculated, it was not a mass expulsion that Jews could survive by wandering, the enemy was an idealist and could not be bribed or appeased, and finally, Jewish martyrdom became irrelevant, as the death warrant was targeted at all Jews by origin, independently of their religious observance. See ibid., 407. 105  See Craig Calhoun, “Social Theory and the Politics of Identity,” in Social Theory and the Politics of Identity, ed. Craig Calhoun (Cambridge, Massachusetts: Blackwell Publishers, 1994), 9–36. MacDonald, “First Nations, Residential Schools, and the Americanization of the Holocaust: Rewriting Indigenous History in the United States and Canada,” 995–1015. 106  Arlene Stein, “Whose Memories? Whose Victimhood? Contests for the Holocaust Frame in Recent Social Action Discourse,” Sociological Perspectives 40, no. 3 (1998), 519–540. — 81 —

——————————————————— chapter two ———————————————————

Louis Greenspan107 argues that Israel’s importation of the sublimated language of the Holocaust into the Arab-Israeli conflict ignores some of the distinct features of the Holocaust. The decisive feature of the Nazi hatred for the Jews has been, according to Fackenheim, the absence of any self-interest. In contradistinction, the hatred of the Arabs involves highly material interests. Pollefeyt108 suggests that Israel should abandon its tendency to use the Holocaust politically. In particular he refers to Israel’s tendency to consider every criticism of Israel as evil and as betrayal of the memory of the Holocaust. This Manichaeistic position brings more criticism, anti-Semitism, and rejection of the Holocaust. Israel’s self-image as a community of victims, and in particular that of an eternal unreconciled victim, limits its ability to achieve peace with its neighbors and imperils its physical security.109 Leonard Grob110 warns against adopting a metanarrative of unprecedented destruction followed by unprecedented redemption.111 He argues that the Zionist narrative affected by holy dramas is exclusive and reifies the Other. Liberation from the destructive power of victimhood and with it the victim-perpetrator dichotomy can contribute to breaking the vicious cycle of violence in which the victim becomes perpetrator in order to prevent more atrocities.

107  Louis Greenspan, “Fackenheim as Zionist,” in Fackenheim: German Philosophy and Jewish Thought, eds. Louis Greenspan and Graeme Nicholson (Toronto: Toronto University Press, 1992), 203–223. 108 Pollefeyt, Between a Dangerous Memory and a Memory in Danger: The Israeli-Palestinian Struggle from a Post-Holocaust Perspective, 135–153. 109  Zygmunt Bauman, “The Holocaust’s Life as a Ghost,” Tikkun: A Bimonthly Jewish Critique of Politics, Culture and Society (July-August, 1998), 37. 110  Grob and Roth, “Prologue: Haunted by the Holocaust,” 1–7. 111  See Grob’s reference to Levinas’s view of the founding of Israel as a passage from Auschwitz (the passion) to the resurrection (the State of Israel). Grob, “‘Forgetting’ the Holocaust: Ethical Dimensions of the Israeli-Palestinian Conflict,” 68–76. — 82 —

————————————————— The Yemeni Babies Affair —————————————————

3. The Yemeni Babies Affair

The Yemenis in Israeli Historiography The Satmar Hasidic movement often taunts the “Zionist entity” for its religious intolerance, using the case of Yemeni Jews as an exemplum. The two most frequently cited incidents are the trimming of the sidelocks1 of Yemeni children as part of the aggressive measures taken to secularize and assimilate them and the alleged abduction of Yemeni babies. The migrants from Yemen challenged the ethnic categorizations of Jews in Palestine’s Old Settlement.2 They could not be categorized as either Sephardic, Western (Jews from the Maghreb, namely, Morocco, Algeria, Tunisia, and Libya), or Ashkenazi Jews.3 Their physical appearance was markedly different than that of the other Jewish ethnic groups. Their lean physique, dark skin, language, and unique diction provided grounds for doubting their Jewishness. At first, they were suspected to be Arabs, but soon members of the Old Settlement came to appreciate their piousness and cultural heritage.4 The New Settlement Zionists remained ambivalent. On the one hand, they saw in the Yemenis the unchanging romantic picture of authentic Judaism;5 on the other, these same qualities were understood as an obstruction to the nascent col-

1  Beyond their significance in Judaism as part of the biblical prohibition on Jewish males against clipping the hair at the temples: “Ye shall not round the corners of your heads, neither shalt thou mar the corners of thy beard” (Lev. 19: 27). Yemeni Jews refer to their sidelocks as simanim, literally meaning signs. Historically, this was the main feature that differentiated them from Muslims in Yemen. 2  On the distinction between the Old and New Settlement, see Israel Bartal, “Old Settlement and New Settlement: Image and Reality,” Cathedra 2 (1976), 3–19. (Hebrew) 3  It is interesting to note that in the Old Settlement, these divisions were value free and were merely geographical or denominational. 4  Nitza Droyan, “New Neighborhoods for Yemeni Immigrants in Jerusalem, 1882–1914,” Cathedra 13 (1980), 95–129. Yemeni Jews were seen as preserving the rabbinical Judaism of the postbiblical era. See Shlomo David Goitein, From the Land of Sheba: Tales of the Jews of Yemen (New York: Schocken books, 1973). 5  Ella Shohat, Taboo Memories, Diasporic Voice (Durham, North Carolina: Duke University Press, 2006). — 83 —

—————————————————— chapter three ——————————————————

lective identity. As Yehuda Nini6 suggests, in the eyes of the developing New Settlement, members of the Old Settlement were unproductive and incapable of the much-desired revolutionary change of their way of living. The writing on the Yemenis can be divided into two general streams: academic and nonacademic. Each of the streams is further divided. The Israeli academic scholarship7 devoted exclusively to the immigration from Yemen seems to be further divided into three distinct groups: the first focuses on the history and economy of Yemeni Jews and their relationships with the Muslim population. The second consists of anthropological accounts of culture and religious heritage of the Yemenis as authentic Jews. The third group of academic historical studies highlights the hardship surrounding their migration and tends to be quite critical.8 The nonacademic texts convey a sense of unidirectional communication with the academic sources. This stream is further divided into two: first, books written by the ultra-Orthodox Satmerers9 and, second, books written by Yemenis. While the former are often dismissed as partisan and having an anti-Zionist agenda, I find their accounts generally reliable, well documented, up to date with academic scholarship, and quite well referenced. Autoethnographies written by Yemenis unfold the unofficial, subversive narrative of the Yemenis through memoirs and life histories. These are the most passionate and critical accounts. Some of these were written by former functionaries of the establishment or activists in Yemeni organizations. Their critique can be explained perhaps by their postcooptation abandonment by the establishment and the need to fit back in their community. While one can sense quite clearly the political tensions and their undercurrents within the Yemeni community, these accounts also seem well referenced and reliable. In general, the nonacademic writing is more permissive; it outlines more readily an alternative and subversive historical narrative of Ye6  Yehuda Nini, “Yemeni Immigrants in the Land of Israel 1882–1914,” Cathedra 5 (1977), 30–82, see in particular pages 60–74. 7  Among the few Israeli scholars who studied the Yemeni immigration in particular are Reuben Aharoni, Nitza Droyan, Dov Levitan, Yehuda Nini, and Hayim Tawil. Shlomo David Goitein and Bat-Zion Eraqi Klorman’s accounts, among others. 8  For example, the works of Yehuda Nini and Nitza Droyan. 9  For example, Y. Harris, On the Claws of Eagles: The Whole Truth on the Magic Carpet Affair (Bnei Brak: Torat Avot, 1988) (Hebrew); Moshe Shonfeld, Genocide in the Holy Land (Brooklyn, New York: Neturei Karta of the USA, 1980). — 84 —

————————————————— The Yemeni Babies Affair —————————————————

meni Jewish life both in Palestine/Israel and abroad. The fact that most of the writers of these accounts are Yemeni offers a fascinating reading into various voices within the community. These autoethnographic accounts of Yemeni Jews seem quite detached from mainstream Israeli historiography, both official and critical. General Israeli historiography and the Zionist master narrative tend to exclude the Yemeni immigrants from the major immigration waves, treating their immigration as a distinct phenomenon. Hence, the Yemeni immigration during 1881–1914 was named after the biblical verse “I will climb up into the palm tree . . .”10 This omission is particularly blatant when one considers the admiration for the parallel immigration waves from Europe—first and particularly the second Aliyah—which is the Israeli equivalent of the Mayflower.11 Moreover, the official Zionist narrative is also oblivious of the fact that during 1943–1945, when immigration to Palestine was almost halted, the only mass immigration to Palestine was that of Yemeni Jews.12 Critical accounts of the absorption through modernization of Mizrachim in general tend or focus on immigrants from North Africa thereby leaving the particular history of Yemeni Jews virtually untold.13 This omission, not to say avoidance, by the academia is particularly disconcerting due to the fact that the dependence of the Yemeni immi10  Song of Songs 7:9. The Hebrew name Tamar (palm) together with the prefix for “into” is an anagram for the Jewish year 5642 (September 24, 1881, to September 13, 1882). 11  Most of Israel’s founding parents immigrated during the second Aliyah in 1904–1914. It is remembered in Israeli historiography as the most ideologically motivated of all waves of immigration. Contra, see Gur Elroi, Immigrants: The Jewish Immigration to Eretz Israel during the Early 20th Century (Jerusalem: Yad Yitzhak Ben-Zvi, 2004). (Hebrew) Elroi’s criticism of this historiographic argument is not extended to the exclusion of Yemeni Jews from the second (and also first) Aliyah. The Yemenis are altogether ignored in his book cited above. While the book focuses on the mass immigration of European Jews, its subtitle suggests a more general focus, from which Yemeni Jews are omitted. This, unfortunately, is quite representative. The Yemenis’ immigrations are treated separately from both European and North African immigration waves. 12  See Dov Levitan, “Immigration of Yemeni Jews and Their Absorption in Palestine during WWII,” Thema 4 (1994), 207–226. (Hebrew) Levitan defines mass immigration as the organized immigration of thousands of Jews during a short period and their absorption in temporary housing facilities. After 1945, immigration certificates were allocated to Jewish refugees fleeing from Europe. Between August 1943 and June 1945 approximately five thousand Yemeni Jews arrived to Palestine. Thus, the Yemeni immigration was almost halted since June 1945 (only 160 certificates were allocated to Yemenis) and resumed in mid-December 1948. See Haim Zadok, From the Strait: Missives, Documents and Letters (Jerusalem: Afikim, 1989). (Hebrew) 13  A recent exception is the contribution of Shoshana Madmoni-Gerber. Shoshana Madmoni-Gerber, Israeli Media and the Framing of Internal Conflict: The Yemenite Babies Affair (New York and London: MacMillan Palgrave, 2009). — 85 —

—————————————————— chapter three ——————————————————

grants and their humiliation by the absorbers were so outrageous.14 The treatment of Yemeni immigrants by the Israeli establishment had been the subject matter of four investigative commissions. The first, in 1950, investigated the education of Yemeni children in transit camps; the other three concerned the affair known as the “lost Yemeni children.” The Yemeni Babies Affair is by far the most widely known tragic event in a series of historical injustices inflicted on the Yemenis in relation to their immigration to Palestine or, after 1948, to Israel. The official stance toward the affair can be inferred from the title given to the injustice. First, the phrase “Yemeni children” suggests they are foreign, Others, not Israeli; second, the so-called children were in fact babies or young toddlers. Finally, they were not merely “lost” by wandering around but rather were removed from hospitals, clinics, or other facilities of the establishment. In most cases they were never to be found alive again. In order to better understand this tragedy, it is necessary to outline the sequence of the preceding events. Emigration from Yemen to Palestine began in 1881, when reforms in the Ottoman Empire allowed citizens to move more freely across the empire. The opening of the Suez Canal in 1869 reduced the travel time between Yemen and Palestine. The first encounters of groups of Yemeni immigrants and Jewish residents in Jerusalem in 1881 were overwhelming. Upon arrival, the Yemeni immigrants were disillusioned from the fantasy of Jewish philanthropists who allegedly purchased lands in Zion and allocated them to immigrants free of charge.15 Contrary to their expectations, Yemenis and immigrants from other places landed in a city whose Jewish inhabitants relied heavily on dwindling support from abroad and was in no condition to absorb them.16 Jews in Jerusalem were affiliated with landsmanschafts—fraternal organizations made up of immigrants from the same origin—that offered financial support. Since no Yemeni fraternities were established at the time, Yemenis were required to join one of the existing fraternities 14  Shoshana Madmoni-Gerber, Israeli Media and the Framing of Internal Conflict: The Yemenite Babies Affair; see also Dov Levitan, “The Immigration of Yemeni Jews to Israel: The Realization of a Dream or a Social Dilemma: The Case of the Missing Yemeni Children,” in Between Tradition and Renewal: Studies in Judaism, Zionism and the State of Israel, ed. Eliezer Don-Yihya (Ramat Gan: BarIlan University Press, 2005), 377–403. (Hebrew) 15  Yehuda Nini, “Yemeni Immigrants in the Land of Israel 1882–1914,” Cathedra 5 (1977), 30–82. 16  Nitza Droyan, “New Neighborhoods for Yemeni Immigrants in Jerusalem, 1882–1914,” Cathedra 13 (1980), 95–129. — 86 —

————————————————— The Yemeni Babies Affair —————————————————

in order to receive financial support. The Jews in Jerusalem were at first reluctant to embrace the Yemenis because of the economic implications that such inclusion entailed. As resources were scarce, increasing the membership in the fraternity meant more mouths to feed. Soon, however, each of the three fraternities in Jerusalem, namely, the Sephardic, Ashkenazi, and the Westerners, was interested in incorporating the Yemenis.17 Between 1906 and 1910, hundreds of Yemeni Jews arrived in Palestine and were in search of employment; only few were employed in agriculture.18 The loose organizational level and the absence of a declared national-pioneer ideology contributed to the failed attempts by Yemenis to establish their own agricultural settlements or agricultural employment associations. With the emergence of the New Settlement, the rift between the Old and New Settlement became increasingly manifest. Arthur Ruppin of the World Zionist Organization, a founder of the Eretz Israel office of the Zionist organization in Jaffa thought of measures for the conquest of labor from the Arab agricultural workers. The farm owners employed experienced Arab workers and were not keen to employ the inexperienced Zionist pioneers. To overcome this, the founding parents thought of enticing the farmers to employ Jews rather than Arabs by reducing the costs of labor. Hence, Ruppin sought to mobilize “Yemenite Jews [who] were used to a hot climate and had a lower standard of living.”19 Concurrently, he argued against the exploitation of the agricultural workers who emigrated from Russia. Ruppin, who first encountered Yemenis on his first journey to Palestine in 1908, recalls in his memoirs:20 There are two thousand Yemenis in Jerusalem. . . . It is easy to recognize them by their shaven head . . . like the Arabs. . . . The trace of Arab blood is evident, and their skin is very dark. They are the most faltering social group among the population in 17  Nini, “Yemeni Immigrants in the Land of Israel 1882–1914,” 34. 18  On the various attempts of seeking employment in agriculture, see Nini, “Yemeni Immigrants in the Land of Israel 1882–1914,” 60–74; on the Kineret affair, the forced evacuation of the Yemenis, see Yehuda Nini, The Kineret Yemenite Affair, the Re-Settlement of a Community in 1930 (Tel Aviv: Am Oved, 1996). (Hebrew) 19  Arthur Ruppin and Alex Bein, Arthur Ruppin: Memoirs, Diaries, Letters (London: Weidenfeld and Nicolson, 1971), 109. 20  Arthur Ruppin, My Life (Tel Aviv: Am Oved, 1947), 27. (Hebrew, my translation, RA) — 87 —

—————————————————— chapter three ——————————————————

Jerusalem . . . and are almost the only Jews that engage in drudgery such as carrying and stone masonry that successfully compete with the Arabs.

Ruppin concluded that the Yemenis should be harnessed for the fulfillment of the Zionist cause, since the latter were conceived of as natural workforce.21 Hence, in early 1911, an emissary, Shmuel Yavne’eli, was sent to Yemen to encourage Jews to immigrate to Palestine. The immigrants were to serve the needs of the Zionist movement in Palestine by conquering labor from the Arabs.22 To this effect, immigration was selective23 and based on age and physical fitness.24 Only men younger than thirty-five years of age and in near-perfect health were allowed to immigrate, provided that they leave their families behind. This immigration was conceived of as “pull” work migration with the purpose of serving the economic interests of the Jewish settlement in Palestine. The Yemenis were lured by Yavne’eli’s sweet talk; disguised as an observant Jew, he falsely represented himself as an emissary of Rabbi Kook Ha’Cohen.25 In Yemen, Yavne’eli communicated to the Jews a false representation of Palestine as a prosperous land of milk and honey. Motivated by Messianic frenzy and by the tall tale of purchasing the land of Zion, many responded to his call to immigrate by hastily selling their property at half price and walking by foot to Aden, the gateway to Palestine. By immigrating to Palestine (and, after 1948, to Israel) the economic situation of most Yemeni Jews was aggravated.26 Until 1918, while there 21  Nitza Droyan, No Magic Carpet: Yemeni Immigrants in Eretz Israel 1881–1914 (Jerusalem: Yad Yitzhak Ben-Zvi, 1981), 161. (Hebrew) 22  As a result of this activity, few thousands of Yemeni Jews arrived to Palestine. 23  See the Immigration Regulations of the Immigration Department of the Jewish Agency, The Department of Immigration at the Executive of the Jewish Agency Immigration Regulations, CZA S6/1749 (Jerusalem: Zionist Archives [CZA S6/1749]). Those over the age of thirty-five were not allowed entry into Palestine. Candidates had to undergo a strict medical examination and supply a proof of earning of at least four pounds a month for each dependent. 24  A detailed account of selection practices that were employed in Germany during the mid- and late1930s in relation to youth immigrants can be found in Leah Rosen and Ruth Amir, “Constructing National Identity: the Case of Youth Aliyah,” Israel Studies Forum 21, 1 (2006), 27–51. 25  See Ruppin’s account, Ruppin and Bein, Arthur Ruppin: Memoirs, Diaries, Letters, 27. 26  In Yemen most Jews owned houses. See Droyan, No Magic Carpet: Yemeni Immigrants in Eretz Israel 1881–1914, 131. (Hebrew) See also Harris, On the Claws of Eagles: The Whole Truth on the Magic Carpet Affair, 133 (Hebrew); Zadok, From the Strait: Missives, Documents and Letters, 192. (Hebrew) On the accounts of the life in San’a and references to the good conditions and the cleanliness of the Yemenis and the aesthetic and sanitary environment, see Joseph B. Schechtman, On the Wings — 88 —

————————————————— The Yemeni Babies Affair —————————————————

were sporadic incidents of persecution, Yemeni Jews generally enjoyed a great deal of religious freedom and were protected by the local noblemen.27 The situation of the Jews worsened in the early twentieth century as Imam Yahya furthered the implementation of Islamic law and local customs. Several factors such as the Balfour Declaration, the Arab propaganda, the economic situation in Yemen, and the local resentment toward the Jews coupled together and provided the “push” factors for emigration.28 With the Zionist solicitation providing a pull factor, the flow of Jews to Aden was increased. The imam issued an order stating that Jews were free to emigrate, provided that they leave their property behind.29 Between 1907 and 1911 the immigrants from Yemen were sent by the Zionist Federation to work in the colonies. Yemenis were expected to be more competitive than both the Jewish and the Arab workers in terms of wages and performance. In contrast to other pioneers, Yemenis were not hired directly by the farmers but rather by settlements’ associations, and their wages were lower than the Arab workers’.30 Exploited and physically abused,31 they complained of the treatment by the Jewish settlement who did not consider them “brothers who came to Zion rejoicing, but rather as bond slaves.”32 Much of the discourse surrounding the Yemenis associates them with hunger, disease, poor living and sanitary conditions, and poor hygiene.33 Most of these, however, seem to characterize their life in the streets or in the transit camp in Aden or upon arrival in Palestine/Israel.

27 

28  29  30  31  32  33 

of Eagles (New York: Y. Yoseloff, 1961), 44. Shmuel Yavne’eli, A Journey to Yemen: Being an Emissary of the Eretz Israel Office of the WZO during 1911–1912 (Tel Aviv: Mapai, 1951). (Hebrew) Tom Hickinbotham, Aden (London: Constable, 1958). Hickinbotham was governor of Aden during 1951–1956. Jews lived in Jewish quarters, they were primarily gold and silversmiths, they were not interfered with and were not involved in tribal disputes. They enjoyed a greater measure of security under the protectorate than Jews in Central Europe. This, however, changed in 1947. Tudor Parfitt, The Road to Redemption: The Jews of the Yemen, 1900–1950 (Leiden; New York: E. J. Brill, 1996). Yavne’eli, A Journey to Yemen: Being an Emissary of the Eretz Israel Office of the WZO during 1911– 1912. (Hebrew) Droyan, No Magic Carpet: Yemeni Immigrants in Eretz Israel 1881–1914, 102. (Hebrew) See Harris, On the Claws of Eagles: The Whole Truth on the Magic Carpet Affair. Yehuda Nini, Yemen and Zion, 229. (Hebrew) See, among others, Zadok, From the Strait: Missives, Documents and Letters (Hebrew); Ruppin and Bein, Arthur Ruppin: Memoirs, Diaries, Letters, 332, (16). Also, Yavne’eli, A Journey to Yemen: Being an Emissary of the Eretz Israel Office of the WZO during 1911–1912 (Hebrew); Haim Saadon, ed., Yemen (Jerusalem: Yad Yitzhak Ben-Zvi, 2002). — 89 —

—————————————————— chapter three ——————————————————

These were not their normal living conditions.34 In Palestine, Ashkenazi Jews excluded the Yemenis from the collective settlements; they were housed in separate quarters, in the outskirts of the larger plantation colonies of the first Aliyah.35 Hence, the absorption of the Yemenis in Palestine was a typical case of ethnic plantation colonialism.36 The designated role of the Yemeni immigrants in this colonial system is highly evident in the processes that preceded their immigration to Palestine/Israel. Following the Zionist activity in Yemen, Jews wandered to the British-held Aden, which was the gateway to Zion. Many Yemenis, both Jews and non-Jews, used to wander to Aden in search of jobs and business opportunities. As a prevailing rite of passage to adulthood, youth traveled to Aden to test their independence and earning capabilities.37 The route to Aden was well trodden, complete with detailed itinerary.38 Jews had sold their property or simply abandoned it before embarking on the journey toward Aden; many have lost their lives en route. Refugee life in Aden had been very unfortunate. The refugees dwelled in the streets, with no sanitary facilities; they were starved, diseased, and treated with contempt by the locals. Few managed to work as servants for rich Jews or found odd jobs. Most, however, depended on donations and relief.39 Between 1930 and 1939 immigration certificates to Palestine were allocated mostly to European Jews. This caused great resentment among the Yemenis in Palestine. At the 18th Jewish Congress in Prague in 1933, Zecharia Gluska, a Yemeni leader in Palestine, had complained that the Yemenis were second-class citizens in Palestine, “like nonAryans in Germany.”40 With the extended stay in Aden, the majority of refugees suffered from grievous health problems to the extent that the British authorities questioned the physical conditions of the migrants. The government 34  See supra note 17. 35  The Kinereth affair in which Yemenis were expelled from their settlement on the shore of the Sea of Galilee by Ashkenazi Jews is yet another historical injustice. See Nissim Benjamin Gamlieli, Yemen and Camp Geula (Tel Aviv: Nissim Benjamin Gamlieli and Sons, 1966). (Hebrew) 36  Shafir and Peled, Being Israeli: The Dynamics of Multiple Citizenship. 37  Gamlieli, Yemen and Camp Geula, 103. (Hebrew) 38  On the route to Aden, see ibid., 103–104. 39  Zadok, From the Strait: Missives, Documents and Letters, 27–28. (Hebrew) 40  Walter Laqueur, A History of Zionism (New York: Holt, Rinehart and Winston, 1972), 519. — 90 —

————————————————— The Yemeni Babies Affair —————————————————

of Aden cooperated, demanding that the refugees undergo a medical examination within two weeks of their arrival in the colony.41 To this effect, the government of Aden established El-Fayoush in January 1944 as a quarantine camp for refugees suffering from typhoid fever. The doctors in the camp were non-Jews and the nurses Somali. About 1,600 people were in the camp (half of the refugees in Aden). After a thorough disinfection the epidemic subsided. Once the inmates were cured, the government of Aden transferred the responsibility over the camp to the Jewish Joint Distribution Committee (the Joint). The camp was moved closer to Aden, to an empty military base near Sheikh Othman (Matzabin). The number of dead in El-Fayoush was around one hundred. About two hundred elders classified as unfit for immigration were to be deported to Yemen. Following the advocacy of the camp’s team, they were transferred to one of the courts and lived there for years, supported by relatives from Israel. Only those who were found physically and medically fit were eligible for immigration. Hence, in March 1944 a group of nurses from Palestine came to El-Fayoush camp.42 At the end of March a doctor was sent from Palestine to manage the camp. In an attempt to remedy the situation, a new camp, Geula (redemption), was opened in Hashed for potential immigrants.43 The Eretz Israel office in Aden joined the call of the governor of Aden for Jews to return to Qataba by promising them economic support. The governor of Aden had also promised that the returning Jews would not be harmed. Regardless of these promises hundreds of Jews died of starvation.44 Harris writes, 45 41  Tudor Parfitt, The Road to Redemption: The Jews of the Yemen, 1900–1950. 42  The El-Fayoush camp opened in January 1944 by the Aden government, as a quarantine camp for refugees suffering from typhoid fever, which spread among the refugees. The doctors in the camp were non-Jews, and the nurses were Somali. About one thousand six hundred people were in the camp (half of the refugees in Aden). After a thorough disinfection the epidemic subsided. After the inmates were cured, the government of Aden transferred the camp to the Joint, as a humanitarian organization. About one hundred people died in El-Fayoush. About two hundred elders who were unfit for immigration were to be deported to Yemen, but after the advocacy of the team, they were transferred to one of the courts and lived there for years, supported by relatives from Israel. See Gamlieli, Yemen and Camp Geula, 142–143. (Hebrew) 43  Parfitt, The Road to Redemption: The Jews of the Yemen, 1900–1950. 44  On the situation in Aden, see Reuben Aharoni, Jewish Emigration from the Yemen 1951–98: Carpet without Magic (London: Routledge, 2001). 45  . Harris, On the Claws of Eagles: The Whole Truth on the Magic Carpet Affair, 46. (Hebrew) In his report on the medical treatment of Yemeni refugees in Aden, Dr. Beigel also refers to Qataba as — 91 —

—————————————————— chapter three ——————————————————

Qataba became the mass cemetery for the refugees of Yemen. There they perished quietly as the “merciful” eye of the rulers of Aden and the go-getters of the Eretz Israel office pretends it doesn’t see.

The American-based Joint and the Palestine-based Jewish Agency were in disagreement over the financing of the Geula camp. Beyond this immediate cause lay a deeper conflict of interest. For the Jewish Agency the camp was merely means of supporting those eligible for immigration to Palestine. At the same time, the Joint’s objectives were humanitarian. While the Joint offered aid to all the refugees in the camp, regardless of eligibility for immigration, providing permanent support was not part of its charter. Due to the combination of the limited number of immigration certificates allocated for Yemenis, the stringent selection practices of the Jewish settlement, and the need to provide humanitarian aid for Jewish WWII refugees, the Joint decided to divert its resources to Europe. Both the Joint and the Jewish Agency hoped that spreading the news of the decision to evacuate Jews from the camp would impede or significantly reduce the influx of refugees to Aden.46 Dr. Beigel, the camp’s manager, was representative of both the Joint and the Jewish Agency. Evidence suggests that the camp dwellers had suffered from his tyranny and from the general disrespect for their culture and religious freedom.47 The inmates’ complaints concerned the education of youth in the camp, which was directed by Palestine. The teachers in the camps were all secular Jews, who taught the youth about Socialism and Zionism in an attempt to ameliorate and modernize them. To this effect, they sought to obliterate the Yemenis’ cultural and religious heritage and observance. Later, in the camps in Israel, this same treatment of religious oppression was furthered.

the city of burial of hundreds of Yemeni refugees. Refugees arrived to the city between 1943 and 1944 on their way to Aden; many were stranded there for years. The full report is found in the appendix to Gamlieli, Yemen and Camp Geula, 311–330. (Hebrew) 46  Zadok, From the Strait: Missives, Documents and Letters, 34–35. (Hebrew) The operative meaning of evacuating refugees from the camp was a death sentence in the streets of Aden. 47  See ibid. (Hebrew); Haim Zadok, The Load of Yemen 1946–1951 (Holon: A’Ale Batamar, 1985). (Hebrew) — 92 —

————————————————— The Yemeni Babies Affair —————————————————

Following letters of complaint48 some of which were incited by the emissaries from Palestine, Dr. Beigel was replaced by Dr. Daniel Elkana. Harris49 compares the conduct of Dr. Elkana in the camp with that of Rumkowski’s conduct in the Lodz Ghetto. Nissim Benjamin Gamlieli,50 who was in the camp, attests that Elkana cut by half the amount of food allocated to the camp dwellers. This was the result of the reduced funding by the Joint. According to Gamlieli, the portions were too little to live off and too large to die from. After a while, the Yemenis, who were already malnourished, suffered from night blindness.51 Elkana used to punish the inmates by hitting them with his nailed boots to the point of unconsciousness; by starving them, sometimes for a whole week (including women and children); and by breaking their spirit. Many letters of complaint were sent to Palestine, describing Elkana’s sadistic behavior.52 After eight months of terror, Ovadia Tuvia, an emissary of the Workers’ Federation at the camp, wrote a letter to the Aliyah department of the Jewish Agency in Jerusalem. The letter, written on the eve of Yom Kippur 1948,53 unfolds the coercive methods used by Elkana. These included the starving of inmates, the use of violence against children and adults, and incitement of provocations that culminated in bloody confrontations and facilitated disciplinary action and punishment without trial. Elkana was eventually dismissed because he allegedly embezzled the money that he had saved the camp by starving the inmates.54 His successor, Dr. Olga Feinberg, was also known for her brutality. She used a cane for whipping the elders, women, and children; and her methods of controlling the inmates also consisted of starvation, collective punishment, religious persecution, and humiliation.55 As if these hardships of Yemeni Jews did not suffice, they were subject to yet another injustice. Upon their boarding the airplanes or ships on the way to Israel, Yemenis were ordered to give over their valuables, including gold, silver, gems, jewelry, and traditional valuable costumes, 48  See Zadok, From the Strait: Missives, Documents and Letters (Hebrew); Zadok, The Load of Yemen 1946–1951. (Hebrew) 49  Harris, On the Claws of Eagles: The Whole Truth on the Magic Carpet Affair, 51–65. (Hebrew) 50  Gamlieli, Yemen and Camp Geula, 196–277. (Hebrew) 51  Ibid., 200–201. (Hebrew) 52  See Parfitt, The Road to Redemption: The Jews of the Yemen, 1900–1950, 162; 175–176. 53  See a copy of the letter in ibid., 216–225. Other letters of complaint at 209–216. (Hebrew) 54  Gamlieli, Yemen and Camp Geula, 196–277. 55  Harris, On the Claws of Eagles: The Whole Truth on the Magic Carpet Affair, 62–66. (Hebrew) — 93 —

—————————————————— chapter three ——————————————————

for deposit. These and books, manuscripts, and old scrolls were packed in wooden boxes in Aden to be shipped to Israel. These valuables were never returned to their owners. Many books found their ways to libraries around the world. According to Levitan,56 Yitzhak Ben-Zvi, then a member of the Knesset and later president of Israel, suggested searching the cargo for valuables before delivering it to the owners. Ben-Zvi sought to purchase these valuables in order to facilitate research of Yemeni traditions. The idea that private property can be searched and taken (even if payment is offered in retrospect) is yet another evidence of the paternalistic stance toward the Yemenis and their objectification. In late December 1948, a first planeload of 140 young orphans signaled “Operation On Eagles’ Wings.”57 The operation is better known as the Magic Carpet. Here, Orientalism, Western fantasies of the Orient, and Zionist romanticism orchestrated an imaginative Arabian Nights coproduction. Fifty thousand Yemeni Jews, which constituted almost the entire Yemeni Jewish community, migrated by 1950.58 While the waves of mass immigration from Europe were titled in consecutive numbers until 1948, immigration from Asia or Africa, even after 1948, was given biblical names that were added to the prefix “operation,” to connote rescue or redemption by semimilitary means. Decades later this practice was reiterated with the two mass migrations from Ethiopia. Thus, the rescuers were portrayed as heroes and those rescued as needy, dependent, and incapacitated. The biblical title serves as a reminder of the traditional, premodern background. The facts of the deteriorated well-being and the massive loss of lives in the process of the immigration from Yemen were suppressed and forgotten. The first to emigrate from Yemen after the establishment of the State of Israel in 1948 were women, children, and older people. Their immigration was facilitated due to the British restrictions (in Aden) on the immigration of young, fit men who could serve in the army. However, this ban soon became extraneous, as Israel was winning the 1948 war. Upon arrival in Israel, the immigrants were placed in camps con56  Levitan, “The Immigration of Yemeni Jews to Israel: The Realization of a Dream or a Social Dilemma: The Case of the Missing Yemeni Children,” 377–403. (Hebrew) 57  “Ye have seen what I did unto the Egyptians, how I bore you on eagles’ wings, and brought you unto myself” (Exodus 19: 4). 58  The Jewish population in Israel was 650,000 in 1948, and this number would more than double in the next few years due to the large immigration waves from Europe, Asia, and North Africa. — 94 —

————————————————— The Yemeni Babies Affair —————————————————

sisting of tents with no running water, kitchens, bathrooms, or other sanitary facilities. There were four main camps: Ein Shemer, Beit Lid, Rosh Ha’ayin, and Atlit. Some of the immigrants dwelled in the camps for up to a year, but most were moved to other placements after a month or two. The camps were conducted in a military fashion; the inmates had no control over their life. Babies were taken to infants’ homes after birth; the inmates were not employed and were entirely dependent on the absorbers for food and all other needs. Life at the camps resembled life at Camp Geula. The camps were funded mainly by the United Jewish Appeal. The Jewish Agency denied religious education for the Yemeni children, and when the Yemenis protested, the camps were shut; barbed wire fences and guards isolated the inmates from the outside world, rendering them de facto prisoners. After staying in the camps, Yemenis were transferred to small agricultural communities (moshavim) or somewhat more permanent camps in which immigrants were required to work for their sustainment (ma’abara). In these camps the inmates dwelled in canvas tents or in tin houses that often lacked running water, bathrooms, and other sanitation facilities. In the camps the Yemenis were isolated and subjected to political indoctrination by the Labor movement. These practices of control demonstrate the disrespect, objectification, and nullification practices of the dominant Ashkenazi group toward the Yemenis. The forced implementation of the Israeli melting pot doctrine, which was in effect assimilation, was driven by modernization theory. Yemenis were forced to rid themselves of their particular collective identities and adopt the Israeli collective identity, which in many ways stood in contradiction to their own particular collective identity.59 This policy was chiefly germane for the younger generations. The youth were susceptible to influence and could be resocialized and molded according to the Zionist specifications once the “undesired” influences of the parents and of the extended family were neutralized. In 1950 the education of immigrants was at the heart of a political crisis that concerned the ideological positioning of the parties and their 59  See the discussion of the melting pot ideology in Leah Rosen and Ruth Amir, “The Open Society and Its Enemies: Changing Public Discourse in Israel,” in Traditions and Transitions in Israel Studies, eds. Laura Zittrain Eisenberg et al., vol. 6 (Albany, New York: SUNY Press, 2002), 181–201. — 95 —

—————————————————— chapter three ——————————————————

adjustment to statehood. Until 1953 there was no state education system. The school system was established in the pre-statehood era and was controlled by the parties. It was divided into three Zionist streams: the Labor movement, the non-Labor civic bloc, and Mizrachi (Zionist-religious). The ultra-Orthodox established an independent school system that was not financed by the Zionist institutions. The parties, cognizant of the importance of early socialization, struggled to win over as many students as possible.60 Hence, the immigrants who depended on the absorbers were subjected to a secular education system controlled by Mapai and to a secular public space. The parents had not been consulted and had no control over the schooling of their children. The immigrants were denied religious education and religious freedom.61 The news of this maltreatment had spread abroad. The Yemenis formed a political basis in Palestine and later in Israel; activists from previous immigrations formed a Yemeni party that was represented in the institutions of the Jewish establishment in Palestine since 1923, and a Yemeni party was represented in the first two terms of the Israeli Knesset. While this representation was effective in providing funds for the Yemenis in Aden, in housing the Yemenis expelled from Kinneret, and in voicing the immigrants’ complaints, it was incapable of overcoming the melting pot mechanisms of Mapai. On January 13, 1950, the London-based Jewish Chronicle published an item concerning the education of immigrant children at the camps. A few days later, the United Jewish Appeal officials wired the Israeli government in protest. The Zionist rabbis Herzog and Uziel sent a telegram to the Union of Orthodox Rabbis in America on January 23, 1950. The news and editorials in the Israeli press also reported on the issue that was at the center of political debate. The Jewish Agency denied the allegations; the Jewish newspaper The Day published an interview with Zvi Lurie, head of the Immigration Department of the Jewish Agency in New York.62 In the interview Lurie denied the allegation that the children were 60  Zvi Zameret, The Melting Pot in Israel: The Commission of Inquiry Concerning Education in the Immigrant Camps during the Early Years of the State (Albany, New York: State University of New York Press, 2002). 61  On life in the transit camps in Israel, see Shonfeld, Genocide in the Holy Land, 352–432. 62  The interview is quoted in full in ibid., 353–355. The interview was published in The Day, on January 27, 1950. — 96 —

————————————————— The Yemeni Babies Affair —————————————————

denied religious education. He added that more than a third of the children in the Israeli camps were receiving religious education. Lurie had also informed that the government decided to form a commission of inquiry to investigate the matter.63 The charter of the Fromkin Commission was fourfold: first, to examine the allegations of religious coercion in the camps and in the new immigrants’ settlements; second, to investigate whether the allegations published in the press were truthful; third, to find those responsible; and finally, to find out those responsible for the defamation in America. In response to Lurie’s denial of the allegations, the Religious Bloc of America pointed to the inner contradiction in Lurie’s arguments.64 The bloc reiterated the allegations and accused Lurie and the Jewish Agency of misleading American Jewry. The Israeli government was embarrassed by the revelations; it was concerned with the effect of the news on the donations of American Jewry. More than reflecting sincere concern about the unjust and coercive approach to the education of the immigrant children, the formation of the commission was in Ben-Gurion’s best interest of silencing the criticism abroad, muffling the unrest in the political system and in the camps. It was also beneficial for promoting his plan to establish a state education system. The commission’s report confirmed that instances of sidelock trimming were systematic. The commission also noted that the minister of education received misleading information that there were only a dozen cases of sidelock trimming and that all cases were due to a fungal infection (favus or tinea capitis). The commission also found that denying religious education to the children had not been a result of a shortage in religious teachers, as argued, since most of the workforce in the camps lacked any pedagogical training. Harassment and interference with the religious practices of the immigrants and the public desecration of the Sabbath were frequent in the camps, but the underlying motivation was to expedite the acculturation of the immigrants. Notwithstanding, the commission mitigated the findings and concluded that there was no 63  There were three government meetings in which this issue was discussed. The first of which took place on January 10, 1950, the other two on January 17, 1950. The decision to form the commission was made on January 17, 1950. See Zameret, The Melting Pot in Israel: The Commission of Inquiry Concerning Education in the Immigrant Camps during the Early Years of the State. 64  Quoted in Shonfeld, Genocide in the Holy Land, 355–356. The interview was published in the Jewish Morning Journal on February 2, 1950. — 97 —

—————————————————— chapter three ——————————————————

outright war against religion in the camps. The commission did not find the minister of education and culture responsible because he was ailing and was absent from office. While the government was collectively responsible, the commission found the culture division in the Ministry of Education guilty for being overzealous in implementing the Zionist directives. Two junior officials were dismissed.65 This affair is in many ways similar to the case of the residential schools of the Aborigines in Canada. In both cases, children were isolated from the influences of their ethnic group in order to be resocialized into the dominant culture. While the Aborigines in Canada were natives colonized by the Europeans, the Yemenis were brought to Israel by their colonizers allegedly by virtue of sharing the same national collective identity. Finally, the Yemenis were not granted recognition of the injustices they endured, and no apology was offered to them. In his apology to the former students of Aboriginal residential schools In Canada, Prime Minister Stephen Harper said the following:66 Two primary objectives of the Residential Schools system were to remove and isolate children from the influence of their homes, families, traditions and cultures, and to assimilate them into the dominant culture. These objectives were based on the assumption that Aboriginal cultures and spiritual beliefs were inferior and unequal. Indeed, some sought, as it was infamously said, “to kill the Indian in the child.”  Today, we recognize that this policy of assimilation was wrong, has caused great harm, and has no place in our country.

The Yemeni Babies Affair as a Historical Injustice Between 1948 and 1954 at least 1,500 babies had disappeared from hospitals or childcare facilities in the immigrant transit camps and in towns. 65  Zameret, The Melting Pot in Israel: The Commission of Inquiry Concerning Education in the Immigrant Camps during the Early Years of the State, 46. 66  The transcript of the apology given at the House of Commons on June 11, 2008, can be found at http://www.shannonthunderbird.com/residential_schools.htm (accessed June 28, 2009). On the Shubenacadie residential school, see Daniel N. Paul, We Were Not the Savages: Collision between European and Native American Civilizations, 3rd ed. (Halifax, Nova Scotia: Fernwood, 2006), 283– 291. See also the case of the Doukhobor children Margaret Hill, “The Detention of Freedomite Children, 1953–1959,” Canadian Ethnic Studies 18, no. 3 (1986), 47–60. — 98 —

————————————————— The Yemeni Babies Affair —————————————————

Although about 250 of the babies belonged to other ethnic groups (only 30 were of Ashkenazi origin),67 this is widely known as the Yemeni Children Affair. The mystery surrounding the disappearance of the children had produced rumors about the volume of the phenomenon (between 1,500 according to the establishment and up to 10,000 according to Yemeni sources) and the babies’ whereabouts. Some accounts suggest that the children were sold both in Israel and abroad for substantial sums, or given out for adoption to Ashkenazi childless families. There are uncorroborated allegations that the children were transferred to Christian missions or were subject to clandestine medical experiments. In most cases, the parents learned about the child’s death after inquiring about her health; they never saw a body or had a chance to part with their baby and bury it. They were also denied the opportunity to mourn the death of their child and practice their religious rituals, and many parents never even saw where their child was buried. Those involved directly in caring for the children were the doctors, nurses, case workers, judges, camp administrators, and other members of the Israeli establishment at that time. The Yemenis must have been worn out after many months or years of wandering and displacement, living as inmates in camps in Aden and later in Israel, with almost no control over their lives. Each family was left to deal with its own pain and sorrow. Stories about missing children were told, but disinformation surrounded the affair; it was thought of as a small number of secluded cases. The economic hardship and the dependence on the establishment had worked to push this painful affair from public agenda. Ostensibly, the families went on with their lives. The public outcry erupted only years later, in 1966. During the midsixties the families were receiving official letters addressed to the missing children. In many cases the letters were sent by the army recruiting office or by other state organs. As the children were nearing eighteen years of age, they were sent election notifications, military induction orders, or other documents in relation to their becoming adult citizens. This time, the siblings of the missing children took the matter into their hands. Their socialization into Israeli society had made them less trust67  Report: State Commission of Inquiry in the Matter of the Disappearance of Children of Yemeni Immigrants during 1948–1954; Commission Chairs: Yehuda Cohen; Yaakov Kedmi (Jerusalem: The Government Printer, 2001). — 99 —

—————————————————— chapter three ——————————————————

ing of the establishment. Unlike their parents, they were not obedient disciples; they demanded answers. Ironically, while this clearly marks their integration into Israeli society and constitutes a departure from their parents’ helplessness, the latency is also symptomatic of both individual and collective trauma.68 The Yemeni Babies Affair clearly constitutes a case of historical injustice. The aforementioned wrongs had been committed or authorized by the Israeli government and by other collective bodies affiliated with it. The injustices are historical in the sense that they took place in the past, more than a decade before the first investigative commission was formed. The wrongs certainly involved a large-scale violation of fundamental human rights such as the right to dignity, privacy, family, and religious freedom. As in similar cases of forceful separation of babies and children from their parents,69 one can claim that as a result of their removal from their families they had suffered losses on a number of levels including loss of love, nurturing, guidance, and childhood; loss of privacy, dignity, self-respect, and individuality; and loss of civil liberties. The injustices had targeted thousands of individuals and involved invidious discrimination based on ethnicity and on belonging to a subjugated segment of society. Immigrants were highly dependent, feeling displaced, and powerless. The practice of separating babies and toddlers from their parents had targeted the Yemenis in particular. Officially this directive was issued due to the outrageous sanitary conditions at the camps and the immigrants’ poor health.70 It seems that the establishment was oblivious of the fact that the state rather than the Yemenis was responsible for the poor sanitary conditions in the camps. Two Yemeni activists, Tov Zadok and Haim Amrani, had decided to pursue this matter. On April 1, 1966, the story made headlines in Maariv.71 Journalist Yosef Zuriel unveiled the stories of four couples 68  Fassin and Rechtman, The Empire of Trauma: An Inquiry into the Condition of Victimhood. 69  The Doukhobor children, the Aborigines’ residential schools are two similar cases. See the Righting the Wrong: A Progress Report (Province of British Columbia: Ombudsman, 2002), http://www. ombudsman.bc.ca/resources/reports/Public_Reports/Public%20Report%20No%20-%2043.pdf (accessed July 30, 2009). 70  Only Yemenis were forced to hand over their babies who were put in infants’ homes. Babies from other ethnic groups disappeared from hospitals. See the Report: State Commission of Inquiry in the Matter of the Disappearance of Children of Yemeni Immigrants during 1948–1954; Commission Chairs: Yehuda Cohen; Yaakov Kedmi, 51. 71  Yosef Zuriel, “Twelve Families in Search of their Children,” Maariv, April 1, 1966, 8. — 100 —

————————————————— The Yemeni Babies Affair —————————————————

whose children went missing under the same circumstances. The story referenced a total of twelve such cases. Since the number of the missing children was unknown, Zadok and Amrani summoned a gathering and formed “the Public Commission for Discovering the Missing Children of Yemeni Immigrants.”72 The Public Commission gathered information from families using a standard questionnaire; they distributed pamphlets in synagogues that called for families to testify and to join the Public Commission’s demands for investigation. The Public Commission had embarked on a public campaign in the press and in Parliament. On July 19, 1966, Knesset member Baruch Uziel73 had issued a motion for the agenda in which he brought up the disappearance of the children, thereby demanding an investigation. Justice Minister Shapiro agreed with Uziel that the matter should be investigated. Shapiro argued, however, that there was no point in a discussion in the Knesset. He was also opposed to the idea of forming a parliamentary investigative commission and instead suggested putting the matter before the Public Services Parliamentary Committee of which Uziel was a member. This referral was accompanied by the recommendation that the police would investigate the matter. Accordingly, the police was to “report its findings to the Public Services Committee from time to time.”74 The latter was to report to the Knesset. Shapiro’s proposal implies that the coalition was interested in curbing public debate and in limiting its scope. The vague time frame in which the police was to report to the parliamentary committee implies the government’s attempts to cover up the affair and pacify the public. Moreover, the committee was considered quite unimportant among other parliamentary committees. This is clearly evident by its composition: women, Eastern Jews, and ultra-Orthodox Jews, and two Ashkenazi males, members of the opposition. Of the ten women who were members of the sixth Knesset, seven were members of this committee; Ashkenazi males stood a better chance to be appointed to the more prestigious parliamentary committees dealing with foreign affairs, security, or finance. 72  Hereinafter the Public Commission. 73  Representative of Herut-Liberal bloc, an opposition party led by Menachem Begin. Uziel was member of the parliamentary committees of education and public services, and of a special committee that examined the structure of the Israeli education system. In the fifth Knesset, he chaired a subcommittee on the education of immigrant youth. 74  Proceedings of the Israeli Knesset Convention 2, June 29, 1959–July 1, 1959, 2360. See response to the Motion for the Agenda by M. K. Uziel, number 188. — 101 —

—————————————————— chapter three ——————————————————

The hearings of the Public Services Parliamentary Committee commenced in testimonies of representative of the various institutions such as the police, the Jewish Agency, the Ministry of Welfare, and the Public Commission. It is worth noting that the committee conducted these hearings in addition to its regular work. The parents of the children were not summoned to the Public Services Parliamentary Committee but were represented by the Public Commission. After hearing the testimonies, the justice minister suggested that he, together with the minister of police, would appoint a senior police officer and a senior attorney to investigate the matter. Both public officers were to cooperate with the two representatives of the Public Commission—legal advisor Haim Kahn and investigator Ami Hovav. However, Kahn and Hovav were not formally appointed as members of the investigative commission. They served as liaison and provided the data concerning the missing children. This cooptation was useful to the government as a means of controlling the data about the missing babies. The Public Commission, in turn, sought to influence the work of the investigative commission. The Bahaloul-Minkowski Commission On January 3, 1967, the justice minister and the minister of police appointed District Attorney of Haifa and the Northern District Joseph Bahaloul and Police Superintendent Reuben Minkowski to serve in an interministerial commission.75 In the letter of appointment, the objectives of the commission had been defined as follows: “to investigate the claims concerning the disappearance of babies from immigrant camps during 1949–1951 and their whereabouts.”76 The letter instructs the B-M Commission to cooperate with the Public Commission. A poetic narrative of the immigration from Yemen serves as a preface to the B-M Commission report. This poetic depiction of the immigration of the Yemenis is attuned with the dominant Orientalist representations and with the narrative of redemption. This official narrative suggests that Yemeni Jews had been tormented in the Diaspora. There they had endured eradication decrees, expulsions, and pogroms. These were inflicted on them only because they believed in the vision of redemption 75  Hereinafter the B-M Commission. 76  Report—Commission of Inquiry of the Finding Yemeni Children; Commission Chairs: Joseph Bahaloul and Reuben Minkowski (Jerusalem: Government Printer, 1968). — 102 —

————————————————— The Yemeni Babies Affair —————————————————

in Zion. The authors of the report refer to the 1948 immigration as the first mass immigration from Yemen; as we saw in the first section of this chapter, this is a false representation. As Ella Shohat77 suggests, like Fanon’s colonizer, European Zionists conceive of themselves as those who “make history,” that their lives are “an epoch,” “an Odyssey” against which the natives merely provide an “almost inorganic background.” Beyond the oblivion of historical facts, this view intensifies and empowers the absorbers’ efforts to justify the misfortunes of the operation. The report itself reiterates the Orientalist views about Yemenis.78 Yemenis are portrayed as innocent, not to say naïve, lagging behind modernity, and incapable of understanding it or coping with it. The authors refer to the unqualified trust of the Yemenis in the officials whom they saw as their redeemers. The emissaries were considered apostles of the Messiah, and the Yemenis readily put their lives and souls in their hands. Here, implicitly the authors criticize this “excessive” trust. In the commission’s words: 79 As they landed in the Holy Land and found themselves surrounded by people who received and guided them, they were convinced that these people were the emissaries of the Messiah. In the eyes of Yemeni Jews, the employees of the Jewish Agency were part of the wonder, part of the miracle of redemption and they therefore respected and trusted them infinitely. . . . This sharp transition left the immigrants in a state of bewilderment, and for a long time they seemed to be floating in the air, unable to find themselves in the imbroglio of the new order. At every step they took, they needed the direction and the advice of the managers—the camp’s team, and through these stages they were totally dependent on them.

77  Ella Shohat, “Sephardim in Israel: Zionism from the Standpoint of Its Jewish Victims,” Social Text 19/20 (1988), 1–35. 78  See, for example, Shlomo David Goitein, From the Land of Sheba: Tales of the Jews of Yemen; Menachem Ben-Sasson, The Yemenis: History, Social Order, and Spiritual Life: Selection of Studies by Shlomo Dov Goitein. Jerusalem: Ben-Zvi Institute for the Study of Israel Communities in the Orient, 1983. 79  Report—Commission of Inquiry of the Finding Yemeni Children; Commission Chairs: Joseph Bahaloul and Reuben Minkowski, 1–2. — 103 —

—————————————————— chapter three ——————————————————

The introductory section of the report lays out the foundations for the vindication of the establishment in the conclusions section of the report. The technique of neutralization of guilt and shame that is used in the report is the blaming of the victims. The report suggests that the immigrants were primitive, confused, too trusting, could not communicate, and infested with disease from the Diaspora. They moved from camp to camp and lost contact with their children. Another obstacle that the authors mention is the confusion surrounding the spelling and pronunciation of the names of the immigrants. In those days immigrants were given Israeli names upon their immigration. These names were given to them by the absorbers, as a symbolic shedding of their diasporic identity and its replacement with the collective Israeli identity. This practice of exchanging of names was not only symbolic. The Ashkenazi absorbers had difficulty understanding the Yemeni accent; the names sounded foreign to their ears, sometimes they sounded too Arabic. The absorbers who were often immigrants found it difficult to transcribe the names into Hebrew. It is interesting to see that in the commission’s report, these assumed faults come to be that of the Yemenis’ rather than the absorbers’. The first chapter of the report outlines the procedures of the investigation and describes the facilities and resources allocated for the commission. The B-M Commission collected forty-one “cold cases” of missing children from the national police headquarters in Jerusalem and reports of a total of 342 missing children with the assistance of the Public Commission. Seventeen additional missing children reports concerned children missing in Camp Hashed in Aden. These, however, could not be investigated. The B-M Commission lists the findings of the investigation with regard to each of the missing children. The major part of the report lists the cases name by name in a factual cold manner. In order to convey the methods and practices of the B-M Commission, I present some representative cases as they appear in the report. In 1967, Mauda Cohen, the father of Rachel, filed a report that his daughter Rachel, then aged six months, had disappeared in 1949 from the infants’ home at Camp Rosh Ha’Ayin. According to the investigation conducted by the B-M Commission, the Cohen family arrived from Yemen on September 29, 1949, where they received immigrants’ certificate number 53909. The family was transferred to Rosh Ha’Ayin Camp A. The child had been hospitalized in Dejani Hospital on Sep— 104 —

————————————————— The Yemeni Babies Affair —————————————————

tember 29, 1949, and died on October 1, 1949, from septicemia.80 This factual account is typical. In some cases, the commission had not found records of the children’s whereabouts because records were destroyed intentionally or unintentionally. The B-M Commission had found two cases in which the children had been given up for adoption. This was the case of Miriam, the daughter of David Sukar. In 1967 David Sukar filed a complaint to the Public Commission about the disappearance of his daughter Miriam. Miriam was born at Rosh Ha’Ayin camp and was kept in the infants’ home for three months, after which she was hospitalized. From that point there was no trace of her. The father maintained that all efforts at finding her were unsuccessful. The B-M Commission found that the girl was alive, living in an adoptive family under a legal order of adoption.81 The father was not aware of this fact. A similar case was that of Rachel, daughter of Menachem Saady.82 In these cases the B-M Commission withheld all the information and the methods of investigation until the authorities concerned decide about further action. According to the Israeli Law of Adoption, the records are to remain forever sealed and confidential. Going over the cases reveals the appalling fact that as a standard operating procedure, the parents were not immediately notified by the authorities of the death of their child. They received the tragic news only after inquiring about the child’s whereabouts. From the testimonies it seems that the parents were treated with disrespect and insensitivity, as if the child’s life had no value. The parents were not given the opportunity to part with the child, bury her, or mourn her death. The B-M Commission indicates casually that in those days the medical institutions were to either notify the parents directly or notify the camp’s authorities. Thirty years later parents testified before the Cohen-Kedmi Commission that the news about death or hospitalization was announced via loudspeakers in the transit camps’ public address system. None of the commissions had made any critical comment about this appalling practice. The B-M Commission report challenges the families’ conduct. In the 80  Ibid., 8–181. 81  The order of adoption was apparently issued without the consent of the parents; thus, it cannot be considered legal. Ibid., 51. 82  Ibid., 188. — 105 —

—————————————————— chapter three ——————————————————

subtext, the parents are accused of not inquiring about the children while under the state’s custody. In some cases83 the report mentions that parents were notified of the death but did not come to see the body because they feared that they would have to pay the costs of the burial. In some cases, the commission notes that the parents were notified but did not see the child’s body and were not present in the burial. This conduct raises many questions, which unfortunately are left unanswered, regarding the notification. Were the parents notified immediately upon their child’s death? Did they choose not to be present, or were they notified afterward? In the case of David Najar, in 1967, the father filed a complaint to the Public Commission that his triplets were missing from the hospital in Safed in 1952; he also stated that his wife gave birth to twins in 1950 and one of the twins was missing. Based on a birth certificate that was found, the commission found that all three triplets died. According to record 1154/51 of the Scottish hospital in Tiberia, Mrs. Miriam Najar gave birth to a baby boy in the ambulance on the way to the hospital. The commission concluded that since no documentation pertaining to the other twin was found, the father is mistaken and only one baby was born.84 This comment along with the implicit criticism of the capacities of the parents, their cognitive skills, their negligence in caring for their children, or their indifference to their children’s needs served to justify the establishments’ decision to separate the children from their parents. The B-M report notes in the conclusions section that85 the investigation yielded that the vast majority of the parents of the missing children had filed their complaints in good faith, in order to sincerely find out the fortune of their child.

The conclusions of the B-M Commission report put forward five reasons for the disappearance of the children.86 The reasons were the following: mass immigration during a very short period, the movement of the immigrants from one camp to the other and from the camps to temporary housing or other housing facilities, the separation of children 83  84  85  86 

In the case of Adina, the daughter of Menachem Tov, file 305/N ibid., 140–141. Ibid., 115, file 241/N. Ibid., 183. (My translation, RA) Ibid., 182. — 106 —

————————————————— The Yemeni Babies Affair —————————————————

from their parents and their faulty or inaccurate registration, the high morbidity and mortality rates, and finally, the misspelling of names in the various records of the camps and the various institutions that took care of the immigrants. From among these reasons, the B-M Commission chose to focus on the last two. The high morbidity and mortality rates are a fact that cannot be disputed, but it is treated as given, unpreventable, and unchallenged. The commission found that 316 out of the 342 babies and toddlers had died. The report mentions in passing that there was a need to separate the babies from their parents but, given the cases of babies that stayed after birth in the infant homes and died, suggests that this practice was not, after all, successful in preventing morbidity and death. This is particularly true when the cause of death was dehydration or malnutrition. Mothers had often testified that they came to breast-feed the baby every day or several times a day. Given the tight regime in the infant homes and the idea that babies should be separated from the parents, it is quite safe to assume that contrary to the official directives, the nurses did not encourage this practice. This is repeated in many testimonies of the mothers, who were mistreated by the nursing staff. The fact that babies died from dehydration, malnutrition, or sepsis while hospitalized in infants’ homes is inexplicable and was never challenged. It is quite disturbing that the B-M treated the practice of not notifying the parents upon their child’s death apathetically and did not dispute it. It chose instead to blame the immigrants’ naming convention. Yemeni Jews had multiple names consisting of first name and other names of the father, the grandfather, or the extended family. The clerks and administrators who were not familiar with this convention often considered the father’s and grandfather’s name as the first name, turning the first name into family name. Typographical errors and misspelling made the confusion unmanageable. Many of the doctors and other medical staff were not in full command of Hebrew and were not familiar with the Yemeni (and other Oriental) names or the Yemenis’ accent. As part of the absorption through assimilation and the objectification of the immigrants, they were subject to name change by the establishment. This added to the confusion. The B-M Commission report was issued on March 1968, less than a year after the 1967 war. The euphoric atmosphere that followed the — 107 —

—————————————————— chapter three ——————————————————

great victory pushed aside the story of the vanished Yemeni babies. This story from the past was not allowed to tarnish the heroic achievements of the present. It is quite jarring that the recommendations of the B-M Commission are concerned mainly with the procedural closure of the commission’s work, while the families are far from achieving closure. As we learn from the Shalgi Commission report, even this was not done with due care and respect, and many families did not receive any notification from the commission regarding their children’s fortunes.87 The B-M Commission did not hold any party responsible for the injustices; this was apparent already in the introduction to the report. Furthermore, the report is devoid of any expression of empathy with the parents. The report clearly demonstrates the techniques of neutralization of guilt.88 First, the denial of responsibility; the injustices were unintentional, and therefore no one is held personally accountable. The injustices are portrayed as resulting from forces outside the individual or the institutions and beyond control. There are some cases in which the commission denies injury. This is evident in the raising doubts about individual complaints and the causes of death. In some cases this also amounts to the denial of victims, where in the absence of institutional records, names, and graves, the memory of the victim wanes. The condemnation of the condemners or, in this case, the blaming of the victims for their inept parenting, poor health, or sanitary conditions is used to shift the blame to the victims and release the establishment from its responsibility. Finally, the appeal to higher loyalties works to neutralize responsibility by sacrificing the victims for the collective. The ethic of conviction89 in which norms and values are hierarchically ordered stands in contrast to the ethic of responsibility. Therefore, the establishment is predisposed toward the collective whenever there is a conflict between universalism and particularism.90

87  Report of the Commission of Inquiry of the Disappearance of Yemeni Children: Commission Chair: Moshe Shalgi (Jerusalem: The Government Printer, 1995). 88  Sykes and Matza, “Techniques of Neutralization: A Theory of Delinquency,” 664–670. Also, Scott and Lyman, “Accounts,” 46–62. 89  Weber, “Politics as a Vocation,” 77–128. 90  Habermas and Pensky, The Postnational Constellation: Political Essays; Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. — 108 —

————————————————— The Yemeni Babies Affair —————————————————

The Shalgi Commission Twenty years have passed from the initial emergence of the Yemeni Babies Affair into public agenda and the first attempt at redress, until the issue resurfaced. The families of these children did not achieve any closure following the B-M Commission report. On the contrary, many questions that surfaced following the work of the commission remained unanswered. In 1986, the Public Commission published a report, which called for the formation of a state commission of inquiry. The report was based on Dov Levitan’s research. The Public Commission pointed out several faults in the B-M Commission’s formation and operations.91 First, the minister of justice and the minister of police appointed two senior civil servants from their own ministries. Second, Levitan argued that the B-M Commission did not investigate all the complaints that had been submitted to the Public Commission. Third, he argued that the number of missing children may well be larger than 342. Fourth, the B-M Commission’s explanation according to which administrative shortcomings prevented the authorities from notifying the parents about their child’s death, and burying it without their presence, was unreasonable. Also, the argument pertaining to the administrative shortcomings was invalid since the practice of not notifying the parents had been consistent in hundreds of cases. Fifth, the Public Commission disputed the B-M Commission’s refusal to verify the death certificates’ authenticity and reliability by exhuming a sample of the graves. In 1988, Prime Minister Yitzhak Shamir appointed retired judge Shalgi92 as head of an inquiry commission according to the Israeli Law of Inquiry Commissions that was legislated in 1968.93 According to the law, the government can form such a commission for the purpose of investigating internal matters that lie within the scope of the appointing authority. This type of inquiry commission is ineffectual compared to a state commission of inquiry. Whereas a state commission of inquiry enjoys semijudiciary powers, the law does not grant other types of commissions of inquiry such powers. Thus, the procedures of such com91  Report of the Public Commission for the Discovery of the Missing Yemeni Children, the Missing Yemeni Children Affair: Justifications for the Demand to Form a State Commission of Inquiry (Kiriat Ono , 1986). 92  Report of the Commission of Inquiry of the Disappearance of Yemeni Children: Commission Chair: Moshe Shalgi. 93  Law of Inquiry Commissions 5729-1968, Public Law 548, The Book of Laws (1968), http://www. knesset.gov.il/review/data/heb/law/kns6_inquiry.pdf (accessed June 21, 2009). — 109 —

—————————————————— chapter three ——————————————————

missions of inquiry do not allow for holding officers accountable. Also, witnesses or officeholders whose actions and decisions are investigated are not subject to penal measures against perjury, obstruction of justice, etc. This is precisely the reason why such commissions constitute the most preferred option when the government is under pressure following public protest in response to scandals, acts of omission, or negligence. Not only does the government have full control over the composition of the commission, it also defines the commission’s mandate in a manner that best serves its interests. Accordingly, the Shalgi Commission had not been authorized to inquire about foul play with regard to the missing children or to investigate the actions and operations of the various actors who had been responsible for the care of the children, including institutional actors. It was to inquire into cases that were not investigated by the B-M Commission and factual material that were not examined before and required the commission’s attention. The Shalgi Commission had been given a very narrow charter, namely, to investigate the whereabouts of each of the children who are the subjects of a missing child report. In this, the injustice is privatized in a manner similar to private law litigation. Researcher Dov Levitan and the Public Commission were to assist in the commission’s investigation, but they were not given any formal role. The Shalgi Commission handled 505 missing children notices, of which 204 had been already examined by the B-M Commission. The findings suggested that in the vast majority of cases the children went missing from hospitals and infants’ homes. In addition to Yemeni babies, there were missing babies from Bulgaria, Persia, North Africa, France, and Rumania. In its report the Shalgi Commission notes that it also revised erroneous findings of B-M Commission with regard to 34 cases. The Shalgi Commission investigated 301 cases that were not previously reported; of those, 14 cases pertain to children who disappeared in Aden. The commission found that three of these children had died, while there was no information about the fortunes of the remaining 11 children. Out of the remaining 287 new cases, the investigation indicated that 222 children had died. Of these cases, the commission found burial certificates for 171, while 51 cases were presumed dead although there were no burial certificates in support of this assumption. Hence, the commission concluded that the disappearance of 65 children was — 110 —

————————————————— The Yemeni Babies Affair —————————————————

unaccounted for, while in fact these 65 cases should be added to the 51 for whom burial records had not been found but who were presumed dead. The commission indicated that although the whereabouts of the 65 children remained a mystery, it could not be concluded that they had been abducted. In order to investigate the possibility that some of these missing children had been adopted, the commission had also examined 10,000 records of adoption during 1949–1960. The examination had not revealed any information with regard to any of the missing children. Like its predecessor, the Shalgi Commission did not exhume graves. This decision followed the consultation with a forensic expert who informed the commission that it would be impossible to make positive identification of human remains found in the graves due to the long time that had passed. The Shalgi Commission report was finally issued on December 1994, after six years. The report embraces the official narrative unquestionably. The commission did not summon the families to testify about the case but rather used the data supplied by the Public Commission. The reason mentioned in the report is that the commission did not want to upset the parents “unnecessarily.”94 The commission seemed to overlook the fact that the initial reason for its inception was the unrest among the families of the children and their need to learn the truth about this ordeal. It seems that the Shalgi Commission was unaware of the opportunity to somehow correct this historical injustice by giving the families straightforward answers and showing empathy with their grief. Rather, it was geared toward corroborating the establishment’s narrative and reinforcing it. This is evident by the almost blind trust of the commission in the official documentation despite the inaccuracy and the questionable authenticity that both commissions pointed to. The commission also dismissed, as unsubstantiated rumors, the possibility that some of the graves were empty. Thus, it decided not to conduct any further examinations. The Shalgi Commission report uses the same techniques of neutralization that were employed by the B-M Commission.

94

Report of the Commission of Inquiry of the Disappearance of Yemeni Children: Commission Chair: Moshe Shalgi, 16. — 111 —

—————————————————— chapter three ——————————————————

The Cohen-Kedmi Commission The conclusions of the Shalgi report understate the debate that penetrated public discourse in 1994 over the Yemeni babies.95 Over the years the Israeli media covered the story, it was privatized and framed as an ordeal of some families, which deserve pity and sympathy, rather than as the infringement of rights. In April 1994, Uzi Meshulam, formerly a religious-school teacher, distributed pamphlets about the kidnapping of Yemeni babies. Meshulam, who had been collecting evidence and testimonies about the missing children, argued that 10,000 Yemeni babies had been kidnapped and sold in the United States in order to participate in medical experiments, similar to those conducted in Auschwitz by Mengele. A conflict between Meshulam and a local sewage contractor in the town of Yehud heated up and required police intervention. Meshulam suspected that the contractor was acting on behalf of the Israeli Security Agency and that the house under construction was to be used for surveillance. Meshulam argued that he was persecuted because of his preoccupation with the Yemeni Babies Affair and demanded that a state commission of inquiry be formed to investigate the missing Yemeni Babies Affair. Meshulam and his followers had entrenched at his house in Yehud, turning it into a bunker fully equipped with ammunition and reinforced with barrels, bricks, and sandbags. For six weeks snipers and special police units surrounded the compound. Finally, on May 10, 1994, following negotiations, Meshulam was lured out of the compound for a meeting with the chief of police. Special police units seized this opportunity to break into the compound, killing Shlomi Asulin, one of his followers, and taking eleven people under custody. Meshulam was arrested, trialed, and sentenced to jail. The Uzi Meshulam affair, which was the first time that the police gunned down civilians, exerted such pressure and led to the formation of a state commission of inquiry. On January 3, 1995, a proposed bill for the formation of a state commission of inquiry was deliberated and was supported unanimously by the Knesset members. In the preliminary reading of the bill, Avigdor Kahalani (Labor), of Yemeni 95  Shoshana Madmoni-Gerber, Israeli Media and the Framing of Internal Conflict: The Yemenite Babies Affair. — 112 —

————————————————— The Yemeni Babies Affair —————————————————

origin, said the following:96 I cannot say that the Bahaloul-Minkowski and the Shalgi Commissions did not do a good and just job, but there is the problem of the parents who wish to come before some commission and first and foremost to be heard.

Three days later, on January 8, 1995, the government decided to form a state commission of inquiry. The president of the high court appointed retired High Court Judge Yehuda Cohen as head of the commission. Two other members of the commission were retired Major General David Maimon, who is of Yemeni origin, and retired judge Dahlia Koval. On March 23, 1999, retired High Court Judge Yaakov Kedmi, renowned as Israel’s expert in evidence, was appointed chair of the commission, replacing Judge Cohen who stepped down. The Cohen-Kedmi Commission had submitted its report after nearly seven years since its inception. Unlike the previous commissions, the Cohen-Kedmi Commission had summoned the families and the public at large to testify on matters concerning the issues under investigation. In an effort to create a sense of transparency in the work of the commission, it conducted public hearings.97 Meshulam’s followers were allowed to videotape the testimonies. However, some testimonies remained secret, as well as some of the documents and findings concerning adoptions.98 It was hoped that this impressive effort would culminate in resolving this issue that in dominant political discourse was perceived as a tenacious and intractable problem. The families hoped that they would be able to achieve closure and get the answers they deserved after fifty years. In contrast to the previous commissions, the Cohen-Kedmi Commission sought two parallel objectives. The first was to study the scope of the phenomenon, the circumstances in which it occurred, and identify those responsible. For the first time the phenomenon was investigated as a whole and not as discrete unconnected cases. Like the two previous com96  Proceedings of the 13th Knesset, Convention 294, January 3, 1995, 294th sess., 1995, http:// www.knesset.gov.il/TqL//mark01/h0011086.html#TQL (accessed July 30, 2009). 97  The protocols of these hearings are inaccessible at the State Archives. 98  The proceedings of the three commissions and all the materials and files except the commissions’ report are not accessible to the public at the State Archives to this day. — 113 —

—————————————————— chapter three ——————————————————

missions, the commission was to determine the fortunes of each of the missing babies and provide each of the families with a detailed account of the whereabouts of their baby. The commission stressed that the babies did not disappear, but rather they disappeared to their parents. The Kedmi Commission investigated 745 cases, of which 406 were new in the sense that they were not investigated by any of the previous two commissions. This time, the commission’s call for testimonies was disseminated more effectively than in the past. The commission investigated 339 cases that were treated by previous commissions, and 20 cases of babies missing from Hashed. Of the 406 cases, 391 children were found to be dead, 14 cases remained a mystery, and one lost child was discovered. Of the 20 babies missing from Camp Hashed, 13 remained a mystery. Like the previous reports, the Kedmi report makes a highly parsimonious reference to the atmosphere surrounding the work of the commission. In a newspaper article, Ehud Ein-Gil99 criticizes the commission for the highly understated reference to the attempts to influence witnesses that sometimes turned into threats by both Meshulam supporters and representatives of the establishment. In this 1,850-page report, one finds casual remarks by the commission members about witnesses who changed their testimony to the commission from their past testimonies to the previous commissions.100 Were these changes the result of duress? In the interim report the commission indicates that people testified unwillingly, did not answer the questions, or withheld information. There is no trace of this comment in the final report.101 The proceedings of the commission and numerous documents remain sealed at the national archives. The final report does not include a list of potential witnesses mainly from the political and medical establishment who refused to testify before the commission. In its interim report, the commission notes a general reluctance to testify. A state commission of inquiry conducts a quasi-judicial procedure; the report does not make any reference to measures taken by the commission in order to enforce cooperation. The 99  Ehud Ein Gil, “Questions to Members of the Commission,” Haaretz (December 7, 2001) http:// www.haaretz.co.il/hasite/pages/arch/ArchSearchArt.jhtml?navColor=1 (accessed July 20, 2009). 100 Report: State Commission of Inquiry in the Matter of the Disappearance of Children of Yemeni Immigrants during 1948–1954; Commission Chairs: Yehuda Cohen; Yaakov Kedmi, 137. 101 Ein Gil, “Questions to Members of the Commission.” — 114 —

————————————————— The Yemeni Babies Affair —————————————————

report does not acknowledge the possibility that these witnesses are withholding essential information that might affect the commission’s conclusions. It seems that the whole report is geared toward refuting the claims that the establishment had embarked on an organized scheme to kidnap the babies. Despite the attempts to counter the various conspiracy theories surrounding the fortunes of the babies, the commission concedes that there had been “occasional adoptions” of babies without the knowledge or the consent of the parents. According to the commission, the court would issue an adoption order under two circumstances. First is when parents had lost contact with their baby for various reasons. The commission notes dryly that while the staff in the infants’ homes encouraged parents to take care of their baby, they did not attempt to inquire or act to renew lost contact. The loss of contact for a while could create the impression that the baby was abandoned. In such case, the baby was to become candidate for adoption through social workers. Second is when babies had been hospitalized and the parents could not be traced. The commission suggests that the cases that remained unaccounted for were subject to “occasional adoptions.”102 Here the commission neutralizes guilt by denying injury. In line with the commission’s effort to rebut the organized kidnapping claim, one cannot avoid questioning the inconsistency between the record-taking and record-keeping of the establishment and the commission’s unqualified trust in these deficient official records. Nor is it clear how the records can be fully trusted when, in some cases, the two previous commissions have reached different conclusions on the basis of the same data. It is also quite startling that the commission was so forgiving when official agencies did not cooperate or destroyed data that was required for the commission.103 Whenever the records did not agree with the testimonies of the families, the commission trusted the formal records even when inconsistencies were found in the various records. This was carried ad absurdum, in the cases where the commission accepted the establishment’s version based on the official documents even when these conflicted with 102 Report: State Commission of Inquiry in the Matter of the Disappearance of Children of Yemeni Immigrants during 1948–1954; Commission Chairs: Yehuda Cohen; Yaakov Kedmi, 50. 103 Ibid. According to the report, the Jewish Agency’s archives destroyed files about the activity of the managers of Ein Shemer’s camp in 1996. The commission notes that it should have been clear to all that the investigators of the commission would need these materials. — 115 —

—————————————————— chapter three ——————————————————

the claims of the families. For example, in some cases the parents claimed to have given birth to a baby boy while the papers indicated that the child was a girl or vice versa.104 What incentive do parents have to perjure about their dead child’s gender almost fifty years later? The commission had acknowledged the testimonies about the arrogance of the absorbers, the patronizing treatment, and degradation. It conceded that this treatment was closely related to the object of investigation. Ample evidence for this can be found in the writings of the Zionist forefathers.105 It should be remembered that these incidents happened in parallel to the crisis surrounding the education of the children and the subsequent investigation by the Fromkin Commission in 1950. These were not separate, unrelated wrongs, nor a local dysfunction as all three commissions suggested. In that zeitgeist these practices were acceptable and legitimate. Giora Yoseftal, head of the Absorption Division in the Jewish Agency, ordered workers to forcibly remove sick children from their mothers, as Yemeni mothers sometimes106 refuse to take their children to infants’ homes or hospitals, although the children can be in danger if remained untreated in a medical institution. In such cases it is necessary to take the children by force because Yemeni mothers are indifferent to the fortune of their children. They are fatigued and sick 104 In file number 310/95, Ibid., 573, the mother testified that she gave birth to twin baby girls. One of the twins disappeared. The commission traced a birth journal of the Ministry of Health according to which the mother gave birth to a boy on July 26, 1949. A journal entry from Hadassah hospital in Tel Aviv reports the hospitalization of a baby girl with the same family name on July 26, 1949. The baby died on July 28, 1949. According to the journal reporting deaths in the Ministry of Health, the baby boy died on July 28, 1949, at the age of two days. In this case, the records are inconsistent; and the commission determines the baby’s gender according to the hospitalization record, which happened to be the same as the mother’s report. In case 54/95, the mother reports a missing baby boy and the death journal, and the death certificate (which is probably based on the death journal) indicates a baby girl. The commission determines that the baby was a girl, although the mother reported a missing baby boy. In file number 155/96, the parents reported the disappearance of a baby boy while the commission found reference to the death journal, which lists a dead baby girl. The commission concludes from the documents that the newborn was a baby girl. 105 David Ben-Gurion, “A Letter from David Ben-Gurion to Yigael Yadin,” in David Ben-Gurion: The First Prime Minister, ed. Yemima Rosenthal and Eli Shealtiel (Jerusalem: The State Archives, 1997), 169–170. (Hebrew) In this letter, Ben-Gurion characterizes the Yemeni immigrants and the measures needed in order to assimilate them. He writes, “The Yemeni father does not care for his children and family as we do, and he is not used to feed his child to satiation before he himself eats.” 106 Quoted in Zadok, The Load of Yemen 1946–1951, 132. (Hebrew, my translation, RA) — 116 —

————————————————— The Yemeni Babies Affair —————————————————

and have no technical capabilities to check where the babies are sent to and what happened to them. Sometimes a child is transferred from one hospital to another in the middle of the night, suddenly, and although there are lists, naturally, due to the urgency and commotion, serious errors happen . . . the phenomenon of losing children is almost unavoidable.

Abundant testimonies recollect the verbal and sometimes physical abuse that the parents, the mothers in particular, had endured from the nurses and caretakers in the infants’ homes and in the hospitals during visitation hours or when inquiring about the well-being of their babies. These are found in all three commissions’ reports. They were not isolated cases, but rather the common practice. In one case, a mother testified that when she requested to see the body of her allegedly dead daughter she was shown a body of an old man with a beard. When she expressed the obvious doubt that this indeed was her baby’s body, she was told, “When you die in Eretz Israel, the dead body grows.”107 She was then expelled from the hospital. In several cases parents were told that their baby died, and when they protested they were given another baby.108 In numerous cases the parents testify that when they came to visit their baby, they were only allowed to watch it through a window. The commission criticizes this conduct and notes that it contributed to the tragic events, namely, that the parents wrongly interpreted this conduct as an organized plot to steal their children. In the subtext, however, one can clearly detect the deep commitment of the commission to the establishment. Here the neutralization of responsibility relies on the appeal to higher loyalties. Again the individual is sacrificed in favor of the collective needs and objectives. The Yemenis’ grievances are met with unsubstantiated counterclaims regarding the parents’ negligent conduct of not maintaining contact with the babies. Again, the victims are reprimanded, and the focus is shifted away from the injustice. This serves for vindicating the establishment.109

107 File 288/95 Report: State Commission of Inquiry in the Matter of the Disappearance of Children of Yemeni Immigrants during 1948–1954; Commission Chairs: Yehuda Cohen; Yaakov Kedmi, 539. 108 For example, file 161/95. Ibid. 109 Examples of allegation regarding the child-rearing practices of the parents can be found in Shoshi Zeid, The Child Is Gone: The Yemeni Children Affair (Jerusalem: Gefen, 2001). (Hebrew) — 117 —

—————————————————— chapter three ——————————————————

Responsibility? Apology? Forgiveness? The Yemeni redress campaign was primarily driven by the need to inquire about the fortunes of the babies; a secondary motivation of this campaign was to gain public recognition of the wrong. Hence, the Yemenis focused on the missing children affair as a discrete wrong. The three commissions in general and the Cohen-Kedmi Commission in particular attempted to disprove that the ordeal was particularly Yemeni since “only” two-thirds of the missing babies are Yemeni.110 Here the denial of the alleged ethnic basis of the injustice is yet another technique for coping with guilt and denying responsibility. Looking at the figures, Boaz Sangero shows that of the sixty-nine unresolved cases in the Cohen-Kedmi Commission Report, only eleven babies are not Yemeni. Furthermore, there are no Ashkenazim among them. “There is no doubt that this is almost exclusively a Yemeni phenomenon,” Sangero concludes.111 All three commissions justified the overwhelming morbidity and mortality rates by reference to the medical condition of the Yemeni immigrants. Sangero notes that the average rates of infant mortality at the time (45:1,000) are much lower than the figures indicated by the Kedmi report (655–1000 out of 6,000 Yemeni babies).112 In Israeli collective memory, only the trimming of the sidelocks and the missing children affair are perceived as wrongs perpetrated on the Yemenis. The suffering associated with the immigration to Palestine/ Israel is forgotten or considered normal. Cynics would perhaps question the sense in encouraging the emigration of a group that dwells relatively peacefully, exposing its members to high morbidity and mortality rates in a life-risking journey, extreme hardship, extended detachment from home and family, humiliation and degradation, and finally marginalization. As I already noted in the first section of this chapter, the living conditions of the Yemenis following the decision to immigrate were in many cases worse than their initial situation in Yemen. The Yemenis, however, were portrayed as yearning for Zion, a yearning untouched 110 Report: State Commission of Inquiry in the Matter of the Disappearance of Children of Yemeni Immigrants during 1948–1954; Commission Chairs: Yehuda Cohen; Yaakov Kedmi, 323. 111 Boaz Sangero, “Where There Is No Suspicion There Is No Real Investigation: The Report of the Committee of Inquiry into the Disappearance of the Children of Jewish Yemenite Immigrants to Israel in 1948–1954,” Theory and Criticism 21 (2002), 69. (Hebrew) 112 Report: State Commission of Inquiry in the Matter of the Disappearance of Children of Yemeni Immigrants during 1948–1954; Commission Chairs: Yehuda Cohen; Yaakov Kedmi, 325–330. — 118 —

————————————————— The Yemeni Babies Affair —————————————————

by mundane considerations. The sages’ proverb “Eretz Israel is acquired through torment”113 seems to understate the Yemenis’ ordeal. The Yemeni Babies Affair is, in Torpey’s terminology,114 a symbolic and cultural claim although no monetary reparations were sought. The claimants sought redress in the form of clear answers from the establishment; their claim, although not structured as such, is “sacred” in Durkheim’s terminology. It is invested with group significance and amounts to the loss of culture. The claim has a deep cultural significance for the claimants. The children were lost not only to their families, as the Kedmi report suggests, but first and foremost to their culture.115 Matsuda’s116 characterization of historical redress as a top-down, one-way valve, directed at remedying wrongs perpetrated against the powerless, seems quite naïve amid this case. Here, the crimes of the powerful against the powerless were not condemned; society did not embrace a vision of a more just world. While the establishment of the commissions of inquiry was potentially a step in this direction, the processes and the outcomes of all three commissions have not contributed to a sense of redress. The state acted in this matter as though more than the fortunes of the babies were at stake. It perceived this as a threat to the hegemonic order and the official collective memory. The official narrative that provides the background to all three reports is amiss and lacks historical authenticity. It is tainted with Orientalist views and is highly disrespectful. This official narrative served for containing the injustice within the limited bounds of the disappearance of the children and for blaming the victims. As a case of historical injustice, there were no grounds for legal action due to limitation of action. Most of the officeholders who might have been held responsible were already dead or too old. Thus, it is quite jarring that all three commissions, and the last one in particular, have chosen to utilize the juridical edifice of legal thought and action to vindicate the establishment. 113 Berachot 5, 71. The Sages in Mishnah Berachot 5 repeat an ancient tradition, according to which God gave three gifts to the Jewish people: the Torah, the Land of Israel, and the World to Come. 114 Torpey, Making Whole What Has Been Smashed: On Reparation Politics, 54–55. 115 See reference to the lost generation of the interned aboriginal children in Canada and in Australia. Paul, We Were Not the Savages: Collision between European and Native American Civilizations; David Pearson, The Politics of Ethnicity in Settler Societies: States of Unease (Houndmills, United Kingdom: Palgrave, 2001). 116 Matsuda, “Looking to the Bottom: Critical Legal Studies and Reparations,” 323–400. — 119 —

—————————————————— chapter three ——————————————————

The ethic of conviction resonates loudly in this case. The arguments: “all was done in good faith” and the “circumstances” to rule out criminal intent. Again, the Cohen-Kedmi Commission appeals to higher loyalties. Guilt is neutralized by the justification that the children needed to be taken from their parents for their own good. The pendulum is thus tilted toward the value higher in the hierarchy—the collective. All three commissions leave much to be desired with respect to responsibility. The B-M Commission did not assign responsibility to any one person or organ in particular. The narrow scope of the investigation privatized the injustice, stripped it of any collective context, and thus rendered the attribution of responsibility impossible. The B-M Commission’s recommendation to conduct an investigation abroad, in accordance with information that the commission allegedly acquired, had been ignored.117 This recommendation, which was highly impractical for both political and legal considerations, was perhaps an attempted diversion. Obviously, an investigation in Yemen and other Muslim countries would render highly complex issues of jurisdiction, international law, and local law and above all was not viable politically. It seems that these were empty words intended to perhaps shift the blame on someone outside Israel. Similarly, the Shalgi Commission interpreted its mandate so narrowly that it did not concern itself at all with identifying those responsible for the children’s disappearance. In contradistinction, the Cohen-Kedmi Commission found the highest ranks of the Jewish Agency responsible but vindicated the government that delegated the authority over the immigrants’ camps to the Jewish Agency. This, of course, stands in sharp contrast to the very basic tenets of public administration. It is impenetrable why the commission did not hold the Ministry of Welfare responsible for the actions taken by the social workers who were to search for the families before declaring the child adoptable, or the Ministry of Health for not taking effective preventative measures to reduce the overwhelming morbidity and mortality rates in the hospitals and infants’ homes, as the infants were under institutional care from birth. It is also hard to understand why the Cohen-Kedmi report does not utter any remark regarding the ready endorsement of the adoptions by the courts, based on the claims made by the social 117 Shalom Cohen, “A Baby for $5,000,” HaOlam Haze, January 11, 1967. — 120 —

————————————————— The Yemeni Babies Affair —————————————————

workers that the baby was abandoned or a waif. The Cohen-Kedmi Commission criticizes the executive body of the Jewish Agency for not taking any steps to rectify the situation although it was well aware of the situation in the hospitals and infants’ homes. The tone of the report is very mild with respect to responsibility. The words “guilt,” “negligence,” or even “vicarious responsibility” are not to be found in this lengthy report. The most pungent words used were “administrative error” or “helplessness.” The only officeholders found responsible are the Jewish Agency Executive, the managers of the camps, and the managers of the infants’ homes, who are held responsible for the loss of contact between the babies and their families. Aside from the Jewish Agency Executive, the other organs ceased to exist long before the report was submitted. It seems that this naming and shaming is futile since the injustices were systemic and were not limited to any single or even few organs. Perhaps the most important conclusion that emerges from this case is that the state has no sincere motivation for redress but rather took the effort to convince the Yemenis that they were wrong. The formation of the investigative commissions and the upgrade from a simple interministerial to investigative to state commissions of inquiry reflect the level of perceived threat of having the matter on public agenda. The purpose of state commissions of inquiry is to investigate the facts of an issue that is characterized by the lack of trust between the government and the public.118 The rationale is that state commissions of inquiry appear to be independent and objective and are therefore more preferred than investigative bodies that constitute part of the political institutions (such as the B-M and Shalgi Commissions). While the facts of the matter are certainly important to the families of the children, I argue that the use of the institution of commissions of inquiry for historical redress is certainly off target. The management of social conflict in legal-managerial and organizational terms substitutes one form of hegemony with another. The blurring of the social and political conflict and its transformation into an institutional conflict119 certainly gives the establishment the upper hand. It uses the sterile legal 118 Avigdor Klagsbald, State Commissions of Inquiry (Tel Aviv: Nevo, 2001), http://www.nevo.co.il/ Books_word/klagsbald/klag-12.doc (accessed July 18, 2009). (Hebrew) 119 Yehuda Shenhav and Nadav Gabay, “Managing Political Conflicts: The Sociology of State Commissions of Inquiry in Israel,” Israel Studies 6, no. 1 (2001), 126–156. — 121 —

—————————————————— chapter three ——————————————————

and administrative jargon of “administrative error,” “defective discretion,” and similar terms to account and justify for the loss of life, of culture, and the infringement of rights. It evades the causes and rather deals with technicalities of administrative process, often blaming the victims. The clash of paradigms between the legal and sociological-theological discourse is revealed in full extent in this case. In these juridical, factual, and verdictlike commissions reports no room was left for empathy, apology, and recognition. It seems that the primary objective of the commissions is to vindicate the establishment and to eliminate the conflict from public agenda. For this reason many intriguing questions remain open, as the reports do not suggest that the texts that the commissions examined were read with the hermeneutics of suspicion,120 as should be fundamental in the work of commission of inquiry. While the notion of historical injustice perpetrated on a specific ethnic group dissipates in the reports, the Yemeni Babies Affair constitutes a dangerous memory that resists the mastering of the hegemonic historical narrative. As Metz121 suggests, such memories promote feelings of fear, anger, and revenge toward others. Yemenis today seem to have accepted the hardship in Yemen and in the camps, and their memories have been repressed. And while they do not hold the state responsible for their sacrifice, the hearts of the missing babies’ families are still bleeding.

120 Paul Ricœur, Freud and Philosophy: An Essay on Interpretation (New Haven: Yale University Press, 1970). See also David Stewart, “The Hermeneutics of Suspicion,” Journal of Literature and Theology 5 (1991), 311–321. See also Sangero’s reference to an epistemology of suspicion in Sangero, “Where There Is No Suspicion There Is No Real Investigation: The Report of the Committee of Inquiry into the Disappearance of the Children of Jewish Yemenite Immigrants to Israel in 1948– 1954,” 69. (Hebrew) 121 Metz, The Future in the Memory of Suffering, 9–25. — 122 —

————————————————— The Tinea Capitis Affair —————————————————

4. The Tinea Capitis Affair

Favus—A Loathsome Disease? Favus (tinea favosa) is a fungal infection of the scalp that causes scaling and bald spots in the infected area. It is a severe form of tinea capitis (a.k.a. ringworm of the scalp) and highly contagious. The disease spreads quickly in dense environments; it thrives in hot and moist conditions and can be transferred to humans by domestic animals. The trichophyton schoenleinii fungus that causes favus typically settles in the scalp but can affect the glabrous skin and nails. Tinea can settle in various parts of the body; its most popular occurrence nowadays is athlete’s foot. Since the 1960s these forms of fungal infection are treated topically, and in most cases the infected area can be cured in a fortnight.1 Nowadays, several of the conditions are treated with over-the-counter drugs. As a highly conspicuous skin condition, favus became laden with symbolic meanings that strayed far beyond its nominal existence. Favus was classified in 1903 by the U.S. surgeon general as a loathsome disease,2 one that excites abhorrence in others by the reasons of the knowledge of its existence, together with leprosy, syphilis, and gonorrhea. According to the book of instructions issued by the surgeon general, “diseased, abnormal, crippled, and deformed aliens may be regarded as divisible into two general classes.”3 Class A consisted of loathsome diseases, dangerous contagious diseases that posed a more serious health threat such as trachoma and also pulmonary tuberculosis, mental illnesses, and idiotism. Class B consisted of conditions such as hernia, pregnancy, 1

2

3

Jacek C. Szepietowski and Robert A. Schwartz, “Favus,” in Emedicine, Dermatology, Fungal Infections, http://emedicine.medscape.com/article/1090828-overview (accessed August 14, 2009); Mark D. Andrews and Marrianthe Burnes, “Common Tinea Infections in Children,” American Family Physician 77, no. 10 (2008), 1415–1420. Walter Wyman, The Book of Instructions for the Medical Inspection of Aliens (Washington DC: Treasury Department, Bureau of Public Health and Marine Hospital Service: Government Printing Office, 1903), http://www.archive.org/stream/bookinstruction01servgoog/bookinstruction01servgoog_ djvu.txt (accessed August 1, 2009). Ibid., 5; John Higham, Strangers in the Land: Patterns of American Nativism, 1860–1925 (New York: Atheneum, 1963). — 123 —

—————————————————— chapter four ———————————————————

valvular heart disease, malignancies, deformities, nervous system problems, poor physique, senility, and even varicose veins. Such a condition was defined as a disease or defect, physical or mental, which may be regarded as conclusive or contributory evidence to justify the exclusion, by the proper immigration officers, of the person in question as an alien “likely to become a public charge.”4

The medical inspection of immigrants to America was implemented following the legislation of the United States immigration law of 1891, which granted the federal government with the sole authority over immigration. The law authorized federal officials to examine and exclude immigrants. By 1903, the law required that public health services officials inspect and issue a medical certificate to all immigrants suffering from a loathsome or a dangerous contagious disease. Class A conditions mandated exclusion.5 Such policies of immigration control were implemented in several other countries as well. The Canadian Immigration Act of 1886 was already concerned with the diseased, criminals, and paupers. The act authorized the governor general to restrict their immigration. In May 1902, the House of Commons amended the bill by adding a more detailed chapter regarding disease. The purpose of the amendment was to prevent6 the landing at Canadian ports of any immigrant or other passenger who is suffering from a loathsome, dangerous, infectious disease or malady, whether such immigrant intends to settle in Canada, or only intends to pass through Canada to settle in some other country.

These provisions were not driven only by medical considerations of public health; other agendas, political, social, and economical, were at 4 5 6

Wyman, The Book of Instructions for the Medical Inspection of Aliens, 5 11–14. Belonging to Class A are persons suffering from loathsome contagious diseases, persons suffering from loathsome diseases, insane persons, and idiots. See Ibid., 5–6. Quoted in Broughton Brandenberg, Imported Americans: The Story of the Experiences of a Disguised American and His Wife Studying the Immigration Question (New York: F. A. Stokes, 1904), 249. — 124 —

————————————————— The Tinea Capitis Affair —————————————————

stake. Higham elaborates on American nativism, which he defines as “intense opposition to an internal minority, on the grounds of its foreign (i.e., ‘un-American’) connections.”7 Higham notes that by drawing on anti-Catholic, anti-Radical, and Anglo-Saxon racial nativism traditions, nativism has opened channels through which a large part of the xenophobia of the late nineteenth and twentieth century was translated into zeal to destroy the enemies of a distinctively American way of life. The classification of diseases that mandate exclusion carried with it economic significance; it was used for categorizing the immigrants in terms of their ability to perform as an efficient workforce that will not fall as a burden on the nation. While the directives of the Public Health Services ordered the exclusion of immigrants unfit for labor in an industrial society, only a very small number were actually excluded. Exclusion of immigrants was put into practice mainly in the west coast ports and in the Mexican border.8 This may imply a bias in favor of European immigrants rather than Asian or Hispanic. This implication should be qualified since immigrants who suffered from class A or B conditions infiltrated to the United States by land through Canada or Mexico, in order to evade the inspections at Ellis Island.9 The mechanism of medical inspection and the immigration law that established it provided tools of power to be used for the control of the cheap, unskilled labor.10 As Amy Fairchild suggests, the medical inspection of the immigrants was therefore a tool of power and discipline. In this particular case, discipline was exercised in order to promote the adoption of core values. It operated as a preventive rather than corrective measure. The selective implementation of the directives further suggests that this was primarily a tool of power. Foucault’s notion of the productive element of power is based on the premise that power relations have immediate bearing on the body: 11 [I]t is largely as a force of production that the body is invested 7 8

Higham, Strangers in the Land: Patterns of American Nativism, 1860–1925, 4. Amy L. Fairchild, Science at the Borders: Immigrant Medical Inspection and the Shaping of the Modern Industrial Labor Force (Baltimore: Johns Hopkins University Press, 2003), 14–15. 9 See a detailed account of the journey and the methods of infiltration in Brandenberg, Imported Americans: The Story of the Experiences of a Disguised American and His Wife Studying the Immigration Question. 10 Higham, Strangers in the Land: Patterns of American Nativism, 1860–1925. 11 Foucault, Discipline and Punish: The Birth of the Prison, 25–26. — 125 —

—————————————————— chapter four ———————————————————

with the relations of power and domination; but on the other hand, its constitution as labour power is possible only if it is caught up in a system of subjection . . .; the body becomes a useful force only if it is both a productive body and a subjected body.

This subjection, Foucault maintains, can take various forms and can be realized not only by violence or ideology but also by subtle, calculated, organized, and technical means. One of the spheres in which the state can exercise repressive practices is public health.12 Yew13 suggests that the zeitgeist of the progressive era made it necessary to justify all public actions on the grounds of science and morality. Hence, medicine served as a means of controlling immigration. The labeling of disease as such which are imported into America and spread by immigrants came to represent the Other. The immigrant was perceived as one who lives in poor conditions, susceptible to disease, and congenitally ignorant of hygiene. Yew notes that by the turn of the nineteenth century, legislation was more concerned with protecting the United States than it was with the well-being and protection of the immigrants. The prevention of the importation of contagious disease and protection from the overcrowding and burdening of the medical and welfare services with immigrants are stated explicitly in the classification of diseases in the Instructions for Inspection. The immigrant body was expropriated by the destination state; it was surveyed, broken down, and rearranged according to the specifications and requirements of the dominant group.14 With this in mind, the complexities surrounding immigration were greater with regard to immigration to Palestine and after 1948 to Israel. While Zionism was a national movement for the return of the Jewish people to their homeland, in practice, however, the Zionist movement sought immigration as a means of fulfilling its own particular objectives. 12 For example, Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983), 68–91; Danny Filc, “The Commodification of Health: The Israeli Health Care System, between State, Civil Society and the Market,” Theory and Criticism 6 (1995), 3–15. (Hebrew) 13 Elizabeth Yew, “Medical Inspection of Immigrants at Ellis Island: 1891–1924,” Bulletin of the New York Academy of Medicine 56, no. 6 (1980), 492–493. 14 Fairchild, Science at the Borders: Immigrant Medical Inspection and the Shaping of the Modern Industrial Labor Force, 15–16. — 126 —

————————————————— The Tinea Capitis Affair —————————————————

Before 1948, the Jewish settlement in Palestine used the restrictions imposed by Britain on the immigration of Jews to Palestine as leverage for implementing a selective immigration policy. In this policy medicine became a means of fulfilling politico-ideological objectives. The Jewish Agency and the dominant Labor movement were interested in immigrants who supported Zionism (preferably those affiliated with the Labor movement) who were both interested and physically capable of working the land. The British Mandate authorities allocated immigration certificates for laborers on the basis of the economic capacity of the country to absorb them. The quotas were reassessed twice a year and were in effect dependent on the pressures excreted by the Arabs and the Jewish Agency. This was particularly the case from the mid-1930s until 1948. With the rise of Nazism, Jews in Europe were attempting to emigrate. The policy of selective immigration was pursued, despite the urgency of the situation.15 Selection was not relaxed even on the eve of WWII and had devastating consequences. Selective immigration was driven by more essential motivations. Zionism involved the transformation of the body.16 For the Zionist forefathers, Nordau, Gordon, Jabotinski, Ruppin, among others, the Zionist return provided Diaspora Jews with the opportunity to rid themselves of the bodily traits they had contracted in the Diaspora and develop a new and healthy physique. Working the land and developing martial skills were to remedy the immigrant from these ill effects. Immigration to Palestine/Israel thus came to represent redemption not only in the transcendental, spiritual sense but also in the mundane physical sense. Through working the land, Jews in the Land of Israel aspired to develop a “better” body, that of a farmer rather than the frail, pale, and crooked body of a merchant or a scholar. Race emerged as a scientific paradigm during the late nineteenth and early twentieth century. Although this paradigm was constructed as pseudoscientific following its use by the Nazis, its traces in anthropology, sociology, medicine, and cognition are still evident in the conceptualizations of the differences among Jewish immigrants belonging to

15 For a detailed account of selection in the context of Jewish youth in Germany, see Rosen and Amir, “Constructing National Identity: The Case of Youth Aliyah,” 27–51. 16 Tom Segev, 1949: The First Israelis (Jerusalem: Domino Press, 1984). — 127 —

—————————————————— chapter four ———————————————————

different ethnic groups.17 According to Yfaat Weiss,18 the significance of this phenomenon was twofold: in the long term it would largely dictate the discourse on the exclusion of the Jews from the host society; in the immediate and shorter terms, and with a certain irony, it created a dominant conceptual system that imposed itself on the Jewish discourse of identity in Central Europe. Sara Chinski19 argues that the emergence of modern Jewish identity in late-nineteenth-century Europe was accompanied by the same ethnoracist diagnosis prevalent in the European Christian discourse that ascribed to Jews an inherent cultural and racial inferiority. Thus, in the arts it was believed that there was something inherent in Jews that made them lack any sense of aesthetics; they were depicted as shameless copycats, with an oriental imagination, who are attracted to superficial glimmer. For Chinski20 the negation of exile becomes the product of the efforts of Israeli Ashkenazi elite to enhance their imagined western identity. These fabricated westernization and universalism provide the basis of Ashkenazi hegemony in Israel. Thus, she argues, the Zionist project is concerned mainly with eliminating and repressing the Ashkenazi diasporic past, which is perceived as a threat. The newly formed Jewish identity lent itself to this anti-Semitic ideology, describing Jews in the very same negative attributes ascribed to it by the anti-Semitic discourse. During the mid-nineteenth century, physicians posited that Jews, in general, suffered from various pathologies as the Jewish race was degenerating.21 Weak nerves, late marriage, and low fertility rates were all considered symptoms of degeneration.22 This mental and physical state was attributed to the marginalized group, the Other. As Steven V. Aschheim writes,23 17 Yehuda Shenhav and Yosi Yona, Racism in Israel (Jerusalem: Van Leer, 2008). (Hebrew) 18 Yfaat Weiss, “Identity and Essentialism: Race, Culture, and the Jews in the Late Nineteenth and Early Twentieth Century,” Theory and Criticism 21 (2002), 133–162. (Hebrew) 19 Sara Chinski, “Wide Open Eyes: The Acquired Albino Syndrome of the Israeli Art Field,” Theory and Criticism 20 (2002), 57–86. (Hebrew) 20 Ibid. 21 Moses Hess, who was one of the first who called for a Zionist revival in Jerusalem, referred to the Jews as a race. See Moses Hess, Rome and Jerusalem: The Last National Question (New York: Philosophical Library, 1958 [1862]). 22 Raphael Falk, Zionism and the Biology of the Jews (Tel Aviv: Resling, 2006). (Hebrew) 23 Steven V. Aschheim, Brothers and Strangers: The East European Jew in German and German Jewish Consciousness, 1800–1923 (Madison, Wisconsin: University of Wisconsin Press, 1999), 26. See also Larry Wolff, Inventing Eastern Europe: The Map of Civilization in the Mind of the Enlightened (Stanford, California: Stanford University Press, 1994). Wolff argues that the distinction is not — 128 —

————————————————— The Tinea Capitis Affair —————————————————

[T]he dichotomy between Ostjuden and Westjuden was a function of a broader West European Enlightenment project to “invent” Eastern Europe as its barbaric mirror-opposite, as its self-constituting Other.

This emphasis of Zionism on the transformation of the body was sustained and amplified by the rise of bacteriology and eugenics at the turn of the nineteenth century.24 Many in the medical profession and the leading figures in the Jewish health system in Palestine and later in Israel were themselves immigrants who acquired their medical diplomas and professional socialization in Central Europe and in the United States. Naturally, these doctors reinforced and implemented the converged policies. Favus was thus constructed as a disease of immigrants, refugees, and primitive Others. After WWI, Jewish relief agencies devoted resources to combatting favus. Immigrants from Eastern Europe were also treated for the condition.25 With the lifting of the British mandate, the temporary government of Israel abolished Britain’s White Papers, which restricted immigration. After 1948, overt selective immigration was no longer legitimate for the Jewish state, so that its Proclamation of Independence reads,26 The State of Israel will be open for Jewish immigration and for the Ingathering of the Exiles; it will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective natural and is not innocent; it was a work of cultural creation out of ideological interests and selfpromotion. 24 The fascination with eugenics is now evident in the soaring rates of fertility treatments, in vitro fertilization, and in the number of scans and genetic tests for pregnant women. See Carmel Shalev and Sigal Goldin, “The Uses and Misuses of In Vitro Fertilization in Israel: Some Sociological and Ethical Considerations,” Nashim: A Journal of Jewish Women’s Studies and Gender Issues 12 (2006), 151–176. (Hebrew) 25 Nadav Davidowitch and Avital Margalit, “Public Health, Racial Tensions, and Body Politic: Mass Ringworm Irradiation in Israel 1949–1960,” Journal of Law, Medicine and Ethics 36, no. 3 (2008), 522–529. 26 Declaration of Independence (1948), http://www.knesset.gov.il/docs/eng/megilat_eng.htm (accessed August 10, 2009). — 129 —

—————————————————— chapter four ———————————————————

of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the Charter of the United Nations.

Immigration was not conceived of only as a benefit of the Jews in the Diaspora; it was considered an essential interest of the newly established state and detrimental to its security and economy.27 Immigrants were drafted and joined the armed forces upon their landing in Israel.28 Israel negotiated the immigration of Jews with the countries of origin— in Europe, Asia, and Africa. In some cases, the negotiations involved arms trade, money, and imports.29 As soon as the 1948 war ended, more than 250,000 immigrants arrived in Israel, increasing its population by 50 percent. Within four years 600,000 immigrants arrived. In 1950, the Law of Return was enacted, granting every Jew the right to immigrate. Although the law allows some restrictions on immigration (some of which are health-related), these were only rarely implemented.30 This law is a highly significant tool for ratifying Israel’s definition as a Jewish state, both practically and symbolically. This definition and its repercussions on the non-Jewish population in Israel will be discussed in the following chapter. The new state maneuvered between its declared commitments to the Jews on the one hand and its needs and the capabilities to absorb them on the other. Numerous proceedings of meetings, Knesset deliberations, letters, and memoirs present blatantly and explicitly the ambivalence, racism, and malice of the absorbers. Many such expressions target specific ethnic groups or immigrants at large, both Mizrachim and Ashkenazim. These are referenced by scholars, both supporters and detractors of the establishment,31 and are heavily quoted. 27 Yehoshua Freundlich, “Consultation on April 12, 1949, the Ministry of Foreign Affairs, 02/2447/3,” in Documents Pertaining to Israel’s Foreign Policy, vol. 2 (Jerusalem: State Archives, 1988 [1949]), 120; Freundlich, Documents Pertaining to Israel’s Foreign Policy. (Hebrew) 28 See Hannah Yablonka, Estranged Brothers: Holocaust Survivors in Israel 1948–1952 (Jerusalem: Yad Yitzhak Ben-Zvi and Ben-Gurion University, 1994). (Hebrew) 29 Segev, 1949: The First Israelis. (Hebrew) Segev refers mostly to the transactions with Eastern European countries. Such transactions were made, for example, with the imam of Yemen, Ahmed Ibn Yahiya, in 1949, in relation to operation On the Wings of Eagles. 30 Shifra Schvartz et al., “Medical Selection and the Debate over Mass Immigration in the New State of Israel,” Canadian Bulletin of Medical History 22, no. 1 (2005), 5–34. 31 See, for example, Moshe Lissak, The Large-Scale Immigration of the 1950s: The Failure of the Melting — 130 —

————————————————— The Tinea Capitis Affair —————————————————

The ethnic-based status stratification in Israeli society is a reproduction of the discourse of the immigrant as the Other. Nonetheless, all migrants, regardless of ethnic grouping, were subjected to the commodification and objectification of the body in varying degrees. They were all Others to veteran Israelis. The commodification and objectification were in effect as the absorbers, on behalf of the state. The absorbers took total control over the immigrants upon their landing, leaving them dependent and needy, secluded from the outside world and apparently protected by a system of patronage. Many of the reports and impressions of the situation of the immigrants in the transit camps describe an unbearable situation in terms of hygiene, sanitation, high-density and poor living conditions, disease, and neglect. Implicit in many of these accounts is the alleged barbarity of the immigrants and their strange conduct.32 Less publicized reports describe the camps as a great ironic failure. “Jews hold other Jews in camps,” writes Ruth Kliger of the Mossad on her report to Ben-Gurion. “It seems they did not learn anything from their own tragedy.”33 As a temporary arrangement, the immigrants were quarantined in camps.34 There they were formally processed and underwent medical examinations. This is also where the infamous DDT disinfections took place. The immigrants became inmates and were confined to the fenced and guarded camps. While the inmates had no control over their lives, they were still blamed for the sanitary conditions, diseases, and high mortality rates. With the influx of immigrants, their stay in the temporary quarantine camps was extended. The uniqueness of the Israeli case lies in the initial circumstances surrounding the immigration. These are predominantly presented and justified in terms of overload on the polity.35 A newly established state, shortly after war with its neighboring countries, on the verge of

32

33 34 35

Pot (Jerusalem: Bialik Institute, 1999); (Hebrew) Segev, 1949: The First Israelis; (Hebrew) Ella Schohat, “Sephardim in Israel: Zionism from the Standpoint of Its Jewish Victims.” Perhaps the most heavily quoted account is Arie Gelblum’s report published in fifteen parts. Gelblum lived in the immigrants’ camps under disguise. Arie Gelblum, “For One Month I Was a New Immigrant,” Haaretz, April 13, 1949, to May 20, 1949. Ruth Kliger, Report, Office of the Prime Minister Division 43, 333/5 September 1949 (Jerusalem: State Archives [1949]). Due to the high volume of immigration in the 1950s, the stay in the camps was extended. S. N. Eisenstadt, The Transformation of Israeli Society: An Essay in Interpretation (London: Weidenfeld and Nicolson, 1985). Dan Horowitz and Moshe Lissak, Trouble in Utopia: The Overburdened Polity of Israel (Albany: State University of New York Press, 1989). — 131 —

—————————————————— chapter four ———————————————————

bankruptcy flooded with unprecedented numbers of ethnically diverse immigrants, poor and dependent, most of whom were traumatized refugees. Israel financed the journey and provided for the immigrants in the initial immigration phase, relying on the financial assistance of Jews abroad, the United States Saving Bonds, the Holocaust reparations, imported foreign capital, etc. Indeed, Israel made great efforts to encourage this immigration for its colonial state building undertaking.36 The commodification and the objectification of the immigrants in terms of “human material” can also be attributed to Labor’s own communal republican conception of citizenship. The diverse ethnic groups were structured hierarchically and rigidly. The Ashkenazi elite were first-class citizens who were prioritized in the distribution of public funds. Mizrachim and women were secondary; their contribution to the common good consisted in their quantity. Quantity was crucial for the demographic competition with the Arabs. Palestinian citizens of Israel populated a yet lower class. Although the context of immigrants’ absorption in Israel differs on the grounds discussed above, Israel converged with other countries at that time in the screening and processing of immigrants. Broughton Brandenburg’s insights from his participant observation summarize eloquently some of the leading contemporary arguments of the discourse of immigration and immigrants.37 We need the immigrants. Our nation owes its strength today to those who have crossed the ocean in other years. Our great industries need their brawn, our undeveloped regions need their toil, and we can easily accept 150,000,000 more human beings as raw material; but they must come as raw material, good raw material. That given, our civic atmosphere, our conditions, our national spirit must do the rest, and patriots must look to the children of the immigrants for the best results rather than to the immigrants themselves. Diseased, deformed, or physically insufficient persons are not and never can be good raw material, and should not be allowed to leave 36 Shafir and Peled, Being Israeli: The Dynamics of Multiple Citizenship. 37 Brandenburg, Imported Americans: The Story of the Experiences of a Disguised American and His Wife Studying the Immigration Question. Brandenberg together with his wife disguised as immigrants followed the routes of immigrants from Italy all the way to America in 1903. — 132 —

————————————————— The Tinea Capitis Affair —————————————————

their homes, nor should any members of their families on whom they are, or are likely to be, dependent. Convicts, prostitutes, persons engaged in questionable pursuits, anarchists, radical socialists, and political agitators are a menace to the body politic, though reasonable inability to make a livelihood should be considered a mark of pauperism rather than failure to accumulate any property whatsoever under European conditions.

These lines, which were written over a century ago, sum up what unfortunately seem to be the universal constituents of anti-immigration or, rather, anti-immigrant policies: xenophobia, construction of the migrant as the Other. The immigrant as the filthy, dysfunctional, degenerate, infested with contagious disease, and a threat to morality and social integrity. Nowadays, the human rights culture38 has not yet managed to take the edge off the same fears and motivations that resurface globally, at both the public and private realms. The Tinea Capitis Affair Favus and tinea capitis, as noted earlier, are fungal infection of the scalp, affecting mainly children and adolescents. Its unsightly appearance attaches to the disease many affective responses that are far more menacing than the disease itself. Associated with poverty, uncleanliness, poor hygiene, and high-density living, it is the disease of the Other, the stranger lurking in the dark, arousing the darkest primal fears. Favus was considered a Jewish disease,39 an Ostjuden disease, East European, or, worse yet, Oriental disease. With all the symbolic baggage loaded on favus, a drastic treatment was sought. Ionizing irradiation, discovered by Röntgen in 1895, seemed like a promising remedy for favus and tinea capitis. The first therapeutic use of ionizing irradiation was for the treatment of a hairy mole that had disappeared following an exposure to x-rays, and was presented to the medical society of Vienna by Sigmund Freud.40 For almost sixty years, 38 Ignatieff, Human Rights As Politics and Idolatry, 7. 39 This was due to the religious custom of covering the head, but also as evidence of poor hygiene. See Davidowitch and Margalit, Public Health, Racial Tensions, and Body Politic: Mass Ringworm Irradiation in Israel 1949–1960, 525. 40 George Laramore and Keith J. Stelzer, “Radiation Therapy for Benign Disease: An Old Area — 133 —

—————————————————— chapter four ———————————————————

ionizing irradiation was only thought of as beneficial and was widely used for a variety of benign conditions such as acne, sterility, and fungal infections, and for nonmedical uses such as shoe fitting.41 Despite the threats of exclusion, tinea capitis seems to have naturalized in the United States. During the 1940s the United States coped with an epidemic of tinea capitis and favus; it is nowadays the most common fungal infection in children.42 Irradiation treatment for tinea capitis was considered mainstream in many countries until the late 1950s. The fascination with this invention and the latency of the harmful effects of irradiation43 pushed aside individual reports of doctors who were adversely affected by leukemia or skin damage. The earliest studies indicating the adverse effects of exposure to radiation appeared during the early 1950s. Some opted for caution in administering this treatment. In 1949, R. R. Newell’s discussion of an article by Mottram and Hill tried to curtail the enthusiasm of this medical procedure: 44 In general one should be slow to use x-ray in non-malignant conditions, for it is hard to be sure that no bad effects will follow later, even many years later. However, I do believe that x-ray epilation for intractable ringworm of the scalp is proper treatment, if done right and only once.

Given that the length of Newell’s contribution was 191 words, I find it highly significant that he chose to emphasize his warning by repeating it in the closing sentence: “[U]nder no circumstances should the scalp be irradiated again.”45 Raphael Falk,46 of the Genetics Department of the Hebrew UniverRevisited,” Lancet 352, no. 9131 (1998), 834–835. 41 Siegal Sadetzki and Baruch Modan, “Epidemiology As a Basis for Legislation: How Far Should Epidemiology Go?” Lancet 353, no. 9171 (1999), 2238–2239. 42 Andrews and Burnes, Common Tinea Infections in Children, 1415–1420. 43 In 2006, Sadetzki’s research team found that there was still an increased risk of thyroid cancer following the low-dose irradiation after latent periods of up to fifty-four years after childhood exposure. Siegal Sadetzki et al., “Risk of Thyroid Cancer after Childhood Exposure to Ionizing Radiation for Tinea Capitis,” The Journal of Clinical Endocrinology & Metabolism 91, no. 12 (2006), 4798–4804. 44 M. E. Motram and Harold A. Hill, “Radiation Therapy of Ringworm of the Scalp,” California Medicine 70, no. 3 (1949), 189–193. See R. R. Newell, “Discussion,” California Medicine 70, no. 3 (1949), 192. 45 Ibid. 46 “There Is No Safe Radiation,” Haaretz, February 9, 2005, www.haaretz.co.il/hasite/pages/arch/ — 134 —

————————————————— The Tinea Capitis Affair —————————————————

sity, is quoted saying that as a young researcher, during the 1950s he was involved in studies that clearly proved that any type of radiation can cause damage in direct relationship to its dosage. Baruch Modan, who was the leading Israeli researcher of the effects of the tinea capitis irradiations, stated in an interview that he became aware of the risks of radiation during the late 1950s. At this time the first studies of the victims of Hiroshima and Nagasaki were published. Modan indicated that at the time he was reluctant to openly discuss his hypothesis regarding the tinea capitis irradiations and malignancies for the fear of being ridiculed.47 Since favus was considered a Jewish disease, the Joint and two other Jewish health organizations in Eastern Europe started in 1921 a campaign for eradicating favus, trachoma, and tuberculosis (class A loathsome and dangerous contagious diseases according to the American Immigration Act) among Jews, in order to assist in their immigration. Between 1921 and 1938 some 27,760 Jewish children were irradiated in Europe. Due to the success of the operation, the Joint planned to expand the activity to North African Jewish communities. This campaign was to be deferred until the end of WWII but continued throughout the mass immigration to Israel.48 The number of children who were irradiated in North Africa and the Middle East has never been published. Irradiation therapy for tinea capitis was administered in Palestine beginning with the establishment of the Hadassah medical clinics for the treatment of tinea capitis in 1925. The primary treatment protocol that was employed in Israel was the Adamson-Kienbock technique.49 It included shaving of the hair and then administering five consecutive rounds of irradiation to the scalp. A temporary sterile cap was put on for eighteen to twenty-one days, and subsequently the hair was epilated from the root using hot wax. The ArchArticle.jhtml (accessed August 24, 2009). 47 Ibid. Ronen Bergman, “The Secret List,” Haaretz, November 29, 1996, http://www.haaretz.co.il/ hasite/pages/ShArtPE.jhtml (accessed August 25, 2009). 48 Klagsbald, State Commissions of Inquiry; Shifra Shvartz, Pnina Romem, and Mordechai Shani, “The Forgotten Tinea Capitis Campaign of OZE-TOZ, Poland,” Harefuah 148, no. 4 (2009), 265–270. 49 For irradiation technique and general treatment protocol, see Motram and Hill, Radiation Therapy of Ringworm of the Scalp, 189–193. See the specific protocol in Siegal Sadetzki et al., “Ret/PTC Activation in Benign and Malignant Thyroid Tumors Arising in a Population Exposed to Low-Dose External-Beam Irradiation in Childhood,” The Journal of Clinical Oncology and Metabolism 89, no. 5 (2004), 2282. — 135 —

—————————————————— chapter four ———————————————————

child was isolated until determined healthy but was required to wear a hat. About 10 percent of the children underwent two to three cycles of treatment until they were cured.50 The discovery of oral treatment of tinea capitis in the late 1950s (griseofulvin) finally put an end to this treatment protocol.51 From 1948 to 195952 children, mostly immigrants from North Africa and the Middle East, underwent irradiation treatment for tinea capitis in Israel. Figures vary, ranging from the official version of 20,000 to 100,000 and even 250,000.53 Aryeh Dayan, journalist for Haaretz, writes54 that the senior management of the Ministry of Health and the medical forces of the IDF decided to embark on a preventative55 and curative operation in which all the children under the age of fifteen who emigrated from Muslim countries would be irradiated, whether or not they suffered from the condition. On these grounds, Dayan estimates that a total of 100,000 children were treated with irradiation. Avri Rav-Hon,56 attorney for the Association for Promoting the Realization of Rights of Tinea Capitis Victims, estimates the number of those irradiated between 1946 and 1960 and in Israel and in Europe or North Africa in 150,000–200,000. According to the official version, the number of children who were treated in their countries of origin as 50 Ibid. The Haifa District Health Bureau wrote to the management of the services in Jerusalem on August 31, 1955, noting that repeated treatments should all take place at Sha’ar Aliya clinic in Haifa, since the treatment in other places is not as safe as the one given at Sha’ar Aliyah. Dr. Noach, the Haifa District doctor, also notes that a third treatment should be given only rarely. Professor Zagher from Hadassa writes to the deputy chief of the Ministry of Health, Dr. Jaffe, on November 15, 1955, that repeated treatments should be done in Sha’ar Aliyah clinic in Haifa under the supervision of a doctor. As it is evident from the files of the Ministry of Health, nurses administered the treatment after training. State Archives, Division 57, 5087C, file 9. 51 Shulamit Tolchinski-Goldstein, “An Experiment of the Treatment of Tinea Capitis without Irradiation,” Harefuah 55 (1958), 291–292. 52 A letter by Dr. Y. Taustein dated January 15, 1966, addressed to Dr. A. Peretz of the Department of Social Health in the Medical School in Jerusalem. In the letter, Dr. Taustein informs Dr. Peretz, according to his request, that irradiation treatments in children in Israel were stopped during 1959. Y. Taustein, January 15, 1966. 53 Interview with Amichai Moskovitch, who is chairperson of a nonprofit organization for the Assistance and Rehabilitation of Tinea Capitis Survivors. The interview was conducted on August 23, 2009. This figure includes those irradiated abroad. 54 Aryeh Dayan, “Reparations for Tinea Capitis? Only If the Cancer Is Lethal,” Haaretz, July 30, 2004, http://www.haaretz.co.il/hasite/pages/ShArtPE.jhtml?itemNo=457895&contrassID=2&subCont rassID=4&sbSubContrassID=0 (accessed August 29, 2009). 55 This is supported by some claimants who argue that they did not suffer from tinea capitis, but were nevertheless treated. 56 Interview with Avri Rav-Hon on August 23, 2009. — 136 —

————————————————— The Tinea Capitis Affair —————————————————

part of the process of immigration remains unknown.57 It is important to note that not all those who suffered from tinea capitis underwent irradiation treatment; some were treated with phototherapy and topical treatment after the hair was epilated from the root. While these patients were not exposed to non-ionizing radiation and thus they are not prone to develop the side effects of such treatment, they endure the mental, psychological, and social effects of the treatment and the effects of the epilation of the hair. While the eradication of tinea capitis was considered a great success at the time, the adverse effects of the treatment, both physical and psychological, continue to resonate. Many survivors mention the humiliation involved with this practice in their lawsuits. Malka Gilboa tells her story:58 We were transferred to an immigration camp in Marseilles. . . . Emissaries from the Jewish Agency told my parents that if they don’t let us be irradiated against tinea capitis, the family would be returned to Morocco and would not immigrate. My mom gave us, we were not sick; we didn’t suffer from tinea capitis. At school in Morocco they would check our hair and fingernails daily; whoever had lice or fungus or any other disease was treated immediately. But they . . . in the Jewish Agency wanted to irradiate everyone.

Testimonies of the victims suggest that as part of the protocol, the children were separated from their families for a series of irradiation treatments. Eli Shachar,59 chief of the National Center for the Compensation of Tinea Capitis Victims, notes that expert witnesses testified that sometimes the nurses would leave the children unattended under the machine for some time. In a discussion held at the Labor, Welfare and Health Knesset Committee,60 Modan noted that among those irradiated abroad, particularly in Morocco or Persia, the dose of irradiation was probably too high, resulting in extensive burns to the scalp. Damages to 57 Sadetzki and Modan, “Epidemiology As a Basis for Legislation: How Far Should Epidemiology Go?” Lancet 353 (1999): 2238–2239. 58 Bergman, “The Secret List.” 59 Ibid. 60 Proceedings of the Labor, Welfare and Health Committee, the 15th Knesset, 234th sess., 2000, http:// www.knesset.gov.il/protocols/heb/protocol_search.aspx (accessed August 28, 2009). (Hebrew) — 137 —

—————————————————— chapter four ———————————————————

the scalp, however, were prevalent in Israel as well.61 This was brought up in numerous court rulings and was by no means limited to those irradiated abroad. In 1955,62 Haaretz newspaper reported damages action in tort, sought against a doctor, which was submitted by parents from a town near Netanya. The claimants argued that the irradiations caused massive damage to their child’s scalp and face, resulting in permanent handicap. Following the irradiation the remaining hair was epilated by hot wax or a mixture of sugar and lemon. In addition to being very painful, this procedure often resulted in burns, topical infections, and wounds. Sometimes a child would lose his earlobes as a result of the burns; others suffered from scarring of the scalp and other deformities.62 In a newspaper interview, Bat-Sheva Gadassi describes the deceitful ways in which the children were taken to be irradiated. She recalls that all the children of the settlement were taken to Haifa in the summer of 1957, allegedly to a summer camp. The children sang merrily on the way and were thrilled. When they arrived in Haifa they were taken to a clinic, had their hair pulled out, and irradiated. She says,63 “We returned home, bald and battered both physically and mentally.” With time, there were more indications of the adverse effects of the treatment such as loss of hair, scarring of the burnt scalp, radiodermatitis, headaches, depression, PTSD, cognitive disabilities, and social maladjustment. In 1965, a research group headed by Baruch Modan had embarked on a longitudinal study on 10,834 treated children in order to assess the long-term effects of irradiation treatment in Israel.64 The study sample

61 Davina Porock, Suzanne Nikoletti, and Linda Kristjanson, “Management of Radiation Skin Reactions: Literature Review and Clinical Application,” Plastic Surgery Nursing 19, no. 4 (1999), 185–192. According to the authors, 95 percent of the patients who undergo irradiation therapy for cancer suffer from a skin reaction that can sometimes be even delayed. 62 Interview with Amichai Moskovitch on August 23, 2009. 63 “Will the Modan File Be Disclosed?” Haaretz, July 30, 2004, www.haaretz.co.il/hasite/pages/ arch/ArchArticle.jhtml (accessed August 25, 2009). 64 The study had two control groups: One paired samples of the same size as the experimental group by age, sex, ethnicity, and immigration date of people who were not irradiated. An additional control group consisted of siblings, preferably of the same sex, as the survivor and at an age range of ± 5 (five) years. See the National Center for the Study of the Effects of the Treatment of Tinea Capitis, at the State of Israel, Ministry of Health, “Background,” the National Center for the Treatment of Tinea Capitis Irradiations, http://www.health.gov.il/pages/default.asp?maincat=78&catId=768&PageId=4136 (accessed August 17, 2009). — 138 —

————————————————— The Tinea Capitis Affair —————————————————

is known as the Modan File.65 The file is kept strictly confidential. Its existence is known to the public since November 1996.66 The Modan File was based on a list of approximately 20,000 Jews,67 mostly of North African and Middle Eastern origin who underwent irradiation treatment for tinea capitis. Original medical records were traced for 16,473 subjects. Since these did not record official identity numbers,68 the subjects were identified by their name, date of birth, and father’s name. Therefore, all the children with common family names such as Cohen or Levi were not included in the sample. The researchers feared that since these names are common, it would be very hard to trace them. For the sake of uniformity, the researchers excluded from the sample patients who were older than fifteen years of age when treated. The researchers further excluded Ashkenazim due to their relatively small percentage among the irradiated children. These procedures yielded 12,386 cases, 88 percent of which could be traced in the Ministry of Interior’s records. The modal age was between six and eight years with equal numbers of males and females. The Modan File then totals 10,834 subjects who were irradiated in Israel. It should be stressed here that the Modan File was constructed for the purpose of scientific research, and thus, it cannot provide a just and reasonable basis for the implementation of public policy. The sample was drawn in accordance with methodological considerations of sampling theory and with the common practice of other epidemiological studies. The criteria for inclusion or exclusion from the sample were merely methodological and technical. Thus, the file is often abused by the implicit interpretation of the implications of exclusion from the sample or the file. In this context, exclusion from either sample or file puts the burden of proof on the victim. The implications of exclusion are often such that the authorities cast suspicions on the victims, which are 65 The Modan file was used as a yardstick for the 1994 law. The research at the National Center for the Study of the Effects of the Treatment of Tinea Capitis, the medical commissions, and the courts of law all use it as reference. 66 Bergman, “The Secret List.” 67 Arab children were also irradiated for the treatment of tinea capitis. There are no official statistics regarding the irradiation of Arabs, and they were excluded from the Modan file. 68 The same problem was evident in the Yemeni Babies Affair. The lack of identity numbers and a reliance of a single immigration card that was issued per family created confusion and made it very hard to trace the children and their families. To this added the confusion of regarding the names. See previous chapter. All three commissions of inquiry see this as critical. — 139 —

—————————————————— chapter four ———————————————————

often treated as impostors. As argued and ruled in several civil actions, the Modan File is not a closed list.69 The initial Modan study consisted of a follow-up of the survivors for twelve to twenty-three years after the treatment. Given that irradiation treatments were terminated in 1960, one can safely extrapolate that the study was completed around 1973.70 The researchers found that irradiation treatment for tinea capitis was associated with rates at least twice as high as those in the control groups. The increase was consistent and replicable in follow-up studies and was characterized by specificity.71 In 1974, the first findings of this study were published by the Lancet.72 Modan and his coauthors confidently summed up their findings: “[t]his is believed to be the first definite demonstration of the role of ionising radiation in the ætiology of brain tumours in man.”73 Shvartz, Romem, Romem, and Shani74 note that “were it not for the death of most of the irradiated children in the Holocaust, we would probably be facing a higher rate of brain tumors during the 1940’s. In 1975, Modan published a commentary in the Israel Medical Association Journal,75 in which he dwelled on the question of whether the population should be informed about their higher risk of malignancies or be screened regularly. Aware perhaps of the possibility that survivors would claim damages, Modan argued defensively that the treatment was considered mainstream at the time.76 Modan’s dilemmas are evident in 69 For example, Labor Court (Beer Sheva) 3166/07 Matzri Hannah v. the Ministry of Health—the State of Israel, 2008 (1), 10208; Labor Court (Haifa) 1035/05 Agabria Hamdan v. the State of Israel, Ministry of Health, 2005 (4), 6812. Civil Claim (Jerusalem) 2004/01 Reuben Sima v. the Ministry of Health, 2004 (1), 21,588. The appellate district court ruled in this case: “We think that the lower court was mistaken by giving to the Modan Report [File] too much weight. . . . the plaintiff proved . . . that she underwent irradiation treatment for tinea capitis in 1955, when she was 1 year old.” Civil Appeal (Jerusalem) 5377/04 Reuben Sima v. the State of Israel, 2005(1), 332, 333. 70 Due to the strict confidentiality surrounding the study, this information was not disclosed. This estimate is based on an article published by the Modan group under the auspices of the National Center for the Compensation of Tinea Capitis Victims. B. Modan et al., “Radiation-Induced Head and Neck Tumors,” Lancet 303, no. 7852 (1974), 277–279. 71 According to Modan et al., the increased morbidity was limited to head and throat cancers, particularly meningioma, and thyroid cancer. B. Modan et al., “Radiation-Induced Head and Neck Tumors.” 72 B. Modan et al., “Radiation-Induced Head and Neck Tumors,” Lancet 303, no. 7852 (1974), 277–279. 73 Ibid. 74 Shvartz, Romem, and Shani, The Forgotten Tinea Capitis Campaign of OZE-TOZ, Poland, 269. (Hebrew, my translation RA) 75 Baruch Modan, “An Epidemic of Thyroid Tumors Ahead?” Harefuah 88, no. 11 (1975), 541. 76 Ibid. — 140 —

————————————————— The Tinea Capitis Affair —————————————————

this article in a highly cautious medicalized tone. However, he refers to the “high-risk group” without making an explicit reference to their ethnicity. From another article he published,77 we learn that the majority of the subjects are North African (80 percent); immigrants from Middle Eastern countries constitute a minority in the sample (20 percent). Modan confides with his colleagues, the readers of the Israel Medical Association Journal, “Indeed, the problem is serious . . . especially since it is limited to a specific population.”78 The year 1974 was a tumultuous one in Israeli politics—marked by political fallout from the Yom Kippur War, the eruption of the repressed ethnic tensions, the activism of the Black Panthers, and the erosion of the almighty Labor party. It became clear that times were a-changing. In 1977, Modan became Deputy General Manager at the Ministry of Health for seven years after which he was appointed General Manager. In his other capacity, he was a highly prolific academic who led some of the largest epidemiological studies in cancer research in Israel. The tinea capitis affair was kept dormant up until the 1980s. The end of the dominant party era in 1977 and the emerging critical discourse of ethnicity and identity facilitated the preoccupation with injustices.79 Meanwhile, evidence of the adverse and deadly effects of the tinea capitis irradiation was piling up. By 1982, the research group found increased rates of mental illnesses and cognitive abnormalities among the survivors of irradiation treatment.80 Ron and Modan determined that these patients were subjected to a mean brain dose of 130 rads. Almost twenty years later, those irradiated as children displayed a consistent tendency to suffer from signs of central nervous system impairment more than either control group. The patients have achieved lower examination scores on scholastic aptitude, IQ, and psychological tests; they completed fewer school grades than 77 Sadetzki et al., Ret/PTC Activation in Benign and Malignant Thyroid Tumors Arising in a Population Exposed to Low-Dose External-Beam Irradiation in Childhood, 2282. 78 Modan, “An Epidemic of Thyroid Tumors Ahead?” 541. 79 Yehouda A. Shenhav, The Arab Jews: A Postcolonial Reading of Nationalism, Religion, and Ethnicity (Stanford, California: Stanford University Press, 2006). 80 E. Ron et al., “Mental Function Following Scalp Irradiation during Childhood,” American Journal of Epidemiology 116 (1982), 149–160. See also Mike Dubik and Beverly P. Wood, “Low-Dose Ionizing Radiation in Infancy May Affect Cognitive Functioning,” AAP Grand Rounds 11, no. 4 (2004), 37– 38. E. Ron and B. Modan, “Benign and Malignant Thyroid Neoplasms after Childhood Irradiation for Tinea Capitis,” Journal of National Cancer Institute 65, no. 1 (1980), 7–11. See also Modan et al., “Radiation-Induced Head and Neck Tumors,” 277–279. — 141 —

—————————————————— chapter four ———————————————————

their counterparts in the other samples and had an increased risk for mental hospital admissions for certain categories of disease. A slightly higher frequency of mental retardation was also reported. Due to these long-lasting effects, the researchers concluded that irradiation to the immature brain may damage the central nervous system. In the 1980s, irradiation survivors became aware of the adverse effects of irradiation through doctors who treated them for malignancies. The court’s ruling in the matter of Sima Reuben81 offers a fairly detailed account of the conduct of the Ministry of Health upon the publication of the affair. When the news about higher malignancy rates were spread in the media and following the formation of an NGO of the irradiation survivors, the political system became aware of the undercurrents. In 1989, the threat of numerous civil actions against the state finally drove the latter to look into the matter. The lobbying of the Association for Tinea Capitis Victims at the Knesset was starting to bear fruit. Members of the NGO contacted members of the Knesset of Oriental origin in order to pursue the matter. Following a parliamentary question, on September 10, 1989, Health Minister Yaakov Tzur (Labor) appointed a special commission headed by Dr. Michael Lavie to examine the state of affairs of those who had suffered from tinea capitis.82 On November 20, 1990, following a parliamentary query by Knesset member Eli Ben-Menachem, who as a child managed to evade treatment, Health Minister Ehud Olmert replied that the Lavie commission had already submitted its final recommendations. The commission determined that since irradiation therapy was the recognized treatment protocol at the time, there were no grounds for claiming negligence.83 In 1990, the Ministry of Health ratified this position in a local newspaper in Yezreel Valley and the Galilee.84 In 1992, the Ministry of Health issued a memo to family practitioners recommending that they follow up patients who underwent irradiation treatment for tinea capitis. The letter also stated that a commission 81 Civil Claim (Jerusalem) 2004/01 Reuben Sima v. the Ministry of Health, 2004(1), 21, 588. 82 At this stage, the problem was defined in wider terms as “those who suffered from tinea capitis” and not “those who were irradiated.” 83 Proceedings of the 12th Knesset Convention 242, December 18, 1990, 242nd sess., 1990, 2807. 84 Reli Saar, “The Nurses at the Quarantine Station Had a Sense of Mission,” Haaretz, July 28, 1994, www.haaretz.co.il/hasite/pages/arch/ArchArticle.jhtml (accessed August 25, 2009). — 142 —

————————————————— The Tinea Capitis Affair —————————————————

of experts decided against the special screening of this population.85 There was no indication, however, of whether the physicians received this memo and whether they acted accordingly. Most likely, as evident from the numerous court cases, irradiation victims were not notified and followed up with. Professor Abramski, then Surgeon General of the Ministry of Health, argued that he thought that patients who underwent irradiation treatment should be notified of the risk, although clinical tests such as CT were not conducted on asymptomatic patients.86 All the while, research by Modan and his colleagues on the adverse effects of the irradiations continued uninterruptedly, and the evidence were piling up. Meanwhile, numerous civil actions were filed against the state in the early 1990s.87 The claimants sought legal action for negligence against the Jewish Agency, the Ministry of Health, or the major HMO (Kupat Holim Clalit). The Legal Advisor to the Cabinet issued a directive through Pliah Albek, former Chief of Civil Law Department at the Attorney General’s office, to argue for limitation in actions concerning irradiation treatment.88 In the matter of Labao Bechor and others v. the State of Israel, Ministry of Health,89 the court discusses the issue of limitation, a prevalent legal claim of respondents in civil law litigation of historical injustices. The four claimants argued for negligence on the part of the respondent in administering the irradiations and later for not notifying the claimants about possible future damages as soon as they learned about the association between irradiation and malignancies. As in many cases, the claimants stated that they had learned only later about the relationships between the malignancies they developed and the irradiation treatments they had undergone. In this case, the respondents argued that the claim should be sub85 The court’s reference to Professor Abramski’s testimony in Civil Claim (Jerusalem) 2004/01 Reuben Sima v. the Ministry of Health, 2004(1), 21, 588. 86 See Civil Claim (Jerusalem) 2004/01 Reuben Sima v. the Ministry of Health. 87 The first ones to be actually litigated were four claims that did not culminate in a settlement and were all unified into Civil Claim (Jerusalem) 350/92 Dahan Shmuel and others v. Kupat Holim Clalit and the State of Israel, 1996(3), 788. 88 Motion (Haifa) 3556/95 The Jewish Agency, the State of Israel and Kupat Holim Clalit v. Morris Tourgeman, 1996(2), 781. 89 Civil Claim (Tel Aviv) 1443/90, Labao Bechor and Others v. the State of Israel, Ministry of Health (ruled on September 14, 1994; unpublished, http://www.pador.co.il, accessed on August 30, 2009). See also Civil Appeal (Tel Aviv) 1006/92 Shemesh Yehuda v. the State of Israel and Municipality of Tel Aviv, 1993(2), 1089. — 143 —

—————————————————— chapter four ———————————————————

ject to early dismissal due to limitation on the Civil Law Ordinance of 1968. According to article 89 in the ordinance, the limitation for damage caused by action or omission is seven years from the date the damage was discovered, unless the damage was discovered later. In any case, limitation begins after ten years. Article 8 in the Law of Limitation dated 1958 states that if the claimant was unaware of a substantive fact constituting the cause of action, for reasons beyond her control and which she could not prevent, limitation would begin on the day these facts became known to the claimant. The determination of this date thus becomes crucial for the claimants. The court ruled for each of the claimants individually in accordance to the specific date that each claimant became aware of the cause of action. In the appeal in the matter of the Jewish Agency, the State of Israel and Kupat Holim of the Workers’ Union v. Morris Tourgeman,90 the claimants requested a dismissal due to the lack of cause. The counsel of the Jewish Agency argued that Tourgeman filed an action fourteen years after he underwent brain surgery for the removal of a tumor in 1981. By 1981, the causal link between irradiation and the damage was already known. The State argued that in reasonable effort, Tourgeman should have been aware of this link already in the 1960s, when he first complained of headaches. Alternatively, they argued that upon the diagnosis of the tumor, he should have known that it was caused by the irradiation. The court adopted the claimants’ position and ruled that upon the removal of the tumor, a reasonable person should have attempted to discover the reasons for his condition. The court’s ruling suggests that the ailing Mr. Tourgeman should have been familiar with the most recent research published in medical journals. The court ruled the following: Particularly when the medical community in the world and in Israel had already been exposed to scientific publications of studies that established the relationship between the treatment (which was the common practice at that time), and the malady he suffered from.91

90 Motion (Haifa) 3556/95 The Jewish Agency, the State of Israel and Kupat Holim Clalit v. Morris Tourgeman, 1996(2), 781. 91 Motion (Haifa) 3556/95 The Jewish Agency, the State of Israel and Kupat Holim Clalit v. Morris Tourgeman, 96(2), 781, 792. — 144 —

————————————————— The Tinea Capitis Affair —————————————————

The case of Labao Bechor and others v. the State of Israel, the Ministry of Health92 was the first claim that overcame the procedural pretrial barriers and was actually litigated. Other claims that argued the same case resulted in a settlement. The four claimants in the matter of Labao argued that they were all diagnosed with brain tumors as a result of the irradiation treatment administered subsequent to their immigration to Israel. First, the claimants argued for negligence on the part of the respondents in administering the irradiation treatments; second, they argued that the respondents had failed to conduct medical examinations to enable an early detection of the tumor, although they were aware of the risks and adverse effects of the treatment. Since the claimants did not submit to the court any medical opinion from which the court could infer negligence, the judge decided to appoint a team of three medical experts. The experts argued that irradiation was an accepted treatment protocol for tinea capitis and that the association between the irradiations and malignancies was unknown at the time. The experts further argued that conducting periodical tests in order to detect and diagnose the disease prior to the advent of clinical symptoms was both undesirable and impractical, because of the latency of thirty-five years between the irradiation and the onset of malignancies. As I mentioned earlier, in 1975, Modan wrote that he was pondering whether to notify the irradiated children that they were prone to malignancies and other adverse effects. The position of the state and the medical establishment on the matter of screening and follow-up is offered in great detail in this case.93 In line with the ruling on the matter of Dahan,94 the court differentiated between an early notice and early screening of people at increased risk. In the matter of Sima Reuben, the plaintiff filed civil action against the State,95 arguing the treatment amounted to an assault due to the lack of parental consent and informed consent. While the court reaffirmed the State’s duty to notify, it ruled that the duty to notify does not entail early screening programs.

92 Civil Claim (Tel Aviv) 1443/90, Labao Bechor v. the State of Israel, Ministry of Health. 93 Ibid. 94 Civil Claim (Jerusalem) 350/92 Dahan Shmuel and others v. Kupat Holim Clalit and the State of Israel, 1996(3), 788. 95 Civil Claim (Jerusalem) 2004/01 Reuben Sima v. the Ministry of Health 2004(1), 21,588; Civil Appeal (Jerusalem) 6347/05 Reuben Sima v. the Ministry of Health, 2005(3), 1665. See later appeals in the same matter Civil Appeal (Jerusalem) 3168/09; Civil Appeal (Jerusalem) 3187/09. — 145 —

—————————————————— chapter four ———————————————————

Two claimants96 filed a claim in torts based on the ruling in the matter of Sima Reuben97 regarding the duty of the State to notify. These claimants requested the court to reaffirm the claim as a class action. The court ruled against the claimants, arguing that all of the State’s action with regard to the irradiation was not conducted in the commercialprivate realm, but rather constituted part of the public-governmental policy of the state in the health arena. In the absence of legal regulation of sovereign immunity in Israel, the distinction between private action and public action is implemented in accordance with the high court ruling. The test that distinguishes between the two is the substance of an action rather than its objectives.98 In several recent rulings,99 the courts finally sided with the plaintiff’s arguments that the state breached its duty of care by failing to notify the claimants that they were at risk. This opens the door for further civil claims. The Law and Its Aftermath As the damages of the irradiation treatment began to unfold during the late 1980s and early 1990s, the grievances of the victims were finally heard. The emergent critical discourse about Israel’s past, the enactment of liberal laws such as Basic Law: Human Dignity and Liberty, and the discourse of human rights introduced a political atmosphere of change and hope for a better future. In 1992, the Knesset enacted a law for reparations for patients who contracted HIV through blood transfusions. This precedent was the precursor of the tinea capitis reparations. On November 9, 1992, Knesset member Amir Peretz submitted a private member’s bill for reparations for tinea capitis victims. He tried to get the government to support the bill, but the ministerial committee for legislation objected. Peretz 96 Various Requests Civil (Jerusalem) 366/06 Molhi Yaakov and Flora Dahan v. the State of Israel, Ministry of Health, 2006(11), 787; and Civil Claim (Jerusalem) 8021/06 Molhi Yaakov and Flora Dahan v. the State of Israel, Ministry of Health, 2006(11), 787. 97 Civil Appeal (Jerusalem) 6347/05 Reuben Sima v. the Ministry of Health, 2005(3), 1665. 98 Donald L. Doernberg, Sovereign Immunity and/or the Rule of Law: The New Federalism (Durham, North Carolina: Carolina Academic Press, 2004). 99 Civil Claim (Jerusalem) 8401/06 Amar Shoshana v. the State of Israel, Ministry of Health, 2008(76), 1090; Civil Claim (Jerusalem) 8402/06 Paz Hannah v. the State of Israel, Ministry of Health, 2009(26), 179; Civil Appeal (Jerusalem) 3168/09 The State of Israel v. Reuben Sima, 2009 (unpublished, ruled on July 26, 2009) http://www.takdin.co.il/searchg/ (accessed on June 6, 2010). — 146 —

————————————————— The Tinea Capitis Affair —————————————————

appealed and managed to overturn the committee’s decision. Finance Minister Abraham Shochat opposed the bill and brought the matter before the cabinet. The cabinet as a whole sided with Shochat but requested the minister of health and the minister of finance to negotiate a proposed settlement within two months. While the cabinet as a whole was in favor of some form of settlement, it favored one that would not involve legislation. However, the leader of the coalition urged the sides to reach a settlement. He promised that if a settlement was not reached, the government would vote in support of the proposed legislation. In February 1993, Amir Peretz demanded that the government should allocate funds for the establishment of a national center for the victims of tinea capitis. The bill was submitted for deliberations on February 1994. The essence of the proposed bill was the payment of reparations to persons treated for tinea capitis. The amount of reparations was to be determined by the Labor and Welfare Committee of the Knesset. A commission of experts was to determine whether the medical condition of a claimant resulted from the treatment for tinea capitis. It is worth noting that the proposed bill does not refer to any specific treatment, thereby employing a much wider definition of the treatment. Eventually, the law granted reparation only to those who were treated with ionized radiation and not with other treatment protocols that involved ultraviolet light therapy and also the epilation of the hair from the roots. In the preliminary reading of the bill, Peretz quoted then-Attorney General Dorit Beinish100 who wrote to the minister of health and the minister of finance that legislation was the only way to deal with the pending civil claims against the state. Beinish noted in this letter that although the claims were subject to dismissal on the grounds of limitation, the state should not fight the victims of tinea capitis in court. The cabinet, represented by Justice Minister David Libai, was opposed to the bill. The argument was substantive; Libai argued that the reparations were to become a source of discrimination between victims who were irradiated by the state and victims who were irradiated by other agents. In this, Libai conveyed the government’s reluctance to assume responsibility for treatments administered by its affiliated agents, 100 Proceedings of the 13th Knesset, Convention 294, January 3, 1995; Proceedings of the 13th Knesset, Convention 189, February 16, 199, 189th sess., 1994, http://www.knesset.gov.il/TqL//mark01/h0011080.html#TQL (accessed August 30, 2009). — 147 —

—————————————————— chapter four ———————————————————

such as the Jewish Agency, Hadassah, the Joint, etc. His arguments, however, clearly implied the government’s willingness to pay reparations on the one hand and its attempts to limit their scope on the other. Once the government did not preclude the payment, the discussion concerned procedural issues. After so many years, Libai claimed, it would be impossible to determine who administered the treatment. Another obstacle he pointed out was the difficulty to establish the causal relationship between the treatment and malignancies, although research provided abundant evidence for such relationships. Libai reiterated cabinet’s defensive argument that the treatment was given in good faith and was the common practice at the time. Aware of effect this unpopular position might have, given the unanimous support of the bill, he added that the minister of finance’s objection was driven only by budgetary constraints. Libai requested that the speaker defer the vote in order to try to reach an agreement between the ministers. Peretz, however, insisted on casting a vote. The assembly, thus, voted for transferring the bill to the Knesset Labor and Welfare Committee. On April 25, 1994, the bill was introduced in the assembly and voted for in the first reading. During the second and third readings at the Knesset, Peretz declared that the law restores justice. He said that Israel would be able to appear as one of the humane states that does not abandon its citizens even thirty to forty years after the event. At the end of his speech, he said the following:101 I think that today we are doing justice with the citizens and repairing. I would not call it historical injustice—historical error of certain responsible body who decided to treat a large population insensitively causing it irrevocable damage. The only thing that the government can do today for the victims and their families is to say, we recognize it; we admit that the State of Israel made a mistake, we want to help you, and we want to reach out to you and your families in order for you to be able to live in dignity.

The euphoria surrounding this legislation soon gave way to disillu101 Proceedings of the 13th Knesset, Convention 246, July 25, 1994; http://www.knesset.gov.il/Tql// mark01/h0018024.html#TQL (accessed August 29, 2009). — 148 —

————————————————— The Tinea Capitis Affair —————————————————

sionment. Some of the problems were caused by the limited incidence of the law,102 but much of the disappointment and the grievances were associated with its application. There were several problems arising from the law. First, the recognition as a tinea capitis victim was to be granted only to those who became physically ill. Those who received the treatments but have not yet developed any of the conditions recognized as causally related to the irradiations were not granted any recognition. Furthermore, recognition was granted only to those who developed any of the recognized diseases if the claimant was listed in the Modan File, or pending the decision of a committee of experts. Arabs, those irradiated abroad, those named Cohen or Levi, those who were older than fifteen years of age when treated, Ashkenazim, or those for whom no record of the treatment was available—all had to undergo such examination. The committee consists of a judge or a retired judge as chair and two expert physicians. Its task is to determine recognition as a tinea capitis victim. The decision is based on the examination of the claimant’s scalp for radiodermatitis or for typical scarring and baldness patterns. The committee members then interview the claimants about the treatment. A victim status is awarded based on the examination of the scalp or other evidence that substantiate the claim. This stage is problematic first and foremost because claimants who are unlisted in the file have difficulty proving that they underwent treatment. According to Avri Rav-Hon and Amichai Moskovitch, for every listed claimant, there are two to three unlisted claimants. Most have no documentation to prove they were irradiated. Some repressed these memories; some were too young to remember, or their parents are very old or are dead. The committee, however, relies heavily on the Modan File, which was not inclusive and was composed as a study sample and was not designed to serve as a policy-making tool. The limited incidence of the law comes to bear on the truncated list of medical conditions that grant reparations. The medical conditions involved are limited to the head and neck area, but the law does not recognize trauma and psychiatric or cognitive disorders. Over the years, this was argued by researchers, doctors, and judges in court rulings, professional commissions, and academic articles. When the law was enacted, the estimated number of victims was 102 The Israeli Knesset, Law of Tinea Capitis Reparations 5754-1994. — 149 —

—————————————————— chapter four ———————————————————

around six hundred, with an expected addition of another two hundred by the year 2000.103 In 1998, Modan reported to the Knesset that the 3,800 claims were pressed, out of which only a minority were dismissed.104 The number of victims was in fact much higher than the initial estimates. The close link between the law and the research by Modan and his group creates a bias. The list of diseases recognized by the law is highly linked to research funding and to the research interests of those studying the effects of the irradiations. Keeping the file confidential was indeed an essential part of research ethics; however, one can argue that the strict confidentiality has also worked to limit the number of researchers who are granted access to the data. The major injustice surrounding the implementation of the law is the constant attempt of Israeli cabinets to defer implementation and to modify, limit, and decrease the compensation paid to the victims. This was the case particularly due to the drastic budget cuts since the year 2000. Other injustices inflicted on the victims at the implementation stage are the considerable delays of the committees and of the National Center. In the matter of Tamara Sidi and others,105 the court ruled that the State should take due care to implement the court’s rulings. In the case of Mathilda Gindi, the court ruled as follows: “We doubt that making a decision regarding the claimant after more than a year and two months after a request to reconsider was submitted can be justified on any grounds.”106 One of the most blatant inactions of the State concerns the much-belated establishment in 2001 of the National Center in 2001 as enacted by the law in 1994.107 Numerous court rulings concern the conduct of the committees, 103 Proceedings of the 13th Knesset, Convention 189, February 16, 1994. David Libai presents the cabinet’s dissenting position to the bill. 104 Proceedings of the 14th Knesset, Convention 241 on October 26, 1998, 241st sess., 1998, http://www. knesset.gov.il/Tql//mark01/h0026774.html#TQL (accessed August 30, 2009). See also a letter from the minister of finance to the Knesset speaker, dated August 13, 1998, at Ibid. 105 Various Civil Requests (Nazareth) 2056/09 Sidi Tamara and others v. the State of Israel, the Ministry of Health, 2009(51), 572. Also, Labor Court (Tel Aviv-Yafo) 3373/07 Gindi Mathilda v. the State of Israel, Ministry of Health, 2007(25), 700. There are many similar cases. See also Proceedings of the Labor, Welfare and Health Committee, the 15th Knesset, 7–9. 106 Labor Court (Tel Aviv-Yafo) 3373/07 Gindi Mathilda v. the State of Israel, Ministry of Health, 2007(25), 700. 107 Ibid. — 150 —

————————————————— The Tinea Capitis Affair —————————————————

which many of the victims found hostile and degrading. Many victims complained that they were treated with suspicion as if they were frauds. This treatment by various committees is revealed in several court rulings. In Labor Appeals 1159/02 and 1231/02,108 the three claimants argue that the commission of experts ought to provide the claimant with the proceedings of deliberations concerning his claim. The State argued that the reason for not supplying the claimants with the proceedings was to prevent other claimants from using the testimonies and evidence in order to construct their case. Eli Shachar, the director general of the center, argued the following:109 These cases tell us how much the fortune of a claim is dependent on what the claimant’s mere words, or on his witnesses’ words, and on the difficulty to corroborate these mere words with documents or other evidence. In this regard, the State is helpless and will be in a difficult situation if the commission of experts would be denied its only tool for corroborating evidence—the exclusivity of information.

To this, the court responded resolutely that such arguments are voiced in dark regimes, not in democracies. The Tinea Capitis Affair As a Historical Injustice The tinea capitis affair is a rather sophisticated case of historical injustice. The crux of the case is in determining the injustice. Here, the injustice is not the irradiations, which were the known and accepted treatment protocol at the time. This treatment was highly effective, and the disease was almost eradicated. There are two types of injustices in 108 Labor Appeal 1231/02 (Jerusalem) Azoulay Fanny and Shmuel Azoulay v. the Ministry of Health, 2002(47), 1342; Labor Appeal (Jerusalem) 1159/02 Yemin Sammy v. the National Center for Compensation of Tinea Capitis Victims, 2005(74), 239. 109 Labor Appeal (Jerusalem) 1231/02 Azoulay Fanny and Shmuel Azoulay v. the Ministry of Health, 2002(47), 1342; Labor Appeal (Jerusalem) 1159/02 Yemin Sammy v. the National Center for Compensation of Tinea Capitis Victims, 2005(74), 239. In another case, a claimant appealed in order to receive protocols of meetings concerning her and other claimants who were represented by the same counsel and were irradiated in the same place. This was needed since her claim was dismissed as the state argued that no irradiation treatments were administered in the camp, while the other claimants—some of which were members of her extended family—were recognized by the commission. See Labor Appeal 330/08 The State of Israel, The National Center for the Compensation of Tinea Capitis Victims v. Orah Haim Gavra, 2009(38), 1469. — 151 —

—————————————————— chapter four ———————————————————

this case: first, the historical injustices that surrounded the treatment; second, the injustices that were created by the attempt to redress. Although the treatment was used worldwide and was successful, it involved a large-scale violation of fundamental human rights, such as liberty, the right to dignity and the right to not be trespassed upon, body rights, and informed consent. In many cases, the treatment was done deceitfully, forcefully, without analgesia, and often with no informed consent of the legal guardians of the children or under duress. The treatment protocol did not include any provisions for the mental and psychological effects of the treatment. Whereas the irradiation treatment itself was not painful, the survivors note and remember in particular other components of the protocol, such as the hot wax epilation, the bondage of the patient into the chair, and the shame and stigma involved in the loss of hair, the isolation, and other physical characteristics attesting that their bearer suffers from a loathsome disease. As the children had been removed from their families and were kept in isolation for the period of the treatment, they had suffered losses on a number of levels, including loss of love, nurturing, guidance, and childhood; loss of privacy, dignity, self-respect, and individuality. The aforementioned wrongs had been committed or authorized by the Israeli government and by other collective bodies affiliated with it. The injustices are historical in the sense that they took place in the past up until 1960. The injustices targeted approximately one hundred thousand individuals, possibly more, mostly of North African and Middle Eastern origin; children of other ethnic groups were treated in much lower rates. There was a directive to irradiate all the children who emigrated from Arab or Muslim countries. An unknown number of Arab children who contracted the disease were also treated. Due to logistic problems of communication and transportation (at the time, Arab citizens of Israel were held under martial law, and their movement was restricted), most of the Bedouin and Arab children received ambulatory topical treatment.110 Ironically, in 110 National Archives, Division 57, 5087C, file 9. In a letter dated January 26, 1956, Dr. Ben Assa, minorities surgeon, asked the head of the epidemiology department in the Ministry of Health whether there are drugs that could be used for the treatment of tinea capitis since it was impossible to provide for transportation and board for bedouins. In another letter from October 11, 1955, the Ministry of Health considered renting a clinic at the vicinity of the village of Tirah, to be used as an ambulatory irradiation center mostly for Arab patients. — 152 —

————————————————— The Tinea Capitis Affair —————————————————

this case, the exclusion of Arabs worked in their favor. When scientific research pointed out the adverse effects of the treatment, the State and the body that conducted the research had failed to inform the subjects of their increased risk for cancers and benign tumors, thereby breaching its duty of care.111 The state did not alert the irradiation survivors of the life-threatening situation that they were exposed to, nor did it take the necessary steps to follow up these people. The secrecy surrounding the Modan File contributed to the unjust conduct of the state. As I already mentioned, the file was constructed for scientific purposes. The sample was drawn meticulously as the researchers were pursuing their research. Modan said that the research was financed by foreign research grants. At the Labor and Welfare Committee, Modan said he kept the medical files at his premises since no official organ was interested in these files; he added that he had even considered destroying them.112 Since Modan received no state funding for his research,113 he considered the file as his own private intellectual property. The ministry of health claimed ownership of the file during the late 1980s or early 1990s when the issue finally reached the political agenda. Following the publication in Haaretz by Ronen Bergman,114 Boaz Lev, who was deputy chief of the Ministry of Health, said that contrary to the ministry’s initial position, the ministry would notify all those who were part of the Modan File, explain the risks, and offer reparations. This was not done. The oft-quoted reason for this veil of darkness is the paternalistic fear of creating hysteria and the conviction that the ministry knows what is best for the subjects; others argued that it was impractical or economically inefficient.115 It is interesting to read Modan’s own insight on the issues surrounding the file and particularly the reasons for keeping it so confidential. 111 See the court’s ruling on the duty to notify in Civil Claim (Jerusalem) 2004/01 (Jerusalem) Reuben Sima v. the Ministry of Health; Civil Appeal (Jerusalem) 6347/05; Civil Appeal (Jerusalem) 3168/09 The State of Israel v. Reuben Sima, 2009 (unpublished, ruled on July 26,2009) http://www.takdin. co.il/searchg/ (accessed on June 6, 2010); Civil Claim (Jerusalem) 8401/06 Amar Shoshana v. the State of Israel, Ministry of Health 2008(76), 1090; Civil Claim (Jerusalem) 8402/06 Paz Hanna v. the State of Israel, Ministry of Health, 2009(26), 179. 112 Proceedings of the 13th Knesset, Convention 189, February 16, 1994. The Israeli Knesset, Law of Tinea Capitis Reparations 5754-1994. 113 Proceedings of the Labor, Welfare and Health Committee, the 15th Knesset, 7–9. 114 The Israeli Knesset, Law of Tinea Capitis Reparations 5754-1994. 115 Will the Modan File Be Disclosed? Civil Claim (Tel Aviv) 1443/90, Labao Bechor v. the State of Israel, Ministry of Health. — 153 —

—————————————————— chapter four ———————————————————

Following a question by David Deri of the Association for Tinea Capitis Victims, Modan said that the file was held in a safe deposit box at the National Center at Tel Hashomer hospital. Modan told the committee that over the years, he had learned that many victims did not want their names disclosed:116 There are women who say that the moment their husband knew that they received the irradiation treatment, the husband filed for divorce. There were women who said that at their wedding night the husband found out they were wearing a wig and the next day he asked for divorce. So within the families not everyone shared this information with her or his spouse. It seems to us that if we notify these people by mail, we will create panic. Such notification is also an infringement of privacy.

Modan added that if a person called him and asked whether he or she was listed in the file, he provided the information only after verifying the identity of the caller. While this practice seems appropriate, it cannot be arbitrary or replace a standard and orderly procedure. I would also assume that not every victim could gain access to Modan. This patronizing position was also driven by economic interests. The government, who opposed the legislation mainly because of economic considerations, wanted to minimize the sums paid in reparations. David Deri of the Organization for Tinea Capitis Victims said,117 “The rationale is to put these people through committees, to let them run around, meanwhile, we learn that many people perish.” An attempt to challenge the confidentiality of the Modan File by petitioning to the high court was made by Bat-Sheva Gadassi in 2004.118 Gadassi petitioned the court in order to impose the Ministry of Health to warn those who were known to be at risk. In November 2004, she revoked her petition.119 Dan Kochavi himself wrote to the health minister 116 Proceedings of the Labor, Welfare and Health Committee, the 15th Knesset. (Hebrew, my translation, RA) 117 Ibid. (Hebrew, my translation, RA) 118 High Court 5638/04 Gadassi Bat-Sheva v. the Legal Advisor to the Government. The petition was revoked and is therefore unpublished. 119 According to Dan Kochavi, who counseled Gadassi, the petition was revoked once it became clear that, according to article 11 of the 1994 Tinea Capitis Reparations Law, pursuing the petition — 154 —

————————————————— The Tinea Capitis Affair —————————————————

in 2004 with the same request; the request was denied. According to the law, in order to be eligible for reparations, the claimant must declare that no other action for damages was taken with regard to the claim. This, of course, was intended to limit litigation almost entirely to appeals of the quasi-judicial procedures under the law. Naturally, the claimants feared that if their case was dismissed or if the court would rule for the respondent, they would not be eligible for reparations under the law. The law, however, does not prevent the victims from taking action after claiming reparations. In such cases, however, the respondents would argue for mala fides on the claimants’ behalf. In July 2004, the ministry’s official position was that since the Modan File was only used for research, there was no certainty that all those who were listed in the file were in fact irradiated. If this is indeed the case, then the validity of the studies conducted by Modan and his associates, which are responsible for quite a few academic careers, suffer from severe validity problems.120 According to Rav-Hon,121 only one out of three who were irradiated is included in the Modan File. Both Moskovitch122 and Rav-Hon refer to a batch of five thousand irradiation patients’ files that was found at the Zamenhoff Kupat Holim clinic in Tel Aviv after Modan’s death in 2001.123 The files were discovered accidentally by a contractor who demolished a wall in the clinic. These files are known as the Appendix to the Modan File. Those five thousand cases were not added to the original file because their late inclusion might introduce confounding factors and would tamper with the validity of longitudinal studies. They are most likely used by the expert commissions for determining eligibility for damages or for other scientific purposes. Modan group researchers would result in losing her eligibility to reparations under the law. Personal communication with Dan Kochavi on August 25, 2009 [phone conversation]. The Israeli Knesset, Law of Tinea Capitis Reparations 5754-1994. 120 Reading the descriptions of the way the sample was drawn suggests that the researchers’ methodology was highly conservative and solid; they relied on the original medical files and on those cases that could be traced. See supra note 64. 121 Interview with attorney Avri Rav-Hon on August 23, 2009. Rav-Hon represents many victims of tinea capitis in court and in reparation claims. 122 Interview with Amichai Moskovitch. Moskovitch is the chairman of a nonprofit organization for the Assistance and Rehabilitation of Tinea Capitis Survivors. The interview was conducted on August 23, 2009. 123 The exact date where these files were found is unknown. In July 2005, the building was sold to an entrepreneur. — 155 —

—————————————————— chapter four ———————————————————

have not acknowledged the use of these data or even their existence. Even if we assume that the irradiations were administered in good faith and that the hazardous effect of the irradiations became known to the medical profession through numerous scientific publications only as of 1975, it is hard to justify the conduct of the public health administration. The concealment, the lack of transparency, the patronism and above all the breach of the duty of care were all part of an ongoing injustice. The legal and quasi-legal procedures that surrounded the claim added to the victims’ misery. It was only on January 5, 2009, that the director general issued a memorandum124 to family doctors alerting them to the possibility that some of their Mizrachi patients aged fifty years and older may have been irradiated. The doctors were instructed to follow up these patients and were informed they could obtain the information from the Center. With the dwindling number of the victims, perhaps the interest of selfpreservation prevails. Responsibility? Apology? Forgiveness? The historical redress of the tinea capitis affair is constructed almost strictly in economic and legal mundane terms.125 The injustice is framed as a discrete and isolated incident in which a common treatment protocol was administered only to be discovered years later that it was associated with an increased risk of malignancies, benign tumors, and mental and physical effects. As in the Yemeni babies case, the ethnic basis of the injustice was concealed and denied. While Ashkenazim were treated only in the event of a symptomatic infection, Mizrachim were often treated even if there was no medical indication that called for such treatment. For them, the treatment was often a precondition for immigration or for fulfilling their entitlements in food and housing. Hence, the majority of those who received the treatment were Mizrachim. By limiting its frame, this case was detached from the wider context of injustices perpetrated on Mizrachim in Israel, and the guilt of ethnic discriminations is supposedly neutralized. 124 Avi Israeli, Memorandum, the Director General of the Ministry of Health, January 5, 2009, http:// www.health.gov.il/download/forms/a3400_mk02_09.pdf (accessed August 30, 2009). 125 Torpey, Making Whole What Has Been Smashed: On Reparation Politics. — 156 —

————————————————— The Tinea Capitis Affair —————————————————

The redress campaign was not accompanied by any attempt or demand for redistribution.126 Rather, it was privatized and reduced to individual civil claims that sought compensation for some physical damage caused by a medical procedure. What started out as individual civil actions eventually led to the enactment of a reparations law. The legislation, however, did not incorporate any symbolic measures or recognition of the entire population that was treated for tinea capitis. It was granted only to those who developed the ailments that were granted recognition. Such symbolic gestures could alleviate the traumatic consequences of the irradiations and provide an opportunity for venting and healing. Therefore, the symbolic dimension of the injustice remains principally unfulfilled by the limited recognition and the law-centered paradigm chosen for the redress. The display of empathy with the victims at the Knesset assembly has remained only on record. Only traces of it have been reproduced in the law. This legislation is deficient, for it deals only with the limited medical effects of the treatment. The privatized reparations and the absence of any symbolic dimension rob the injustice of its ethnic and collective aspects. The bill remains highly medicalized, devoid of any symbolic content that would assist in the process of healing and would increase social solidarity. No forward-looking motivations were behind this redress. By enacting the law, the State assumed responsibility for the consequences of the irradiations administered as of 1946 on behalf of organs such as the Joint, the Jewish Agency, Hadassah, and the sick funds, which were affiliated with the Jewish settlement in Palestine. While this was indeed just, it allowed the State to argue for a case of ex gratia reparations. Here, the ingenuity of the professional mechanisms of control is clearly evident. The construction of this case in medical-professional terms apparently distances the political echelon from decision making and hence from any responsibility or acknowledgment of guilt. Thus, the State can appear as the benefactor rather than the responsible party. The common practice defense by which the State vindicates itself and the medical profession is in essence temporal defense.127 In order to endorse this defense, several questions need to be asked. For example, was this treatment inevitable according to the medical knowledge of 126 Fraser, Justice Interruptus: Critical Reflections on the “Postsocialist” Condition. 127 Muller, Fixing a Hole: How the Criminal Law Can Bolster Reparations Theory, 661–662. — 157 —

—————————————————— chapter four ———————————————————

the historical era? How monolithic was the literature? How about all the procedures accompanying the treatment—the absence of informed consent, the coercion, the infringement of human rights? The very nature of the claim invokes the issue of commodification. Can the wounds be healed by cash? Matsuda128 argues that if reparations are considered an equivalent exchange for past wrongs, any obligation to victim groups would end, since their injury is transformed into a commodity and the price is paid. In this case, despite the empathy among the Knesset members, there was no official apology; the victims are assumed frauds who try to rob the treasury. Here, the victims who were not officially recognized by the professional committees and were not awarded reparations are not considered victims. Their tragedy becomes a private matter, and their failure to be officially recognized as tinea victims denies their suffering or, yet worse, taints them as impostors or greedy frauds. Matsuda’s proposal that the victims must determine the remedies in order to avoid the danger of commodification seems unrealistic given the circumstances described in this chapter. In this case, the victims should have insisted on some symbolic measures that would include their ordeal within the official collective memory. This invokes the forward-looking features of historical redress. The treatment that the victims received was not intended to harm them; its effects were not known to the medical community at the time. Nevertheless, the infringement of human rights, paternalism, commodification, objectification, and disrespect should not have been part of the treatment protocol and should be redressed. Seen in the wider context of the marginalization of Mizrachim, there can be no true redress without structural change, redistribution, and the breakup of Ashkenazi hegemony. The enactment of the law can be seen as a type of damage control. The legislation was to regulate the grievanenaces of the victims and to maintain control over the sums of money paid in reparation. At the same time, however, the law was constructed as ex-grazia reparation. It afforded the State with a distraction from dealing with the responsibility of the health professionals, the institutions of public health, the ministry of health and the State. A rare glimpse into the mind of researchers whose work carries con128 Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 394–398. — 158 —

————————————————— The Tinea Capitis Affair —————————————————

crete moral implication on real people is afforded in a 1999 article by Siegal Sadetzki and Modan.129 In the article, the authors note that “despite the publication of the information internationally and locally, there was no public or professional response.”130 “After much deliberation,” Sadetzki and Modan write, “an early detection screening programme seemed justified. . . . However, the screening process revealed no new cases of thyroid cancer.”131 This article raises many questions: first, there is no indication about the early screening. It is safe to assume that such a screening for thyroid cancer started in the late 1970s. Who was included in the screening? What about those not included in the Modan File? Why was there no such screening for other types of cancer? Why was it kept secret after the risk was known to Modan in 1968? Sadetzki and Modan explained as follows: 132 In principle, a decision-making process should be based on valid and reliable data. This is one reason for the use of epidemiology in decisions made by health officials, such as in the case of smoking, diet, drug toxicity, or radiation protection. However, most epidemiological data do not lead to direct action. The above “case report” exemplifies a situation in which scientific data were applied to social, ethical, and legal issues, with strong practical and financial repercussions, with regard to the role of epidemiology in establishing causality, and taking an appropriate action in consequence.

The authors note that their study started after the irradiation treatments were stopped but note in passing,133 “However, we could have evoked public awareness and interest once our initial findings of the 129 Sadetzki and Modan, “Epidemiology As a Basis for Legislation: How Far Should Epidemiology Go?” Lancet 353 (1999): 2238–2239, at 2238. 130 Ibid., 2238. 131 Ibid. Here, Sadetzki and Modan probably refer to a press conference they conducted and called those who were irradiated to check their thyroid glands at the center. Reported in Iris Kraus and Ronen Bergman, “Hundreds of Tinea Capitis Victims Protested in a Conference, Demanding Higher Reparations,” Haaretz, November 29, 1996, www.haaretz.co.il/hasite/pages/arch/ ArchArticle.jhtml (accessed August 25, 2009). 132 Sadetzki and Modan, “Epidemiology As a Basis for Legislation: How Far Should Epidemiology Go?” Lancet 353 (1999): 2238–2239, 2239. 133 Ibid., 2239. — 159 —

—————————————————— chapter four ———————————————————

carcinogenic effects of radiotherapy became available.” While this inaction cannot be overstated, the fact that the national center assumes an active role in protecting the State in court against the victims—its patients—is unacceptable. What makes this case particularly interesting is the gamut of responses by the various organs of the State and their ambivalence regarding the redress. The myriad responses include the well-versed initial dismissal of the idea that the tinea capitis affair constitutes an injustice and that the claimants were eligible for reparations. This line of reasoning flew from the government. Amid this response, the Knesset was highly empathic toward the victims. Although the number of legislators present in the vote was meager (16 out of 120), those present voted unanimously for the bill. Within the legal system, the first directives were to argue for limitation, but later on, perhaps out of fear of a landslide, the state attorney recommended the Knesset to settle the matter by means of legislation. The Tinea Capitis Compensation Law uncovered a rare moment in Israeli politics that brought together an otherwise-inconceivable coalition of Knesset members in support and solidarity with the victims of the tinea capitis irradiations. This supports Matsuda’s argument that redress campaigns are “contagious” in that they create solidarity and hope rather than envy and avarice. Knesset Member Azmi Bishara of the Balad party, normally an avid detractor of Israeli policies, said the following on October 25, 1999, upon the first reading of an amendment to the law (which was intended to simplify the procedures for the victims):134 This bill is interesting . . . because I think that this is the first and the last time that Israel acknowledges an historical injustice and makes amends. That is to say, it does not apologize publically before the elections or before the Arab population, but rather through legislation Israel acknowledges an historical injustice, repairs it and pays reparation. . . . This is an important case, a model that we have to contemplate. . . . This model should be adopted in several other 134 Proceedings of the 15th Knesset, Convention 41, November 1, 1999, 41st sess., 1999, http://www. knesset.gov.il/Tql//mark01/h0029702.html#TQL (accessed August 30, 2009). — 160 —

————————————————— The Tinea Capitis Affair —————————————————

domains, and not only in monetary terms.

Bishara refers to this rare flashing moment of apparent unity and fraternity among Israelis in liminal terms, as it were—as if an alternative pattern of social structure, of communitas,135 was in the making. In retrospect, this euphoric statement remains but a painful reminder of a missed opportunity to redress this historical injustice.

135 Victor Witter Turner, The Ritual Process: Structure and Anti-Structure (New York: Aldine de Gruyter, 1969). — 161 —

——————————————————— chapter five ———————————————————

5. Iqrit and Bir’im

The conquest of the earth, which mostly means the taking it away from those who have a different complexion or slightly flatter noses than ourselves, is not a pretty thing when you look into it too much.1

The relationships between time, space, place, and social being have been the focus of scholars for at least the last five decades.2 Space3 is fundamental in any form of communal life and in any exercise of power.4 Modern state territory embodies a conscious attempt to construct space as a means of power for the state. Hence, for Anthony Giddens,5 one of the important characteristics of the formation of modern states is the transition from loosely inhabited spaces into clear-cut, well-defined borders. Powerful attachments bind together identity, politics, and territory.6 These attachments—which derive from an interaction of the social, cultural, and natural settings formed at a particular place—create “a sense of place.”7 Places are highly dynamic and are constantly reproduced.8 1 2

3 4 5 6

7 8

Marlow, about the Romans in Joseph Conrad’s Heart of Darkness and the Congo Diary (London: Penguin Books, 1995), 20. Just to mention a few: Yi-Fu Tuan, Space and Place: The Perspective of Experience (London: E. Arnold, 1977); Edward W. Soja, Postmodern Geographies: The Reassertion of Space in Critical Social Theory (London; New York: Verso, 1989); Doreen B. Massey, Space, Place, and Gender (Minneapolis: University of Minnesota Press, 1994). Also, Anthony Giddens, The Consequences of Modernity (Stanford, California: Stanford University Press, 1990). On the differences between space and place, see Tuan, Space and Place: The Perspective of Experience, 6; Soja, Postmodern Geographies: The Reassertion of Space in Critical Social Theory. Paul Rabinow, “Space, Knowledge and Power,” in The Foucault Reader, ed. Paul Rabinow, 1st ed. (New York: Pantheon Books, 1984), 239–255. Anthony Giddens, The Constitution of Society: Outline of the Theory of Structuration (Berkeley: University of California Press, 1984). Alexander B. Murphy, “The Sovereign State System As Political-Ideological Ideal: Historical and Contemporary Considerations,” in State Sovereignty As Social Construct, eds. Thomas J. Bierstecker and Cynthia Weber (New York: Cambridge University Press, 1996), 109. Doreen B. Massey, “Places and Their Pasts,” History Workshop Journal 39 (1995), 182–192. See different conceptualizations of time, space, and place—for example, Foucault’s insights about the conceptualization of time and space in the nineteenth century: “Space was treated as the dead, — 162 —

——————————————————— Iqrit and Bir’im ———————————————————

Different collectivities or individuals can create different senses of a place based on their individual experiences and the particular power relationships embedded in it. The multiplicity of senses of place becomes the subject of competition and conflict among groups and their respective particular sense of place. Settler societies were created in the course of the colonization of territories and peoples. These migrant groups “who assume a superordinate position vis-à-vis native inhabitants”9 seized and ethnicized spaces in order to establish self-sustaining states that are de jure or de facto independent from the country of origin.10 Ethnification began when the Europeans forcibly drove the indigenous peoples out from their localities in order to populate these places with members of the dominant group.11 In the process of ethnification, a mythology of a people with rights to a specific territory is created.12 The descendents of the settlers have remained politically dominant over the indigenous peoples and have developed heterogeneous societies in terms of class, ethnicity, and race.13 This, according to Michael Mann,14 is the first dark side of nascent modern democracies. In dealing with ethnic diversity, states have utilized various tools and tactics that were intended to drive out, attract, or disperse groups as means of regulating conflict.15 All these means were concealed in the the fixed, the undialectical, the immobile. Time, on the contrary, was richness, fecundity, life, dialectic.” Michel Foucault, “Questions on Geography,” in Power/Knowledge: Selected Interviews and Other Writings, 1972–1977, ed. Colin Gordon (London and New York: Pantheon Books, 1980), 70; Giddens, The Consequences of Modernity, 17–21; Soja, Postmodern Geographies: The Reassertion of Space in Critical Social Theory 9 Ronald Weitzer, Transforming Settler States: Communal Conflict and Internal Security in Northern Ireland and Zimbabwe (Berkeley: University of California Press, 1990), 24. 10 Ibid. 11 John McGarry, “Demographic Engineering: The State Directed Movement of Ethnic Groups As a Technique of Conflict Regulation,” Ethnic and Racial Studies 21, no. 4 (1998), 613–638. 12 Kjell Hansen, “Emerging Ethnification in Marginal Areas of Sweden,” Sociologica Ruralis 39, no. 3 (1999), 294–310. 13 Daiva K. Stasiulis and Nira Yuval-Davis, “Introduction: Beyond Dichotomies: Gender, Race, Ethnicity and Class in Settler Societies,” in Unsettling Settler Societies: Articulations of Gender, Race, Ethnicity and Class, eds. Daiva K. Stasiulis and Nira Yuval-Davis (London: Sage Publications, 1995), 3. 14 Michael Mann, The Dark Side of Democracy: Explaining Ethnic Cleansing. Mann notes that where settlers enjoyed the de facto self-rule, they proved to be more murderous than the imperial authorities; hence, the more the settler democracy, the more the ethnic exclusivity and the worse the treatment. See chapter 4. 15 McGarry, Demographic Engineering: The State Directed Movement of Ethnic Groups As a Technique of Conflict Regulation, 613–638. — 163 —

——————————————————— chapter five ———————————————————

whitewashed term “demographic engineering.”16 Modernity is structured by ethnic and nationalist principles17 because, as Andreas Wimmer18 argues, the institutions of citizenship, democracy, and welfare are tied to ethnic and national patterns of exclusion. The presence of absent Others is but one aspect embedded in the social relations between settlers and indigenous peoples.19 Ethnonationalism,20 in particular, espouses ethnification of states in the course of creating ethnocentric regimes based on the political domination of a particular ethnic group over other indigenous or other ethnic groups. Some settler states are faced with minority-based nationalist movements. The loyalty of such minorities is often conceived of as a threat to security, particularly when the country is at war with states that are dominated by the same ethnic group. Such concerns about security drive the authorities to expel minorities or change the ethnic composition in regions heavily populated with minority groups.21 A fuller understanding of ethnic politics in settler societies requires equal attention to indigenous peoples, settlers, and immigrant groups. The histories of each of the groups from the period preceding their initial contact should also be recognized and not obliterated, denied, or objectified.22 In their imperial and frontier expansions, states have succeeded in eliminating places, converting non-European places into new worlds of European spaces.23 For Marlow, Joseph Conrad’s protagonist in Heart of Darkness, the exploration of new continents turned these blank spaces into darkness and the unknown into the unspeakable. Marlow explained his passion for maps and for Africa:24

16 Myron Weiner and Michael S. Teitelbaum, Political Demography, Demographic Engineering (New York: Berghahn Books, 2001). 17 Mann, The Dark Side of Democracy: Explaining Ethnic Cleansing. 18 Andreas Wimmer, Nationalist Exclusion and Ethnic Conflict: Shadows of Modernity (Cambridge, United Kingdom; New York, New York: Cambridge University Press, 2002). 19 Giddens, The Consequences of Modernity, 17–21. 20 See Walker Connor, Ethnonationalism: The Quest for Understanding (Princeton, New Jersey: Princeton University Press, 1994). 21 McGarry, Demographic Engineering: The State Directed Movement of Ethnic Groups As a Technique of Conflict Regulation, 615. 22 Pearson, The Politics of Ethnicity in Settler Societies: States of Unease. 23 Peter J. Taylor, “Places, Spaces and Macy’s: Place-Space Tensions in the Political Geography of Modernities,” Progress in Human Geography 23, no. 1 (1999), 7–26. 24 Conrad, Heart of Darkness and the Congo Diary, 21–22. Pearson, The Politics of Ethnicity in Settler Societies: States of Unease. — 164 —

——————————————————— Iqrit and Bir’im ———————————————————

At that time there were many blank spaces on the earth. . . . But there was one yet—the biggest, the most blank, so to speak—that I had a hankering after. True, by this time it was not a blank space any more. It had got filled since my boyhood with rivers and lakes and names. It had ceased to be a blank space of delightful mystery—a white patch for a boy to dream gloriously over. It had become a place of darkness.

Daniel N. Paul25 writes of the need for a Native American historical perspective in response to the nullification of the First Nations peoples and the oblivion of their civilization. Paul quotes Canadian Prime Minister Paul Martin, who at an international conference on fisheries held in St. John’s, Newfoundland, said the following:26 It was here that Vikings first landed on North America’s shores, a thousand years ago. It was here that the start of North American history began to take shape. And it was here that Canada’s fishery began in earnest.

This statement is representative of the denial and suppression of the existence of indigenous peoples, who, in Paul’s words, “dwelled in North America for tens of hundreds of centuries before a Caucasian person set foot on them.”27 William E. H. Stanner28 calls for a new and different kind of history. The history I would like to see written would bring into the main flow of its narrative the life and times . . . because they typify so vividly the other side of a story over which the great Australian silence reigns; the story of the things we were unconsciously resolved not to discuss with them or treat with them about; the story, in short, of the unacknowledged relations between two racial groups within a single field of life supposedly unified by the principle of assimilation. 25 Paul, We Were Not the Savages: Collision between European and Native American Civilizations. 26 The Prime Minister’s Office—Communications, May 1, 2005. 27 Paul, We Were Not the Savages: Collision between European and Native American Civilizations, 376. 28 W. E. H. Stanner, After the Dreaming: Black and White Australians—an Anthropologist’s View (Sydney: Australian Broadcasting Commission, 1969), 25. — 165 —

——————————————————— chapter five ———————————————————

Stanner argues that this great Australian silence and silencing are structural.29 This may have started off as simple forgetting, but “turned under habit and over time into something like a cult of forgetfulness practiced on a national scale.”30 Besides being peoples without history, the occupants of these areas into which the Europeans moved were also converted into peoples without geography. They, along with their places, became invisible to the state surveyors and demographers carving up the allegedly empty space. For the colonizers, this space was not empty only symbolically; the subjugation of the North American Native American nations by the English Crown was accomplished with every means available. These included military power, poisoned food, contagious diseases that the Mi’kmaq contracted and were not immune to, fires set in order to burn forests and villages, and starvation. In 1837, U.S. President Martin Van Buren stated, “No state can achieve proper culture, civilization and progress . . . as long as Indians are permitted to remain.”31 Aboriginality must be understood as an artifact of the colonial encounter.32 The peoples who were in place when the Europeans arrived were forced into new social and political formations.33 Richard John Perry34 suggests that the variety of subtleties, meanings, and practices of the peoples with regard to land, territory, and belonging were unfamiliar to the Europeans. Thus, the latter devised uniform categories and systems of control. The imposed political and legal system acted as 29 Stanner, After the Dreaming: Black and White Australians—an Anthropologist’s View, 24–25. See also Bain Attwood, Telling the Truth about Aboriginal History (Crows Nest, New South Wales: Allen & Unwin, 2005). 30 Stanner, After the Dreaming: Black and White Australians—an Anthropologist’s View, 24–25. 31 Quoted in Paul, We Were Not the Savages: Collision between European and Native American Civilizations, 194. 32 Jeremy Beckett, “Aboriginality in a Nation-State: The Australian Case,” in Ethnicity and Nation Building in the Pacific, ed. Michael C. Howard (Tokyo: United Nations University, 1998), 118. See also Dimitrius Panagos, “The Plurality of Meanings Shouldered by the Term ‘Aboriginality’: An Analysis of the Delgamuukw Case,” Canadian Journal of Political Science 40, no. 3 (2007), 591–613. See also Frantz Fanon, Black Skin, White Masks (London: Paladin, 1970); Ann Laura Stoler and Frederick Cooper, “Between Metropole and Colony: Rethinking a Research Agenda,” in Tensions of Empire: Colonial Cultures in a Bourgeois World, eds. Frederick Cooper and Ann Laura Stoler (Berkeley, California: University of California Press, 1997), 1–58; Homi K. Bhabha, The Location of Culture (London: Routledge, 1994). 33 Pearson, The Politics of Ethnicity in Settler Societies: States of Unease. 34 Richard John Perry, From Time Immemorial: Indigenous Peoples and State Systems (Austin: University of Texas Press, 1996). — 166 —

——————————————————— Iqrit and Bir’im ———————————————————

a vital feature of encapsulation. Stateless peoples had come into contact with people coming from state-organized societies in a world rapidly being shaped into nation-states. Thus, even if building a nation-state was not the colonizers’ initial intent, their contact with the indigenous population took place within the context of a world of modern nations within a world of states.35 Settler states came to act toward indigenous peoples as though they were the hosts. As Bain Attwood notes,36 in reference to the Australian case, history was told from the point of the British presence.37 Not only did the settlers displace the aboriginal peoples, they also nullified their relation to the country. Nation building was thus accompanied by the production of new spaces. The settlers have incorporated immigrants with whom they shared common racial or ethnocultural traits into the nation-building project. They established new settlements in or near the ruins of the indigenous peoples’ places. In doing so, the settlers achieved two important objectives: first, the immigrants served as a buffer zone between the founders and the indigenous peoples.38 Second, the immigrants being kept farther from the center increased their inferiority in terms of both capital and political power.39 While the indigeneity of the Palestinian-Arab minority in Israel is hardly recognized and rarely acknowledged officially in the Jewish-Israeli political discourse, the expulsion of the Palestinian-Arabs in 1948 is characteristic of the formation of many new states.40 The Jewish ethnonationalist community that gradually formed in Palestine was a settler-immigrant society of European origin, similar to the ones formed in 35 Pearson, The Politics of Ethnicity in Settler Societies: States of Unease. See also Giddens, The Constitution of Society: Outline of the Theory of Structuration. 36 Bain Attwood, Telling the Truth about Aboriginal History. 37 See Benjamin’s observation in his “Theses on the Philosophy of History.” Benjamin, Illuminations, 255–266. 38 Frederick Jackson Turner, The Frontier in American History (New York: H. Holt and Company, 1926). 39 On the frontier in the Israeli context: Oren Yiftachel, “Ethnocracy and Its Discontents: Minorities, Protests and the Israeli Polity,” Critical Inquiry 26, no. 4 (2000), 725–756; Aziza Khazzoom, “Did the Israeli State Engineer Segregation on the Placement of Jewish Immigrants in Development Towns in the 1950s?” Social Forces 84, no. 1 (2005), 115–134. 40 Erez Tzafadia, “Trapped Sense of Peripheral Place in Frontier Space,” in Constructing a Sense of Place: Architecture and the Zionist Discourse, ed. Haim Yacobi (Aldershot: Ashgate Publishing, 2004), 122; McGarry, Demographic Engineering: The State Directed Movement of Ethnic Groups As a Technique of Conflict Regulation, 613–638. Contra Yoav Gelber, Independence versus Nakba (Or Yehuda: Kinneret, Zmora-Bitan, Dvir Publishing House, 2004), 12–29. (Hebrew) — 167 —

——————————————————— chapter five ———————————————————

America, Australia, New Zealand, Zimbabwe, South Africa, and French Algeria. Edward W. Said41 writes that one can see parallels between Zionists and American Puritans, or between Zionists and nineteenthcentury European theorists of “empty” territories in Asia and Africa. “What is still more perplexing,” he writes,42 “is how the same blindness is repeated by modern Zionist historians who retell the same story with the same narrowness of vision” that characterized early Zionists. The Zionist settler society that formed in Palestine and later established Israel is unique among settler societies. Its choice of territory was based on the ethnoreligious idea of the return to a mythological homeland.43 The collective memory of the Promised Land from which the Jews were expelled in the mythic past validated and reaffirmed the idea that the land without people is awaiting the people without land.44 According to Anita Shapira,45 the First Aliyah settlers, who arrived in Palestine in the last two decades of the nineteenth century, were highly confident that Palestine was the land of the Jews. This confidence went alongside a strong sense of power that, in Shapira’s words, “bore no relationship to the empirical facts of the situation.”46 The Jewish settler community in Palestine was therefore in fundamental conflict with the Arab population.47 The conflict emanated from the emerging immigrant society that gradually settled in Palestine under the auspices of the Ottoman Empire and the British colonial rule.48 This conflict was already stated in 1905 by Israel Zangwill:49 41 Edward W. Said, The Politics of Dispossession: The Struggle for Palestinian Self-Determination, 1969– 1994 (New York: Pantheon Books, 1994). 42 Ibid., 35. 43 Baruch Kimmerling, Immigrants, Settlers, Natives: The Israeli State and Society between Cultural Pluralism and Cultural Wars (Tel Aviv: Am Oved, 2004), 18. (Hebrew) 44 Diana Muir investigates the usage of the phrase, which is attributed to Israel Zangwill. She argues that it is used inappropriately by detractors of Zionism. Diana Muir, “A Land without a People for a People without a Land,” Middle East Quarterly 15, no. 2 (2008), 55–62. Contra, see a thorough discussion in Shapira, Land and Power: The Zionist Resort to Force, 1881–1948, 41–42, 50–52. 45 Ibid., 55. 46 Ibid. 47 Rashid Khalidi, Palestinian Identity: The Construction of Modern National Consciousness (New York: Columbia University Press, 1997). See also Shapira, Land and Power: The Zionist Resort to Force, 1881–1948, 41; Ghada Karmi, Married to Another Man: Israel’s Dilemma in Palestine (London; Ann Arbor, Michigan: Pluto Press, 2007), http://www.loc.gov/catdir/enhancements/ fy0809/2007278191-d.html. 48 Yehoshua Porat, From Riots to Revolt: The Palestinian National Movement 1929–1939 (Tel Aviv: Am Oved, 1978). 49 Quoted in Benny Morris, Righteous Victims: A History of the Zionist-Arab Conflict, 1881–1999 — 168 —

——————————————————— Iqrit and Bir’im ———————————————————

Palestine proper has already its inhabitants. The pashalik of Jerusalem is already twice as thickly populated as the United States, having fifty-two souls to the square mile, and not 25% of them Jews. . . . [We] must be prepared either to drive out by the sword the [Arab] tribes in possession as our forefathers did or to grapple with the problem of a large alien population, mostly Mohammedan and accustomed for centuries to despise us.

Avi Shlaim50 notes that Zionists were vaguely aware of the presence of the Arab population in Palestine and of the possibility that this population would not welcome the Zionist project. He argues that they underestimated its seriousness and hoped that a solution will be come to light in due course. Others, however, were more concerned about this antagonism.51 According to Said et al.,52 when the Zionists realized that they could not sustain the myth of the empty land, they sought to diminish the presence of the indigenes and dehumanize them. Such treatment was well established in settler societies. During the British colonial rule, the conflict between the Jewish settlement and the Arab population in Palestine evolved around two major issues: the control over territory and demography. During this period, land acquisition was done through the purchase of land by the Jewish National Fund.53 In contrast to other settler states, there was no compatibility between the interests of the colonial power and those of the settlers. In the formative stages, the settlers lacked the power to subjugate the indigenous population as was the case in other settler societies.54 (London: J. Murray, 1999), 140. 50 Avi Shlaim, The Iron Wall: Israel and the Arab World (New York: W. W. Norton, 2000), 1–6. 51 Martin Buber, A Land of Two Peoples: Martin Buber on Jews and Arabs, ed. Paul R. Mendes-Flohr (Tel Aviv: Schocken, 1983 [1948]). (Hebrew) 52 Edward W. Said et al., “A Profile of the Palestinian People,” in Blaming the Victims: Spurious Scholarship and the Palestinian Question, eds. Edward W. Said and Christopher Hitchens (London: Verso, 2001), 241. 53 This was yet another source of conflict between the Arabs, the British, and the Jews in Palestine. See Baruch Kimmerling and Joel S. Migdal, The Palestinian People: A History (Cambridge, Massachusetts: Harvard University Press, 2003). Baruch Kimmerling and Joel S. Migdal, Palestinians: The Making of a People (Cambridge, Massachusetts: Harvard University Press, 1994). 54 Baruch Kimmerling, Zionism and Territory: The Socioterritorial Dimension of Zionist Politics (Berkeley: Institute of International Studies, University of California, 1983). — 169 —

——————————————————— chapter five ———————————————————

A major debate among historians concerns the circumstances of the mass flight of Palestinians from Palestine with the outburst of violence in November 1947. These arguments are used for the justification of the various positions with regard to the refugee problem and the right of return. Unfolding the Zionist narrative, Yoav Gelber notes that until April 1948, the main motivation for fleeing was economic.55 He notes that such flight also occurred following the Arab revolt in the 1930s. Gelber highlights other internal factors within the Palestinian community; and although he acknowledges the expulsion of Palestinians, he tends to diminish the role of the Jewish settlement and, later on, the State in this mass flight. Other scholars emphasize the expulsion of large numbers of Palestinians.56 Ilan Pappé refers to working paper Plan D as ethnic cleansing. The plan, which was devised on February 1948 at the Haganah staff, was a strategic plan for dealing with the end of the British mandate in Palestine.57 This is perhaps the most blatant operational manifestation of the “offensive ethos”58 that developed in the Jewish settlement in Palestine. The plan, which became operative in April and May 1948, had two objectives. The first was to take over any installation evacuated by the British authorities. This could be attained with the aid of pro-Zionist British officials. The second was to cleanse the nascent Jewish state from as many Palestinians as possible and to take over as much as possible from the country’s territory and on areas populated by Jews but were, according to the Partition Plan of November 29, 1947, to be part of the Palestinian state. The Haganah—the Jewish settlement’s major military force—prepared a list of villages to be occupied by its brigades. Most of these villages were to be destroyed. Some of the brigades were to occupy and expel Palestinians 55 Yoav Gelber, Palestine, 1948: War, Escape and the Emergence of the Palestinian Refugee Problem (Brighton; Portland, Oregon: Sussex Academic Press, 2001). 56 Shlaim, The Iron Wall: Israel and the Arab World. The flight of Palestinians during the 1948 war resulted from mass fear—some of it cultivated by the Israelis, some by the Arabs, and some resulting simply from the fog of war. See Wimmer, Nationalist Exclusion and Ethnic Conflict: Shadows of Modernity, 66; Benny Morris, The Birth of the Palestinian Refugee Problem Revisited, vol. 18 (Cambridge: Cambridge University Press, 2004). 57 Yosef Vashitz, The Bir’Im and Iqrit Affair: Facts, Background, Problems (Giva’at Haviva: Mapam and the Information Department and the Center for Arabic Studies, 1977). (Hebrew) Walid Khalidi, “‘Plan Dalet’: Master Plan for the Conquest of Palestine,” Journal of Palestine Studies 18, no. 69 (1988), 4–20. 58 Shapira, Land and Power: The Zionist Resort to Force, 1881–1948. — 170 —

——————————————————— Iqrit and Bir’im ———————————————————

living in mixed Arab-Jewish towns.59 According to Pappé, the ethnification or Judaization of the territory was implemented in three phases.60 First, the urban population was targeted; in January 1948, about seventy thousand Palestinians belonging to the social and economic elite had left the cities and fled the country. The second phase had started upon the departure of Britain. By then, a third of the Palestinian population had already left. The rural population was targeted in the second phase. A total of 370 villages within the areas of the proposed Jewish state61 were wiped out between May 1948 and January 1949. In parallel, the armies fought in the outskirts of what was to be the Jewish state and within the bounds of the proposed Palestinian state that Israel was interested to win over. By 1949, Israel had seized over 20 percent of the land allocated to the Palestinians by the UNSCOP Partition Plan. During this phase, the Israeli government in August 1948 began to ensure that no repatriation of the Palestinian refugees would be possible. This was done by the destruction or full takeover of the houses both in the villages and urban neighborhoods. In the third phase, the expulsions, depopulations, land takings, and military takeover continued until 1954. During this phase, the legal basis of these acts was enacted. In early 1949, Israeli authorities decided to replace the policy of temporary land takings with permanent arrangements. These included title transfer and permanent alienation of refugees’ land.62 The Absentees’ Property Law,63 an expanded version of the Emergency Regulations, was enacted by the Israeli Knesset on March 14, 1950. The law authorized the State to seize the property of persons who were considered absentees (as defined by the law) and to hold it in custodianship. 59 This happened in Haifa, Jaffa, Safed, and Tiberias. Ilan Pappé, A History of Modern Palestine: One Land, Two Peoples (New York: Cambridge University Press, 2004). See in particular 130–131; Kimmerling, Immigrants, Settlers, Natives: The Israeli State and Society between Cultural Pluralism and Cultural Wars (Hebrew); Segev, 1949: The First Israelis. The actual plan is found in Yehuda Slutzki, The Book of the Haganah: From Struggle to War, vol. 3 (Tel Aviv: Am Oved, 1972), 1955– 1960. (Hebrew) 60 Pappé, A History of Modern Palestine: One Land, Two Peoples. 61 This was according to the UNSCOP Partition Plan. 62 Yifat Holzman-Gazit, Land Expropriation in Israel: Law, Culture and Society (Aldershot, England: Ashgate, 2007), 109–111; Yezid Sayigh, Armed Struggle and the Search for State: The Palestinian National Movement, 1949–1993 (Oxford: Clarendon Press, 1997), 35–39; Haim Levenberg, Military Preparations of the Arab Community in Palestine, 1945–1948 (London: F. Cass, 1993), 281. 63 Laws of the State of Israel: Authorized Translation from the Hebrew, vol. 4 (Jerusalem: Government Printer, 1948–1987), 68–82. — 171 —

——————————————————— chapter five ———————————————————

The custodian could lease the property for up to six years at a time or lease it for longer or sell it to the Development Authority as per the Development Authority (Transfer of Property) Law of 1950. The Development Authority was the executing agency that was authorized to make any permanent transaction involving absentee property for the State, the Jewish National Fund, and local authorities. This legislation established a bureaucratic mechanism that would conceal the direct involvement of the State in the transaction.64 Emergency regulations such as Regulation 125 permitted the military governor to close areas where nobody could enter or leave without permit. Other Emergency regulations could designate security zones and order the evacuation of people from these areas. The closure prevented the Arab farmers from accessing the land, resulting in its change of status into fallow land. As fallow land, the land could eventually be transferred to Jews.65 The major transfer of land from Arabs to Jews transpired from 1948 onward. In 1947, only 6 percent of the land that later became part of Israel’s territory was owned by Jewish organizations. By the 1960s, more than 94 percent was owned by Jews.66 This increase in land possessions was facilitated by both new and existing legislation and by other legal means. Law was highly instrumental to achieving the control over territory. Post-1948 expropriations are estimated at 1 to 1.4 million acres, wherein about 369 abandoned communities were destroyed by the Israelis.67 According to Michael Fischbach,68 by 1954, an overwhelming third of the Jewish population in Israel was settled on former Palestinian property. Out of these, 250,000 newly arrived immigrants were housed in the mixed-population cities in 64 Michael Fischbach, Records of Dispossession: Palestinian Refugee Property and the Arab-Israeli Conflict (New York: Columbia University Press, 2003). 65 According to Fallow Lands Regulations, the land could be temporarily used by others (Jews). The profits would then be held in trust for the owner. Eventually, these lands were to be under state ownership. See Meron Benvenisti, Sacred Landscape: The Buried History of the Holy Land since 1948 (Berkeley: University of California Press, 2000), 158–159. 66 David Delaney, Territory: A Short Introduction (Oxford: Blackwell, 2005), 127. 67 Morris, The Birth of the Palestinian Refugee Problem Revisited, 297–298; Kimmerling, Zionism and Territory: The Socioterritorial Dimension of Zionist Politics; Vashitz, The Bir’Im and Iqrit Affair: Facts, Background, Problems; Baruch Kimmerling, “Sovereignty, Ownership and ‘Presence’ in the JewishArab Territorial Conflict. The Case of Bir’im and Iqrit,” Comparative Political Studies 10, 2: (1977): 155–175. 68 Fischbach, Records of Dispossession: Palestinian Refugee Property and the Arab-Israeli Conflict, 72–73. By June 1949, the number of Palestinians decreased from over 750,000 to around 160,000; the Jewish population, boosted by mass immigration, amounted to 600,000. — 172 —

——————————————————— Iqrit and Bir’im ———————————————————

houses expropriated from Palestinians. The legal framework legislated by the state has legitimized the permanent uprooting of villagers from their homes and the appropriation of their assets. Meron Benvenisti wrote that Israel’s legislative body69 behaved as if it were the successor of the Jewish National Fund; it simply adapted the latter’s methods of “redeeming the land” to the means and power now at its disposal; it was no longer a case of purchasing land from a willing seller but one of expropriating it by means of the laws of a sovereign state, enforced by its armed emissaries.

As in other settler societies, ethnification entailed several other measures; these were no less painful. Edward Said and his colleagues70 describe such measures that served to conceal and nullify the intended victims from the world. Not only were the villages destroyed, but their names were also translated into Hebrew or biblical names in an attempt to emphasize links with the ancestral homeland. Meron Benvenisti71 wrote of the destruction of villages, neighborhoods, and the landscape. He argued that the massive forestation of the land had been purposely designed to conceal any evidence of Arab habitation: villages, cultivated fields, orchards and cemeteries—their planting intended to bury that stratum of the country’s history, without trace and without memorial.72

Two villages are the focus of this chapter. The villages of Iqrit and Bir’im are but two cases. The stories of Iqrit and Bir’im enable us to zoom into the process of ethnification, not so much in the sense of how exactly it transpired in terms of the mere historical facts. Rather, my account focuses on the historical injustice perpetrated on these two communities. I chose to analyze this case as a historical injustice because of 69 Benvenisti, Sacred Landscape: The Buried History of the Holy Land since 1948, 146. 70 Said et al., A Profile of the Palestinian People, 235–296. 71 Benvenisti, Sacred Landscape: The Buried History of the Holy Land since 1948. 72 Meron Benvenisti, Son of the Cypresses: Memories, Reflections, and Regrets from a Political Life (Berkeley: University of California Press, 2007), 34. — 173 —

——————————————————— chapter five ———————————————————

the rare consensus in Israel that an injustice was done in this case, the tenacity of the struggle, and the fact that the villagers have exhausted all the legal and political courses for nonviolent action. I would like to stress, at this point, that this chapter in particular and the book in general are not concerned with what the Arabs did to the Jews, with whether Israel’s actions were justified in light of the Holocaust, or even with disagreement over the Partition Plan, or with the Israeli-Arab conflict as a whole. Rather, my account is focused on the specific injustice and on the attempts to redress it. The Case of Iqrit and Bir’im As a Historical Injustice The conquest of the villages of Iqrit and Bir’im in late October 1948 was part of Operation Hiram for the “liberation of the Galilee and the extermination of Qawuqji forces.”73 Major General Moshe Carmel of the Northern Command depicts the heroic and bold campaign with great pathos. He describes the operation as a combination of infantry, armored corps artillery, and air force that progressed in a pincer movement from the east and the west. Operation Hiram was in fact a swift and smooth operation that lasted less than sixty hours.74 The operation brought the defeat of Qawuqji forces and their withdrawal into Lebanon. In Lebanon, they ceased to exist as a military force.75 The hostilities of the Qawuqji forces motivated the IDF to conquer areas of the Galilee that were heavily populated by Arabs.76 According to Morris,77 IDF’s strategic objectives of achieving Arab-clear frontiers and securing internal lines of communication coincided with other political interests. These were decreasing the number of Arabs in the nascent Jewish state and the urgent need to provide housing to Jewish immigrants. While no explicit formal directives were issued to the IDF regarding the Arab civilian population, the army implemented the implicit policy that was endorsed post factum by the political and administrative authorities.

73 Moshe Carmel, The Campaigns in the North (Ein Kharod: Hakibbutz Ha Meuchad; IDF; Ma’arachot, 1949), 265–281. (Hebrew) 74 Morris, The Birth of the Palestinian Refugee Problem Revisited. 75 Ibid. 76 Ibid., 506–507. According to Israeli estimates, there were between fifty thousand and sixty thousand Arabs in this area; several thousands of them fled during or before the operation, mostly to Lebanon. 77 Ibid., 505. — 174 —

——————————————————— Iqrit and Bir’im ———————————————————

Iqrit Iqrit and Bir’im were conquered without a fight between October 29 and 31, 1948. On the last day of Operation Hiram, Battalion 92 of the IDF, headed by Commanders Emmanuel Friedman and Yehezkel Zucker, had entered the village of Iqrit in Western Galilee. The village was conquered without a fight. Four representatives from the village78 signed a temporary surrender agreement in which they committed to surrender unconditionally, to hand over their weapons and ammunition, and to obey the orders of the military.79 The people of Iqrit waved a white flag; and the priest, holding the Bible, greeted the forces in Hebrew. The village headman80 (mukhtar), Mobada Daoud, followed the priest, Andreas Qerdahi. Daoud had invited the whole company to be received in the village with the traditional welcome offering of bread and salt. One of the young men of the village, Milad Eshkar,81 was sent to the nearby valley in order to search for some armed youth who were in hiding from the IDF forces. These youth returned to the village and surrendered their weapons. They also disclosed the location of several land mines, which were laid between the village and the main road. On November 6,82 the villagers were ordered by the commanders of the battalion to leave the village and move to the village of Rama, located thirty kilometers to the southeast of Iqrit. They were told by an officer named Jacob Kara that the evacuation, which was intended to facilitate the completion of the military operations, would last fifteen days. In their letter to the leaders of the Mapam party,83 the mukhtar and ten villagers note that the military operations around the village consisted of capturing rebels who were hiding in the mountains that surrounded the village. According to the villagers’ letter, Kara suggested that it would be dangerous for them to remain in the village for the duration of the 78 The four representatives were Father Andreas Qerdahi, Mobada Hanna Daoud, Shiban Sbeit, and Deeb Sema’an. 79 See a copy of the original surrender agreement at http://www.iqrit.org/ihs/eng/surrenddoc.htm (accessed on October 8, 2009). 80 The village headman was often the village’s main clan. The primacy of the clan was determined by its wealth, usually in terms of land. 81 Sara Osatzki-Lazar, Iqrit and Bir’Im: The Full Story (Giv’at Khaviva: The Institute for Arab Studies, the Center for Peace Research, 1993). (Hebrew) 82 According to a letter dated January 30, 1950, written by some ten villagers and the mukhtar, and addressed to the presidency of the Mapam party, the village was evacuated on November 8, 1948. Givat Haviva, Aharon Cohen Archive 10-95 9 (2). 83 Ibid. — 175 —

——————————————————— chapter five ———————————————————

military activity.84 Thus, they were ordered to leave all their belongings behind and carry with them only limited supplies. The promise made by the officer was later contested by the deputy governor of the Galilee, Major Yisrael Kresnansky. Kresnansky testified under oath that no such promise was granted and that the villagers would be allowed to return only when the security conditions allowed. During cross-investigation in court, Kresnanski conceded that they were transferred “only for a short period. . . .”85 The people of Iqrit were transported in army trucks to the village of Rama. There, they settled in properties abandoned by their owners during the fighting. Fifty people,86 including the priest of the village, were allowed to stay in Iqrit to guard the houses and property. Six months later and contrary to the promise granted to them upon their evacuation, the IDF evacuated the remaining people from Iqrit. All in all, 126 families totaling 616 people were evacuated from Iqrit.87 Based on the British mandate files from 1947, Vashitz notes that the land owned by the villagers consisted of 16,000 dunams,88 of which 73 were used for housing, 324 for plantations, and 1,588 for field crops. The remaining 14,028 dunams were rocky ground. Israel enacted Emergency Regulations (Security Zones) on April 24, 1949.89 These became effective three days later, following their publication. According to these regulations, the minister of defense can declare a protected area, which in part or whole can be further declared a security zone. The regulations state that a person cannot stay within a security zone unless he/she is a soldier or a policeman on duty. A special arrangement was made in Regulation 4(b) for persons who are permanent residents in the security zone. On September 26, 1949, the village of Iqrit was declared a security zone; as a result, the villagers were prevented from entering the village.90 84 High Court 64/51 Mobada Hanna and others v. the Minister of Defense, 1951(2), 1119. See also http://www.iqrit.org/ihs/eng/chron.htm (accessed on October 8, 2009). 85 High Court 64/51 Mobada Hanna and others v. the Minister of Defense, 1951(2), 1119. 86 Here there is a discrepancy between the version of the villagers and that of Major Kresnanski, who declared under oath that “the Priest and ten other people” were allowed to remain in the village. See High Court 64/51 Mobada Hanna and others v. the Minister of Defense, 1951(2), 1119, at 1122. 87 Vashitz, The Bir’Im and Iqrit Affair: Facts, Background, Problems, 6. (Hebrew) 88 One dunam equals 0.247 acre. 89 Emergency Regulations (Security Zones), Regulations 11, April 27, 1949: 169. 90 High Court 64/51 Mobada Hanna and others v. the Minister of Defense, 1951(2), 1119, at 1120. — 176 —

——————————————————— Iqrit and Bir’im ———————————————————

Devastated by the tragedy that befell them, the uprooted attempted to remedy their situation by means of political and legal actions. On May 28, 1951, they petitioned the high court to allow them to return to their village.91 They entrusted their legal representation in the hands of Muhammad Nimr al-Hawari.92 It is important to highlight al-Hawari’s prominent role in the unfolding of the villagers’ case. Al-Hawari was an intriguing figure; his life and career were a series of twists and turns. When Palestinian Arabs began to organize military resistance to the Partition Plan of the United Nations General Assembly Resolution 181, al-Hawari formed al-Najjada in Haifa in 194593 and became its commander but later broke up with the al-Husseini family.94 These activities did not hinder al-Hawari’s collaboration with the Jewish forces of the Haganah.95 Al-Hawari went so far as to organize guards in order to protect the southern Tel Aviv border from attacks from Jaffa.96 Fearing the wrath of the al-Husseinis, who regarded his collaboration with the Zionists as treason,97 he fled on December 31, 1947, to Transjordan. In April 1949, al-Hawari attended the Lausanne Conference as head of one of the organizations representing Palestinian refugees together with Aziz Shehadeh, a prominent civil lawyer and the son of 91 Ibid. 92 Al-Hawari was born in Nazareth in 1908 to a bedouin family; in the late 1930s, he studied law in Jerusalem and graduated in 1939. Between 1939 and 1942, he served in the British mandate administration as chief interpreter at the Jaffa District Court and was also chairman of the Government Second Division Officers. In 1942, he resigned from government service, moved to Haifa, and practiced law. See Gelber, Independence versus Nakba; Ibid. 93 Al-Najjada was a paramilitary militia that merged with al-Futuwa. These youth groups were merged into military units run by Hajj Amin al-Husseini, grand mufti of Jerusalem, and the Arab Liberation Army (ALA) of Fawzi al-Kawuqji. See “Al-Najjada,” Middle East Encyclopedia. Available online at http://www.mideastweb.org/Middle-East-Encyclopedia/al-najada.htm (accessed on October 21, 2009). 94 See Levenberg, Military Preparations of the Arab Community in Palestine, 1945–1948, 128–153, on al-Hawari’s career and crisis with al-Huseini. Levenberg suggests that the al-Husseinis accused him (and his organization) of communistic tendencies in order to tarnish him. He refused to take order from the Husseinis and claimed that the Najjada should remain apolitical. 95 Palmon and al-Hawari cooperated in the past in the matter of the murder at a coffeehouse named Hawaii Garden near the village of Sheikh Munis, now northern Tel Aviv. Palmon was then part of the Arab department of the Haganah Intelligence Service, and al-Hawari was at the time Commander of the Palestine Arab paramilitary organization Al-Najjada. Ezra Danin (head of intelligence at the Jewish Agency’s State Department) consulted with Al-Hawari about the uprising of the Arabs in Palestine. See Gelber, Independence versus Nakba, 62; Ibid., 62. 96 Hillel Cohen, Army of Shadows: Palestinian Collaboration with Zionism, 1917–1948 (Berkeley: University of California Press, 2008), 232–233. 97  95. Ibid., 257. See also Ilan Pappé, The Making of the Arab-Israeli Conflict, 1947–51 (London: I. B. Tauris, 1994), 223–224. — 177 —

——————————————————— chapter five ———————————————————

a Jaffa court judge. According to Hillel Cohen,98 al-Hawari renewed his contacts with the Israelis at the conference to the dismay of the Arab delegations. The Arabs criticized al-Hawari’s pragmatism and support of direct negotiations with Israel concerning the return of refugees to their homes under Israeli sovereignty. Nonetheless, al-Hawari was successful in negotiating his return to Israel along with his wife, ten children, and three of his supporters. Al-Hawari’s own interests in returning to Israel in December 1949 tallied with Israeli interests. His collaboration with the Haganah Intelligence Service and the Israeli expectations that upon his return he would be able to form a pro-Mapai anticommunist Arab political party99 were adequate incentives. Hillel Cohen suggests that al-Hawari shared with the authorities the view of the Arab leadership in Israel “as ‘a mouthpiece to the authorities,’ and to lead a fight for change.” 100 In 1955, al-Hawari published a book entitled The Secret behind the Disaster.101 In this book, he blames the Palestinian leadership of the alHusseini family and the leaders of the neighboring Arab countries in the catastrophe that befell the Palestinians. Al-Hawari refers specifically to the al-Husseinis.102 In the introduction to his book, al-Hawari notes that his book is written in order to rebut the accusations that he cooperated with the Zionists and achieved personal gains at the expense of the refugees. The final yet most remarkable twist was al-Hawari’s appointment in 1968 as district court judge in Nazareth.103 The casual observer might speculate as to whether al-Hawari was the best counsel available to the claimants at the time and under the circumstances. Prima facie, this was an optimal choice in light of al-Hawari’s connections with the authorities on the one hand and his experience in 98 Hillel Cohen, Good Arabs: The Israeli Security Agencies and the Israeli Arabs 1948–1967, trans. Haim Watzman (Berkeley: University of California Press, 2010), 53–60. 99 According to Morris, al-Hawari was an informant of the Haganah Intelligence Service. Morris, The Birth of the Palestinian Refugee Problem Revisited, 11. This is also implicit in Gelber, Independence versus Nakba, 62. 100 Cohen, Good Arabs: The Israeli Security Agencies and the Israeli Arabs 1948–1967, 56. 101 Muhammad Nimr Al-Hawari, The Secret behindthe Disaster (Nazareth: Matba’a El-Hakim, 1955). 102 Al-Hawari argues that he attempted to reach an agreement with the Israelis because he knew that the Palestinians would be unable to overcome the Israeli forces. On the conflicts between alHawari and the Husseinis, see Levenberg, Military Preparations of the Arab Community in Palestine, 1945–1948, 130–153. 103 Before his death in 1969, al-Hawari served as a member of the state commission of inquiry, headed by Judge Zusman, for the investigation of the arson at the Al-Aqsa Mosque in Jerusalem. The commission vindicated the government from any responsibility for the incident. — 178 —

——————————————————— Iqrit and Bir’im ———————————————————

dealing with refugee issues on the other. In retrospect, however, one can doubt the extent to which al-Hawari’s connections with the authorities proved to be for the villagers’ benefit. As a temporary remedy, the court issued an order nisi against the minister of defense, the military governor of the Galilee, and the commissioner of absentees’ property. The authorities were ordered to defend the reasons for barring the people of Iqrit to return to their village and reclaim their property. On July 31, 1951, the court finally ruled in favor of the claimants,104 rendering the evacuation illegal. The legal question that stood before the court was whether the claimants were permanent residents of Iqrit on the day the village became part of the security zone. Once the court ruled in favor and since they were not issued an order to evacuate the village, there was no legal hindrance for their return. While some see this ruling as the recognition of the rights of the uprooted to return to their village,105 the ruling merely suggests that the procedure followed by the respondents was faulty. One cannot read in this ruling the court’s judgment on whether the people of Iqrit should be allowed to return. In an attempt to overcome the legal obstacle that prevented IDF from finalizing the evacuation, the military commander, Yosef Avidar, issued on September 10, 1951, another evacuation order dated retroactively to November 6, 1948.106 The villagers have exercised their right to appeal before the military appellate committee. Since Avidar refused to disclose the security consideration behind the order, the hearing on September 23, 1951, was held in closed doors without the presence of the villagers’ counsel. The committee dismissed the appeal and never published the protocol of the procedure. The villagers appealed again to the high court,107 asking the court to instruct the minister of justice and the military governor of the Galilee and Nazareth to explain why they failed to comply with the court’s ruling of July 31, 1951. The court declined the petition on November 26 on the grounds that another ruling on the same matter would be redundant. 104 High Court 64/51 Mobada Hanna and others v. the Minister of Defense, 1951(2), 1117, at 1119. 105 Osatzki-Lazar, Iqrit and Bir’Im: The Full Story. 106 As already noted, the law on which the order was based has not been in effect at the time; it was in effect only on September 26, 1949. 107 High Court 238/51 Mobada Hanna Daoud and others v. the Minister of Justice and others, 1951(2), 1658. — 179 —

——————————————————— chapter five ———————————————————

The judges advised the claimants that the only remedy available to them was a new-fangled legal action against the State for contempt. Oddly enough, this advice was not followed by the uprooted and their counsel. Instead, they immediately petitioned to the high court for yet another order nisi108 against the appellate committee’s decision of September 23, 1951. The court issued an order nisi on November 26, 1951. On Christmas Eve 1951, while the villagers’ matter was pending a hearing before the high court, the army demolished the village of Iqrit. According to Sabri Jiryis,109 the military commanders took the mukhtar of the village, Mobada Daoud, to the top of the hill overlooking the village, where he was forced to watch the demolition of the village. The church was not blasted but was damaged by the explosion of the surrounding houses. Ben-Gurion noted in the Knesset debate that he did not issue the order to blow up the village.110 Twenty years later, Amnon Rubinstein111 wrote that the blowing up of the village was “a deliberate attempt to thwart and violate a ruling of the High Court.” Three motions for the agenda had been submitted by Arab Knesset members on January 16, 1952, with regard to the devastation.112 A Knesset debate following three motions for the agenda was held eleven days following Ben-Gurion’s announcement of the direct negotiations with Germany and Menachem Begin’s dramatic speech. Rustum Bastuni, representative of Mapam, juxtaposed the Nazi usurpation of Jewish property to the expulsion and appropriation of the villagers of Iqrit. In a poignant speech, he criticized Israel that the lesson it learned from the Holocaust was highly particularistic.113 The high court ruling of February 2, 1952, in the petition against the Appellate Committee for Security Zones114 focused on the faults in the 108 High Court 239/51 Mobada Hanna Daoud and others v. the Appellate Committee for Security Zones, the Office of the Military Governor of Galilee, 1952(1), 229. 109 Sabri Jiryis, The Arabs in Israel (New York: Monthly Review Press, 1976), 70, note 2. 110 According to Benny Morris, a directive of the IDF General Staff dated July 6, 1948, read that no people [Arabs] should be uprooted without a written order from Ben-Gurion in his capacity as minister of defense. Morris writes that in 1948, Ben-Gurion took caution to issue such orders in writing. Morris refers to the suggestion to expel all the Arab inhabitants of Acre and transfer them to Jaffa. Morris, The Birth of the Palestinian Refugee Problem Revisited, 154. 111 Amnon Rubinstein, “Injustices and Folly: The Request of the Inhabitants of Kafr Bir’im and Iqrit Was Rejected by Illogical Considerations,” Haaretz, June 30, 1972, 11. 112 Proceedings of the Knesset, vol. 10, 1011–1012, January 16, 1952. 113 Similar concerns were voiced following the Kafr Qasim massacre and are often reiterated by both Palestinian and Jewish critics to date. 114 239/51 Mobada Hanna Daoud and others v. the Appellate Committee for Security Zones, the Office of — 180 —

——————————————————— Iqrit and Bir’im ———————————————————

claimants’ legal arguments and questioned their litigation strategy. The claimants argued that the eviction orders were illegal. Their argument was twofold. First, they attacked the procedures of the appellate committee.115 To the respondents’ disappointment, the court noted that the procedure constituted part of the committee’s discretionary authority and ruled that it was reasonable under the circumstances. Second, the claimants argued that the orders of eviction were void because the government had failed to furnish them with alternative housing outside the security zone. The court ruled that the respondents’ failure to provide alternative housing did not render the evacuation order invalid. It further noted that the claimants had declined several housing arrangements offered to them.116 The court also ruled that the people of Iqrit have failed to exercise their rights through seeking legal relief and relied instead on promises that they would be allowed to return. Thus, the ruling maintained that this window of opportunity had closed on September 10, 1951, when the orders of eviction were issued. The court advised the uprooted to petition for the fulfillment of this obligation to provide them with alternative housing, but naturally, the claimants did not follow suit. In hindsight, the claimants’ argument of the failure to provide them with alternative housing weakened their case. Clearly, the court’s suggestion to petition for the fulfillment of the government’s obligation highlights the weakness of the claimants’ argument. The court mentioned al-Hawari’s disclosure concerning the claimants’ refusal to consider any alternative solutions before the eviction orders were issued. To the Military Governor of Galilee, 1952(1), 229, at 232. 115 Major General Avidar refused to testify in the presence of people other than the appellate committee, allegedly for security reasons. Al-Hawari was allowed to submit questions to the witness but was not allowed to read the answers to these questions. The court referred to Al Hawari’s claim that he was not given the opportunity to cross-examine the witness by arguing that the appellate committee’s judge, Zohar, had not received any such request from the counsel. Zohar further declared that the claimants had chosen to summon only one witness, whereas the committee did not limit the number of the claimants’ witnesses. 116 The court quotes a letter written by Palmon, then advisor to the prime minister on minorities. In the letter addressed to al-Hawari, dated March 12, 1951, Palmon writes, “I can arrange housing and sources of revenue that would not fall from, and even exceed those that they [the uprooted villagers] had in Iqrit, if they so wish, with or without any relationship to their rights in Iqrit.” High Court 239/51 Mobada Hanna Daoud and others v. the Appellate Committee for Security Zones, the Office of the Military Governor of Galilee, 1952(1), 229, at 232. Palmon and al-Hawari cooperated in the past, Palmon in his capacity in the Haganah Intelligence Service and al-Hawari as commander of the Najjada. — 181 —

——————————————————— chapter five ———————————————————

this, al-Hawari responded that the claimants changed their minds after the orders had been issued. Nevertheless, he added that the offers made to the claimants were vague. This line of argumentation enabled the respondents to shift the focus from the injustice to the claimants’ refusal to consider alternative housing. The court sided with the respondents’ claim of innocence based on Yehoshua (Josh) Palmon’s testimony that generous reparations were offered. Hence, the issue was passed on to the claimants. This first round of legal action ended on March 1953 with the enactment by the Knesset of the Land Acquisition (Validation of Acts and Compensation) Law . The explanatory notes to the proposed law state that the law’s objective is to provide legal basis for the acquisition of landholdings and to grant reparations to the landowners. The law allows for a retroactive validation of expropriation of lands. It stipulates that a property can be transferred to the Development Authority under several circumstances. These are as follows: in the event that the minister of finance determines (1) that the land was not held by the owner in April 1952; (2) that between May 14, 1948, and April 1, 1952, it was to serve vital security interests; (3) that the lands were needed for development or for establishing settlements, and (4) that the property was still required for the fulfillment of one of these ends. The lands of Iqrit were expropriated and signed over to the Development Authority on September 3, 1953. This barred the return of the uprooted to the village. Bir’im Kafr Bir’im is located about two miles from the border between Israel and Lebanon. The one thousand117 inhabitants of Bir’im lived in close friendship with the Jews in Palestine. On May 30, 1946, a treaty was signed between the Jewish Agency in Palestine and the Maronite Church.118 In the treaty, the Maronite Church and the Maronite community recognized the historical links of the Jews to Palestine and the Jewish right to free immigration and independence in Palestine. Moreover, the church endorsed the Jewish Agency’s declared program of the formation of a Jewish state. The Jewish Agency, in turn, recognized the independence 117 According to the Haganah Intelligence Service, there were 650 people in 1942. Other estimates suggest between 950 and 1,050 people. See Osatzki-Lazar, Iqrit and Bir’Im: The Full Story, 12. 118 Central Zionist Archives, S25/3269. — 182 —

——————————————————— Iqrit and Bir’im ———————————————————

of Lebanon and the rights of the Lebanese people to choose their own regime. It also reassured the church that the Jewish Agency’s plans for territorial expansion did not involve Lebanon. The interests behind the treaty were quite obvious. According to the Partition Plan of the Palestine Royal Commission of 1937, Iqrit and Bir’im were to be included in the Jewish State. The church’s concerns about the implications of the transfer of population must have been an important consideration behind the signing of the treaty. The transfer of the Maronites to the Arab state was thought to disconnect the Maronites in the Galilee from the large Maronite community in Lebanon. Although the treaty was signed eighteen months prior to the approval of UN GAR Resolution 181, the parties were already aware of the particulars of the plan for about nine years. De facto cooperation between the Maronites and the Jews in Palestine had already existed before the signing of the treaty. According to Ryan,119 the villagers cooperated with Yehoshua Palmon in smuggling Jewish immigrants through the village. Thus, when the IDF forces entered Bir’im on October 31, 1948, the villagers had no reason to feel threatened. As Moshe Carmel120 notes, they welcomed the soldiers with the traditional offering of salt and bread. On November 7, a census was held in the village.121 On November 13, the villagers were told that an Arab counteroffensive was expected and that they were required to evacuate the village temporarily. The priest, along with eighteen men, stayed behind. The others sought shelter in nearby caves. Aware of the harsh weather conditions, Bechor Shitrit, Minister of Police and Minorities, suggested that they move to the village of Jish. Emmanuel Friedman, Shitrit’s advisor on minorities, promised them that they would be allowed to return once the situation at the border improved. Ryan122 estimates that seven hundred villagers 119 Joseph L. Ryan, “Refugees within Israel: The Case of the Villagers of Kafr Bir’Im and Iqrit,” Journal of Palestine Studies 2, no. 4 (1973), 57–58. 120 Moshe Carmel writes that the villagers had fled north to the valley and attempted to cross the border to Lebanon but returned after they were denied entry. According to Osatzki-Lazar, Carmel’s timeline was at fault. Osatzki-Lazar, Iqrit and Bir’Im: The Full Story, 8–9; Carmel, The Campaigns in the North, 276. 121 Lists in the Ministry of Minorities Affairs files at the State Archives file 6/307/C. According to Vashits, there were 1,050 people at the time. Vashitz, The Bir’Im and Iqrit Affair: Facts, Background, Problems, 6. 122 Ryan, Refugees within Israel: The Case of the Villagers of Kafr Bir’Im and Iqrit, 60. — 183 —

——————————————————— chapter five ———————————————————

from Bir’im settled in four hundred vacant houses that were abandoned by Arabs who fled to Lebanon; some set up tents for temporary lodging. About 250 crossed the border to Lebanon. On November 24, 1948, the government ratified in retrospect the ethnification of the strip along the border with Lebanon. Represented by al-Hawari, the uprooted Bir’im villagers petitioned to the high court on October 8, 1951.123 The court issued an order nisi instructing the respondents to reply within fifteen days as to why would they disallow the return of the claimants to their houses and lands and why the respondents would not cease to object to the use of the property by the Bir’imites. The ruling of the high court of justice was due on December 3, 1951. While the ruling was pending, the army closed the area on October 12, 1951. The respondents requested an adjournment as the petition involved intricate and fundamental security problems. The court acceded to this request and deferred the ruling until January 18, 1952. While the petition was still pending in court, the IDF issued warrants of eviction to the uprooted, although they were already expelled from the village for two years. As in the case of Iqrit, the warrants issued were dated retroactively to November 30, 1950. The claimants declined receipt of the warrants and returned them to the sender. The court then ruled that since the military governor had not provided them with a permit to enter the village, their request could not be granted. The court further declined the claimants’ request for a hearing of their grievances. On August 27, 1953, the Ministry of Finance expropriated the lands of Bir’im. The ministry explained that the lands in question were not in the possession of the owners and that the State needed these lands for development. On September 16–17, 1953, the village of Bir’im was bombed by the Israeli Air Force. Airplanes dropped incendiary bombs on the village, which had been previously mined. All the while, the uprooted were watching from a close-by hill. This hill came to be known as the Hill of Tears. As in the case of Iqrit, it is not known who in fact ordered that the village be bombed and destroyed. At the Knesset debate that took place on September 16, 1953, De123 High Court 195/51 Kizer Ibrahim and others v. the Minister of Defense and others, October 10, 1951 (unpublished). The ruling, along with various depositions in the matter, is found at Joseph Estephan Sousan al-Khouri, My Testimony: Bir’Im Journal 1948–1968 (Aiblin: Sousan al-Khouri, Joseph Estephan, 1985). (Arabic) — 184 —

——————————————————— Iqrit and Bir’im ———————————————————

fense Minister Pinchas Lavon focused on the necessity of the evacuation and did not address the destruction of the village.124 “We were forced to do so, and I am quite sure that no one did it with joy; rather it was done with deep sorrow.” These words reflect the transformation of the perpetrator into a victim of the circumstances, one who is forced to commit the wrong for reasons beyond control. Lavon told the villagers that history cannot be undone and that although Israel was unwilling to allow their return, it was ready to fully recompense the value of their property either in cash or in kind. While the act itself was recognized as wrong, it was nevertheless framed as inevitable for the fulfillment of a just cause. This justification is an attempt to downplay the wrong, deny responsibility, and turn the perpetrator into a victim or a tragic hero. Attempts at Redress Campaigns for the redress of the historical injustice of the uprooted Iqrit and Bir’im villagers infiltrate the public agenda in Israel in a tenacious cycle. As with the other injustices analyzed in the previous chapters, the wound is still bleeding. For the uprooted, the loss far exceeds and overshadows any objective appearances of recovery and normalcy. The struggle of the uprooted to return to their villages has been persistent. The uprooted have turned down offers for monetary compensation or alternative housing in Jish or Rama and demanded to return to the villages. The struggle carefully echoed the political dynamics in Israel and the development of the conflict with the Palestinians. Over the years, the struggle exhausted the legal procedures available to the claimants and within the bounds of conventional political participation. The uprooted sent numerous letters to Knesset members, ministers and heads of state, the president, ambassadors, the Vatican, and the Maronite Church in Lebanon. They even published manifestos in newspapers in which they sought public support for their struggle. Both sides conducted the struggle with due diligence and refrained from framing it as an interreligion conflict. Joseph Weitz125 notes that in 1952, several Maronite priests from Bir’im crossed the border to Lebanon in order to explore the viability of the resettlement of the worship124 Proceedings of the Knesset, vol. 15, 462–463, December 23, 1953. 125 Joseph Weitz, My Diary, vol. 5 (Tel Aviv: Massada, 1954). Weitz was head of the Transfer Commission that was formed in 1948 to formulate policy regarding the Palestinian population in Israel. Population exchanges were also part of the 1937 Royal Commission Partition Plan. — 185 —

——————————————————— chapter five ———————————————————

pers in Lebanon after selling the village’s lands to the Israeli authorities. Upon returning to Israel, the priests declared that the Arabs would be better off in Israel. They were told by their superiors that they should stay in Israel and wait for a peace agreement. Then, they thought, their property would be returned to them. According to the Proche-Orient Chrétien, the destruction of the village was a manifestation of discontent of the Israeli authorities, with certain declarations of Msgr. Thomas J. McMahon of the Catholic Near East Welfare Association, of the treatment of Christians in Israel.126 The Proche-Orient Chrétien quotes a statement published in Israel’s Business Digest that notes that from the Zionist point of view the emigration of Arabs was the only solution for the Arab minority in Israel. Weitz writes the same comment in his diary in reference to the crossing of the priests to Lebanon.127 Amid the decisiveness and the aggressive policies, the rhetoric of ambivalence and regret with regard to Iqrit and Bir’im is merely a façade. Although Israel acknowledged the injustice, it decided against the villagers’ return out of fear of creating a precedent that would facilitate the realization of the right of return of the Palestinian refugees. Thus, the Development Authority allocated most of the expropriated lands of Iqrit and Bir’im to Jewish settlements or declared them nature reserves or national parks. In 1957, the authorities offered an arrangement that included reparations, the allocation of alternative lands, and the continuation of property rights in the villages. In the same year, 5,100 dunams128 of the lands of Bir’im were allocated to a new Jewish settlement, Dovev. All the while, the various governments and politicians misled the uprooted, promising that in due time, they would be allowed to return. Some of these promises seemed quite concrete. For example, in July 1958, the government announced a comprehensive plan for the resettlement of present absentees in Israel.129 At the same time, the reconstruction of the ancient synagogue in Bir’im in 1960 and the approval in 1965 126 Quoted in Ryan, Refugees within Israel: The Case of the Villagers of Kafr Bir’Im and Iqrit, 64. See footnote 40. 127 Weitz, My Diary, 205. 128 Out of 12,250 dunams, according to the British mandate records. Of the 5,100 dunams, all but 900 were pastureland. See Vashitz, The Bir’Im and Iqrit Affair: Facts, Background, Problems, 7. 129 Internal refugees are termed “present absentees” in Israeli Law. The term refers to Palestinian citizens of Israel who were uprooted from their villages, town, and cities, but who remained within Israeli territory. — 186 —

——————————————————— Iqrit and Bir’im ———————————————————

of a planning scheme in the area that did not include housing added to the concerns of the villagers. Again, the government made clear that the solutions offered were final and irrevocable. In 1959, the government managed to reach individual agreements for reparations. Figures vary; the government yearbooks between 1964 and 1967130 report some aggregate figures in both monetary terms and in dunams of land. The uprooted contested these figures, arguing that they were inflated. The Maronite archbishop in Lebanon and the Greek Catholic archbishop had both tried to convince their respective parishioners to compromise. However, the success of these attempts was limited. On December 1, 1967, Israel lifted the ban on entry to areas defined as security zones by the Emergency Regulations across the country. The uprooted attempted to seize this window of opportunity. They wrote numerous letters to the authorities, requesting the cancellation of the eviction orders issued to them. In February 1968, they received a reply that their request could not be fulfilled. In parallel, some positive developments transpired; these demonstrate the de facto recognition of the rights of the uprooted. The uprooted began to bury their dead in Bir’im. On September 10, 1970, the Ministry of Religious Affairs allowed the burial of an elderly lady of Iqrit at the village cemetery. Hopes were sparked in June 1, 1972, when Defense Minister Moshe Dayan announced that the Emergency Regulation of security zones would expire on December 31, 1972. In 1972, the uprooted began to hold various religious ceremonies, such as weddings, christenings, and special holiday prayers, in both villages. On June 10, 1972, the Ministry of Religious Affairs allowed the uprooted to reconstruct the damaged church and the cemetery. The authorities made clear, however, that these gestures would not lead to their return.131 On January 1, 1973, Moshe Dayan reinstated the area of Iqrit as a security area. In response to a motion for the agenda, by Knesset member Tewfik Toubi of the communist Rakach party, Dayan argued that the status of Iqrit and Bir’im would remain unchanged since the security situation had not changed.132 In his reply, Dayan reported the meet130 Government Yearbook (Jerusalem: the Government Printer, 1964); Government Yearbook (Jerusalem: the Government Printer, 1965); Government Yearbook (Jerusalem: the Government Printer, 1966); Government Yearbook (Jerusalem: the Government Printer, 1967). 131 Ryan, Refugees within Israel: The Case of the Villagers of Kafr Bir’Im and Iqrit, 66. 132 Proceedings of the Knesset, vol. 64 (December 7, 1972), 3312. — 187 —

——————————————————— chapter five ———————————————————

ing held by Golda Meir and Archbishop Raya, the leader of the Greek Catholic community in Haifa and the Galilee.133 According to Dayan, the uprooted had only been willing to return to their homes; and to this effect, they were ready to waive their property rights in the lands that were leased or otherwise transferred by the Development Authority to Jewish settlements. The emergent support for their claims in the political system stirred new hopes among the uprooted. On July 23, 1972, the government discussed the matter; but despite the declared support of the villagers’ cause, the government decided against it. The uprooted published an open letter addressed to the president, the prime minister, Knesset members, and the public.134 Some one thousand Israeli citizens came to Iqrit to express their solidarity with the uprooted in Iqrit and Bir’im on August 5. In Bir’im, families moved with their furniture into the ruined church.135 Two days later, the families were forcefully removed by the border police. In the course of the evacuation, twenty people were taken into police custody; and several were injured, including some policemen. On August 10, 1972, the Labor’s Central Committee voted in an overwhelming majority against their return. Golda Meir justified the decision and said that the Jews went through even more painful ordeals. She emphasized that security was not the only justification and that another important consideration was the need to avoid setting a precedent to the return of refugees.136 The protest continued throughout August but waned with the attack of the Black September terror group on the Israeli delegation to the Olympic Games in Munich.137 The deadly attack that the terrorists named Operation Iqrit and Bir’im was denounced by the uprooted, who railed against the use of their case by the terrorists. On December 27, 1972, Major General Yitzhak Hofi of the Northern Command issued an order for the closure of the areas of Iqrit and Bir’im. Hopes for redress sparked again in 1977 with the changes in the Is133 The meeting between Golda Meir and Archbishop Raya took place on April 18, 1972. It is reported in Dayan’s reply to the motion by MK Tubi. See Proceedings of the Knesset, vol. 64 (December 7, 1972), 3312. 134 Haaretz, July 28, 1972. See also Baruch Kimmerling, “Sovereignty, Ownership and ‘Presence’ in the Jewish-Arab Territorial Conflict. The Case of Bir’im and Iqrit.” 135 Nachman Fabian, Haaretz, August 11, 1972. 136 Yedioth Achronoth, November 8, 1972. 137 On September 5, 1972. — 188 —

——————————————————— Iqrit and Bir’im ———————————————————

raeli political system and the rise of Likud to power. Over the years, the Gahal party supported the villagers’ cause. Menachem Begin had promised the uprooted that if his party wins the 1977 elections, he would facilitate their return. Notwithstanding, after his party’s victory at the 1977 elections, he appointed a ministerial committee headed by Ariel Sharon, who was unsupportive of the villagers’ return, to decide on the matter. Following a debate in the Knesset, the issue was entrusted to the Knesset Committee for Foreign and Security Affairs in 1979. In 1981, the people of Iqrit submitted yet another petition to the high court.138 In their petition for an order nisi submitted on March 16, 1981, the uprooted requested the court to revoke the various orders that prevented their return or, alternatively, allocate to them a part or the whole of the village for housing and development. The respondents requested to postpone the issue of the order nisi as to enable them to look into the matter. The claimants’ legal strategy was twofold: first, they attacked the legality of the measures; and second, they argued that the circumstances that were the cause for those orders were no longer in effect. The court dismissed the petition due to the inability to examine after such latency the considerations and the legality of actions taken eighteen or nineteen years beforehand. The court also ruled that given the situation in the northern border, the claimants could not argue that the circumstances had changed.139 Over the years, numerous promises were granted to the uprooted by politicians from the Left and the Right. In its 1981 ruling, in an obiter dictum, the court comments about the promises granted to the claimants by various public personas. The court rules that these promises do not provide probable cause for an order nisi. The judges argued that the promises granted were in want of jurisdiction. Ironically, the court writes140 in the closing lines of the ruling that it hoped that if indeed the situation in the northern border changed for the better, the matter of the uprooted would be decided in their favor.141 Between the early 1980s and 1997, ministerial and legislative com138 High Court 141/81, The Committee of the Uprooted of Iqrit, Kafr Rama and Others v. the Government of Israel and Others, 1982(1), 129. 139 Ibid., 133. 140 One of the judges, Yehuda Cohen, was appointed as head of the State Investigative Committee on the Yemeni Babies Affair in 1995. 141 Ibid. — 189 —

——————————————————— chapter five ———————————————————

mittees were formed in an attempt to resolve the issue. These also included two proposed bills in 1988 and 1993, but to no avail. It seems that the uprooted drifted between the apparently just and empathic but tricky and numbing Scylla and greedy Charybdis, who, in her loyalty to national security, gobbled up lands and entire villages. The Libai Ministerial Committee, which was formed in July 1993, is but one example. The Libai Committee report142 recommended that the villagers be resettled in an area of approximately 1,200 dunams near the villages. This was the first time that Israel’s security forces were not opposed to the villagers’ return. By that time, peace treaties have already been signed with Egypt and Jordan, and the peace process with the Palestinians was under way. While the committee stated that the return of the uprooted does not threaten security, it also stressed that this should not be considered a precedent for the return of Palestinian refugees. The ambivalence of the authorities is reflected in the committee’s proposed resolution. Each original landowner (before 1948) and two of his sons would be eligible to lease half a dunam of land and build a three-story house. In return for reparations, the uprooted were to relinquish their land. This proposed resolution was inoperative since most of the original owners and part of the sons were already dead by 1995. In the political turmoil following the assassination of Yitzhak Rabin, the matter of the uprooted was pushed out of the political agenda. In October 1996, a new government headed by Benjamin Netanyahu was formed, but the villagers’ attempts to promote a decision in favor of their return were unsuccessful. On February 2, 1997, the villagers petitioned to the high court relying on the recommendations of the Libai Committee.143 The claimants argued that the security conditions had changed, that their rights were uncontested, and that the conditions of their return were already discussed by the committee. They requested the court to cancel the orders that bar their return to the villages. This time, they argued that their right to return emanates from a government promise granted to them by the government of Israel. The respondents argued that the claimants’ return should not be allowed as it would have dire political consequences. 142 The report was submitted on December 24, 1995, less than two months after the assassination of Prime Minister Yitzhak Rabin. 143 High Court 840/97 Sbit Aoni and Others v. the Government and Others, 2003(4), 803. — 190 —

——————————————————— Iqrit and Bir’im ———————————————————

While the villagers’ case was pending in court, Prime Minister Netanyahu entrusted Justice Minister Tzachi Hanegbi, who was at the time in favor of the uprooted, to present the case at the National Security Council. On December 8, 1998, Tzachi Hanegbi declared at the Knesset in a meeting celebrating the fiftieth anniversary of the United Nations Declaration of Human Rights the following:144 Who if not the Jewish People who suffered immensely is capable of understanding the suffering of those who did not sin and did not do wrong who were faithful to the State for fifty years, despite the terrible injustice they endured. I can determine, with clear conscience following an in-depth examination with the relevant security authorities, that such decision would not hurt the interests of the State of Israel but would rather reinforce the mutual trust among us and the Arab citizens Israel and will serve as evidence to the moral qualities of Israel.

This festive declaration highlights once again the gaps between the empathy toward the uprooted and the willingness to redress. The tension between universalism and particularism is clearly evident. Israel acknowledges the injustice but withholds redress due to “security considerations.” Again, the issue was upheld due to the coming elections in 1999. In light of the circumstances surrounding the withdrawal from Lebanon and the failed negotiations with the Palestinians, Prime Minister Ehud Barak decided to suspend any further decision in this matter. The Palestinian demands for the return of the refugees, the October 2000 intifada, and the failure of the Taba negotiations were cited by the respondents as reasons for not allowing the return. In February 2001, Prime Minister Ariel Sharon, who in the past was opposed to the villagers’ return, appointed a team headed by the government secretary to examine the issue. The government’s inability to reach a decision and respond to the claimants’ argument led to the postponement in the court’s ruling. In his deposition, Prime Minister Sharon argued that government was

144 Proceedings of the 14th Knesset, Meeting 260, December 8, 1998. — 191 —

——————————————————— chapter five ———————————————————

willing to consider ways for redress other than return.145 On June 26, 2003, the court finally dismissed the petition, siding with the position of the government that the change in circumstances (for the worse) does not allow the villagers’ return. Judge Dorner, however, noted that the State is indebted to the uprooted and that it would be proper to consider allowing the uprooted to return to the area when and if there would be a change in circumstances. Responsibility? Apolog y? Forgiveness? The sixty-year saga of the uprooted villagers of Iqrit and Bir’im is as tortuous as the history of Israel. Framed in the wider context of the right of return rather than in topical terms of land expropriation, it is tangent to Israel’s holy dramas of destruction and redemption. Can the legal system in Israel truly redress the injustice perpetrated on the uprooted villagers of Iqrit and Bir’im? The case is challenging; it unfolds the complexities involved in the redress of historical injustices. Apparently, this is a clear-cut case in which the immediate unjust act is not contested by the perpetrator. Unlike the previous cases, the State acknowledges the injustice and not only the facts surrounding it. Like in the previous cases, the State employs techniques of neutralization and various justifications of its wrongdoing. The crux of this case pertains to the form of redress. The victims demand restitution—the recovery of their property, even partially, in order to regain the symbolic assets that were lost. The perpetrators, on the other hand, offered in-kind and in-cash reparations, but not restitution. The conflict over the form of redress unveils a deep rift between the victims and the perpetrators. Using Torpey’s terms,146 from the point of view of the victims, the claim is cultural and invested with group significance. As in other claims for the restitution of native land, this claim is both symbolic and economic in essence. For the villagers, the value of the expropriated land far exceeds its monetary value. The willingness of the uprooted to renounce most of the land in return for reparations in order to be allowed to return and rebuild the houses is highly suggestive of such valuation. The claim is not all about money; it concerns the loss of the sense of place, the land, the attachment to the community and 145 High Court 840/97 Sbit Aoni and Others v. the Government and Others, 2003(4), 803, at 811. 146 Torpey, Making Whole What Has Been Smashed: On Reparation Politics, 54–59. — 192 —

——————————————————— Iqrit and Bir’im ———————————————————

religious life, the homes—all that cannot be reproduced and recreated in another place as the uprooted attest to.147 From the point of view of the uprooted, and in Catholic moral theology,148 restitution signifies an act of commutative justice149 by which exact reparation as far as possible is made for an injury that has been done to another. Justice is violated by keeping from another against his reasonable will what belongs to him and by willfully doing him damage in goods or reputation. Commutative justice, therefore, requires that restitution should be made whenever that virtue has been violated. This obligation is essentially identical to that imposed by the seventh commandment. The refusal to make restitution is considered a grave sin inasmuch as theft is. When the injustice cannot be repaired, the perpetrator is bound to make the utmost effort to appease the victim. The term “making satisfaction” distinguishes this form of restitution from restitution in the strict sense. Similarly to the cases analyzed in the previous chapters, the perpetrators attempted to enforce their value system on the victims. Although they admitted to wrongdoing, they consider the wrong inevitable for the fulfillment of the perceived common good of the dominant group. Sykes and Matza150 conceptualize this appeal to higher loyalties as one of their strategies of neutralization of guilt. While the act is recognized as a wrongful act, the redress is merely symbolic;151 it is limited to these two villages, although there are many other displaced internal refugees, and it does not entail any redistribution of the dispossessed and castout minority group. The construction and the framing of the case are highly significant. The cases analyzed in the previous chapters were framed by the perpetrators as narrow and discrete, as if these were anecdotal and not structural or systematic. In contradistinction, the case of Iqrit and Bir’im is framed in the wider context of the return of the Palestinian refugees 147 Ilan Magat, Bir’Am: A Conscripted Community of Memory and the Maintenance of Voice (Giva’t Haviva: The Institute for Peace Research, 2000). (Hebrew) 148 Thomas Slater, “Restitution,” in The Catholic Encyclopedia, vol. 12 (New York: Robert Appleton Company, 1911), http://www.newadvent.org/cathen/12788a.htm (accessed November 23, 2009). 149 Commutative justice is identical to Aristotle’s corrective justice. Both commutative and restorative justice strive to correct and restore the objective equality produced by the unjust act. 150 Sykes and Matza, Techniques of Neutralization: A Theory of Delinquency, 664–670. 151 In the Israeli reality where a proposed law intended to ban any public recognition of the Naqba, this can be considered quite an achievement. — 193 —

——————————————————— chapter five ———————————————————

in order to postpone or altogether avoid restitution. The value of the redress offered to the villagers is indeed substantial in Israeli terms but is in fact highly reductive. In Nancy Fraser’s theory of bivalent justice, an injustice cannot be characterized as exclusively a matter of misrecognition or misdistribution.152 For Fraser, justice today requires both redistribution and recognition, and nearly anyone who suffers injustice needs to integrate these two types of claims. Hence, while the villagers of Iqrit and Bir’im are of a low-status ethnic group whom the dominant culture values as less worthy, they are also part of a racialized and excluded ethnic minority economically defined as a pool of low-wage workers.153 Both recognition and redistribution are highly unlikely in the Israeli folk paradigm, as it were. The matter of Iqrit and Bir’im cannot be redressed, nor can the state offer an apology. Expressions of regret and the assumption of responsibility for the past are meaningless in isolation from present deeds. Ironically, this “all or nothing” view characterizes the manner in which the Israeli political system treated and constructed the injustice. According to Benvenisti, “Apology for the past follows the culmination of a conflict, and if it deals only with acts committed in the past and not with present deeds, it is nothing but hypocrisy.”154 Indeed, the problem of uprooted villagers of Iqrit and Bir’im, as is the problem of other internal refugees, is of first priority. However, it should be approached as bivalent redress.

152 Fraser and Honneth, Redistribution or Recognition? A Political-Philosophical Exchange, 9. 153 Shafir and Peled, Being Israeli: The Dynamics of Multiple Citizenship. 154 Benvenisti, Sacred Landscape: The Buried History of the Holy Land since 1948, 336. — 194 —

———————————————————Back to the Future ———————————————————

6. Back to the Future

As a global phenomenon, historical redress did not pass over Israel at the end of the twentieth century. Israel provides a distinctive case for studying historical redress; its uniqueness pertains to the temporal dimension that spans from the past through the present and on to the future, as well as to the intricacies involving the victim-perpetrator relationships. The three cases analyzed thus far have all transpired during the 1950s, and all were subject to meaningful attempts at redress as of the mid-1990s. Does the fin de siècle of the twentieth century usher in a new era in terms of facing the dangerous memories that constitute part of the Israeli past? Is it merely a coincidence that these three historical injustices reached some sense of finality toward the new millennium? One of the most intriguing yet unexplored questions concerning historical redress lies with the broader sense of its forward-looking qualities. What effect do historical redress campaigns (regardless of their success) have on the future reiteration of similar injustices? Do past redress campaigns invoke some kind of learning curve? Is the more recent discourse more compassionate and inclusive? Are these limited to specific injustice? The importance of these questions cannot be overstated. This chapter is concerned with the current politics of reparations in Israel in the context of the politics of identity and the discourse surrounding it. My purpose here is to examine the manner in which the injustices of the past impinge on the present and on the future. This chapter comprises three parts: first, I deal with the belated repercussions of the Holocaust reparations. Israel has recently embarked on a historical redress campaign for the repair of the injustices caused by the Israeli concession to West Germany. This concession released West Germany from its obligation to pay reparations for bodily damages to persons who were Israeli citizens before October 31, 1953. The second part deals with the Ethiopian immigrants in Israel and highlights the striking similarities of the patterns of immigration and absorption to those of the Yemenis. The section focuses on the injustice — 195 —

——————————————————— chapter six ———————————————————

involving the excluded Ethiopian blood donations. Finally, I discuss the cases and the patterns that emerge from the analysis. In this final section, I deal with the forward-looking aspects of historical redress campaigns. The Allocation of Holocaust Reparations in Israel Amending historical injustices can sometimes lead to the creation of new injustices. Teitel1 argues that the primary challenge in addressing past wrongs concerns the representation of the victims. Two practical issues emerge in this context: these are the definition of victims and survivors and their eligibility for reparations. As noted in chapter 2, Israel’s chief incentive for claiming the Holocaust reparations had been economic. The claim itself was collective and ostensibly bivalent,2 combining both recognition and distribution. First, the Holocaust was widely recognized as a novum and as the ultimate and unprecedented standard of evil. Israel demanded and was granted a public apology by the German chancellor as a precondition for the direct negotiations. Second, the reparations in money and goods were invested in the development of infrastructure, agricultural and industrial production, energy, and communications. Is this indeed a case of bivalent justice? The Luxembourg Treaty was essentially a backward-looking agreement for the restitution of property. Israel claimed from Germany the payment of DM 4.2 billion and received DM 3.4 billion in reconstruction assistance for twelve to fourteen years. The reparations were to be used for the development of infrastructure in the newly established state and for the resettlement and housing of the five hundred thousand survivors who immigrated to Israel. Israel was to receive approximately 91 percent; the rest was to be transferred through Israel to the Jewish organizations comprising the Claims Conference, including the Joint and the Jewish Agency. Most of this money, therefore, remained or eventually was returned to Israel.3 In 1965, the Bank of Israel reported that the reparations contributed to 13 percent of its GNP growth.4 During the twelve-year implementa1 2 3 4

Teitel, Transitional Justice. Fraser and Honneth, Redistribution or Recognition? A Political-Philosophical Exchange. Segev, The Seventh Million: The Israelis and the Holocaust, 216. Bank of Israel Report: The Reparations and Their Effects on the Israeli Economy, 65. — 196 —

———————————————————Back to the Future ———————————————————

tion of the treaty, Israel’s GNP grew by nearly 50 percent. According to the report, 30 percent of the reparations were utilized for the purchase of oil; most of the remainder was used for the purchase of equipment such as ships, trains, electric power stations, and raw materials. The principal beneficiaries of these were government-owned companies, the Jewish Agency, and the industries owned by the General Federation of Laborers, the Histadrut.5 All these were constituents of Mapai’s hegemony. The small portion that was allocated for the purchase of equipment to privately owned industries ($22 million) was subject to political wheeling and dealing between politicians and their cronies.6 The Bank of Israel’s report of 1965 suggests that Israel could have acquired the money as loans and grants from other sources.7 In other words, contrary to what was argued at the time, the Bank states that the reparations were not indispensable to Israel’s economy.8 This disclosure stands in contradiction to the official position of Israeli governments over the years. This section concerns the implications of two laws. The first Israeli legislation that concerns Holocaust survivors was the Invalids (War against the Nazis) Law: 5714-1954.9 In April 1957, the Israeli Knesset finally enacted the Invalids (Nazi Persecution) Law 5717-1957.10 Two arguments were reiterated during the Knesset discussions. Most of the participants in the discussion made reference to the moral obligation of the State of Israel to the survivors. Most of them, including the legal advisor to the government, saw the payments by the State of Israel as a moral obligation, almost ex gratia. In his statement of opinion, the advisor, Haim Cohen, wrote the following:11 Because the Treaty and its supplements do not impose obliga5 6 7 8

Ibid. Ibid. Segev, The Seventh Million: The Israelis and the Holocaust, 223–224. The Report of the State Investigative Commission on the Aid to Holocaust Survivors, 111. See also Segev, The Seventh Million: The Israelis and the Holocaust, 224; Horowitz, In the Heart of Events. 9 Invalids (War against the Nazis) Law: 5714-1954, Public Law 147, The Book of Laws (1954), http:// www.finance.gov.il/lishka/hok_milhama.htm (accessed March 22, 2010). This law establishes pensions for those who fought the Nazis and were injured during the war. 10 Invalids (Nazi Persecution) Law 5717-1957. Public Law 226, The Book of Laws (1957), www.knesset. gov.il/review/data/.../law/kns3_invalids_persecution_eng.pdf (accessed March 22, 2010). 11 Report of the Inter-Ministerial Commission for the Inquiry of the Problem of Pensions for Invalids Who Are Nazi Victims (Citizens of Israel) (Jerusalem: National Printer, 1956), State Archives, 5422/c1. — 197 —

——————————————————— chapter six ———————————————————

tions on Israel, but rather on the German Government, Israeli citizens who have been inflicted with bodily damages by the Nazis cannot take legal action against the State. . . . Formally, the State can do with the reparations in receives from Germany as a person does with his own. Moreover, legally and formally, the State is not authorized, even if it received reparations from Germany, to pay some (or at all) reparations for bodily damages unless it is ordered by law.

Cohen then moves to a moral argument, suggesting that the State cannot ignore the suffering of its citizens and their claims. He argued that this was a moral rather than legal obligation. In 2006, during a discussion of a proposed legislation for benefits to Holocaust survivors, MK Yuri Stern alluded to a letter signed by Justice Minister Tzipi Livni (Likud at that time) that Israel was not responsible for the suffering of Holocaust survivors and therefore should not recompense them.12 While this may well be an inaccurate representation of Livni’s words, one can sense that the benefits that Israel pays to Holocaust survivors were seen as ex gratia compensation. The monetary reparations that Israel paid to the survivors were markedly lower than the sums that Germany paid directly to survivors for the same bodily damages.13 While some survivors benefitted from the arrangement due to limitation of action in Germany,14 others—mostly those suffering from disabilities—incurred considerable losses by this concession and the subsequent Israeli legislation.15 About two-thirds of the survivors never received reparations; they passed away while the matter was still pending in various committees.16 Over the years, the Invalids (Nazi Persecution) Law was subject to

12 Parliamentary Committee for Absorption of Immigrants and the Diasporas, Hearing, 23rd sess., August 1, 2006, 3, http://www.knesset.gov.il/AllSite/mark02/h0227715.html#TQL (accessed January 31, 2010). 13 The Report of the State Investigative Commission on the Aid to Holocaust Survivors, 120–127. The Implementation of the Report of the State Investigative Commission on the Aid to Holocaust Survivors: Report by the Knesset’s Research and Information Center (Jerusalem: Government Printer, 2009), http://www.knesset.gov.il/mmm/data/pdf/m02324.pdf. 14 The estimated number of this group is fifteen thousand. See High Court 5263/94 Hirschson Abraham v. the Minister of Finance 1996(5), 837. 15 The Israeli Knesset, Invalids (Nazi Persecution) Law 5717-1957. 16 Teitelbaum, The Biological Solution. See chapter 10 in particular. — 198 —

———————————————————Back to the Future ———————————————————

several amendments.17 In 1959, the limitation period of submitting claims was extended for six months. In 1962, Israel tried to negotiate with Germany and reopen the issue of individual claims.18 Germany agreed to pay DM 350 million as a special single payment. Organizations of Holocaust survivors had attempted over the years to pressure the Israeli government to negotiate with Germany for reparations for those ineligible to claim from both Israel and Germany. Israel was not lured by the organizations’ argument about the positive effect of reparations on economic growth; the State decided not to interfere with the individual claims. Officially, the refusal was grounded in the finality of the Luxembourg Treaty. One could argue that until the mid-1980s, Israel was concerned with the collective interest.19 One could also presume that Israel was concerned that interfering in what was perceived as the survivors’ private interest would render Israel morally obliged to recompense the survivors from its own resources in case these attempts would fail. During the 1990s, the issue of the injustices in the reparations format emerged in Israeli public discourse as part of the global soul-searching of the fin de siècle. In Israel, this was characterized by reflection and revisionist accounts of the Israeli past. A renewed interest in Holocaust research in the post–Cold War era was also catalyzed by the opening of the wartime archives. The campaigns against the dormant accounts in Swiss Banks and the struggle for reparations for forced labor and over restitution of property in Eastern Europe20 echoed in Israel.21 17 The Report of the State Investigative Commission on the Aid to Holocaust Survivors, 60–70. 18 Teitelbaum, The Biological Solution, chap. 7. 19 Ibid., chap. 5. 20 Some of this research was government induced, such as the Bergier’s Independent Commission of Experts (ICE), which was set up in December 1996 by the Swiss parliament and given a wide range of powers to examine neutral Switzerland’s relationship with Nazi Germany during the war, http://www.liechtenstein.li/en/pdf-fl-historikerkommisssion-pressemitteilung.pdf (accessed February 10, 2010). See also the U.S. report on the restitution of gold and other property, http:// www2.lib.uchicago.edu/~llou/nazigold.html (accessed February 10, 2010). 21 The Parliamentary Commission of Inquiry for the Assets of Holocaust Victims in Israeli Banks, http:// www.knesset.gov.il/committees/heb/docs/shoa_account/shoa_finalreport.pdf (accessed February 7, 2010). The Commission convened from February 2000 to January 2005. A parliamentary Commission of Inquiry, headed by MK Colette Avital, was formed in February 2000 to investigate the dormant bank accounts and land owned by Holocaust victims in Israel in order to trace heirs or distribute heirless property in favor of Holocaust survivors and for commemoration. Most of the assets that were kept in the banks were transferred to the State after its establishment. The banks have not acted in due decisiveness in tracing the assets and returning them to their lawful owners in fair values. — 199 —

——————————————————— chapter six ———————————————————

Public pressures for inclusion together with several courts’ rulings, from the 1990s onward, have led to new legislation and increased entitlements. The unification of Germany and the negotiations of the Claims Conference with unified Germany have been successful. The activity of survivors’ organizations and increasing gaps between the Israeli and German pensions have kept the issue on the public agenda. The groundbreaking ruling of the high court in the matter of Hirschson v. the Minister of Finance22 offers a dependable source of the official position of the state on the issue of reparations to Holocaust survivors. In a deposition submitted to the high court, Finance Minister Abraham Shohat declared the following:23 It is my opinion that even if Germany, out of its own considerations, capabilities and means, pays in reparations for the disabled more than Israel pays them, it is not unreasonable for Israel to pay the invalids according to the Law . . . the same benefits that are paid to those wounded during military service, and some of the other groups of invalids. Ever since its inception Israel faces many challenges and tasks in different areas, and it provides its citizens and populace with services and aid in accordance with its economic capabilities.

As of 1992, property rights became constitutional in Israel; accordingly, the court ruled that the State impinged on the property rights of claimants who immigrated to Israel before October 31, 1953. While the court acknowledged that the encroachment was at the time intended to serve the common good, it found that those individuals were indeed eligible for compensation. The judges dismissed the State’s argument that recompensing the survivors might place unbearable burden on the State.24 Recognition as a Holocaust survivor was granted quite sparingly over the years. This exclusion was driven mainly by economic concerns.25 22 High Court 5263/94 Hirschson Abraham v. the Minister of Finance 1996(5), 837. 23 Ibid. (Hebrew, my translation, RA) 24 Ibid. 25 This is evident in various debates in the Knesset and in the Parliamentary Committee for Absorption of Immigrants and the Diasporas. See for example Parliamentary Committee for Absorption of Immigrants and the Diasporas, Hearing, 23rd sess., August 1, 2006, 3, http://www. knesset.gov.il/AllSite/mark02/h0227715.html#TQL (accessed January 31, 2010). — 200 —

———————————————————Back to the Future ———————————————————

Recognition was granted only to those who were later referred to as the “first circle,” namely, those transported to concentration camps or those who lived in ghettos. Others who managed to flee from the Nazi persecution,26 the “second circle,” were excluded. This was the case with Bulgarian and Romanian27 Jews who were “merely” subject to persecution and restrictions of their liberty. Among them were Jews from North African countries who were not recognized as Holocaust survivors. The largest population comprising of this “second circle” consisted of Jews who fled to Russia from countries that were under Nazi occupation. Since the late 1980s and throughout 1990s, newly arrived immigrants from the former Soviet Union constituted the majority of Israelis who were ineligible for reparations under the existing Israeli legislation. From the 1990s onward, cuts in social security benefits and pensions brought 23 percent of the recognized Holocaust survivors below the poverty threshold. While this rate is identical to the poverty rate among the general elderly population in Israel, the rate among immigrants who are Holocaust survivors (mostly from the former Soviet Union) is almost double (42 percent).28 A more detailed breakdown of the 2008 data29 suggests that of the poor Israelis, 87 percent of those over eighty years of age and 55 percent of the seventy- to seventy-five-year-old cohort are Holocaust survivors. Most of these survivors belong to the “second circle.” Representatives of the “Russian” parties in the Knesset30 initiated some minor adjustments that targeted the population of WWII veterans during late 1990s. 26 For example, the Kindertransport children; the Tehran children; Immigrants from the Former Soviet Union, and other groups of survivors from Rumania, Bulgaria and Muslim countries. 27 Further Hearing (Civil) 11196/03 Granot Yosef and Others v. the Competent Authority as per the Invalids (Nazi Persecution) Law 5717-1957, 2005(4), 98; Permission to Appeal (Civil) 5512/09 Hershko Haim and Others v. the Competent Authority as per the Invalids (Nazi Persecution) Law 57171957, 2009(4), 2998. 28 Interim Report of the Inter Ministerial Commission for Resolving the Strife of Holocaust Survivors (Jerusalem: The Ministry of Welfare and Social Services, 2007). 29 A presentation of the Prime Minister’s Office that concerns the unrecognized Holocaust survivors (the “second circle”), titled “The Second Circle of Holocaust Survivors: Social Justice—Historical Justice.” See http://www.pmo.gov.il/PMO/PM+Office/eco/Zikna.htm (accessed January 20, 2010). 30 The status of WWII veterans, 2000. This law grants recognition and establishes some preferential treatment of this population in public housing and in diminished deductibles in the costs of medicines, an annual grant equal to 25 percent of the average wage to the veteran and other minor benefits. See http://www.moia.gov.il/Moia_he/ImportantToKnow/Veterans.htm (accessed February 1, 2010). — 201 —

——————————————————— chapter six ———————————————————

The Holocaust was constructed in Israel as a catastrophe of Ashkenazim. However, recognition that entailed compensation by the State was granted sparingly even to Ashkenazim—only to those considered “first circle.” The exclusion of North African Jews from both public consciousness of the Holocaust and from collective memory is particularly disturbing. In the last decade, there have been several petitions by individuals and groups of survivors who demanded recognition as Holocaust survivors. In 2004, a group of Israelis who emigrated from Tunisia petitioned to the Competent Authority as per the Law of Invalids in order to gain recognition as Holocaust survivors. In 2005, Jews from Algeria, Morocco, Libya, and Turkey were included for the first time, after sixty years of oblivion, in the Knesset ceremony at the Holocaust Memorial Day on May 5, 2005. The 409 Jews from Tunisia who perished in labor camps in Tunisia or in death camps in Europe, however, remained ignored. In 2008, the Tel Aviv District Court finally recognized them as survivors31 but ruled that eligibility for reparations was to be decided on an individual basis. In other words, recognition was seen as distinct from entitlements. With the dwindling population of Holocaust survivors, this belated recognition is instrumental in keeping the memory of the Holocaust vivid. The inclusion of Mizrachim suggests a departure from the view of the Holocaust as the Holocaust of European Jewry. In August 2007, the state comptroller, Judge Micha Lindenstrauss, devoted part of the annual report to the omissions of Israeli governments in the treatment of Holocaust survivors.32 The report suggests that the maltreatment of the survivors stems from the lack of a clear definition of who is a survivor in Israeli legislation. The exclusionary practices and the ambiguities associated with the lack of any binding legal definition of survivors and the variability in the benefits created inequality among the survivors. Pross’s critical account of the Holocaust reparations focuses on the conduct of the authorities

31 Civil Appeal District Court Tel Aviv 1954/04 Kalifah Roeh and Others v. the Competent Authority as per the Invalids (Nazi Persecution) Law 5717-1957, 2008(1), 4656. The Jews of Tunisia emigrated after October 31, 1953, but were prevented from claiming under the BEG because their Tunisian nationality was not recognized until Tunisian independence in March 1956. These survivors were excluded from the French arrangements since they did not hold French citizenship. 32 State Comptroller’s Report: Aid to Holocaust Survivors (Jerusalem: Keter, 2007), http://www. mevaker.gov.il/serve/contentTree.asp (accessed January 19, 2010). — 202 —

———————————————————Back to the Future ———————————————————

in Germany with regard to the Israeli victims. He argued that33 the upper classes among the emigrants were granted relatively high compensatory pensions; but the “little people,” the politically persecuted, the minorities without a lobby, were exposed to unreserved spite, pettiness and coldness of the bureaucracy.

All in all, however, the situation of those eligible for reparations from Israel was yet worse.34 The comptroller’s report finds several other problems emanating from the insufficient government funding to the survivors’ organizations that took upon themselves to provide aid in place of the government. The report makes reference to the omissions in the treatment of survivors by various government agencies, such as the Rehabilitation of Invalids Bureau in the Ministry of Finance. Due to the protracted treatment and red tape, many survivors did not live to see the matter settled. The report also notes the urgency of handling claims for the restitution of property and money due to old age and attenuation of this population.35 As a result of this report, a state investigative commission was formed in 2008, headed by retired High Court Judge Dahlia Dorner. The Dorner Commission Report The Dorner Commission of 2008 can be seen as the establishment’s overdue response to the public campaigns of the 1990s, the precedent ruling of the high court in the matter of Hirschson v. the Minister of Finance,36 and the persistence of the discourse of reparations in Israel as part of the discourse of rights that prevailed in Israeli public discourse of the 1990s. These—including the state comptroller’s report in 2007, the Knesset’s proposed law,37 and the joint struggle of the survivors’ organizations—herald the Dorner Commission Report. The commission’s chairperson, retired High Court Judge Dahlia 33 Pross, Paying for the Past: The Struggle over Reparations for Surviving Victims of the Nazi Terror, 175. 34 See supra note 14. 35 State Comptroller’s Report: Aid to Holocaust Survivors, 11–26. 36 High Court 5263/94 Hirschson Abraham v. the Minister of Finance 1996(5), 837. 37 Law for Increased Income Support Payments to Needy Elderly and Holocaust Survivors, 5768 -2008, The Book of Laws, 2137: 236 (March 3, 2008). — 203 —

——————————————————— chapter six ———————————————————

Dorner, is known for her liberal views and rulings. She was one of the high court judges who ruled in the matter of Hirschson v. the Minister of Finance. Two other members were Professors Omer Moav,38 an economist specializing in economic growth, and Zvi Eisikovits, specializing in social welfare. Apart from the prompt investigation,39 the Dorner Commission stands out in three major spheres: first, the report employs the discourse of rights; second, it seems to be driven by an epistemology of suspicion;40 third, the scope of the remedies it puts forward includes detailed remedies that it proposed to the executive branch. The report conveys a strong sense of compassion toward Holocaust survivors, devoid of any traces of paternalism. The introductory section states that the charter of the commission as formulated by the Parliamentary State Control Committee is geared toward the proper accommodation of the material, medical, and mental needs of Israelis who are invalids as a result of Nazi persecution, survivors, and refugees.41 Here, the emphasis is on the needs of the survivors rather than on the needs of the State. Accordingly, the commission decided to focus the inquiry on three dimensions. First was the focus on the rights of the survivors is a marked departure from the establishment’s view of the pensions as ex gratia. Second, the commission deals with the question of whether the state fulfilled its moral obligation toward the survivors. Finally, the committee chose to deal with the inadequacy of the 2008 legislation of increased income support payments for the needy elderly and Holocaust survivors.42 The report opens with a review of the historical background and is followed by a review of the legal background, including legislation and 38 Head of the Advisory Economics and Society Forum at the Ministry of Finance. Moav was researcher at Shalem Center, a neoconservative think tank. 39 The Dorner Commission was appointed on January 20, 2008, and issued its report on June 22, 2008. The commission noted that a prompt investigation is necessary due to the old age and the hardship experiences by the survivors. 40 Sangero, “Where There Is No Suspicion, There Is No Real Investigation: The Report of the Committee of Inquiry into the Disappearance of the Children of Jewish Yemenite Immigrants to Israel in 1948–1954,” 47–76. 41 The Report of the State Investigative Commission on the Aid to Holocaust Survivors, 13. 42 The law was initiated by the Prime Minister’s Office following the comptroller’s report; it was passed a month after the first session of the Dorner Commission. See Law for Increased Income Support Payments to Needy Elderly and Holocaust Survivors, 5768-2008, The Book of Laws, 2137: 236 (March 3, 2008). — 204 —

———————————————————Back to the Future ———————————————————

rulings. The historical background lays the foundations for establishing the survivors’ rights. It unfolds the negotiations with Germany over the Luxembourg Treaty, the discourse of reparations in Israel, and the implication of the Israeli concession concerning reparations to individuals who were Israeli citizens in late 1953. The legal background focuses on the differential and inequitable benefits of survivors according to their country of origin, ethnic origin, and the date of immigration. The discussion, findings, and conclusions sections are highly poignant. The comptroller’s report that pointed at the establishment’s faults and omissions in the treatment of Holocaust survivors became a precursor for the Dorner Commission. The epistemology of suspicion is evident; the report does not seem like an attempt to whitewash or offer some zealous defense of the establishment. The report emerges as a sincere attempt to tackle this loaded issue. Considerable effort was invested in studying the historical background. To this effect, the commission was assisted by special advisors, scholars who studied and analyzed the diverse materials upon which the commission’s work was grounded. The commission made use of critical research on the social, economic, and legal aspects relevant to the subject of inquiry. Among these are various critical studies that are normally beyond the scope of many such commissions, some of which represent the most recent scholarship on the subject. The commission summoned forty-seven witnesses, including survivors, academics, civil servants, and representatives of Holocaust survivors’ organizations. The report highlights the injustices embedded in the differential benefits of various groups of Holocaust survivors. It refers to the misrecognition, exclusion, disrespect, oblivion, false representation, and bureaucratic red tape that the survivors endured over the years. The commission notes that during testimonies of survivors over the years, the stance of the authorities toward the survivors was highly adversarial.43 The Bureau for Rehabilitation of Invalids44 “operates as if its primary objective is to defend the public funds.” Sometimes even winning the case against the bureau does not guarantee anything due to the latter’s adversarial stance and tendency to appeal the ruling to the overburdened district courts. The result is that many survivors perish 43 Ibid., 174. 44 Ibid., 174–175. — 205 —

——————————————————— chapter six ———————————————————

before the matter is settled. The commission further notes that as per the high court ruling45 pertaining to the recognition of Bulgarian Jews as Holocaust survivors, the fact that a legal or a contractual duty entails financial burden does not provide grounds for nonperformance. As per the commission’s report, over the years, Israel was tightfisted with the survivors. The State used the funds of the Claims Commission instead of financing services out of its own budget. Needless to say that while these resources served the public at large, they were not utilized for supporting the survivors. The findings section46 of the report reveals the differential treatment of the survivors. It focuses in particular on the pensions of the survivors who immigrated to Israel before October 1, 1953, and were not eligible for reparation under the BEG.47 For these survivors, the Israeli pensions were as follows: for 25 percent disability between 33 and 70 percent of the German pension in the years 1955–2007, for 50 percent disability between 45 and 90 percent of the German pension, for 75 percent disability between 50 and 100 percent, and for 100 percent disability between 50 and 110 percent of the German pension during these same years. On average, the values of pensions calculated in January 1, 2008, were 40 percent, 50 percent, 61 percent, and 65 percent, respectively, for 25 percent, 50 percent, 75 percent, and 100 percent disability. More than 90 percent of those eligible for the pensions suffer up to 50 percent disability. The differences were due to fluctuations in the exchange rate between the German and the Israeli currencies and changes in the wages in the German public service. In the period 2000–2002, changes expressed the currency change in Germany from DM to the Euro. The benefits paid by the Israeli government were not adjusted accordingly since their launch in 1957. This critique is somewhat mitigated by the argument that all these injustices were not the result of some cruelty of the leaders. The commission attributes the governments’ conduct to the collectivistic ethos that placed the community and the common good above the individual.

45 Permission to Appeal (Civil) 2620/07 The Competent Authority as per the Invalids (Nazi Persecution) Law 5717-1957 v. Arlazov, 2007(2), 3807. 46 Ibid. 47 There are between eighteen thousand and twenty thousand survivors in Israel who receive benefits in accordance with the BEG. Ibid. — 206 —

———————————————————Back to the Future ———————————————————

Tom Segev,48 however, suggests that most of the sums paid by Germany were transferred to individuals through the agreement with the Claims Conference; only one in four of the recipients are Israeli. These payments, he argues, amounted to more than the amounts that the State of Israel received in collective reparations. This, according to Segev,49 “was primarily a global Jewish success story, individualist in nature, not an Israeli collectivist achievement.” The Dorner report states explicitly that it is forward-looking, and thus, the commission does not seek to attribute responsibility;50 rather, it is oriented toward restorative justice and offers a model for redress with actual policy proposals. The remedies offered are supported by the duty to recover the property rights of the survivors, which the Israeli high court came to recognize in the early 1990s as constitutional. Thus, the report unfolds a detailed outline of welfare services to the needy elderly population, most of whom are Holocaust survivors, within the confines of the shrinking welfare services in Israel. While many services are provided to the survivors by NGOs, the commission recommends that the issues pertaining to eligibility and the exercise of rights would not be delegated to NGOs but rather would be determined by a governmental agency, namely the Bureau for the Rehabilitation of Invalids at the Ministry of Finance. Thus, the commission suggests distinguishing between the body responsible for realizing the rights and those supplying the services. The report balances the poignant critique of the conduct of the various governments with the understanding of the constraints operating on the policy makers. Hence, the commission recommends that the pensions paid to Holocaust survivors by the State of Israel would be set on 75 percent of the pensions paid by Germany. This recommendation, however, was not implemented. Both the commission and the organizations of Holocaust survivors find that the 2008 law for increased support payments for the needy elderly is an acceptable settlement for “second circle” survivors who are not eligible for pensions.51 The concluding lines of the report present this balancing act. This is 48 Segev, The Seventh Million: The Israelis and the Holocaust, 233–236. 49 Ibid., 233. 50 The Report of the State Investigative Commission on the Aid to Holocaust Survivors, 201. 51 Law for Increased Income Support Payments to Needy Elderly and Holocaust Survivors, 57682008, The Book of Laws, 2137: 236 (March 3, 2008). — 207 —

——————————————————— chapter six ———————————————————

evident in the commission’s reference to the testimony of Rachel Biala.52 Biala, a survivor, urged the commission to order the State to allocate considerable amounts of money out of its budgetary reserves. This, she argued, would enable the survivors in the remainder of their lives to live in dignity in the full sense rather than in the narrow and limited sense of the word. The commission responded as follows:53 If we were to follow our hearts we would be responsive to Rachel Biala’s appeal that fully touches the heart and the conscience. However, as stated, we did not deem ourselves free to ignore budgetary constraints, primarily out of our concern that it would provide cause for declining our recommendations. Now, after we well thought-out the budgetary constraints within the bounds of our recommendations, we hope that the report would not be covered with dust in archives and become a disregarded ruling, but rather that our recommendations would be accepted and executed in both gist and content.

The Blood Donations of Ethiopian Immigrants The Jews of Ethiopia The earliest references to the existence of Jews in Ethiopia by Jewish observers54 are legendary in nature. According to James Arthur Quirin,55 these accounts are inconclusive in that there remains a queston of whether they were really referring to Jews or, in the case of Jewish travelers, whether they were referring to Ethiopia.56 The Falashas were discovered by the Scottish traveler James Bruce, who stayed in the Gondar 52 Ibid., 210. 53 Ibid., 211. 54 Eldad Ha-Dani in the ninth century, Benjamin of Tudela in the twelfth century, and Elijah of Ferrara in the fifteenth century. 55 James Arthur Quirin, The Beta Israel (Felasha) in Ethiopian History: Caste Formation and Culture Change, 1270-1868 (Ann Arbor, Michigan: University Microfilms International Publisher, 1985); James Arthur Quirin, The Evolution of the Ethiopian Jews: A History of the Beta Israel (Falasha) to 1920 (Philadelphia: University of Pennsylvania Press, 1992), 21. 56 The sixteenth-century account by David Ben Abi Zimra (the Radbaz) is of Falashas who were brought to Egypt as slaves. See Daniel P. Summerfield, From Falashas to Ethiopian Jews: The External Influences for Changes c. 1860–1960 (London: Routledge Curzon, 2003). — 208 —

———————————————————Back to the Future ———————————————————

region between 1669 and 1670 as part of a larger study on the sources of the Nile. Bruce notes that the Falashas traced their origin to Solomon and Sheba.57 Interest in the Falashas grew with the establishment of a Protestant mission in Ethiopia in 1859. This marks the beginning of the modern history of the Falashas.58 The missionaries’ reports have invoked a renewed awareness of the Falashas among Jewish individuals and organizations in Europe. Joseph Halévy, a scholar of Semitic languages at the Paris Sorbonne, was sent in 1868 to the northern mountains of Abyssinia by Alliance Israélite Universelle59 to study the conditions of these Jews.60 Halévy reported that nothing was known about the Falashas61 but their name. By this, he referred to the Jews of Ethiopia, who kept their faith amid disasters. Halévy pleaded for European Jewry to come to the rescue of the miserably depressed Falashas. He argued that the Falashas were not interested in material aid, but rather in spiritual and educational regeneration. Jacques Faitlovitch, who was Halévy’s student at the Sorbonne, held a Pan-Hebrew vision. He was convinced of the need to widen the traditional confines of Judaism by seeking groups of people with distant Jewish origins or by following the path of proselytism.62 Faitlovitch is considered the first to bring the Falashas into Jewish history and consciousness. The Beta Israel community underwent recasting of their culture, which gradually transformed them into Ethiopian Jews.63 According to Summerfield, the “century of gross interference”64 57 David Kessler, The Falashas: A Short History of the Ethiopian Jews, 3rd rev. ed. (London: F. Cass, 1996), 85. 58 Summerfield, From Falashas to Ethiopian Jews: The External Influences for Changes c. 1860–1960, 17. 59 This international Jewish organization was established in Paris in 1860. The organization advocated the emancipation of the Jewish population and worked to protect the rights of Jews around the world. 60 Halévy was also sent to Yemen in search of Sabaean inscriptions. He is mostly known for this work. See Hayyim Habshush and S. D. Goitein, Travels in Yemen: An Account of Joseph Halévy’s Journey to Najran in the Year 1870 (Jerusalem: Hebrew University Press, 1941). See also Kessler, The Falashas: A Short History of the Ethiopian Jews; David Kessler, The Falashas: The Forgotten Jews of Ethiopia (London: G. Allen & Unwin, 1982). 61 Falasha means strangers or exiles in Ge’ez (an ancient south Semitic language). This is a term used by non-Jewish Ethiopians in reference to Ethiopian Jews and is considered derogatory. See Kessler, The Falashas: A Short History of the Ethiopian Jews, ix. 62 Emanuela Trevisan Semi, “Ethiopian Jews in Europe: Taamrat Emmanuel in Italy and Makonnen Levi in England,” in Jews of Ethiopia: The Birth of an Elite, eds. Emanuela Trevisan Semi and Tudor Parfitt (London: Routledge, 2005), 75–76. 63 Summerfield, From Falashas to Ethiopian Jews: The External Influences for Changes c. 1860–1960, 39. 64 Ibid., 131. — 209 —

——————————————————— chapter six ———————————————————

of Jewish organizations and individuals in the lives of the Falashas in the mid-nineteenth century intensified with the establishment of the State of Israel and the inception of the Jewish Agency’s programs in Ethiopia. The transformation in reference to Falashas as Ethiopian Jews was grounded in their dissociation from the Ethiopian environment and their conformity with the tenets of traditional Judaism. This was deemed necessary since the Jewishness of the Falashas was in question. This was in part related to the polemic about the possibility of a separation between ethnic Judaism and religious Judaism.65 Obviously, this change was race related. Faitlovitch argued that the Falashas, as their name suggests, were exiled immigrants. Their bodies were assimilated too, due to the heat of the Ethiopian sun.66 Gordon MacCreagh, an explorer who returned from Abyssinia in 1929, held the same view. He argued that the Falashas were brown rather than black—the result of generations of African sunburn. MacCreagh feared that defining them as black would damage their cause vis-à-vis American Jewry.67 In February 1973, the Falashas were formally recognized as Jews by a decree issued by the Sephardic chief rabbi, Ovadia Yosef. In 1975, they were recognized as Jews by the chief rabbinate and allowed to settle in Israel.68 Between 1977 and 1985, many Ethiopians—among them twenty thousand Jews—crossed the desert by foot to Sudan. There they lived in refugee camps in miserable conditions. American Jewish organizations seeking to display Jewish-black solidarity and religious Zionist groups in Israel seeking to augment the Jewish population in Israel exerted pressure on the government to arrange for the immigration of these Jews to Israel.69 Due to the political circumstances in Ethiopia, the immigrants needed to maintain secrecy about their plans. They had to leave their homes hastily and cross the desert by foot. About four thousand of them did not 65 Tudor Parfitt and Emanuela Trevisan Semi, Judaising Movements: Studies in the Margins of Judaism (London: Routledge Curzon, 2002), 105. 66 Summerfield, From Falashas to Ethiopian Jews: The External Influences for Changes c. 1860–1960, 43; Parfitt and Trevisan Semi, Judaising Movements: Studies in the Margins of Judaism, 88–89. 67 Parfitt and Trevisan Semi, Judaising Movements: Studies in the Margins of Judaism, 88–89. 68 Until then, about 150 Ethiopian Jews immigrated to Palestine and later to Israel through programs initiated by Faitlovitch. Micha Feldman, The Ethiopian Exodus (Jerusalem: The Jewish Agency, 1998), 15. 69 Mitchell Geoffrey Bard, From Tragedy to Triumph: The Politics behind the Rescue of Ethiopian Jewry (Westport, Connecticut: Praeger, 2002). See also Shafir and Peled, Being Israeli: The Dynamics of Multiple Citizenship, 321. — 210 —

———————————————————Back to the Future ———————————————————

survive the migration journey. During 1977–1985, about five thousand Ethiopian Jews were transported in navy vessels and airplanes to Israel. In two dramatic military operations in 1984 and 1991, the community of Beta Israel, Ethiopian Jews, was airlifted to Israel. This was the result of cooperation between the Israeli Mossad and senior Sudani officials. The Falash Mura, who converted to Christianity during the missionary activities in Abyssinia in the nineteenth century, were left behind. They were the subject of public struggle following Operation Solomon in 1991.70 This struggle has not been resolved to date. The association of blackness with Negritic races, the suspicions surrounding their Jewishness,71 the exclusionary practices of the rabbinate,72 and, finally, the Ethiopians’ poor human capital in Israeli terms73 became grounds for their exclusion. Despite the rabbinate’s recognition of the communal status of Beta Israel as Jews, an ambiguity concerning individuals’ personal statuses remained. Various discriminatory directives issued by the rabbinate pertaining to the Ethiopian community in Israel have become grounds for conflict with the religious establishment. For a while, the rabbinate adopted a ruling that required all Ethiopians to undergo a conversion ceremony, which included ritual immersion and symbolic circumcision as a precondition for marriage registry. Over the years, however, a small number of rabbis agreed to marry Ethiopian Jews without requiring the symbolic circumcision as long as they were granted a written statement from a Beta Israel rabbi confirming the couple’s Jewishness.74 The chronicles of the Ethiopian immigrants as they made their way 70 See Ori Konforti, Zionism Upended: Bringing the Falashmura to Israel (Jerusalem: The Zionist Library WZO, 2009), on the history of the Falashmura and their ongoing struggle for immigration to Israel. 71 On the image of the black in Jewish culture, see Abraham Melamed, The Image of the Black in Jewish Culture: A History of the Other (New York: Routledge Curzon, 2002). See Michael Corinaldi, Jewish Identity: The Case of Ethiopian Jewry (Jerusalem: Magnes Press, Hebrew University, 1998). See also Ruben Schindler, “The Sacred and Secular: The Immigration of the Black Jews of Ethiopia to Israel,” in Jews of Ethiopia: The Birth of an Elite, eds. Emanuela Trevisan Semi and Tudor Parfitt (London: Routledge, 2005), 131–141. 72 Since the Jewishness of Ethiopian Jews is in question, it was decided that Ethiopian children are to be educated in religious schools as is the rabbinate directive for converts. Also, there are discriminatory procedures of marriage for Ethiopian Jews. 73 Baruch Kimmerling, “The New Israelis: Multiple Cultures without Multiculturalism,” Alpayim 16 (1998), 291–306. (Hebrew) 74 Tanya Schwarz, Ethiopian Jewish Immigrants in Israel: The Homeland Postponed (Richmond Surrey: Curzon, 2001), 116–117. — 211 —

——————————————————— chapter six ———————————————————

to Israel seem like a sinister reproduction of those of the Yemeni immigrants several decades earlier. Like the Yemenis, they died from starvation, epidemics, and disease or from being slain by robbers and thieves. Like the Yemenis, they dwelled in refugee camps, concealing their Jewish identity and waiting for years to be transported to Israel. Like the Yemenis, they experienced the institutional methods of absorption from the 1950s.75 Whereas Gershon Shafir and Yoav Peled indicate that “it is tempting to explain the incorporation patterns of Ethiopian immigrants as stemming from the same causes that shaped the incorporation of Mizrachi immigrants of the 1950s,”76 they note the dissimilarities in terms of the larger number of Mizrachim and their uncontested Jewishness compared with Ethiopian Jews. However, the detailed account of the Yemenis’ institutional absorption, as presented in chapter 3, suggests the similarity of these two tragic stories and renders the corollary appropriate, at least in part. The Blood Donations Affair The blood donations affair is emblematic of the exclusion of Ethiopians experienced in Israel. On January 24, 1996, a story by Ronel Fischer entitled “All Ethiopian Blood Donations Are Disposed of Secretly and Immediately” was published in the daily newspaper Maariv;77 on January 26, 1996, another story entitled “The Blood Lie” was published. Both stories revealed that blood donated by Ethiopians was discarded by the blood bank without the knowledge of the donors. The reason given by the Israeli blood services at the Israeli Red Star of David78 was that the exclusion was due to the high rate of Ethiopians infected by the HIV virus. When AIDS emerged as a global health scare in 1991, Israel was already conducting mandatory HIV testing on all the immigrants from Ethiopia upon their arrival. After their arrival in Israel, immigrants 75 Esther Herzog, Bureaucrats and Immigrants in an Absorption Center (Tel Aviv: Cherikover, 1998). (Hebrew) Herzog describes the methods of control exercised by the absorbers and, in particular, the limitation on entrance and exit to and from the compound and the fostering of the immigrants dependence on the absorbers. 76 Gershon Shafir and Yoav Peled, Being Israeli: The Dynamics of Multiple Citizenship, 322. 77 Ronel Fisher, “All Ethiopian Blood Donations Are Disposed of Secretly and Immediately,” Maariv, January 24, 1996, 11. 78 Herein after MDA. — 212 —

———————————————————Back to the Future ———————————————————

from the FSU and Ethiopia were screened for various infections and medical conditions, such as malaria, tuberculosis, and hepatitis. The Israeli public health authorities do not conduct mandatory HIV testing of veteran Israelis and of immigrants from other countries. In Israel, only Ethiopian immigrants were subject to HIV screening.79 When the blood donations outrage was aired out, about 8 percent of the Ethiopian immigrants who arrived in Israel in 1996 tested positive for HIV. Although the actual numbers were not high (out of 174 new immigrants, fourteen tested positive),80 this unprecedented rate was worrisome. Infection with the HIV virus was found among 1.74 percent of the fourteen thousand Ethiopian immigrants who arrived in 1991 and 1992.81 Researchers have found that contagion was specific to immigrants who arrived in Israel after an extended stay in immigrants’ camps in Addis Ababa. The virus was not found among immigrants who arrived from elsewhere.82 Polack et al. suggest that infection was contracted through sexual transmission during the migrants’ stay in Addis Ababa.83 This finding is based on blood data from 1984 and 1985; blood samples were drawn from a random sample of 1,439 from among 7,800 Ethiopian immigrants in order to detect hepatitis and malaria. In 1988, these blood samples were reexamined in order to detect carriers of HIV and were found to be negative for the virus. Up to 1,990 Ethiopian immigrants arrived in Israel directly from northern Ethiopia, and no HIV infection was detected. The publication of the story triggered mass protest. The discarding of the blood was very upsetting for Ethiopian Jews. Ethiopians associate blood with life; blood symbolizes the soul. Thus, the spilling of the blood amounted to killing.84 Tanya Schwarz argues that older members of Beta 79 Varda Soskolne and Ronny A. Shtarkshall, “Migration and HIV Prevention Programmes: Linking Structural Factors, Culture and Individual Behavior—an Israeli Experience,” Social Science and Medicine 55, no. 8 (2002), 1297–1307. 80 The Report of the Commission of Inquiry of the Blood Donations of Ethiopian Immigrants, 9. 81 Don Seeman, One People One Blood (Piscataway, New Jersey: Rutgers University Press, 2009). 82 M. L. ‫‏‬Alkan, Maayan S., Belmaker I., Arbeli Y., Mani N., and Ben-Yshai F., “Serological Markers for Hepatitis B and Treponemal Infection among HIV Carriers from Ethiopia,” Israeli Journal of Medical Sciences, 6–7(1993), 390–392. 83 ‫‏‬S. Pollack, E. Ben-Porath, B. Fuad, R. Raz, and A. Etzioni, “Epidemiological and Serological Studies in HIV-Infected Ethiopian Immigrants to Israel,” Acta Paediatrica Supplement, 83 (1994), 19–21. 84 Tanya Schwarz, Ethiopian Jewish Immigrants in Israel: The Homeland Postponed. — 213 —

——————————————————— chapter six ———————————————————

Israel saw this as a stain on the purity of the group. For Beta Israel, impurity results from disobeying the religious laws of marriage or breaching the segregation of women during their menstrual period. Furthermore, the spilling of the blood came to be symbolic of their religious rejection by Israel. For young members of Beta Israel, this was construed more as a matter of color and racism than religious discrimination and impurity. The paternalism of the State with regard to the Ethiopian immigrants was evident in its response to the accusations. It was argued that the practice of accepting the blood donations only to stealthily dispose of them later was devised in order to avoid stigmatizing the entire Ethiopian population. MDA also made a specific reference to Israeli Ethiopians who donate blood as part of their enlistment to the military. According to the blood bank data, the number of blood donors in Israel between 1990 and 1995 was 942,517; among them were 2,055 Ethiopians.85 Following the exposé, Minister of Absorption Yair Tzaban asked Health Minister Ephraim Sneh to form a commission of inquiry to examine the matter. Tzaban stated that he would fight against the association of maladies and pathologies to ethnic groups. Whereas Sneh thought that the high rate of HIV carriers among Ethiopian immigrants justified the decision to exclude the blood, he noted that the failure to inform the donors about the decision was erroneous.86 On January 28, 1996, over ten thousand Ethiopian Israelis gathered in front of the Knesset. The suffering of the Yemenis and also of the Holocaust victims in Europe was appropriated by the Ethiopian Israelis as a vehicle for the expression of their own particular outrage and grief. The crowd tried to force their way into the compound, throwing stones at the police forces. The police responded by showering water, throwing tear gas, and shooting rubber bullets at the crowd. Such measures were rarely taken against Jewish demonstrators in Israel. Chief of Police Arye Amit compared the demonstration to the uprising of the Palestinians in 1987. He said that the use of force and tear gas by the 85 The Report of the Commission of Inquiry of the Blood Donations of Ethiopian Immigrants (Jerusalem: Government Printer, 1996). On average, each year, there were four hundred blood donations by Ethiopians, out of two hundred thousand donations by the entire Israeli population. It was reported that known HIV prevalence among Ethiopians was roughly fifty times higher than the prevalence of the general population in Israel. See Ibid. 86 Reli Saar and Amira Segev, “The Minister of Health Summons a Discussion in the Matter of the Blood Donations of Ethiopian Immigrants,” Haaretz, January 25, 1996, http://www.haaretz.co.il/ arch/objects/data/logon.jhtml (accessed March 15, 2010). — 214 —

———————————————————Back to the Future ———————————————————

police was required in order to prevent the protestors from entering the government meeting. According to Amit, “This was the only way to prevent the conquest of the Prime Minister’s office by young savages.”87 About twenty police officers and fifty protestors were injured in the riot. The excluded blood affair drew attention to the divisions between Beta Israel and the Falash-Mura, both within the Ethiopian community in Israel and within the government and the religious establishment. The extended stay of immigrants in Addis Ababa was mainly due to their questionable religious status and thus on their eligibility to immigrate and acquire citizenship according to the Law of Return. According to Don Seeman,88 the Ethiopian community in Israel was divided on whether the Falash-Mura should be allowed to immigrate. Often, positions within the community were partly dependent on whether particular individuals still had relatives in Ethiopia. The excluded blood affair was linked to the wedge issue of the Falash Mura. It was very convenient both for the State and Beta Israel to put the blame of carrying HIV on the Falash Mura. The State could appease the concerned members of Beta Israel, which constitutes the majority of Israeli Ethiopians, by putting the blame on the Falash Mura. Furthermore, this could also justify the reluctance of both the State and the religious establishment to allow the immigration of the Falash Mura. For Beta Israel, blaming the Falash Mura and stressing the difference between the groups could prove instrumental. Distancing themselves from the Falash Mura could reinforce their Jewishness and vindicate themselves from the disease and all its laden denotations. A delegation of the protestors, headed by Addisu Messele, met with Prime Minister Peres. Peres apologized and promised to form a commission of inquiry without delay. When Messele returned from the meeting, he reassured the protestors that the government did not really believe that all Ethiopian blood was infected. He said that the medical establishment was mainly concerned about the newcomers from Addis Ababa. This, argues Seeman,89 enabled both the Ethiopian community in Israel and the State to evade some more troubling questions about 87 Sammy Sokol, “Only after Being Informed of the Formation of the Commission of Inquiry the Demonstrators Dissipated,” Haaretz, January 29, 1996, http://www.haaretz.co.il/hasite/spages/archSearchArt.html (accessed March 15, 2010). 88 Don Seeman, One People One Blood (Piscataway, New Jersey: Rutgers University Press, 2009). 89 Ibid., in particular 169–171. — 215 —

——————————————————— chapter six ———————————————————

the increase of HIV local contagion in Israel among veteran Ethiopians and among Israeli Ethiopians traveling to Ethiopia. Messele presented the decision to form an investigative commission as a great achievement to the community.90 He compared the demonstration to the Yemeni struggle to form a state commission of inquiry. Messele’s contentedness with the apparently speedy responsiveness of the political system proved to be naïve. The commission’s mandate had been very narrow. It was authorized to investigate only the blood exclusion issue. The commission had no power of subpoena, and most of its hearings were closed to the public. Following Peres’s apology on his own behalf and on behalf of the government, Messele apologized for the use of violence. The demonstration ended with the singing of the national anthem.91 Much of the rage and frustration of the Ethiopian community was directed at Dr. Amnon Ben-David, director of the MDA Blood Bank. MDA is a corporation that, since the state health insurance law in 1995, does not receive government funding. However, the minister of health is responsible for the execution of the MDA law. Ben-David noted that the decision to obliterate the blood was made in 1988 by the previous director. This policy was never put on record. Notwithstanding, BenDavid admitted that he was supportive of the decision and assumed full responsibility. Patronizingly, he explained that the decision was intended to protect the honor of the Ethiopian community.92 The minister of health, Sneh, had just been appointed and was apparently unaware of the policy, as was his predecessor. On the same day, the Association of Ethiopian Immigrants petitioned the high court to issue an order nisi against the blood bank, the health minister, the prime minister, and the Israeli Red Star of David (MDA) to order the respondents to accept blood donations by Ethiopian immigrants. The petition was withdrawn on February 4, 1996, after the government decided to form a commission of inquiry. At the meeting of the Parliamentary Committee for Immigrant Ab90 In the 1996 elections that took place on May 29, 1996, Messele was elected to the Knesset as a representative of Labor, which was headed by Shimon Peres. 91 Sammy Sokol, “Only after Being Informed of the Formation of the Commission of Inquiry the Demonstrators Dissipated,” Haaretz, January 29, 1996, http://www.haaretz.co.il/hasite/spages/ archSearchArt.html (accessed March 15, 2010). 92 Ibid. — 216 —

———————————————————Back to the Future ———————————————————

sorption on January 29, 1996, Messele confronted Ben-David, who was quoted as saying that he happened to enter one of the airplanes that brought Ethiopian Jews, only to find the whole airplane was infested with a foul odor. Yefet Elmo of the Association for the Immigration of Falash Mura called out at Ben-David, “We thought that Hitler was dead.”93 His words were struck from the protocol. In stark contrast to his previous statement, Ben-David refused to comply with Sneh’s request to suspend himself from office. At a meeting of the executive committee of MDA, Ben-David also refused to comply with the director general’s demand to suspend himself from his position or to take a forced leave of absence. He dismissed both requests as ensuing from public pressure and thus considered them prejudicial. He then petitioned to the district labor court against his forced leave of absence. The court issued a temporary injunction against MDA’s decision to suspend the claimant or to enforce his leave of absence.94 The Navon Commission On February 12, 1996, the commission of inquiry was formally appointed. The letter of appointment authorized the commission to focus on the aspects that it would find appropriate in light of the facts and arguments placed before it. There were seven members in the commission headed by Israel’s retired fifth president, Yitzhak Navon, and deputy chair Eliahu Vinograd, a retired district court judge. Two representatives of the Ethiopian community, Natamar Hillel (a social worker with Youth Aliyah) and Addisu Messele, were appointed as members of the commission. Two other members represented the medical profession.95 Yehezkel Zakai, formerly a Knesset member and the head of the Sephardic Jewry in Jerusalem, was another member. Membership in the commission was subject to two high court rulings. The claimant, Amnon Ben-David, petitioned to the high court to issue an order nisi against the appointment of the commission of inquiry against the involvement of the health minister in the actions of MDA 93 Gideon Alon, “‘We Thought That Hitler Was Dead,’ Called a Representative of Ethiopian Immigrants at the Director of the Blood Bank at a Stormy Meeting of the Immigration and Absorption Committee,” Haaretz, January 30, 1996, http://www.haaretz.co.il/hasite/pages/arch/ ArchArticle.jhtml? (accessed March 15, 2010). 94 High Court 1356/96 Dr Amnon Ben-David v. Shimon Peres and others, 1996(1), 661. 95 These were Lehaim Nagan, epidemiologist and the vice president of the Ben-Gurion University, and Eliezer Rachmilevitch, hematologist from Hadassah Ein Kerem hospital. — 217 —

——————————————————— chapter six ———————————————————

and requested to disqualify Messele’s appointment to the commission of inquiry. On February 29, 1996, the court sided with the claimant and issued an order nisi against Messele’s membership in the commission. The ruling endorses Ben-David’s argument that Messele was predisposed against him. Thus, the court issued a declaratory judgment that Messele’s appointment was canceled. Messele was then replaced by Shlomo Mola, secretary of the Association of Ethiopian Immigrants. On April 31, 1996, Ben-David submitted another petition. He requested that the high court disqualify Mola’s membership in the commission for the same reasons argued in his petition against Messele’s membership. On May 8, 1996, Mola decided to resign.96 A press release by the Association of Ethiopian Immigrants stated the following:97 Apparently there is no limit to the racism of a racist. Mola decided to retire from the Commission at his own will in order to honor the Prime Minister who appointed him and in order to prevent any further delays in the Commission’s work.

The commission’s report and the discourse surrounding the blood exclusion were constructed in medicalized terms of the duty to prevent a public health hazard vis-à-vis the insult caused to the Ethiopian community. Compared with these stakes, the insult of the ethnic group becomes a minor issue. This conveys the message that Ethiopians are unaware of sexually transmitted diseases and tend to repress its contraction. While these behaviors are described as typical of Ethiopians, they are also common among the population at large. Moreover, implicit in this presentation are once again the Orientalist views of the primitivism and the promiscuous sexual behavior of the group. Like the discourse of Mizrachim, the discourse of Ethiopians dwells on the “insult” as a corollary of the primal “Mizrachi honor.” Hence, when Mizrachim and Ethiopians protest against exclusion and marginalization, their grievances are presented not as standing up for their rights but rather as emanating from primitive, emotional impulses. While members of the commission succumb to this construct, they acknowledge that stig96 It was quite probable in light of the court’s ruling in the petition against Messele’s membership. 97 Reli Saar, “A Member of Navon’s Commission Announced His Retirement,” Haaretz, May 9, 1996, http://www.haaretz.co.il/arch/objects/data/logon.jhtml (accessed March 19, 2010). — 218 —

———————————————————Back to the Future ———————————————————

matizing the Ethiopians as an ethnic group is wrong. The commission concludes the following:98 Blood exclusion is individual and related to the individual data of the donor. Treating a donor as part of a group would be justified only if the behavior of the group and that of the donor could cause contagion and if the group was medically predefined as a risk group for AIDS.

The commission’s report is divided into majority and dissenting opinions. The majority conclusions are shared by the chair, his deputy, and the two representatives of the medical profession. The Ethiopian representative and the representative of the public each have composed dissenting conclusions. Both majority and dissenting conclusions find faults in the ambiguity surrounding the body responsible for the decision to exclude the Ethiopian blood and who was responsible for the directive to discard of the blood without notifying the donors. While the majority opinion reprimands both MDA and the Ministry of Health for the ambiguity, it exhibits remarkable levels of sympathy toward the dilemmas that both authorities faced with regard to withholding the publication of the high rates of HIV carriers among the Ethiopian immigrants. The commission notes that this policy of silencing, not to say deception, that was intended to avoid stigmatizing the Ethiopian population in Israel, was endorsed by the Association of Ethiopian Immigrants. The commission as a whole, including the dissenting members, concluded that those responsible for the decision were not driven by racism or bigotry. Accordingly, the commission’s conclusions replace the exclusion of blood donors based on ethnic profiling with exclusion based on criteria such as donors reporting HIV risk, injection drug use, hemophilia, or anyone who had visited one of sixty-three high-risk countries within one year of the donation or those who had spent six months or more in any of the listed high-risk countries within ten years of the day of donation. MDA announced only in April 2007 that native Israelis of Ethiopian origin would be able to donate blood subject to the general directives 98 The Report of the Commission of Inquiry of the Blood Donations of Ethiopian Immigrants, 23. — 219 —

——————————————————— chapter six ———————————————————

of MDA.99 This belated announcement, which apparently rectifies the all-embracing exclusion, is somewhat typical of Zionism’s attribution of ailments to the Diaspora. The majority conclusions recommended that the Ministry of Health establish an advisory team that will advise the minister on the extramedical implications of this issue. The rest of the recommendations are concerned with the formulation of universal directives for exclusion based on a self-reporting questionnaire. The donor’s inclusion or exclusion would be determined on an individual basis. Also, the commission recommends that information about AIDS and about methods of prevention would be disseminated. Finally, the commission’s appeal to the government to urge the religious establishment to fully recognize the Jewishness of Ethiopian Jews suggests that the exclusion of the blood is but one aspect of the exclusion of Ethiopian immigrants. This remark can be seen as an attempt to attribute for the exclusion of Ethiopian Israelis to the regulations of the religious establishment. While the dissenting conclusions of Natamar Hillel share with the majority opinion the view that all the parties involved were not motivated by prejudice against the Ethiopians, it criticizes the conduct of both the blood bank and the ministry for both the procedural aspects of the decision and the policy of silencing. Hillel’s dissenting opinion highlights an important issue overlooked by the commission. Hillel argues that the exclusion of Ethiopian blood was started in 1984 due to the high frequency of malaria, tuberculosis, and hepatitis among Ethiopian immigrants. In 1984, Moshe Mashiach, director of Hospitalization Services at the Ministry of Health, wrote a letter to the staff at the MDA laboratories to mark the blood taken from Ethiopian immigrants and to take extra care in handling it before it was tested for hepatitis. In his testimony, Mashiach noted that the letter merely states that the test tube should be marked as taken from an Ethiopian immigrant. There was no other indication of any differential treatment by the Ministry of Health. In his testimony before the commission, Health Minister Sneh corroborated Mashiach’s explanation. The decision was unrelated to AIDS at the time 99 Yuval Azoulay and Ayanawo Farada Sanbatu, “MDA Changed the Procedures of Blood Donations; Ethiopians Who Are Native Israelis Will Be Able to Donate Blood,” Haaretz, April 16, 2007, http:// www.haaretz.co.il/hasite/spages/848907.html (accessed on June 28, 2010). — 220 —

———————————————————Back to the Future ———————————————————

since there were no carriers of the HIV virus among Operation Moses immigrants. By the winter of 1985, all those who carried these diseases were identified and treated so that there were no grounds for blood exclusion or any other singular measures with regard to the group.100 Only in 1991 and after thorough testing was a high rate of HIV carriers discovered among Operation Solomon immigrants. Thus, Hillel suggests that the representative of the blood bank who testified before the commission used the 1991 data as ex post justification of the 1984 decision to exclude blood donations by Ethiopians. Hillel concludes that the decision to exclude Ethiopian blood was made locally by the blood bank. While Hillel does not hold Ben-David responsible for the initial decision made in 1984, she does hold him responsible for not reviewing it when he started his office in September 1991. Both Hillel and Zakai recommended that Ben-David be removed from office. It is clear from the report that the exclusion of blood donations from Ethiopians was not a result of a policy-making process or even of some systematic decision making. It just happened, as it were, and was implemented without discussion or consultation with the Ministry of Health. The blood bank never reviewed the decision in light of the actual risk and without weighing the risk of any single individual within the group. As noted earlier, most of the blood donated by Ethiopians was taken from new army recruits, some of whom immigrated to Israel as young children in Operation Moses; and their risk of carrying the HIV virus was similar to that of the general population. Edward Kaplan101 evaluates the decision to exclude blood donation from Ethiopian immigrants. He restates the issue by questioning whether the incremental number of infectious donations prevented by excluding Ethiopian donors is sufficiently large to justify such a ban. Kaplan contests the so-called medical considerations for blood exclusion. First, he argues, the HIV-risk assessments were reasoned in terms of HIV prevalence, whereas the real risk was that the blood supply could become contaminated via infectious donations. Such donations occur when blood-screening tests yield false negative results. The false negative rate depends largely on the period between HIV infection and the 100 The Report of the Commission of Inquiry of the Blood Donations of Ethiopian Immigrants. 101 Edward H. Kaplan, “Israel’s Ban on Use of Ethiopians’ Blood: How Many Infectious Donations Were Prevented?” Lancet 351, no. 9109 (1998), 1127–1128. — 221 —

——————————————————— chapter six ———————————————————

development of antibodies and the incidence of HIV infection. Second, the HIV-risk arguments were relative rather than absolute. Thus, Kaplan argues that the question is not whether the prevalence of infection among Ethiopian immigrants is fifty times greater than that of other Israelis, but whether the incremental number of infectious donations prevented by excluding Ethiopian donors is large enough to defend such a ban. Kaplan estimates that the ban succeeded in preventing a maximum of 0.1 infectious donations annually.102 Kaplan’s argument is further reinforced by the evaluation of the inclusion and exclusion policies of the bank with regard to other groups. In this case, it is worthwhile to examine these with regard to immigrants from other countries. For example, D. Chemtob and Z. Grossman103 note that immigrants from the FSU are not screened for HIV, although the rise in Israel of HIV among injection drug users from the FSU is consistent with the emergence of an HIV epidemic in these countries. This epidemic is specific to injection drug users and does not constitute ground for a systematic screening among immigrants from the FSU, but rather a series of preventive measures regarding the use of injection drugs. Kaplan’s analysis suggests that the Israeli blood bank greatly overrated the risk of blood donations by Ethiopian immigrants. As he said:104 Those favouring exclusion have asked if one would knowingly accept a transfusion from an Ethiopian. This misses the point. What is required is a willingness to accept blood from a supply of antibody-negative donations, 0.2% of which come from Ethiopian immigrants.

Kaplan concludes exclusion is not justifiable on cost-benefit grounds and certainly not on medical and social grounds. One important issue that was ignored by the commission and by the paternalistic discourse surrounding it is that the exclusion of donated blood and HIV testing concern human rights. The International Cov102 Ibid. 103 D. Chemtob and Z. Grossman, “Epidemiology of Adult and Adolescent HIV Infection in Israel: A Country of Immigration,” International Journal of STD and AIDS 15 (2004), 691–696. 104 Kaplan, “Israel’s Ban on Use of Ethiopians’ Blood: How Many Infectious Donations Were Prevented?” 1127. — 222 —

———————————————————Back to the Future ———————————————————

enant on Civil and Political Rights105 states in its 21st session that no one “shall be subjected to arbitrary or unlawful interference with his privacy.” This right to privacy includes an obligation to seek informed consent for HIV testing and an obligation to maintain the privacy and confidentiality of all HIV-related information. Furthermore, mandatory HIV testing and registration, except for blood and/or organ donation, are inconsistent with this right to privacy. Besides the UN and its member organizations, other international communities have dismissed mandatory HIV testing for the sexually active and other populations that are considered high risk as counterproductive. Such measures were found to drive HIV underground. People may refuse an HIV test because of fear of the discrimination and stigma attached to the disease.106 One can question to what extent the Ethiopian immigrants who were subjected to HIV and other medical tests upon their immigration have granted their informed consent to these procedures. Was consent given under duress as in both the Yemeni Babies Affair and the tinea capitis irradiations? Furthermore, if HIV tests of the immigrants from Ethiopia were already available from the test taken immediately following their arrival in Israel, the grounds for their sweeping exclusion as blood donors are dubious at best. These questions were not asked by the commission. The violent protest of the Ethiopian immigrants following the publication of the discarded blood brought to the fore the marginalization of the Ethiopian immigrants. The blood donations affair still constitutes an open wound among many Ethiopians, particularly because many of the issues that signal their Otherness in Israeli society have yet to be resolved. This is a typical case in need of bivalent justice. Israeli Ethiopians suffer from the undecided Jewishness, segregation in schools and kindergartens, and discrimination in the labor market. These overshadow the sporadic attempts at affirmative action in the public service and in higher education.

105 International Covenant on Civil and Political Rights, General Assembly Resolution 2200A (XXI). sess., (1976), http://www2.ohchr.org/english/law/ccpr.htm (accessed March 21, 2010). 106 Isaac N. Luginaah, Emmanuel K. Yiridoe, and Mary-Margaret Taabazuing, “From Mandatory to Voluntary Testing: Balancing Human Rights, Religious and Cultural Values, and HIV/AIDS Prevention in Ghana,” Social Science & Medicine 61, no. 8 (2005), 1689–1700. — 223 —

——————————————————— chapter six ———————————————————

A New Beginning? The outcomes of redress are highly elusive and the least studied aspect of historical redress. The gap between the aspired outcome of the victims and the actual success of redress in overcoming troubled pasts and moving ahead renders the assessment of the outcomes of historical redress campaigns highly challenging. Brooks107 argues that the success of redress campaigns depends on the ability of the redress movement to reach the hearts and minds of legislators and citizens. No less important is the ability of the redress movement to exert the political pressure in order to reach public agenda. The injustices unfolded in this volume were perpetrated on various groups of Others, in particular on those who are imagined as the most socially distant from the dominant group. The historical origins of the Israeli sociopolitical formation date back to the establishment of the New Settlement in Palestine and are inherent in the Zionist master narrative. The marginalization of Others is structural; Zionism has treated various ethnic groups differentially—to the consistent advantage of Ashkenazim, consistently disadvantaging Others.108 This positional superiority of Ashkenazi Jews still remains intact. An important constituent of this hegemony is the denial of the history of the Other and the rewrite of a historical narrative of the Other that fits the master narrative neatly. The denial, suppression, and silencing of memories that challenge the official monolithic collective memory are evident in all the case studies. It is quite naïve to conceive of historical redress in terms of instant amends and of mitigation of group tensions through apologies and reparations. However, while the effects of the injustices cannot be undone, for the individual victims of an injustice, reparations can restore the sense of dignity and commemorate past suffering. Historical redress must involve a growing reflection on political and legal institutions with regard to their own infliction of injustices, discrimination, and disrespect. It can inspire discourses of self-reflection within and among groups on their troubled past and the contentious practices that invoked it. For such discourses to bear fruit, the structural ethnic and economic inequalities that conjured up these historical injustices 107 Brooks, Atonement and Forgiveness: A New Model for Black Reparations. 108 Ella Shohat, “Sephardim in Israel: Zionism from the Standpoint of Its Jewish Victims.” — 224 —

———————————————————Back to the Future ———————————————————

should be remedied as well. Adam Czarnota109 highlights the forward-looking aspects of historical redress. In particular, his account focuses on the regulation of the past in the context of transitional justice. Reconceptualizations of the past by legal and quasi-legal means, such as truth commissions, are sometimes performed for better control of the present and the future. For Jennifer Balint,110 legal processes at periods of transition can become a reference point for society, a foundational moment that constitutes a break from the past and a basis for transformation and reconstruction, at both the societal and institutional levels. Lawsuits and petitions to the high court and the quasi-legal institution of investigative commissions were all used in Israel as social mechanisms for controlling and regulating the past, present, and future.111 The Israeli cases suggest that from the government’s point of view, commissions of inquiry—at least as long as they are not defined as a state commission of inquiry—provide a preferred quasi-legal mechanism for containing injustices, grievances, or omissions of government and the organs associated with it. Such commissions can become important means of damage control. While the formation of a commission of inquiry signals that the government is apparently responsive to public pressure, the process is in fact controlled to some extent by the establishment. By forming a government commission of inquiry as per the Law of Government 5761-2001,112 the composition, authorization, and charter are determined by the government. In contradistinction, once a government decided to form a state commission of inquiry,113 the judiciary takes charge of the process. The president of the high court appoints the chairperson, a district or high court judge, and the other members of the commission. The process of inquiry and deliberations are then determined by the commission. Although state commissions of 109 Adam Czarnota, “Law As Mnemosyne and As Lethe: Quasi-Judicial Institutions and Collective Memories,” in Lethe’s Law: Justice, Law and the Ethics of Reconciliation, eds. Emilios A. Christodoulidis and Scott Veitch (Oxford: Hart Publishing, 2001), 115–128. 110 Jennifer Balint, “Law’s Constituitive Possibilities: Reconstruction and Reconciliation in the Wake of Genocide and State Crime,” in Lethe’s Law: Justice, Law and the Ethics of Reconciliation, eds. Emilios A. Christodoulidis and Scott Veitch (Oxford: Hart Publishing, 2001), 133. 111 Czarnota, “Law As Mnemosyne and As Lethe: Quasi-Judicial Institutions and Collective Memories,” 115–128. 112 Law of Government 5761-2001, Public Law 1780, The Book of Laws (2001): 158, http://www.knesset. gov.il/laws/heb/FileD.asp?Type=1&SubNum=12&LawNum=1780 (accessed June 30, 2009). 113 The Israeli Knesset, Law of Inquiry Commissions 5729-1968. — 225 —

——————————————————— chapter six ———————————————————

inquiry are considered independent, there still remains some discretion with the government as to the definition of the subject of the inquiry. Other types of investigative commissions leave much more discretion and control in the hands of government and therefore have become the ultimate institution for containing public pressure and evading operative measures of accountability. Historical redress claims have not been successful in the courts of law. The confines of the juridical edifice of legal thought and action and hence of legal systems hardly render these claims meritorious. Thus, both procedural and substantive justice can hardly ever be attained. Even when admissible in court, legal action is quite taxing for individuals, both mentally and financially. As evident in our cases, sick, traumatized, elderly, and marginalized individuals do not fare very well in legal action against the state. Not all grievances are momentous under the juridical edifice; and even if the claimants are able to overcome the procedural barriers such as the statute of limitation, the political question doctrine, or sovereign immunity, they are likely to be disadvantaged by the absence of documentation and factual evidence required to substantiate their claim and by the difficulty to translate their affliction into mundane terms. Thus, when victims of historical injustices are successful at having their claims litigated, they often will be able to achieve procedural rather than substantive justice. The clash between the juridical discourse of the tort model and the theological/sociological discourse of the atonement model will most likely frustrate redress in the full sense. While redress campaigns typically focus on either of the models, elements of both models would increase the likelihood of the success of these campaigns. Scholars dispute the role of the judiciary in producing major political and social change. Gerald Rosenberg114 argues that courts are in a weak position to produce change. The complexity of litigation, the juridical technical discourse, and the lack of drama make the court an inappropriate means of mass mobilization.115 Hence, placing historical redress within the confines of the courts is unlikely to create a sense of foundational moment. 114 Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring about Social Change? 2nd ed. (Chicago, Illinois: University of Chicago, 1993). 115 J. W. Peltason, Fifty-Eight Lonely Men: Southern Federal Judges and School Desegregation (Urbana, Illinois: University of Illinois Press, 1971), 103. — 226 —

———————————————————Back to the Future ———————————————————

What would then be a better mechanism for a forward-looking redress campaign? Abram Chayes’s116 model of public law litigation reverses and rectifies some of the shortcomings of adjudication and adapts it to public law. Assuming that historical redress strives for both justice and reconciliation, this model can be a step in the right direction. Chayes’s117 model is characterized by its flexibility and the active role of the court. The flexibility is evident in the scope of the lawsuit and the party structure, which is amorphous rather than rigidly bilateral; the remedy is negotiated rather than imposed and forward-looking. The court’s active role is signaled by extending the court’s discretion. Thus, the judges’ role is not limited to analysis and ruling; it is further expanded and enhanced to surround the organizing and shaping of the litigation process in order to ascertain a just and viable outcome. To this effect, the model espouses continued judicial involvement that does not end once the ruling is made. This consolidation of executive, legislative, and judicial powers in the hands of a single judge does indeed involve risks. These risks can be minimized by establishing mechanisms of review and control. Chayes’s model is a step in the right direction. In essence, it seems to combine the characteristics of investigative commissions and high court petitions. Historical redress processes subsequent to civil law litigation or high court petitions can sometimes reflect the government’s attempts at damage control in an effort to transfer the process to its own turf and deal with it through legislation or commissions. In such cases, the executive branch is interested in consolidating powers as means of controlling both process and outcomes. In the case of the tinea capitis irradiations, the Knesset legislation that followed the attorney general anticipated a multiplicity of legal actions and decided it would not be able to defend the government in court. While the treasury opposed it, the bill was supported by members of both the coalition and the opposition. Although obstructing the proposed legislation was not politically viable, the government, through regulations and red tape, was able to minimize the reparations paid to the victims. Similarly, the Dorner Commission was formed after the precedent high court ruling in the

116 Chayes, The Role of the Judge in Public Law Litigation, 1281–1316. 117 Ibid., 1302. — 227 —

——————————————————— chapter six ———————————————————

matter of Hirschson,118 subsequent to the comptroller’s report, and as a response to political pressures by representatives of the Russian immigrants. While, in all these cases, the spreading out of the legal into the historical brought varying degrees of inclusion of the injustices into an official collective narrative, the juridical discourse diminished and mollified the private and the particular-collective memories. As a quasilegal mechanism, the state commission of inquiry into the matter of the Yemeni babies took great efforts in attempting to transform the dangerous memories about children abducted while cared for by the State, and illegally adopted, into a placated narrative about the difficulties and the mayhem of Israel’s early years and the poor conditions of the immigrants. This attempt was unsuccessful since it was imposed on the families without any negotiation. The legal and apparently factual tone was not able to reach out to the families. In the same vein, in the tinea capitis case, reparations were paid only for the most direct bodily damages, but not for the loss of dignity, the uninformed consent, and the mental disorders. The excluded blood donations were framed within a professional medicalized discourse that rendered all the other voices redundant. Through this narrow prism, arguments about discrimination and disrespect became extraneous and secondary. The Iqrit and Bir’im case and the Dorner Commission stand out in this regard. In the Iqrit and Bir’im case, the victims’ narrative of the brutal and illegal evacuation was transformed into the refusal of the uprooted to the generous reparations offered to them. Also, the narrative came to further exclude the uprooted by suggesting that returning them would enhance Palestinian demand regarding the 1948 refugees’ right of return. In this case, the high court ruling119 furthered the villagers’ exclusion. Although the ruling acknowledges the injustice, it does not differentiate between the uprooted who are Israeli citizens and internal refugees and external Palestinian refugees from 1948. In this case, the official collective narrative was not mollified to accommodate the villagers. When Arab citizens of Israel are concerned, even the legal mechanism is void of its integrative function. An interesting twist is evident in the case of the Holocaust repara118 High Court 5263/94 Hirschson Abraham v. the Minister of Finance 1996(5), 837. 119 High Court 840/97 Aoni Sbit and Others v. the Government and Others, 2003(4), 803. — 228 —

———————————————————Back to the Future ———————————————————

tions. Here, the official narrative was not merely placated. The commission reprimanded the State for its treatment of the victims and did not avoid naming and shaming those responsible for the injustices over the years. While the Dorner Commission Report embraced the victims’ narrative, the outcome in monetary reparations was far less impressive. The singular treatment of Holocaust survivors can be attributed to the fact that Holocaust survivors inhabit the comfort zone of the Israeli incorporation regime. The benefits paid to Holocaust survivors, who constitute the majority of the needy elderly in Israel, enabled the government to discount the rest of the needy elderly population. In all the cases analyzed thus far, redress was unsuccessful. It did not bring any of the desired outcomes. The traumas of the past reverberate and shape the lives of many Israelis and will likely to continue to affect their future. Yemeni families are still haunted by their ordeal.120 There are still unresolved cases and many open questions. Above all, the findings of the three commissions—and in particular, those of the most recent—raise many questions. No formal apology was offered to the families, nor were there other symbolic gestures. Although the Yemeni community is apparently integrated into Israeli society and seems to have moved on, the Yemeni Babies Affair is a dangerous memory that invokes mistrust toward the establishment. The victims of the tinea capitis irradiations continue to struggle with the authorities and suffer from the unrecognized side effects of the irradiation to date. Many are still fighting for recognition as irradiations victims. The uprooted villagers of Iqrit and Bir’im continue to mourn their lost villages and the loss of their indigenous way of life. They continue to nurture the memory of the village and have established themselves as a memory community. They still feel displaced and exiled, although they seem to have moved on with their lives.121 The Holocaust survivors of the “second circle” and those recently recognized survivors from Muslim countries have yet to establish their survivor status at the courts of law. Those who were lucky to receive the meager pensions following the Dorner Commission and the 2008 legislation are perhaps better off than victims of the other injustices. However, they still con120 Meira Weiss, “The Immigrating Body and the Body Politic: The Yemeni Children Affair and Body Commodification in Israel,” Body and Society 7, nos. 2–3 (2001), 93–109. 121 Magat, Bir’Am: A Conscripted Community of Memory and the Maintenance of Voice. — 229 —

——————————————————— chapter six ———————————————————

stitute the majority of the poor elderly population in Israel, even if their income merely exceeds poverty line. Despite the use of the lexis of historical redress, survivors have yet to overcome bureaucracy and red tape in order to receive their pensions. The Ethiopian immigrants still face discrimination; they face segregation in schools, in the labor market, and in the public space at large. Many have yet to settle some matters pertaining to their Jewishness. The same injustices are repeated over again with regard to the Falash Mura community in Ethiopia, which awaits immigration to Israel. In view of the cases examined, one can clearly discern a pattern. All these processes are wanting with regard to the attribution of responsibility and accountability. The thousands of pages dealing with the Yemeni Babies Affair, the court rulings in the tinea capitis case, the high court rulings in the cases of Iqrit and Bir’im, and even the most recent reports of the Dorner and Navon commissions barely go beyond a slap on the wrist of government. Responsibility and accountability for wrongdoing are an integral part of coming to terms with the past. As Tavuchis122 argues, the essence of apology lies in the wrongdoer’s acknowledgment of the facts of the violation, the acceptance of responsibility, and the explicit or implicit promise that similar wrongful acts will not be repeated in the future. Acknowledging the injustice and assuming responsibility are essential if the parties are to move forward. In all these cases, there is a marked gap between the set of values and norms recognized as morally just on the one hand and the perpetration of injustices on the other. What needs to be explained is why these values and norms are not followed. This, according to Sykes and Matza,123 is one of the most fascinating problems of human behavior. Social rules and norms seldom constitute categorical imperatives. Rather, they appear as qualified guidelines for action, limited in their applicability in terms of time, place, persons, and social circumstances. Like the delinquents in Sykes and Matza’s account, when the state is responsible for injustices, it draws a sharp line between those who can 122 Tavuchis, Mea Culpa: A Sociology of Apology and Reconciliation. See also Balint, Law’s Constituitive Possibilities: Reconstruction and Reconciliation in the Wake of Genocide and State Crime, 129–152. Maier, Overcoming the Past? Narrative and Negotiation, Remembering and Reparation, 295–304. Torpey, Making Whole What Has Been Smashed: On Reparation Politics. 123 Sykes and Matza, Techniques of Neutralization: A Theory of Delinquency, 665. — 230 —

———————————————————Back to the Future ———————————————————

be victimized and those who cannot. As Sykes and Matza note, “The potentiality of victimization would seem to be the social distance between the delinquent and others.”124 In the discourses of historical redress in Israel, one can easily detect the massive use of neutralization techniques in order to justify the wrongful act. The often-used justifications are the denial of responsibility in which the perpetrator conceives of the unjust acts as exogenous and beyond control and the appeal to higher loyalties in which the victims are sacrificed for the good of the society whenever particularism and universalism clash. This conduct is clearly evident with regard to responsibility. The reports of the various commissions of inquiry, the court rulings, and the explanation of legislation all display an inherent tension and the breaking of the causal chain between the act and its consequences. While the facts of the injustices are acknowledged and there is evidently an agreement that the act was wrongful, no consequences follow, and no party assumes responsibility. There is no ethical integrity between an action and its consequence. Clearly, in Weber’s terms, these do not follow the ethic of responsibility. The commissions of inquiry along with some of the court rulings seem to abide by the ethic of conviction. This ethic assumes a reality of an ethically rational cosmos, where duties ultimately do not clash and values are hierarchically ordered. The highest value is the interest of the State and the established order; thus, injustices are acceptable as long as they are perpetrated in accordance with these priorities.125 Is there a learning curve associated with redress campaigns? Do they spill over to other areas or injustices? Do they contribute to a better future? The two recent cases discussed in this chapter offer two contrasting answers. If we are to make the Dorner report our reference point, the answer is in the affirmative; if we take Navon’s report, our answer points to the negative. The Dorner Commission had been described to the Israeli public as a redress campaign. The policies emanating from the report represents a conciliatory and reverential stance toward the survivors. This campaign titled “Making Historical and So-

124 Ibid., 665. 125 Weber, Politics As a Vocation, 120. — 231 —

——————————————————— chapter six ———————————————————

cial Justice”126 is presented in affirmative terms, its motto being: “Only a people who respect their past can look hopefully to the future.” 127 The 2008 legislation and the reports by the state comptroller and the Dorner Commission are steps in the right direction. In stark contrast to the three cases analyzed in the previous chapters, this case clearly echoes the global discourse of historical redress. Aside from the amends to Holocaust survivors, this discourse contributes symbolically in several ways: First, it invokes the discourse of rights, though in the limited, particular context of the survivors. Second, it is oriented toward greater inclusion by expanding the incidence of the definition of Holocaust survivors. The case of the Ethiopian blood donations clearly illustrates the bendable values and norms of Israeli society. Whereas Holocaust survivors are not marginalized on ethnic grounds, the Ethiopian immigrants clearly provide a classic case that calls for bivalent justice. While the immediate cause for the public protest was the exclusion of blood donations, the campaign was constructed in the wider context of their ethnically based socioeconomic inferiority. The Dorner report is indeed oriented toward corrective justice and offers a model for redress with actual policy proposals. The reports on the Yemeni Babies Affair, in contradistinction, convey a sense of finality; the dead rather than the living are their focus of attention. The underlying motivation of the commission and the State seems to be to arrive at some closure that would put the issue behind. This is counterintuitive in light of the feasible remedies that the Dorner and the Kedmi, Shalgi, and Bahaloul-Minkowski commissions’ reports could offer in their recommendations. The reports of the commissions of inquiry on the Yemeni Babies Affair were limited in terms of their potential remedies. They could offer primarily symbolic remedies, such as explanations, information on the specific fortune of a child, and an apology. Naturally, the remedies of the Dorner Commission are more tangible in nature. They rely on the property rights of the survivors, which the Israeli high court came to recognize in the early 1990s as constitutional. While the Navon report is apparently forward-looking, it leaves the working assumptions of the medical establishment undis126 http://zchut.gov.il/ (accessed on January 5, 2010). (Hebrew, my translation RA) 127 Ibid. — 232 —

———————————————————Back to the Future ———————————————————

puted. No attempt was made from either side to challenge the decision making, which was constructed as a professional and medicalized discourse. The memory of the Holocaust permeates the consciousness of Israeli Jews, constituting a major part of their collective memory and identity. In the earlier chapters, we have seen a variety of ways in which the Holocaust surfaces in relation to other injustices. It is ever present in many forms; the horrors of the Holocaust are often used as a gauge according to which the magnitude of other atrocities is measured. The instrument of measurement can range from a magnifying glass to a convex lens, as per the vested interest in magnifying the import of an injustice or diminishing it. Both Israelis and Palestinians link the Holocaust to the establishment of the State of Israel. Holocaust images are employed by Israelis and Palestinians alike in constructing their narrative. This use of the Holocaust in day-to-day rhetoric and in analogy suggests that Israel is ambivalent about whether the Holocaust is a novum, unprecedented and incommensurable, or whether it is a paradigm for the Jews for contemporary events.128 This manipulative use becomes a double-edged sword. Some of the critiques of historical redress point to the tendency of victims to become immersed in their tragedy and develop a victim’s mentality. According to Torpey,129 in recent years, the balance between past, present, and future seems to have been upset. Torpey refers to the use of shared consciousness of past suffering in order to stimulate group self-understanding and political mobilization. This is clearly the case in Israel. The Holocaust and the metanarrative of persecution and pogroms that are major constituents of the Israeli collective identity and memory are also used as a neutralization technique. As we have seen in the previous chapters, when Israel finally recognizes and admits to wrongdoing, it justifies it in a manner consistent with Sykes and Matza’s techniques of neutralization as a strategy for dealing with guilt and shame. Perhaps the best verbalization of this strategy is Golda Meir’s remark after Eichmann’s trial. Meir was heard saying, “Now 128 Israel attributes Nazi inspiration behind actions of the Palestinians and behind Iran’s development of nuclear bombs. The denial of the Holocaust by the Iranian leader and by some Palestinians ironically makes a second Holocaust a possibility. Greenspan, Fackenheim as Zionist, 209–211. 129 Torpey, Making Whole What Has Been Smashed: On Reparation Politics. — 233 —

——————————————————— chapter six ———————————————————

when everybody knows what the Germans did, we can do whatever we want and nobody has the right to criticize us and tell us what to do.”130 This is in a nutshell the logic of the Manichaeistic victim/perpetrator dichotomy.

130 Quoted in Shulamit Aloni, “Where Is Our Virtue?” Haaretz, August 14, 2009, http://www.haaretz. co.il/hasite/spages/archSearchArt.html (accessed March 22, 2010). — 234 —

———————————————Who is Afraid of Historical Redress? ———————————————

7. Who Is Afraid of Historical Redress?

The Holocaust, as the ultimate collective manifestation of collective trauma, resonates in many intricate ways in each of the case studies. It surfaces not only as a significant component of the nation’s collective memory and identity, but also as a contemporary event bearing concrete and immediate consequence on every aspect of the political, economic, and social life. Four of the wrongs for which redress was attempted have transpired during Israel’s nascent years; the fifth was perpetrated when the State was already well established. Israel of the late 1940s and 1950s emerges as callous and numb toward its citizens. Despite the mimicry of the global redress movement, Israel of the 1990s still adheres to these patterns. How can one enlighten these displays of ruthlessness and steadfastness toward Others? One question runs through these cases and many others. It is also posed in reference to similar instances in which the same heartlessness is displayed: how can victims of genocide, of gross violations of human rights, trample over the rights of other fellow humans—both their own flesh and blood and extranational Others? Anita Shapira’s Land and Power1 carefully outlines Zionism’s inner inconsistencies and misgivings in terms of the legitimacy of the proactive use of force, which she contrasts with Zionism’s inner truth and its need to maintain moral superiority. Zionism cast in the role of the perpetrator does not agree with its righteous self-image as a light unto the nations. Shapira focuses on the evolution of the “offensive ethos” that came to characterize Jewish life in Israel. She studies it in the context of the use of force toward extranational others. One of the significant representations of this offensive Israeli postHolocaust ethos can be found in a nutshell in Moshe Dayan’s eulogy at Ro’i Rothberg’s funeral.2 Mourning the death of the handsome young 1 2

Shapira, Land and Power: The Zionist Resort to Force, 1881–1948. Ro’i Rothberg, a young settler and security officer for Kibbutz Nahal Oz near Gaza, was shot off his horse by Palestinian infiltrators on April 29, 1956. Dayan, then IDF chief of staff, delivered this eulogy at his funeral. The speech can be found at Moshe Dayan, Moshe Dayan: Story of My Life (Tel — 235 —

—————————————————— chapter seven ——————————————————

man he had met only few days prior to the skirmish with the infiltrators, Dayan said the following:3 We are a generation of settlers, and without the steel helmet and the gun’s muzzle we will not be able to plant a tree and build a house. Our children will not live if we will not dig shelters. . . . The millions of Jews who were annihilated while having no country of their own are watching us from the ashes of the Israeli history, commanding us to settle and establish a country for their people. But across the furrow of the border there lies a sea of hatred and vengeance, expecting that tranquility will dull our preparedness, the day we will pay attention to the ambassadors of malign hypocrisy calling us to let go of our weapons.

In this monumental eulogy, Dayan, in fact, alludes to the interchangeability of the victim and perpetrator roles. He acknowledges the land-taking from the Arabs and asserts that the assassins should not be blamed. For eight years, he says, from across the border, they have been watching the Israelis cultivating the land that once had been their own. Dayan submits that Israelis must be steadfast in their reaction to the suffering of others and that they should strive to attain these objectives regardless of the consequences. “This is our choice—to be ready and armed, tough and harsh—or else the sword shall fall from our hand and our lives will be cut short.”4 Sixty years later, Israel still clings to these two options as if there are no alternatives, as if they are mutually exclusive. The motif of the sea of hatred threatening to engulf Israel is fundamental in the Israeli ethos. The message is that there exists no alternative but offense, or “active defense,” in Israeli whitewashed terminology.5 The prospects of achieving the apparently desired peace seem like an illusion, while the alleged necessity of living by the sword becomes

3 4

5

Aviv: Yedioth Achronoth and Dvir, 1976), 191. (Hebrew, my translation, RA) Ibid. Ibid. See also Benny Morris, Israel’s Border Wars, 1949–1956: Arab Infiltration, Israeli Retaliation, and the Countdown to the Suez War (Oxford; New York: Clarendon Press; Oxford University Press, 1993), 393–397. Shapira, Land and Power: The Zionist Resort to Force, 1881–1948. — 236 —

———————————————Who is Afraid of Historical Redress? ———————————————

deterministic. Jacqueline Rose6 writes of Zionism, “In the messianic view of world history, it is part of the cosmic order of things that the nation must live on a knife’s edge.” She suggests that because Zionism conceives of itself as saving not only the Jews but all others, it is confident that it can afford to be ruthless. As Dayan states clearly in the eulogy, displays of pity and remorse toward the victims of these acts of offense signify weakness.7 The Arabs have been the initial target of the offensive ethos. Yet once the inhibitions on the use of force were eliminated, the same justifications of the use of power—either explicitly or implicitly—were applied to Others from within, those perceived as a threat by the hegemonic worldview. This is the fulfillment of Buber’s8 caveat that wrongs perpetrated outwardly (toward the Arabs) would necessarily lead to wrongs perpetrated inwardly. This, he feared, would leave an inerasable imprint on the new nation. The negation of the Diaspora and with it the negation of Diaspora Jews, as Raz-Krakotzkin so skillfully explains,9 is part of the Zionist ethos. Hence, Diaspora Jews, Mizrachim, and ultra-Orthodox Jews were conceived of as a menace to the nascent Israeli collective identity— whether culturally, economically, politically, or socially. Arabs in Israel have been considered as a fifth column and a genuine security threat. The targeting of the “offensive ethos” toward marginalized Others who are part of the Jewish collectivity is already evident in Bialik’s renowned poem “The Last Dead of the Desert.” The English translation has somewhat mellowed Bialik’s harsh words of the Hebrew version, but the theme remains lucid:10 But forty years of wandering have sped,

6 7

Jacqueline Rose, The Question of Zion, 11. Morris notes that in “malign hypocrisy,” Dayan referred to Dag Hammarskjold and other Western leaders who were coaxing Israel to make concessions to the Palestinians. Morris, Israel’s Border Wars, 1949–1956: Arab Infiltration, Israeli Retaliation, and the Countdown to the Suez War, 396. 8 Martin Buber, “Zionism and ‘Zionism,’” in A Land of Two Peoples: Martin Buber on Jews and Arabs, ed. Paul R. Mendes-Flohr (Tel Aviv: Schocken, 1983 [1948]), 187. (Hebrew) 9 Raz Krakotzkin, Exile within Sovereignty: A Critique of the Concept “Negation of Exile” in Israeli Culture, 114–132; Raz Krakotzkin, Exile within Sovereignty: A Critique of the Concept “Negation of Exile” in Israeli Culture, 23–53. 10 Hayyim Nahman Bialik and Israel Efros, Complete Poetic Works of Hayyim Nahman Bialik: Translated from the Hebrew (New York: Histadruth Ivrit of America, 1948), 65–67. — 237 —

—————————————————— chapter seven ——————————————————

And yet we leave six hundred thousand dead. Deplore them not! Unwept let all those be Who fell as slaves, tread o’er them, march as free! Dishonored let them lie, across the pack They bore out of Egypt on their back.

Chanted at the Seder table, this poem is part of the revised Passover Haggadah in many kibbutzim. In the poem, Bialik refers to the desert generation—those unfit or unworthy ones who were doomed to perish in the process of entering the Promised Land. Those are the ones sacrificed en route to the Promised Land. The treading over the dead is a powerful metaphor of resilience, insistence, and determination; but it also conveys cruelty and heartlessness. The dead are not even buried but are left to rot in the desert, possibly for others to see. This is perhaps intended as a warning to those who are reluctant or those who dispute the vision. The Zionist return is conveyed here as a virtuous end that justifies all means. Bialik was one of the forces that drove this offensive ethos legitimizing the use of force.11 Anita Shapira makes a case in point by citing another of Bialik’s poems, “The Dead of the Wilderness.” Although the two poems bear similar titles, the difference between them is of particular significance. In the latter work, the desert generation is given a voice. They do not succumb to their fate but rather awaken and cry:12 We are the mighty! The last generation of slaves and the first generation of Freemen!

Destined to die in the desert, members of the desert generation take their fortune in their own hands. Challenging the wrath of heaven, they attempt to conquer the mountains and the hills. This is the voice that Zionism embraces. This message captures the revolutionary transformation that Zionism chose as representative of itself. These two varia11 Shapira, Land and Power: The Zionist Resort to Force, 1881–1948, 63. 12 Bialik and Efros, Complete Poetic Works of Hayyim Nahman Bialik: Translated from the Hebrew, 115. — 238 —

———————————————Who is Afraid of Historical Redress? ———————————————

tions of the theme are perhaps a telling representation of the abysmal difference between the Zionist vision and veracity. The success of the Zionist project became the common good of the Zionist settlers. Two civic virtues constituted it: (1) Jewish historical roots and hence rights in Eretz Israel, and (2) the redemptive activity of the pioneers.13 Thus, to be virtuous meant to be Jewish, secular, nationalist, and Ashkenazi chalutz.14 The members of the desert generation are included if they take matters into their own hands and if they contravene and defy God’s intent that they die in the desert. This is symbolic of Zionism’s abandonment of the diasporic trait of passivity. The major inconsistency inherent in Zionism between the use of force and the need to maintain moral superiority has become increasingly taxing over the years. The continued occupation of the territories on the one hand and the evolvement of the global human rights culture on the other came to undermine Zionism’s much-aspired-to moral superiority and its need to appear just. This divergence was purportedly resolved by the sense of victimhood that has increasingly become a cornerstone of the Jewish-Israeli collective identity. This sense of victimhood is compatible with the broadening of the scope of trauma and its spillover from psychology and psychiatry into the social and the political.15 Victimhood carries with it some redeeming qualities for the victim’s self or collective image. In an article on the victim community and the Holocaust, Martin Jaffee writes that “[v]ictimization is easily thematized in memory and in story as a moment of victory.”16 According to Jaffee, victimization bestows a sense of holiness and power upon the victim. It purportedly vindicates the contender from the blame and responsibility and assigns them to the other party. This affords the victim, whether an individual or a collective, to not only maintain its moral virtue but also to ask for empathy. The framing of the victim’s aggression as attempted “restorative justice” and its preemptive strikes as acts of self-defense constitute a sophisticated power resource. As Rose writes,17 “We live in a time when the means of combating ‘evil’ seem to take on 13 14 15 16

Shafir and Peled, Being Israeli: The Dynamics of Multiple Citizenship, 17. Baruch Kimmerling, The End of Ashkenazi Hegemony (Jerusalem: Keter, 2001). (Hebrew) Fassin and Rechtman, The Empire of Trauma, 10–11. Martin S. Jaffee, “The Victim Community in Myth and History: Holocaust Ritual, the Question of Palestine and the Rhetoric of Christian Witness,” Journal of Ecumenical Studies 28, no. 2 (1991), 230–231. 17 Rose, The Question of Zion, 27. — 239 —

—————————————————— chapter seven ——————————————————

the colors of what they are trying to defeat.” Victimhood, thus, became an indispensable resource in support of the Israeli case. In the holy dramas that construct Jewish history, the victim is bounded by the duality of being both victim and victor, but not an aggressor. This duality is vital for the construction of collective memory and identity in interpreting the traumatic experience and in coping with them. The Israeli official collective memory is a narrative of destruction and resurrection. As Jacqueline Rose suggests,18 “The future that is meant to redeem you borrows the most dreaded trait of the past. However utopian the hopes, the worst will not let go (it carries over like a demented, never-ending mathematical game).” The devastating national calamities and defeats and the victims they claim are transformed into “tales of empowerment, rituals of initiation, and displays of transcendence.”19 The Jewish alleged vulnerability amid the Arab aggression became analogous to the situation of the Jews in Europe. After the Arab Revolt of 1936–1939, when Zionism could no longer deny and repress the existence of the Arabs, it portrayed the national liberation movement as immoral. Acts of terror by the Arabs came to justify the delegitimation of their national movement. The Orientalist image of the Arabs20 as wild, barbaric, and uncivilized assisted in repudiating their national aspirations. This view also fed the Jewish self-image of being innocent victims of Arab violence.21 Although this self-image of the victim was constructed as eternal, it was further validated and reinforced by the Holocaust. The Israeli founding parents held a rather simplistic view of the Holocaust. They saw it as the final act of the Diaspora—unprecedented in scale but, at the same time, one in a long chain of calamities and catastrophes in Jewish history. For the Israeli founding parents, the Holocaust was no novum; rather, the novum was the State of Israel.22 According to Fackenheim, the Jew can understand himself as a remnant. The postHolocaust Jew is therefore an accidental remnant. In his words, “A Jew today is one who, except for an historical accident—Hitler’s loss of the 18 Ibid., 20. 19 Idith Zertal, Israel’s Holocaust and the Politics of Nationhood (Cambridge, United Kingdom; New York, New York: Cambridge University Press, 2005), 2. 20 Edward W. Said, Orientalism (New York: Pantheon Books, 1978). 21 Shapira, Land and Power: The Zionist Resort to Force, 1881–1948, 314. 22 Charles S. Liebman and Eliezer Don-Yihya, Civil Religion in Israel: Traditional Judaism and Political Culture in the Jewish State (Berkeley: University of California Press, 1983), 100–107. — 240 —

———————————————Who is Afraid of Historical Redress? ———————————————

war—would have either been murdered or never been born.”23 The Zionist ethos saw the defenselessness of the Jews and their going like sheep to slaughter as representations of the shameful diasporic mentality. The offensive ethos was to replace the passivity of the diasporic Jew with the determination and activism of the Eretz-Israeli. Hence, increasingly the Holocaust is used for the justification of the establishment of the State. Strong Israel, thus, became a necessity—an assurance against future existential threat. It was believed that once Jews had a country of their own and rid themselves from the diasporic traits, another Holocaust would not be possible.24 This lesson is highly particularistic. The sense of victimhood serves several interrelated internal and external purposes. Inwardly, it is used as an identity to inspire group selfunderstanding and to promote political mobilization and integration through the omnipresent notion of “us.” This notion that initially left no room but for the monolithic official collective memory of Ashkenazi Jews seems nowadays more open to the particular collective memories of other groups. This openness is nonetheless partial and conditional. Inasmuch as Zionism appropriated the immigrants and mobilized them to fulfill its own objectives, this belated embrace does not entail inclusion. Hence, an overdue recognition was granted to Holocaust survivors from North Africa or from the Balkans, Romania, or the FSU and the migration journey of Ethiopian immigrants. These groups can contribute their own tales of atrocity to the dominant narrative of victimhood. It seems that a particular narrative of victimhood by the Gentiles, whether real or imagined, is considered a virtue. The narrative appropriates these memories and further mobilizes them in favor of the construction of an all-encompassing narrative of victimhood, one of constant existential threat and danger for the Jews. Second, this sense of victimhood and the notion of “life under constant threat” were used to suppress ethnic and economic rivalries. Finally, it afforded the hegemonic order to regulate grievances against the state by reprimanding and censuring groups complaining of their own 23 Fackenheim, To Mend the World: Foundations of Future Jewish Thought, 295. 24 See a critique of this view in Yehuda Bauer, “Reflections concerning the Holocaust History,” in Fackenheim: German Philosophy and Jewish Thought, eds. Louis Greenspan and Graeme Nicholson (Toronto: Toronto University Press, 1992), 163–175. Also, Shapira, Land and Power: The Zionist Resort to Force, 1881–1948. — 241 —

—————————————————— chapter seven ——————————————————

suffering. With the Holocaust as the gold standard, all other wrongs and wrongdoings are inevitably curtailed. Victimhood is used outwardly for the legitimation of the use of force. The humiliation and shame caused by victimization turn into aggression toward Others. The particularistic “never again” lesson turns the victim into a perpetrator as remedy for suffering and as a strategy of neutralization of guilt. The dehumanization of the victims by means of zoological images and other degrading terms is utilized as a strategy of neutralization of guilt.25 One can avoid feeling guilty, at least in his or her own eyes, through the denial of responsibility for the wrong and the denial of the victim. Furthermore, the self-conviction that an act was carried out in self-defense also alleviates guilt. Hence, the use of force becomes allegedly privileged and the conduct lawful. This line of reasoning is used to nourish the dichotomous relationships between victims and perpetrators and to vindicate the victim-turned-perpetrator. These victim-perpetrator relationships invoke the theoretical debates about the constitution of the subject26 and the view of psychoanalysis as a discourse. The scope of psychoanalysis, thus, has widened far beyond the description and explanation of psychic life into a rich discourse that constructs tropes by which we come to categorize social life.27 Dichotomies are well-grounded in Western thought. The dichotomous view of victim and perpetrator is a sophisticated materialization of power relations. Its assertion that one can be either victim or perpetrator, but not both, provides a false dichotomic construct. In this view of the allegedly inherent opposition between victim and perpetrator, only two alternatives exist. However, victim and perpetrator are not mutually exclusive states, and the alleged dichotomy is neither 25 See Franz Fanon, Black Skin, White Masks. See also Shohat, “Sephardim in Israel: Zionism from the Standpoint of Its Jewish Victims.” 26 Georg Wilhelm Friedrich Hegel and J. B. Baillie, The Phenomenology of Mind (New York: Harper & Row, 1967); Said, Orientalism; Fanon, Black Skin, White Masks; Bhabha, The Location of Culture. In Hegel’s master and slave dialectic, the subject constitutes itself monologically; it propels itself and is not moved by an outside force. The Hegelian subject is characterized either as “selfrestoring sameness” or else as “reflection in otherness within itself.” Hegel and J. B. Baillie, The Phenomenology of Mind, 10. In Said’s static and homogeneous binaries of the Orient and Occident, the colonial subject is constructed and objectified by colonialist discourse. Fanon and Bhabha, among others, study the split identity, which is formed by the construction of the colonial subject in colonialist discourse and its effect on the colonial Other. 27 See Lyndsey Stonebridge, “Editor’s Note,” in Reading Melanie Klein, eds. Lyndsey Stonebridge and John Phillips (London; New York: Routledge, 1998), 179; Fassin and Rechtman, The Empire of Trauma: An Inquiry into the Condition of Victimhood. — 242 —

———————————————Who is Afraid of Historical Redress? ———————————————

jointly exhaustive nor mutually exclusive. The notion of the split identity—as Fanon, Bhabha, and Klein (among others) suggest—surpasses the alleged dichotomy. The split is dealt with by way of psychological mechanisms like repression, denial, projection, and introjection of the other component and the behaviors that it espouses. As the victim turns into perpetrator a vicious circle is created. By this self-fulfilling prophecy, victimhood is further reproduced and enhanced. An unbreakable deterministic cycle of violence is created and sustained. The victim and perpetrator roles are dynamic and interchangeable, and their boundaries are porous and blurred. The Kafr Qasim massacre,28 in which the roles of victim and perpetrator switched, demonstrates this complexity. So extreme and shocking were the realization that the victim turned into the perpetrator and the reference to the Nazis that the Knesset, in an unprecedented singular tribute, honored the memory of the dead by announcing a moment of silence at the assembly. The morning newspapers Haaretz and Davar and the weekly Ha’Olam Ha’ze engaged in self-reflection in trying to cope with the shocking revelation of the cold-blooded murder of innocent civilians and the obedience of Israeli military forces to superiors’ orders. The superiors’ orders plea as important extenuating circumstances had been Adolf Eichmann’s defense plea in his trial in Jerusalem.29 As the news and the detailed account of the massacre began to unfold, these newspapers voiced a rare public discourse of the universalistic lesson from the Holocaust. This was an attempt to represent the Holocaust as a source of moral and legal norms pertaining to human rights in general and to the conflict with the Arabs in particular.30 Ben-Gurion 28 On October 29, 1956, on the eve of the Sinai Campaign, the Israeli army ordered all Israeli Arab villages near the Jordanian border placed under a wartime curfew, which was to be from 5:00 p.m. until 6:00 a.m. the next day. Any Arab on the streets was to be shot. The order was given to Israeli Border Police units at 3:30 p.m., before most of the Arabs from the villages could be notified. At Kafr Qasim, villagers began to arrive from work to their homes after the curfew. Israeli Border Police opened fire on them. A total of forty-seven Israeli Arabs were killed (some sources say fiftyone were dead). The news of the killings was censored, and the general Israeli public did not learn what happened until several weeks later when Prime Minister David Ben-Gurion announced the findings of a secret inquiry. 29  Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (New York, New York: Penguin Books, 1994), 292–294. Arendt makes a clear distinction between the Israeli case in which the court did not clear a defendant of responsibility for the “superior orders” he received, but this argument was used as weighty mitigating circumstances. 30 This concern was raised by the Israeli government already in 1948, with regard to atrocities against — 243 —

—————————————————— chapter seven ——————————————————

held that the massacre that struck at the holiest principles of human morality was perhaps reminiscent of the Nazis, who claimed they were just following orders. Ben-Gurion formed a commission of inquiry to investigate the matter. The commission recommended recompensing the families of the victims. The popular evening papers Yedioth Achronoth and Maariv rather mollified the massacre. On December 12, 1956, Maariv’s report of the massacre followed the headline: “Kaffr Qassem Will Receive IL 0.25 Million.”31 Hence, the principle of reparations “in return” for an injustice was endorsed by the Israeli government. This newspaper title echoes the linkage made by Sharett in 1951 between the reparations that Israel was about to receive from Germany and the reparations it would have to pay the Arabs in the future. He said, “If we claimed reparations from Germany, we cannot ignore our duty to recompense the Arabs.”32 Yedioth Achronoth framed this as a lesson, one which came to represent the Israeli stance ever since. Admitting that the massacre was a scandal, the paper, in line with the offensive ethos, interpreted the Knesset’s genuine agitation and remorse as signs of weakness.33 On November 28, 1957, a traditional ceremony of forgiveness (sulha)34 was held at Kafr Qasim between the government and the villagers. The army officers and soldiers whose martial court trial was pending were not allowed to participate. The Kafr Qasim tragic event illustrates the working of the victimperpetrator dichotomy as a mechanism of neutralization of guilt and shame. At the heart of this tragedy is the shocking realization of many civilians during the war of independence. Segev, The Seventh Million: The Israelis and the Holocaust, 184. 31  Shmuel Segev, “Kafr Qasim Will Receive IL 0.25 Million,” Maariv (December 12, 1956), 2. (Hebrew) 32 Here, Sharett suggested that endorsing the principle of reparations is binding, although he differentiates the two cases. He implied that a future demand by the United States or by others should not be considered in the matter of whether to accept the reparations from Germany. On the other hand, he says, “If we receive reparations from the Germans it will enable us to offer generous reparations to the Arabs.” See Proceedings of the Israeli Government Meeting on August 2, 1951, Meeting 30/311, article 222 in ed. Yaakov Sharett, Moshe Sharett and the German Reparations Controversy, Collected Documents (Tel Aviv: The Society to Commemorate Moshe Sharett, 2007), 97–104, at 99–100; 101. (Hebrew, my translation, RA) 33 Ibid., 282–285. 34 Traditionally, sulha is a traditional form of restorative justice negotiated between the victim and the perpetrator. In this case, however, the ceremony was imposed rather than negotiated by both sides as equals. — 244 —

———————————————Who is Afraid of Historical Redress? ———————————————

Israelis that the victim-perpetrator dichotomy is indeed false, that the victim is not immune from becoming a perpetrator. This insight touches the hard core of the Israeli self-identity and self-image. Shakespeare’s sonnet 62 illustrates the bewilderment of the speaker who glances at his face in the mirror, which reveals an image very different from the beautiful one he has of himself.35 Sin of self-love possesseth all mine eye And all my soul, and all my every part; And for this sin there is no remedy, It is so grounded inward in my heart. Methinks no face so gracious is as mine, No shape so true, no truth of such account; And for myself mine own worth do define, As I all other in all worths surmount. But when my glass shows me myself indeed Beated and chopp’d with tanned antiquity, Mine own self-love quite contrary I read; Self so self-loving were iniquity. ’Tis thee, myself, that for myself I praise, Painting my age with beauty of thy days.

The soul-searching, regret, and compassion invoked by the Kafr Qasim massacre quickly faded away as Israel swiftly regressed to its “offensive ethos” posture. Following the trial, the perpetrators were given amnesty. News reels from 195736 show the joyfulness of the defendants as they are welcomed by the Moshe Dayan, the army chief of staff. In the current empire of trauma, to borrow from Fassin and Rechtman’s seminal volume, placing a collective on the psychoanalyst’s sofa may not seem fanciful any longer. On the contrary, this trajectory offers some invaluable insights for our discussion.37 In Melanie Klein’s 35 William Shakespeare, Collins Complete Works of William Shakespeare (London: Collins, 2006). 36 Menachem Hadar (director), “The Opsimist,” T’kuma TV Mini-Series (Jerusalem: Israel Broadcasting Authority, 1998), chapter 11. 37 See Fassin and Rechtman, The Empire of Trauma; Eyerman, Cultural Trauma: Slavery and the Formation of African American Identity; Dominique LaCapra, Writing History, Writing Trauma. Klein suggests that the understanding of personality is the foundation of the understanding of social life. Klein, Our Adult World and Its Roots in Infancy, 291–303; Klein, Love, Guilt and Reparation: And Other Works 1921–1945. — 245 —

—————————————————— chapter seven ——————————————————

theory,38 the ego advances a defense mechanism against the death instinct or the drive to destruction. In this mechanism, introjection and projection are used to keep persecutory and ideal objects as far apart as possible. Hence, the ego introjects the good on the self and projects the bad on others. Klein links this split with the increasing idealization of the ideal object in order to keep it farther apart from the persecutory object. By splitting the two aspects and clinging to the good one, the ego is capable of sustaining its belief in the good object and its capacity to love it. This is also an essential condition for keeping alive. The offensive ethos can be seen as a form of projection of the violent and destructive drives and behaviors on the enemy, the Other. The common good and the virtue are introjected and intensified, thus becoming a source of empowerment. Clinging to the good and the just are idealized in the collective ego. The sense of victimhood is further enhanced through the projection and attribution of the destructive impulses and aggression to the Other. While the introjection of the good is necessary for maintaining life at the individual level, it is hardly sufficient at the collective level. In order to defend itself against the Other, the good is coerced into becoming a perpetrator. This further intensifies victimhood. The introjected good ego is forced to act contrary to its virtue. This, in turn, establishes the victim-turned-perpetrator’s innocence and gives way to the neutralization of guilt, of which Sykes and Matza39 argue. The concept of reparations, which was discussed at length in the first chapter, has yet another germane aspect. Klein’s40 concept of reparation is related to the inner coping of individuals with the destructive impulses and greed that affect the loved ones—the mother in particular. In her account of reparation, feelings of guilt are deeply rooted in infancy. Guilt is accompanied by the need to preserve the objects and to make amends for the harm done. Klein defines reparation as the desire to rectify the harm that a person caused or wanted to cause others. In her conceptualization, reparation overcomes the anxiety and guilt of the depressive position and recreates the sense of security and relatedness. The sense of security and relatedness is based on the wholeness and perfection of the internal object. 38 Klein, Our Adult World and Its Roots in Infancy, 291–303. 39 Sykes and Matza, Techniques of Neutralization: A Theory of Delinquency, 664–670. 40 Klein, Love, Guilt and Reparation: And Other Works 1921–1945, 306–344. — 246 —

———————————————Who is Afraid of Historical Redress? ———————————————

It is important to note, however, that for Klein, reparation can be granted either in fantasy or in reality. Alford41 indicates that whether the harm or the reparation is the effect of reality or of acts of fantasy makes no difference in Klein’s theory. However, Klein’s arguments about reparations are clearly normative. She acknowledges that impulses and emotions can be transferred to other persons even far away from the original person or the original victim.42 Klein distinguishes between genuine and manic or mock reparation. Mock reparation is distinguished by its bogus character; it denies the harm inflicted and the sadism behind it. It is not derived from an authentic concern for the object; but rather, like all manic defenses, it is built around a fantasy of omnipotence.43 This fantasy of omnipotence is analogous to Zionism’s messianic fantasy. In this fantasy of omnipotence, the perpetrator denies the harm; it is confident that anything and everything can be repaired.44 Alford45 argues that what distinguishes genuine from manic reparation is the extent to which one authentically cares about the reality of the other. He qualifies the implications of this distinction by noting that Klein theorizes on the world of internal objects rather than on real life, on mental states rather than on concrete terms.46 But let us now redeploy the question posed at the beginning of this chapter. Can the victim transcend the suffering and the injustice endured and become a precursor for justice and for making amends? Can victims adopt a universalistic stance and strive for redress not only of the injustice but also mend the world and prevent others from being inflicted with these same injustices? Can Israel make amends wholeheartedly? The concept of making amends is deeply rooted in Judaism, in the Mishnah and Talmud, Jewish prayer,47 and mystical teachings about 41 C. Fred Alford, Psychology and the Natural Law of Reparation (Cambridge University Press, 2006). 42 Melanie Klein, “Love, Guilt and Reparation,” in Love, Hate and Reparation, eds. Melanie Klein and Joan Riviere (New York: W. W. Norton, 1964). 43 Alford, Psychology and the Natural Law of Reparation, 101–102. 44 R. D. Hinshelwood, A Dictionary of Kleinian Thought (London: Free Association Books, 1989), 340– 342. 45 Alford, Psychology and the Natural Law of Reparation, 101–102. 46 Alford, Psychology and the Natural Law of Reparation, 103. 47 Aleinu prayer is the closing prayer of the morning, afternoon, and evening services. “Therefore we put our hope in You, Adonai our God, to soon see the glory of your strength, to remove all idols from the earth and to completely cut off all false gods; to repair the world, your holy empire. And for all living flesh to call your name and for all the wicked of the earth to turn to you . . ..” (My — 247 —

—————————————————— chapter seven ——————————————————

the nature of God and reality. Moreover, the religious obligations are conceived of as means of tikkun olam, for mending the world and making it a better place.48 The concept of tikkun olam has been subject to various interpretations and points of view, among which is the debate over its universalistic or particularistic context. In contemporary Jewish world, these interpretations correspond to the political and religious divisions between Orthodox, Conservative, and progressive Jews. Hence, in a speech delivered at a Jewish convention in the U.S., Rabbi Jonathan Sacks, chief rabbi of the British Commonwealth, addressed the concept of tikkun olam.49 He asserts that the essence of tikkun olam is that by being particularistic, Jews attain the universal consequence of assisting in promoting change in the world. Hence, Sacks argued the following:50 [This] very subtle idea split apart in the Enlightenment so that the early Maskilim51 and extreme protagonists of the Reform Movement wanted the universalism—we should change the world, like everyone else—and they wanted to give up the particularism, the particularism of the commandments. The Orthodox community, very much concerned with the particularism but they gave up on the universalism.

Tikkun is based on a consequentialist view of human deeds and the centrality of human responsibility in mending the world. According to the kabbalistic myth of tikkun, God contracted part of God’s self into a smaller space—vessels of light—to create the world.52 This light, as many accounts suggest, was made up of radically diverse elements—a unity of oppositions such as good and bad, light and darkness, strict judgment and compassion.53 Because the force of light proved so powerful, the vessels that could not contain it shattered. Their debris became emphasis, RA) 48 Lawrence Fein, Physician of the Soul, Healer of the Cosmos: Isaac Luria and His Kabbalistic Fellowship (Stanford: Stanford University Press, 2003), 187–219. 49 Jonathan Sacks, Tikkun Olam: Orthodoxy’s Responsibility to Perfect G-D’s World, 1997, http:// www.ou.org/public/Publib/tikkun.htm#_ftnref26 (accessed April 26, 2010). 50 Ibid. 51 Enlightened. 52 Fein, Physician of the Soul, Healer of the Cosmos: Isaac Luria and His Kabbalistic Fellowship, 128–131. 53 Ibid., 126. — 248 —

———————————————Who is Afraid of Historical Redress? ———————————————

sparks of light that were trapped within the material of creation. Prayer, especially contemplation of various aspects of divinity, releases these sparks and allows them to reunite with God’s essence.54 Repairing the shattered vessels, unifying God through the return of the Shechinah, and unifying man’s soul are all part of tikkun olam. In a fascinating article, Harriet Lutzky55 compares Klein’s concept of reparation with the Lurianic kabbalistic myth of tikkun olam. When tikkun is achieved, creation will resume its intended state of wholeness, harmony, and perfection. For Lutzky and Klein, and for kabbalah, tikkun expresses the conviction that catastrophe can be overcome.56 In his “Theses on the Philosophy of History,” Walter Benjamin’s theme of redemption is an apparently counterintuitive combination of Jewish mysticism and historical materialism. Benjamin’s theme of redemption is laden with the secular meaning of liberation. Through memory, redemption is capable of thwarting the pessimistic vision of history as progress for the victors and as a sequence of catastrophes and suffering for the vanquished. It is through memory that empty homogeneous time can be brought to a halt. The remarkable yet forgotten fact that the Lurianic myth of tikkun olam was created in the wake of another catastrophic event in Jewish history—the expulsion of the Jews from Spain in the end of the fifteenth and early sixteenth centuries—certainly fans a spark of hope. The longing for the end of exile is also an oft-cited particularistic lesson that Zionism highlights in reference to the Holocaust. The Lurianic notion of tikkun olam, however, conveys a transcendental and universal promise to break “the inner exile in which all creation groans.”57

54 Ibid. 55 Harriet Lutzky, “Reparation and Tikkun: A Comparison of the Kleinian and Kabbalistic Concepts,” International Review of Psycho-Analysis, no. 16 (1989), 449–458. 56 Ibid., 450. 57 Gershon Gerhard Scholem, Major Trends in Jewish Mysticism (New York: Schocken Books, 2003), 286. (My emphasis, RA) — 249 —

—————————————————— chapter seven ——————————————————

— 250 —

———————————————————— Bibliography ————————————————————

Bibliography

Interviews Amichai Moskovitch (chairperson of a nonprofit organization for the Assistance and Rehabilitation of Tinea Capitis Survivors). The interview was conducted by the author on August 23, 2009. Attorney Avri Rav-Hon. The interview was conducted by the author on August 23, 2009. Attorney Dan Kochavi. The interview was conducted through a phone conversation with the author on August 25, 2009. Documents Adenauer, Konrad. “Declaration.” In Documents Pertaining to Israel’s Foreign Policy, edited by Yemima Rosenthal. Vol. 6, 665. Jerusalem: State Archives, 1991 [1951]. “Agreement between the State of Israel and the Federal Republic of Germany.” In Treaties. Vol. 3, chap. 69. Jerusalem: Government Printer, 1952. The Decisions of the Commission for Transfer from Germany, January 6, 1950. HZ 2417/A1: National Archives, 1950. The Department of Immigration at the Executive of the Jewish Agency Immigration Regulations. Vol. CZA S6/1749. Jerusalem: Zionist Archives. “The Final Act: Paris Conference.” http://www.ena.lu/final-act-parisconference-reparation-21-december-1945-020302555.html.\ Parliamentary Committee for Absorption of Immigrants and the Diasporas. Hearing. 23rd sess., August 1, 2006. The Implementation of the Report of the State Investigative Commission on the Aid to Holocaust Survivors: Report by the Knesset’s Research and Information Center. Jerusalem: Government Printer, 2009. Interim Report of the Inter Ministerial Commission for Resolving the Strife of Holocaust Survivors. Jerusalem: The Ministry of Welfare and Social Services, 2007. — 251 —

———————————————————— Bibliography ————————————————————

National Archives, Division 57, 5087C, file 9. In a letter dated January 26, 1956, from Dr. Ben Assa addressed to the head of the epidemiology department in the Ministry of Health. United Nations High Commissioner for Human Rights. International Covenant on Civil and Political Rights. General Assembly Resolution 2200A (XXI), 1976. Freundlich, Yehoshua. “Consultation on April 12, 1949, the Ministry of Foreign Affairs, 02/2447/3.” In Documents Pertaining to Israel’s Foreign Policy. Vol. 2, 120. Jerusalem: State Archives, 1988 [1949]. ———. Documents Pertaining to Israel’s Foreign Policy. Vol. 5. Jerusalem: State Archives, 1988 [1950]. sraeli, Avi. Memorandum, the Director General of the Ministry of Health. January 5, 2009. Taustein, Y. to A. Peretz, Letter. Jerusalem: National Archives, Division 57, 5087C, file 9. Treaty between the Jewish Agency in Palestine and the Maronite Church, signed on May 30, 1946, Central Zionist Archives, S25/3269. The UN Commission on Human Rights. “Human Rights Resolution 2005/35.” http://ap.ohchr.org/documents/E/CHR/resolutions/ECN_4-RES-2005-35.doc (accessed May, 17, 2009). Immigration Regulations of the Immigration Department of the Jewish Agency. The Department of Immigration at the Executive of the Jewish Agency Immigration Regulations, CZA S6/1749. Jerusalem: Zionist Archives, (CZA S6/1749). Canada, the House of Commons on June 11, 2008, can be found at http://www.shannonthunderbird.com/residential_schools.htm (accessed June 28, 2009). A letter from Professor Zagher to Dr. Jaffee, State Archives, Division 57, 5087C, file. A letter dated Jaunary 30, 1950, written by some ten villagers and the mukhtar and addressed to the presidency of Mapam party. Givat Haviva, Aharon Cohen Archive 10-95 9 (2). The Second Circle of Holocaust Survivors: Social Justice—Historical Justice. http://www.pmo.gov.il/PMO/PM+Office/eco/Zikna.htm (accessed January 20, 2010). Iqrit surrender agreement. http://www.iqrit.org/ihs/eng/surrenddoc. htm (accessed October 8, 2009).

— 252 —

———————————————————— Bibliography ————————————————————

Legislation, Knesset Proceedings, and Knesset Committees Laws of the State of Israel: Authorized Translation from the Hebrew. vol. 4. Jerusalem: Government Printer, 1948–1987. Invalids (Nazi Persecution) Law 5717-1957. Public Law 226. The Book of Laws (1957). www.knesset.gov.il/review/data/.../law/kns3_invalids_persecution_eng.pdf (accessed March 22, 2010). Invalids (War against Nazis) Law 5714-1954. Public Law 147. The Book of Laws (1954). http://www.btl.gov.il/laws/btlLaws.aspx?lawid=15826 (accessed March 22, 2010). Law of Government 5761-2001. Public Law 1780. The Book of Laws (2001): 158. http://www.knesset.gov.il/laws/heb/FileD.asp?Type=1 &SubNum=12&LawNum=1780 (accessed June 30, 2009). Law of Inquiry Commissions 5729-1968. Public Law 548. The Book of Laws (1968). http://www.knesset.gov.il/review/data/heb/law/kns6_ inquiry.pdf (accessed June 21, 2009). Law of Tinea Capitis Reparations 5754-1994. Public Law 1478. The Book of Laws (1994). http://www.df-law.co.il/page.php?pageID=79 (accessed August 25, 2009). Declaration of Independence (1948). http://www.knesset.gov.il/docs/ eng/megilat_eng.htm (accessed August 14, 2009). The State of Israel, Ministry of Health. “Background.” The National Center for the Treatment of Tinea Capitis Irradiations. http://www.health.gov.il/pages/default.asp?maincat=78&catId=768&P ageId=4136 (accessed August 17, 2009). Menachem Begin. “This Will Be a War of Life or Death.” In Moshe Sharett and the German Reparations Controversy, Collected Documents, edited by Yaakov Sharett, 882–885. Tel Aviv: The Society to Commemorate Moshe Sharett, 2007. “Minutes of the Meeting at the Mapai Caucus on December 31, 1951.” In Moshe Sharett and the German Reparations Controversy, Collected Documents, edited by Yaakov Sharett, 216–259. Tel Aviv: The Society to Commemorate Moshe Sharett, 2007. Proceedings of the 12th Knesset, Convention 242, December 18, 1990. 242nd sess., 1990. Proceedings of the 13th Knesset, Convention 189, February 16, 1994. 189th sess., 1994. — 253 —

———————————————————— Bibliography ————————————————————

Proceedings of the 13th Knesset, Convention 294, January 3, 1995. 294th sess., 1995. Proceedings of the 14th Knesset, Convention 241, October 26, 1998. 241st sess., 1998. Proceedings of the 15th Knesset, Convention 38, October 25, 1999. 38th sess., 1999. “Proceedings of the First Knesset Convention 237 on March 13, 1951.” In Moshe Sharett and the German Reparations Controversy, Collected Documents, edited by Yaakov Sharett, 131–137. Tel Aviv: The Society to Commemorate Moshe Sharett, 2007. Proceedings of the Government Convention, October 25, 1951, 5/312, Article 7. Jerusalem: Government Printer, 1951. “Proceedings of the Israeli Government Convention on February 15, 1950. Convention 29/310 Article 9.” In Moshe Sharett and the German Reparations Controversy, Collected Documents, edited by Yaakov Sharett, 55–63. Tel Aviv: The Society to Commemorate Moshe Sharett, 2007a. “Proceedings of the Israeli Government Convention on October 30, 1950. Meeting 10/311, Article 53.” In Moshe Sharett and the German Reparations Controversy, Collected Documents, edited by Yaakov Sharett, 55–63. Tel Aviv: The Society to Commemorate Moshe Sharett, 2007b. Proceedings of the Israeli Knesset Convention 27. June 29, 1959–July 1, 1959. 27th sess., 1959. Proceedings of the Labor, Welfare and Health Committee, the 15th Knesset. 234th sess., November 28, 2000. Reports Bank of Israel Report: The Reparations and Their Effects on the Israeli Economy. Jerusalem: Government Printer, 1965. Report Commission of Inquiry of the Finding Yemeni Children; Commission Chairs: Joseph Bahaloul and Reuben Minkowski. Jerusalem: Government Printer, 1968. Report of the Commission of Inquiry of the Blood Donations of Ethiopian Immigrants. Jerusalem: Government Printer, 1996. Report of the Commission of Inquiry of the Disappearance of Yemeni Chil— 254 —

———————————————————— Bibliography ————————————————————

dren: Commission Chair: Moshe Shalgi. Jerusalem: The Government Printer, 1995. Report of the Inter-Ministerial Commission for the Inquiry of the Problem of Pensions for Invalids Who Are Nazi Victims (Citizens of Israel). Jerusalem: National Printer, 1956. Kliger, Ruth. Report, Office of the Prime Minister Division 43, 333/5 September 1949. Jerusalem: State Archives, 1949. Report of the Public Commission for the Discovery of the Missing Yemeni Children, the Missing Yemeni Children Affair: Justifications for the Demand to Form a State Commission of Inquiry. Kiriat Ono, 1968. The Report of the State Investigative Commission on the Aid to Holocaust Survivors. Jerusalem: Government Printer, 2008. Report: State Commission of Inquiry in the Matter of the Disappearance of Children of Yemeni Immigrants during 1948–1954; Commission Chairs: Yehuda Cohen, Yaakov Kedmi. Jerusalem: The Government Printer, 2001. Righting the Wrong: A Progress Report. Province of British Columbia: Ombudsman, 2002. State Comptroller’s Report: Aid to Holocaust Survivors. Jerusalem: Keter, 2007. Court Cases Labor Court (Haifa) 1035/05 Agabria Hamdan v. the State of Israel, Ministry of Health, 2005(4), 6812. Civil Claim (Jerusalem) 8401/06 Amar Shoshana v. the State of Israel, Ministry of Health, 2008(76), 1090. High Court 1356/96 Dr Ben-David Amnon v. Shimon Peres and Others, 1996(1), 661. High Court 141/81 The Committee of the Uprooted of Iqrit, Kafr Rama and Others v. the Government of Israel and Others, 1982(1), 129. Permission to Appeal (Civil) 2620/07 The Competent Authority as per the Invalids (Nazi Persecution) Law 5717-1957 v. Arlazov, 2007(2), 3807. Civil Claim (Jerusalem) 350/92 Dahan Shmuel and Others v. Kupat Holim Clalit and the State of Israel, 1996(3), 788. High Court 5638/04 Gadassi Bat-Sheva v. The Legal Advisor to the Government. (revoked, unpublished). — 255 —

———————————————————— Bibliography ————————————————————

Labor Court (Tel Aviv-Yafo) 3373/07 Gindi Mathilda v. the State of Israel, Ministry of Health, 2007(25), 700. Further Hearing (Civil) 11196/03 Granot Yosef and Others v. the Competent Authority as per the Invalids (Nazi Persecution) Law 5717-1957, 2005(4), 98. Premission to Appeal (Civil) 5512/09 Hershko Haim and Others v. the Competent Authority as per the Invalids (Nazi Persecution) Law 57171957, 2009(4), 2992. High Court 5263/94 Hirschson Abraham v. the Minister of Finance, PD 49(5) 837. Motion (Haifa) 3556/95 The Jewish Agency, the State of Israel and Kupat Holim Clalit v. Morris Tourgeman, 1996(2), 781. Civil Appeal District Court Tel Aviv 1954/04 Kalifah Roeh and Others v. the Competent Authority as per the Invalids (Nazi Persecution) Law 5717-1957, 2008(1), 4656. High Court 195/51 Kizer Ibrahim and Others v. the Minister of Defense and Others, October 10, 1951. [Unpublished]. Civil Claim (Tel Aviv) 1443/90, Labao Bechor and Others v. the State of Israel, Ministry of Health (ruled on September 14, 1994 [unpublished]), http://www.pador.co.il (accessed on August 30, 2009). Labor Court (Beer Sheva) 3166/07 Matzri Hannah v. the State of Israel, Ministry of Health, 2008(1), 10208. High Court 64/51 Mobada Hanna and Others v. the Minister of Defense, 1951(2), 1117. High Court 239/51 Mobada Hanna Daoud and Others v. the Appellate Committee for Security Zones, the Office of the Military Governor of Galilee, 1952(1), 229. Various Requests Civil (Jerusalem) 366/06 Molhi Yaakov and Flora Dahan v. the State of Israel, Ministry of Health, 2006(11), 787. Civil Claim (Jerusalem) 8021/06 Molhi Yaakov and Flora Dahan v. the State of Israel, Ministry of Health, 2006(11), 787. Civil Claim (Jerusalem) 8402/06 Paz Hannah v. the State of Israel, Ministry of Health, 2009(26), 179. Civil Claim (Jerusalem) 2004/01 Reuben Sima v. the Ministry of Health, 2004(1), 21, 588. Civil Appeal (Jerusalem) 5377/04 Reuben Sima v. the State of Israel, 2005(1), 332. Civil Appeal 3168/09 The State of Israel v. Reuben Sima, 2009 (unpub— 256 —

———————————————————— Bibliography ————————————————————

lished, ruled on July 26, 2009), http://www.takdin.co.il/searchg/ (accessed on June 6, 2010). High Court 840/97 Sbit Aoni and Others v. the Government and Others, 2003(4), 803. Civil Appeal (Tel Aviv) 1006/92 Shemesh Yehuda v. the State of Israel and Municipality of Tel Aviv, 93(2), 1089. Various Civil Requests (Nazareth) 2056/09 Sidi Tamara and Others v. the State of Israel, Ministry of Health, 2009(51), 572. Web Pages Ministry of Immigrant Absorption. http://www.moia.gov.il/Moia_he/ ImportantToKnow/Veterans.htm (accessed February 1, 2010]. The Governmental Aid Program to Holocaust Survivors: Doing Historical and Social Justice. http://zchut.gov.il/ (accessed January 5, 2010). Newspapers “Damages Claim from a Röntgenologist and Kupat Holim due to Burns Caused by Irradiation.” Haaretz, November 11, 1955. “There Is No Safe Radiation.” Haaretz, February 9, 2005. “Will the Modan File Be Disclosed?” Haaretz, July 30, 2004. Alon, Gideon. “‘We Thought That Hitler Was Dead,’ Called a Representative of Ethiopian Immigrants at the Director of the Blood Bank at a Stormy Meeting of the Immigration and Absorption Committee.” Haaretz, January 30, 1996. Aloni, Shulamit. “Where Is Our Virtue?” Haaretz, August 14, 2009. Azoulay, Yuval and Ayanawo Farada Sanbatu. “MDA Changed the Procedures of Blood Donations; Ethiopians Who Are Native Israelis Will Be Able to Donate Blood,” Haaretz, April 16, 2007. http://www.haaretz. co.il/hasite/spages/848907.html (accessed on June 28, 2010). Bergman, Ronen. “The Secret List.” Haaretz, November 29, 1996. Cohen, Shalom. “A Baby for $5,000.” HaOlam Hazeh, January 11, 1967. Dayan, Aryeh. “Reparations for Tinea Capitis? Only If the Cancer Is Lethal.” Haaretz, July 30, 2004. — 257 —

———————————————————— Bibliography ————————————————————

Ein Gil, Ehud. “Questions to Members of the Commission.” Haaretz, December 7, 2001. Fischer, Ronel. “All Ethiopian Blood Donations Are Disposed of Secretly and Immediately.” Maariv, January 24, 1996, 11. ———. “The Blood Lie.” Maariv, January 26, 1996, 11. Gelblum, Arie. “For One Month I Was a New Immigrant.” Haaretz, April 13, 1949–May 20, 1949. Kraus, Iris and Ronen Bergman. “Hundreds of Tinea Capitis Victims Protested in a Conference, Demanding Higher Reparations.” Haaretzi November 29, 1996. Saar, Reli. “A Member of Navon’s Commission Members Announced His Retirement.” Haaretz, May 9, 1996. ———. “The Nurses at the Quarantine Station Had a Sense of Mission.” Haaretz, July 28, 1994. Saar, Reli and Amira Segev. “The Minister of Health Summons a Discussion in the Matter of the Blood Donations of Ethiopian Immigrants.” Haaretz, January 25, 1996. Zuriel, Yosef. “Twelve Mothers in Search of Their Children.” Maariv, April 1, 1966. Documentries Hadar, Menachem (director). “The Optimist,” T’kuma TV Mini-Series, chapter 11. Jerusalem: Israel Broadcasting Authority, 1998. Books and Articles Abdel-Nour, Farid. “National Responsibility.” Political Theory 31, no. 5 (2003): 693–719. Abel, Richard L. “Should Tort Law Protect Property against Accidental Loss?” San Diego Law Review 23, no. 1 (1986): 79–124. ———. “Torts.” In The Politics of Law: A Progressive Critique, edited by David Kayris. 3rd ed., 445–470. New York: Basic Books, 1998. Aharoni, Reuben. Jewish Emigration from the Yemen 1951–98: Carpet without Magic. London: Routledge, 2001. Alford, C. Fred. Psychology and the Natural Law of Reparation. Cam— 258 —

———————————————————— Bibliography ————————————————————

bridge University Press, 2006. Andrews, Mark D. and Marrianthe Burnes. “Common Tinea Infections in Children.” American Family Physician 77, no. 10 (2008): 1,415–1,420. Arendt, Hannah. Eichmann in Jerusalem: A Report on the Banality of Evil. New York, NY: Penguin Books, 1994. ———. The Human Condition. Charles R. Walgreen Foundation Lectures. Chicago, IL: University of Chicago Press, 1958. ———. Men in Dark Times. New York: Harcourt, Brace & World, 1968. ———. On Revolution. Penguin Twentieth-Century Classics. London: Penguin Books, 1965. ———. The Origins of Totalitarianism. New York, NY: Schocken Books, 2004. Arthur, Paige. “How ‘Transitions’ Reshaped Human Rights: A Conceptual History of Transitional Justice,” Human Rights Quarterly 31 (2009): 321–367. Aschheim, Steven V. Brothers and Strangers: The East European Jew in German and German Jewish Consciousness, 1800–1923. Madison, WI: University of Wisconsin Press, 1999. Attwood, Bain. Telling the Truth about Aboriginal History. Crows Nest, NSW: Allen & Unwin, 2005. Balint, Jennifer. “Law’s Constitutive Possibilities: Reconstruction and Reconciliation in the Wake of Genocide and State Crime.” In Lethe’s Law: Justice, Law and the Ethics of Reconciliation, edited by Emilios A. Christodoulidis and Scott Veitch, 129–152. Oxford: Hart Publishing, 2001. Bard, Mitchell Geoffrey. From Tragedy to Triumph: The Politics behind the Rescue of Ethiopian Jewry. Westport, CT: Praeger, 2002. Barkan, Elazar. The Guilt of Nations: Restitution and Negotiating Historical Injustices. New York: Norton, 2000. ———. “Introduction: Reparation: A Moral and Political Dilemma.” In Reparations: Interdisciplinary Inquiries, edited by Jon Miller and Rahul Kumar, 1–19. Oxford: Oxford University Press, 2007. Bartal, Israel. “Old Settlement and New Settlement: Image and Reality.” Cathedra 2, (1976): 3–19. Bates, Stanley. “The Responsibility of ‘Random Collectives.’” Ethics 81, no. 4 (1971): 343–349. Bauer, Yehuda. “Reflections Concerning the Holocaust History.” In — 259 —

———————————————————— Bibliography ————————————————————

Fackenheim: German Philosophy and Jewish Thought, edited by Louis Greenspan and Graeme Nicholson, 163–175. Toronto: Toronto University Press, 1992. Bauman, Zygmunt. “The Holocaust’s Life As a Ghost.” Tikkun: A Bimonthly Jewish Critique of Politics, Culture and Society (July–August 1998): 37. Beckett, Jeremy. “Aboriginality in a Nation-State: The Australian Case.” In Ethnicity and Nation Building in the Pacific, edited by Michael C. Howard, 118–134. Tokyo: United Nations University, 1998. Ben Nathan, Asher. “The Road for Establishing Relationships: The Israeli Perspective.” In Normal Relationships: Israel-Germany Relationships, edited by Moshe Zimmermann and Oded Heilbrunner, 24–32. Jerusalem: The Magnes Press, 1993. Ben-Gurion, David. “A Letter from David Ben-Gurion to Yigael Yadin.” Document 47, In David Ben-Gurion: The First Prime Minister, edited by Yadin Yigael, 169–170. Jerusalem: The State Archives, 1997. Ben-Sasson, Menachem. The Yemenis: History, Social Order, and Spiritual Life: Selection of Studies by Shlomo Dov Goitein. Jerusalem: Ben-Zvi Institute for the Study of Israel Communities in the Orient, 1983. Benhabib, Seyla. The Rights of Others: Aliens, Residents and Citizens. John Robert Seeley Lectures. Cambridge: Cambridge University Press, 2004. Benjamin, Walter. Illuminations. Schocken Paperback. New York: Schocken Books, 1968. ———. Selected Writings. Unpacking My Library. Translated by Rodney Livingstone, edited by Marcus Paul Bullock, Michael William Jennings, Howard Eiland, and Gary Smith. Vol. 2. Cambridge, MA: Belknap Press, 1996a. ———. Selected Writings. A Berlin Chronicle. Translated by Rodney Livingstone, edited by Marcus Paul Bullock, Michael William Jennings, Howard Eiland, and Gary Smith. Vol. 2. Cambridge, MA: Belknap Press, 1996b. Benvenisti, Meron. Sacred Landscape: The Buried History of the Holy Land since 1948. Berkeley: University of California Press, 2000. ———. Son of the Cypresses: Memories, Reflections, and Regrets from a Political Life. Berkeley: University of California Press, 2007. Bhabha, Homi K. The Location of Culture. London: Routledge, 1994. Bialik, Hayyim Nahman and Israel Efros. Complete Poetic Works of Hayy— 260 —

———————————————————— Bibliography ————————————————————

im Nahman Bialik: Translated from the Hebrew. New York: Histadruth Ivrit of America, 1948. Bier, Jean-Paul. “The Holocaust, West Germany and Strategies of Oblivion.” In Germans and Jews since Holocaust: The Changing Situation in West Germany, edited by Anson Rabinbach and Jack David Zipes, 185–207. New York: Holmes & Meier, 1986. Bouvier, John. “Responsibility.” In A Law Dictionary, Adapted to the Constitution and Laws of the United States and of the Several States of the American Union; with References to the Civil and Other Systems of Foreign Law, edited by Bryan A. Garner. 2nd ed. Clark, NJ: The Lawbook Exchange, 2004 [1843]. Brandenberg, Broughton. Imported Americans: The Story of the Experiences of a Disguised American and His Wife Studying the Immigration Question. New York: FA Stokes, 1904. Brooks, Roy L. Atonement and Forgiveness: A New Model for Black Reparations. Berkeley: University of California Press, 2004. ———. “Getting Reparations for Slavery Right: A Response to Posner and Vermeule.” Notre Dame Law Review 80, no. 1 (2004): 251–288. ———. When Sorry Isn’t Enough: The Controversy over Apologies and Reparations for Human Injustice. Critical America. New York: New York University Press, 1999. Buber, Martin. “Zionism and ‘Zionism.’” In A Land of Two Peoples: Martin Buber on Jews and Arabs, edited by Paul R. Mendes-Flohr. Tel Aviv: Schocken, 1983 [1948]. Cairns, Alan. “Restitution and Amending Historical Injustices in International Morality.” In Politics and the Past: On Repairing Historical Injustices, edited by John C. Torpey, 63–90. Lanham, MD: Rowman and Littlefield, 2003. Calhoun, Craig. “Social Theory and the Politics of Identity.” In Social Theory and the Politics of Identity, edited by Craig Calhoun, 9–36. Cambridge, MA: Blackwell Publishers, 1994. Cappali, Richard B. and Claudio Consolo. “Class Actions for Continental Europe? A Preliminary Inquiry.” Temple International and Comparative Law Journal 6, no. 2 (1992): 217–292. Carmel, Moshe. The Campaigns in the North. Ein Kharod: Hakibbutz Ha Meuchad; IDF; Ma’arachot, 1949. Chayes, Abram. “The Role of the Judge in Public Law Litigation.” Har— 261 —

———————————————————— Bibliography ————————————————————

vard Law Review 89, no. 7 (1976): 1,281–1,316. Chemtob, D. and Z. Grossman. “Epidemiology of Adult and Adolescent HIV Infection in Israel: A Country of Immigration.” International Journal of STD and AIDS 15, (2004): 691–696. Chinski, Sara. “Wide Open Eyes: The Acquired Albino Syndrome of the Israeli Art Field.” Theory and Criticism 20, (2002): 57–86. Choper, Jesse H. “The Political Question Doctrine: Suggested Criteria.” Duke Law Journal 54, no. 6 (2005): 1,457–1,524. Cohen, Hillel. Army of Shadows: Palestinian Collaboration with Zionism, 1917–1948. Berkeley: University of California Press, 2008. ———. Good Arabs: The Israeli Security Agencies and the Israeli Arabs 1948–1967. Translated by Haim Watzman. Berkeley: University of California Press, 2010. Coleman, Jules. “Theories of Tort Law.” In Stanford Encyclopedia of Philosophy, edited by Edward N. Zalta. Stanford: The Metaphysics Research Lab Center for the Study of Language and Information, Stanford University, 2003. Connor, Walker. Ethnonationalism: The Quest for Understanding. Princeton, NJ: Princeton University Press, 1994. Conrad, Joseph. Heart of Darkness: With the Congo Diary. London: Penguin Books, 1995. Corinaldi, Michael. Jewish Identity: The Case of Ethiopian Jewry. Jerusalem: Magnes Press, Hebrew University, 1998. Corlett, Angelo. Race, Racism, and Reparations. Ithaca and London: Cornell University Press, 2003. Courtois, Stéphane, ed. The Black Book of Communism: Crimes, Terror and Repression. Translated by Jonathan Murphy and Mark Kramer. Cambridge: Harvard University Press, 1999. Cunningham, Michael. “‘It Wasn’t Us and We Didn’t Benefit’: The Discourse of Opposition to an Apology by Britain for its Role in the Slave Trade.” The Political Quarterly 79, no. 2 (2008): 252–259. Czarnota, Adam. “Law As Mnemosyne and As Lethe: Quasi-Judicial Institutions and Collective Memories.” In Lethe’s Law: Justice, Law and the Ethics of Reconciliation, edited by Emilios A. Christodoulidis and Scott Veitch, 115–128. Oxford: Hart Publishing, 2001. Dagan, Hanoch. The Law and Ethics of Restitution. New York: Cambridge University Press, 2004. — 262 —

———————————————————— Bibliography ————————————————————

Davey, James. From “Jim Crow” to “John Doe”: Reparations, Corporate Liability and the Limits of Private Law. Cardiff: Cardiff Center for Ethics, Law and Society, 2006. Davidowitch, Nadav and Avital Margalit. “Public Health, Racial Tensions, and Body Politic: Mass Ringworm Irradiation in Israel 1949–1960.” Journal of Law, Medicine and Ethics 36, no. 3 (2008): 522–529. Davis, Charles. “Walter Benjamin: The Mystical Materialist.” In Truth and Compassion: Essays on Judaism and Religion in Honor of Rabbi Dr. Solomon Frank, eds. Howard Joseph, Jack N. Lightstone and Michael D. Oppenheim Waterloo, ON: Wilfrid Laurier University Press, 1983, 75–90. Dayan, Moshe. Moshe Dayan: Story of My Life. Tel Aviv: Yedioth Achronoth and Dvir, 1976. Delaney, David. Territory: A Short Introduction. Oxford: Blackwell, 2005. Dobbs, Dan B. Law of Remedies: Damages, Equity, Restitution. 2nd ed. St. Paul: West Publishing, 1993. Downie, R. S. “Collective Responsibility.” Philosophy 44, (1969): 66–69. Droyan, Nitza. “New Neighbourhoods for Yemeni Immigrants in Jerusalem, 1882–1914,” Cathedra 13 (1980): 95–129. ———. No Magic Carpet: Yemeni Immigrants in Eretz Israel 1881–1914. Jerusalem: Yad Yitzhak Ben-Zvi, 1981. Dubik, Mike and Beverly P. Wood. “Low-Dose Ionizing Radiation in Infancy May Affect Cognitive Functioning.” AAP Grand Rounds 11, no. 4 (2004): 37–38. Dundes Renteln, Alison. The Cultural Defense. New York: Oxford University Press, 2004. Durkheim, Emile and Steven Lukes. The Rules of Sociological Method. 1st American ed. New York: Free Press, 1982. Eder, Klaus. “A Theory of Collective Identity.” European Journal of Social Theory 12, no. 4 (2009): 427–447. Eisenstadt, S. N. The Transformation of Israeli Society: An Essay in Interpretation. London: Weidenfeld and Nicolson, 1985. Elroi, Gur. Immigrants: The Jewish Immigration to Eretz Israel during the Early 20th Century. Jerusalem: Yad Yitzhak Ben-Zvi, 2004. Englerad Yitzhak. The Philosophy of Tort Law. Aldershot: Dartmouth Publishing Company, 1993. Eyerman, Ron. Cultural Trauma: Slavery and the Formation of African — 263 —

———————————————————— Bibliography ————————————————————

American Identity. New York: Cambridge University Press, 2001. Fackenheim, Emil L. “Holocaust.” In 20th Century Jewish Religious Thought: Original Essays on Critical Concepts, Movements, and Beliefs [contemporary Jewish religious thought.], edited by Arthur Allen Cohen and Paul R. Mendes-Flohr, 399–408. Philadelphia: Jewish Publication Society, 2009. ———. To Mend the World: Foundations of Future Jewish Thought. New York: Schocken Books, 1982. Fairchild, Amy L. Science at the Borders: Immigrant Medical Inspection and the Shaping of the Modern Industrial Labor Force. Baltimore: Johns Hopkins University Press, 2003. Falk, Raphael. Zionism and the Biology of the Jews. Tel Aviv: Resling, 2006. Fanon, Frantz. Black Skin, White Masks. London: Paladin, 1970. Fassin, Didier and Richard Rechtman. The Empire of Trauma: An Inquiry into the Condition of Victimhood. Princeton, NJ: Princeton University Press, 2009. Fein, Lawrence. Physician of the Soul, Healer of the Cosmos: Isaac Luria and His Kabbalistic Fellowship. Stanford: Stanford University Press, 2003. Feinberg, Joel. “Collective Responsibility.” Journal of Philosophy 65, no. 21 (1968): 674–688. Feldman, Micha. The Ethiopian Exodus. Jerusalem: The Jewish Agency, 1998. Feldman, Lily Gardner. The Special Relationship between West Germany and Israel. Boston: George Allen & Unwin, 1984. Filc, Danny. “The Commodification of Health: The Israeli Health Care System, between State, Civil Society and the Market.” Theory and Criticism 6, (1995): 3–15. Fischbach, Michael. Records of Dispossession: Palestinian Refugee Property and the Arab-Israeli Conflict. New York: Columbia University Press, 2003. Fogarty, Paige A. “Speculating a Strategy: Suing Insurance Companies to Obtain Reparations for Slavery.” Connecticut Insurance Law Journal 9, no. 1 (2002): 211–252. Foucault, Michel. Discipline and Punish: The Birth of the Prison. 2nd ed. New York: Vintage Books, 1977. ———. “Questions on Geography.” In Power/Knowledge: Selected Interviews and Other Writings, 1972–1977, edited by Colin Gordon, 63–77. — 264 —

———————————————————— Bibliography ————————————————————

London and New York: Pantheon Books, 1980. Fraser, Nancy. Justice Interruptus: Critical Reflections on the “Postsocialist” Condition. New York: Routledge, 1997. ———. “Recognition without Ethics?” Theory, Culture and Society 18, no. 2 (2001): 21–42. ———. “Rethinking Recognition.” New Left Review 3, no. 2 (2000): 107–112. Fraser, Nancy and Axel Honneth. Redistribution or Recognition? A Political-Philosophical Exchange. London; New York: Verso, 2003. Gamlieli, Nissim Benjamin. Yemen and Camp Geula. Tel Aviv: Nissim Benjamin Gamlieli and Sons, 1966. Gelber, Yoav. Independence versus Nakba. Or Yehuda: Kinneret, ZmoraBitan, Dvir Publishing House, 2004. Geller, Howard Jay. Jews in Post-Holocaust Germany, 1945–1953. Cambridge: Cambridge University Press, 2005. ———. Palestine, 1948: War, Escape and the Emergence of the Palestinian Refugee Problem. Brighton; Portland, OR: Sussex Academic Press, 2001. Giddens, Anthony. The Consequences of Modernity. Stanford, CA: Stanford University Press, 1990. ———. The Constitution of Society: Outline of the Theory of Structuration. Berkeley: University of California Press, 1984. Goitein, Shlomo David. From the Land of Sheba: Tales of the Jews of Yemen. New York: Schocken Books, 1973. Goldmann, Nachum. The Autobiography of Nahum Goldmann: Sixty Years of Jewish Life, translated by Helen Sebba. New York, Chicago, San Francisco: Holt, Rinehart and Winston, 1969. Greenspan, Louis. “Fackenheim As Zionist.” In Fackenheim: German Philosophy and Jewish Thought, edited by Louis Greenspan and Graeme Nicholson, 203–223. Toronto: Toronto University Press, 1992. Grob, Leonard. “‘Forgetting’ the Holocaust: Ethical Dimensions of the Israeli-Palestinian Conflict.” In Anguished Hope: Holocaust Scholars Confront the Palestinian Israeli Conflict, edited by Leonard Grob and John K. Roth, 68–76. Grand Rapids, MI: William B. EErdmans Publishing Company, 2008. Grob, Leonard and John K. Roth. “Prologue: Haunted by the Holocaust.” In Anguished Hope: Holocaust Scholars Confront the Palestinian-Israeli — 265 —

———————————————————— Bibliography ————————————————————

Conflict, edited by Leonard Grob and John K. Roth, 1–7. Grand Rapids, MI: William B. Eerdmans Pub., 2008. Habermas, Jürgen. Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy; Studies in Contemporary German Social Thought. Cambridge, MA: MIT Press, 1996. Habermas, Jürgen and Max Pensky. The Postnational Constellation: Political Essays, translated by Max Pensky, edited by Max Pensky. Cambridge, UK: Polity Press, 2001. Habshush, Hayyim and S. D. Goitein. Travels in Yemen: An Account of Joseph Halévy’s Journey to Najran in the Year 1870. Jerusalem: Hebrew University Press, 1941. Hansen, Kjell. “Emerging Ethnification in Marginal Areas of Sweden.” Sociologica Ruralis 39, no. 3 (1999): 294–310. Harris, Y. On the Claws of Eagles: The Whole Truth on the Magic Carpet Affair. Bnei Brak: Torat Avot, 1988. Al-Hawari, Muhammad Nimr. The Secret Behind the Disaster. Nazareth: Matba’a El-Hakim, 1955. Heath, Joseph. Following the Rules: Practical Reasoning and Deontic Constraint. Oxford: Oxford University Press, 2008. Hegel, Georg Wilhelm Friedrich and J. B. Baillie. The Phenomenology of Mind. Harper Torchbooks, the Academy Library. New York: Harper & Row, 1967. Held, David. Democracy and the Global Order. Stanford: Stanford University Press, 1995. Held, Virginia. “Can a Random Collection of Individuals be Responsible?” Journal of Philosophy 67, no. 14 (1970): 471–481. ———. “Group Responsibility for Ethnic Conflict.” Journal of Ethics 6, no. 2 (2002): 157–178. Henderson, Michael. Forgiveness: Breaking the Chain of Hate. 2nd rev. ed. Portland, OR: Arnica Pub., 2003. Henkin, Louis. The Age of Rights. New York: Columbia University Press, 1990. Herzog, Esther. Bureaucrats and Immigrants in an Absorption Center. Tel Aviv: Cherikover, 1998. Hess, Moses. Rome and Jerusalem: The Last National Question. New York: Philosophical Library, 1958 [1862]. Hickinbotham, Tom. Aden. London: Constable, 1958. — 266 —

———————————————————— Bibliography ————————————————————

Higham, John. Strangers in the Land: Patterns of American Nativism, 1860–1925. New York: Atheneum, 1963. Hill, Margaret. “The Detention of Freedomite Children, 1953–1959.” Canadian Ethnic Studies 18, no. 3 (1986): 47–60. Hinshelwood, R. D. A Dictionary of Kleinian Thought. London: Free Association Books, 1989. Holzman-Gazit, Yifat. Land Expropriation in Israel: Law, Culture and Society. Law, Justice and Power Series. Aldershot, England: Ashgate, 2007. Horowitz, Dan and Moshe Lissak. Trouble in Utopia: The Overburdened Polity of Israel. SUNY Series in Israeli Studies. Albany: State University of New York Press, 1989. Horowitz, David. In the Heart of Events. Tel Aviv: Massada, 1975. Ignatieff, Michael. Human Rights As Politics and Idolatry. University Center for Human Values Series. Princeton: Princeton University Press, 2001. ———. The Rights Revolution. Massey Lectures Series. Toronto: House of Anansi Press, 2000. Jaffee, Martin S. “The Victim Community in Myth and History: Holocaust Ritual, the Question of Palestine and the Rhetoric of Christian Witness.” Journal of Ecumenical Studies 28, no. 2 (1991): 223–238. James, Matt. “Do Campaigns for Historical Redress Erode the Canadian Welfare State?” In Multiculturalism and the Welfare State: Recognition and Redistribution in Contemporary Democracies, edited by Keith Banting and Will Kymlicka, 222–246. Oxford: Oxford University Press, 2006. Jaspers, Karl. The Question of German Guilt. Westport, CT: Greenwood Press, 1978. Jessup Newton, Nell. “Indian Claims for Compensation, Reparations, & Restitution in the United States Legal System.” In When Sorry Isn’t Enough: The Controversy over Apologies and Reparations for Human Injustice, edited by Roy L. Brooks, 261–269. New York: New York University Press, 1999. Jiryis, Sabri. The Arabs in Israel. New York: Monthly Review Press, 1976. Kampf, Zohar. “The Pragmatics of Forgiveness: Judgments of Apologies in the Israeli Political Arena.” Discourse and Society 19, (2008): 577–597. — 267 —

———————————————————— Bibliography ————————————————————

Kaplan, Edward H. “Israel’s Ban on Use of Ethiopians’ Blood: How Many Infectious Donations Were Prevented?” Lancet 351, no. 9109 (1998): 1,127–1,128. Karmi, Ghada. Married to Another Man: Israel’s Dilemma in Palestine. London; Ann Arbor, MI: Pluto Press, 2007. Kessler, David. The Falashas: A Short History of the Ethiopian Jews. 3rd rev. ed. London: F. Cass, 1996. ———. The Falashas: The Forgotten Jews of Ethiopia. London: G. Allen & Unwin, 1982. Khalidi, Rashid. Palestinian Identity: The Construction of Modern National Consciousness. New York: Columbia University Press, 1997. Khalidi, Walid. “‘Plan Dalet’: Master Plan for the Conquest of Palestine.” Journal of Palestine Studies 18, no. 69 (1988): 4–20. Khazzoom, Aziza. “Did the Israeli State Engineer Segregation? On the Placement of Jewish Immigrants in Development Towns in the 1950s.” Social Forces 84, no. 1 (2005): 115–134. Kimmerling, Baruch. Immigrants, Settlers, Natives: The Israeli State and Society between Cultural Pluralism and Cultural Wars. Tel Aviv: Am Oved, 2004. ———. The End of Ashkenazi Hegemony. Jerusalem: Keter, 2001. [Hebrew] ———. “The New Israelis: Multiple Cultures without Multiculturalism.” Alpayim 16, (1998): 263–308. ———. Zionism and Territory: The Socioterritorial Dimension of Zionist Politics. Berkeley: Institute of International Studies, University of California, 1983. ———. “Sovereignty, Ownership and ‘Presence’ in the Jewish-Arab Territorial Conflict. The Case of Bir’im and Iqrit.” Comparative Political Studies 10, 2: (1977): 155–175. Kimmerling, Baruch and Joel S. Migdal. The Palestinian People: A History. Cambridge, MA: Harvard University Press, 2003. ———. Palestinians: The Making of a People. Cambridge, MA: Harvard University Press, 1994. Klagsbald, Avigdor. State Commissions of Inquiry. Tel Aviv: Nevo, 2001. Klein, Melanie. “A Contribution to the Psychogenesis of Manic-Depressive States (1935).” In Love, Guilt and Reparation & Other Works, edited by R. E. Money-Kyrle. Vol. 1, 262–289. New York: Dell Publishing, 1975. — 268 —

———————————————————— Bibliography ————————————————————

———. Love, Guilt and Reparation: And Other Works 1921–1945. New York: Free Press, 2002. ———. “Our Adult World and Its Roots in Infancy.” Human Relations 12, no. 4 (1959): 291–303. Konforti, Ori. Zionism Upended: Bringing the Falashmura to Israel. Jerusalem: The Zionist Library WZO, 2009. Kull, Andrew. “Rationalizing Restitution.” California Law Review 83, (1995): 1,191–1,242. Kutz, Christopher. “Justice in Reparations: The Problem of Land and the Value of Cheap Talk.” Philosophy and Public Affairs 32, (2004): 277–312. LaCapra, Dominique. History in Transit: Experience, Identity, Critical Theory. Ithaca, New York: Cornell University Press, 2004. Laqueur, Walter. A History of Zionism. New York: Holt, Rinehart and Winston, 1972. Laramore, George and Keith J. Stelzer. “Radiation Therapy for Benign Disease: An Old Area Revisited.” Lancet 352, no. 9131 (1998): 834– 835. Lauritzen, Paul. “Forgiveness: Moral Prerogative or Religious Duty?” Journal of Religious Ethics 15, (1987): 141–154. ———. Religious Belief and Emotional Transformation: A Light in the Heart. Lewisburg: Bucknell University Press, 1992. Lavy, George. Germany and Israel: Moral Debt and National Interest. London: F. Cass, 1996. Levenberg, Haim. Military Preparations of the Arab Community in Palestine, 1945–1948. London: F. Cass, 1993. Levitan, Dov. “Immigration of Yemeni Jews and Their Absorption in Palestine during WWII.” Thema 4, (1994): 207–226. ———. “The Immigration of Yemeni Jews to Israel: The Realization of a Dream or a Social Dilemma: The Case of the Missing Yemeni Children.” In Between Tradition and Renewal: Studies in Judaism, Zionism and the State of Israel, edited by Eliezer Don-Yihya, 377–403. Ramat Gan: Bar Ilan University Press, 2005. Levy, Daniel and Nathan Sznaider. The Holocaust Memory in the Global Age. Philadelphia: Temple University Press, 2006. Lewis, H. D. “Collective Responsibility.” Philosophy 24, (1948): 3–18. Liebman, Charles S. and Eliezer Don-Yihya. Civil Religion in Israel: Tra— 269 —

———————————————————— Bibliography ————————————————————

ditional Judaism and Political Culture in the Jewish State. Berkeley: University of California Press, 1983. Lissak, Moshe. The Large-Scale Immigration of the 1950s: The Failure of the Melting Pot. Jerusalem: Bialik Institute, 1999. Luginaah, Isaac N., Emmanuel K. Yiridoe, and Mary-Margaret Taabazuing. “From Mandatory to Voluntary Testing: Balancing Human Rights, Religious and Cultural Values, and HIV/AIDS Prevention in Ghana.” Social Science & Medicine 61, no. 8 (2005): 1,689–1,700. Lutzky, Harriet. “Reparation and Tikkun: A Comparison of the Kleinian and Kabbalistic Concepts.” International Review of Psycho-Analysis no. 16 (1989): 449–458. MacDonald, David. “First Nations, Residential Schools, and the Americanization of the Holocaust: Rewriting Indigenous History in the United States and Canada.” Canadian Journal of Political Science 40, no. 4 (2007): 995–1,015. Madmoni-Gerber, Shoshana. Israeli Media and the Framing of Internal Conflict: The Yemenite Babies Affair. New York and London: MacMillan Palgrave, 2009. Magat, Ilan. Bir’Am: A Conscripted Community of Memory and the Maintenance of Voice. Giva’t Haviva: The Institute for Peace Research, 2000. Maier, Charles S. “Overcoming the Past? Narrative and Negotiation, Remembering and Reparation.” In Politics and the Past: On Repairing Historical Injustices, edited by John C. Torpey, 295–304. Lanham, MD: Rowman and Littlefield, 2003. Mamdani, Mahmood. “Amnesty or Impunity? A Preliminary Critique of the Report of the Truth and Reconciliation Commission of South Africa (TRC).” Diacritics 32, nos. 3–4 (2002): 33–59. Mann, Michael. The Dark Side of Democracy: Explaining Ethnic Cleansing. Cambridge: Cambridge University Press, 2005. Marx, Karl. “Konrad Adenauer’s First Interview.” In The German Path to Israel: A Documentation, edited by Rolf Vogel, 17–19. Chester Springs, PA: Dufour Editions, 1969. Massey, Doreen B. “Places and Their Pasts.” History Workshop Journal 39, (1995): 182–192. ———. Space, Place, and Gender. Minneapolis: University of Minnesota Press, 1994. Matsuda, Mari J. “Looking to the Bottom: Critical Legal Studies and — 270 —

———————————————————— Bibliography ————————————————————

Reparations.” Civil Rights Civil Liberties Law Review (1987): 323–400. May, Larry. “Metaphysical Guilt and Moral Guilt.” In Collective Responsibility: Five Decades of Debate in Theoretical or Applied Ethics, edited by Larry May and Stacey Hoffman, 239–254. Lanham, MD: Rowman and Littlefield, 1991. ———. The Morality of Groups: Collective Responsibility, Group-Based Harm, and Corporate Rights. Notre Dame, IN: University of Notre Dame Press, 1987. May, Larry and Tuomela Raimo. “Actions by Collectives.” Philosophical Perspectives 38, no. 3 (2007): 471–496. McAllister, Lesley K. “Revisiting a ‘Promising Institution’: Public Law Litigation in the Civil Law World.” Georgia State Law Review 24, (2007): 693–734. McGarry, John. “Demographic Engineering: The State Directed Movement of Ethnic Groups As a Technique of Conflict Regulation.” Ethnic and Racial Studies 21, no. 4 (1998): 613–638. Meister, Robert. “Human Rights and the Politics of Victimhood.” Ethics and International Affairs 16, no. 2 (2002): 91–108. Melamed, Abraham. The Image of the Black in Jewish Culture: A History of the Other. New York: Routledge Curzon, 2002. Metz, Johannes Baptist, ed. The Future in the Memory of Suffering: New Questions on God, edited by Johannes Baptist Metz. New York: Herder and Herder, 1972. ———. “In the Pluralism of Religious and Cultural Worlds: Notes toward a Theological and Political Program.” Cross Currents 49, (1999): 227–236. ———. Faith in History and Society: Toward a Practical Fundamental Theology; A Crossroad Book. New York: Seabury Press, 1980. Modan, B., D. Baidatz, H. Mart, R. Steinitz, and S. Levin. “RadiationInduced Head and Neck Tumors.” Lancet 303, no. 7852 (1974): 277–279. Modan, Baruch. “An Epidemic of Thyroid Tumors Ahead?” Harefuah 88, no. 11 (1975): 541. Morris, Benny. The Birth of the Palestinian Refugee Problem Revisited. Cambridge Middle East Studies. Vol. 18. Cambridge: Cambridge University Press, 2004. ———. Israel’s Border Wars, 1949–1956: Arab Infiltration, Israeli Retaliation, and the Countdown to the Suez War. Oxford; New York: Clarendon — 271 —

———————————————————— Bibliography ————————————————————

Press; Oxford University Press, 1993. ———. Righteous Victims: A History of the Zionist-Arab Conflict, 1881– 1999. London: J. Murray, 1999. Motram, M. E. and Harold A. Hill. “Radiation Therapy of Ringworm of the Scalp.” California Medicine 70, no. 3 (1949): 189–193. Muir, Diana. “A Land without a People for a People without a Land.” Middle East Quarterly 15, no. 2 (2008): 55–62. Muller, Eric L. “Fixing a Hole: How the Criminal Law Can Bolster Reparations Theory.” Boston College Law Review 47, no. 4 (2006): 659–704. Murphy, Alexander B. “The Sovereign State System As Political-Ideological Ideal: Historical and Contemporary Considerations.” In State Sovereignty As Social Construct, edited by Thomas J. Bierstecker and Cynthia Weber, 81–120. New York: Cambridge University Press, 1996. Murphy, Jeffrie G. and Jean Hampton. Forgiveness and Mercy: Cambridge Studies in Philosophy and Law. Cambridge; New York: Cambridge University Press, 1988. Newell, R. R. “Discussion.” California Medicine 70, no. 3 (1949): 192. Newman, Louis E. Past Imperatives: Studies in the History and Theory of Jewish Ethics. SUNY Series in Jewish Philosophy. Albany: State University of New York Press, 1998. Nietzsche, Friedrich Wilhelm. On the Genealogy of Morals: A Polemic; By Way of Clarification and Supplement to My Last Book, Beyond Good and Evil. The World’s Classics. Translated by Douglas Smith. Oxford; New York: Oxford University Press, 1997. ———. Unmodern Observations, edited by William Arrowsmith. New Haven: Yale University Press, 1990. Nini, Yehuda. “Yemeni Immigrants in the Land of Israel 1882–1914,” Cathedra 5 (1977): 30–82. ———. Yemen and Zion. The Zionist Library: Jerusalem, 1982. Nozick, Robert. Anarchy, State, and Utopia. Oxford: Blackwell, 1975. Ogletree, Charles J. Jr. “Repairing the Past: New Efforts in the Reparations Debate in America.” Harvard Civil Rights-Civil Liberties Law Review 38, no. 2 (2003): 279–320. Olick, Jeffrey K. and Brenda Coughlin. “The Politics of Regret: Analytical Frames.” In Politics of the Past: On Repairing Historical Injustices, ed— 272 —

———————————————————— Bibliography ————————————————————

ited by John C. Torpey, 37–63. Lanham, Md: Rowman and Littlefield, 2003. Osatzki-Lazar, Sara. Iqrit and Bir’Im: The Full Story. Giv’at Khaviva: The Institute for Arab Studies, the Center for Peace Research, 1993. Ostovich, Steven T. “Epilogue: Dangerous Memories.” In The Work of Memory, edited by Alon Confino and Peter Fritzsche, 239–256. Urbana, Chicago: University of Illinois Press, 2002. Panagos, Dimitrius. “The Plurality of Meanings Shouldered by the Term ‘Aboriginality’: An Analysis of the Delgamuukw Case.” Canadian Journal of Political Science 40, no. 3 (2007): 591–613. Pappé, Ilan. A History of Modern Palestine: One Land, Two Peoples. New York: Cambridge University Press, 2004. ———. The Making of the Arab-Israeli Conflict, 1947–51. London: I. B. Tauris, 1994. Parfitt, Tudor. The Road to Redemption: The Jews of the Yemen, 1900–1950. Brill’s Series in Jewish Studies. Leiden; New York: E.J. Brill, 1996. Parfitt, Tudor and Emanuela Trevisan Semi. Judaising Movements: Studies in the Margins of Judaism. London: Routledge Curzon, 2002. Paul, Daniel N. We Were Not the Savages: Collision between European and Native American Civilizations. First Nations History. 3rd ed. Halifax, NS: Fernwood, 2006. Pearson, David. The Politics of Ethnicity in Settler Societies: States of Unease. Houndmills, UK: Palgrave, 2001. Peltason, J. W. Fifty-Eight Lonely Men: Southern Federal Judges and School Desegregation. Urbana, IL: University of Illinois Press, 1971. Perry, Richard John. From Time Immemorial: Indigenous Peoples and State Systems. Austin: University of Texas Press, 1996. Pollack, S., E. Ben-Porath, B Fuad, R. Raz, and A. Etzioni. “Epidemiological and Serological Studies in HIV-infected Ethiopian Immigrants to Israel.” Acta Paediatrica Supplement, 83 (1994): 19–21. Pollefeyt, Didier. “Between a Dangerous Memory and a Memory in Danger: The Israeli-Palestinian Struggle from a Post-Holocaust Perspective.” In Anguished Hope: Holocaust Scholars Confront the PalestinianIsraeli Conflict, edited by Leonard Grob and John K. Roth, 135–153. Grand Rapids, MI: William B. Eerdmans Pub., 2008. Porat, Yehoshua. From Riots to Revolt: The Palestinian National Movement 1929–1939. Tel Aviv: Am Oved, 1978. — 273 —

———————————————————— Bibliography ————————————————————

Porock, Davina, Suzanne Nikoletti, and Linda Kristjanson. “Management of Radiation Skin Reactions: Literature Review and Clinical Application.” Plastic Surgery Nursing 19, no. 4 (1999): 185–192. Posner, Eric A. and Adrian Vermeule. “Reparations for Slavery and Other Historical Injustices.” Columbia Law Review 103, no. 3 (2003): 689–747. Pross, Christian. Paying for the Past: The Struggle over Reparations for Surviving Victims of the Nazi Terror [Wiedergutmachung.]. Baltimore: Johns Hopkins University Press, 1998. Prucha, Francis Paul. Documents of United States Indian Policy. 3rd ed. Lincoln: University of Nebraska Press, 2000. Quirin, James Arthur. The Beta Israel (Felasha) in Ethiopian History: Caste Formation and Culture Change, 1270–1868. Ann Arbor, MI: University Microfilms International Publisher, 1985. ———. The Evolution of the Ethiopian Jews: A History of the Beta Israel (Falasha) to 1920. Ethnohistory Series. Philadelphia: University of Pennsylvania Press, 1992. Rabinbach, Anson. “Introduction: Reflections on Germans and Jews since Auschwitz.” In Germans and Jews since the Holocaust: The Changing Situation in West Germany, edited by Anson Rabinbach and Jack David Zipes, 3–24. New York: Holmes and Meyer, 1986. Rabinow, Paul. “Space, Knowledge and Power.” In The Foucault Reader, edited by Paul Rabinow. 1st ed., 239–255. New York: Pantheon Books, 1984. Ram, Uri. The Globalization of Israel: Macworld in Tel Aviv, Jihad in Jerusalem. Tel Aviv: Resling, 2005. Ramchandani, Tara Kolar. “Judicial Recognition of the Harms of Slavery: Consumer Fraud As an Alternative to Litigation.” Harvard Civil Rights-Civil Liberties Law Review 42, no. 2 (2007): 541–556. Raz Krakotzkin, Amnon. “Exile within Sovereignty: A Critique of the Concept ‘Negation of Exile’ in Israeli Culture.” Theory and Criticism 5, (1994): 114–132. ———. “Exile within Sovereignty: A Critique of the Concept ‘Negation of Exile’ in Israeli Culture.” Theory and Criticism 4, (1993): 23–53. Reinhartz, Jehuda. “Nahum Goldmann and Chaim Weitzmann.” In Nahum Goldmann: Statesman without a State, 125–138. Albany: SUNY Press, 2009. — 274 —

———————————————————— Bibliography ————————————————————

Ricœur, Paul. Freud and Philosophy; an Essay on Interpretation. The Terry Lectures. New Haven: Yale University Press, 1970. Robinson, Paul H. “Mens Rae.” In Encyclopedia of Crime & Justice, edited by Joshua Dressler, 995–1,006. New York: MacMillan, 2002. Ron, E. and B. Modan. “Benign and Malignant Thyroid Neoplasms after Childhood Irradiation for Tinea Capitis.” Journal of National Cancer Institute 65, no. 1 (1980): 7–11. Ron, E., B. Modan, S. Floro, I. Harkedar, and R. Gurewitz. “Mental Function Following Scalp Irradiation during Childhood.” American Journal of Epidemiology 116, (1982): 149–160. Rose, Jacqueline. The Question of Zion. Princeton: Princeton University Press, 2005. Rosen, Leah and Ruth Amir. “Constructing National Identity: The Case of Youth Aliyah.” Israel Studies Forum 21, no. 1 (2006): 27–51. ———. “The Open Society and Its Enemies: Changing Public Discourse in Israel.” In Traditions and Transitions in Israel Studies, edited by Laura Zittrain Eisenberg, Neil Caplan, Naomi B. Sokoloff, and Mohammed Abu-Nimer. Vol. 6, 181–201. Albany, NY: SUNY Press, 2002. Rosenberg, Gerald N. The Hollow Hope: Can Courts Bring about Social Change? American Politics and Political Economy. 2nd ed. Chicago, IL: University of Chicago, 1993. Ruppin, Arthur. My Life. Tel Aviv: Am Oved, 1947. Ruppin, Arthur and Alex Bein. Arthur Ruppin: Memoirs, Diaries, Letters. London: Weidenfeld and Nicolson, 1971. Ryan, Joseph L. “Refugees within Israel: The Case of the Villagers of Kafr Bir’Im and Iqrit.” Journal of Palestine Studies 2, no. 4 (1973): 55–81. Saadon, Haim, ed. Yemen. Jerusalem: Yad Yitzhak Ben-Zvi, 2002. Sacks, Jonathan. Tikkun Olam: Orthodoxy’s Responsibility to Perfect G-D’s World. Delivered at the Orthodox Union West Coast Convention, 1997. http://www.ou.org/public/Publib/tikkun.htm#_ftnref26 (accessed April 26, 2010). Sadetzki, Siegal, Ronit Calderon-Margalit, Baruch Modan, Shefali Srivastava, and R. Michael Tuttle. “Ret/PTC Activation in Benign and Malignant Thyroid Tumors Arising in a Population Exposed to LowDose External-Beam Irradiation in Childhood.” Journal of Clinical Oncology and Metabolism 89, no. 5 (2004): 2,281–2,289. Sadetzki, Siegal, Angela Chetrit, Alexandra Lubina, Marilyn Stovall, and — 275 —

———————————————————— Bibliography ————————————————————

Ilya Novikov. “Risk of Thyroid Cancer after Childhood Exposure to Ionizing Radiation for Tinea Capitis.” Journal of Clinical Endocrinology & Metabolism 91, no. 12 (2006): 4,798–4,804. Sadetzki, Siegal and Baruch Modan. “Epidemiology As a Basis for Legislation: How Far Should Epidemiology Go?” Lancet 353, no. 9171 (1999): 2,238–2,239. Sagi, Nana. German Reparations: The History of Negotiations. Jerusalem: The Magnes Press, 1980. Said, Edward W., Ibrahim Abu-Lughod, Janet Abu-Lughod, Muhammad Hallaj, and Elia Zureick. “A Profile of the Palestinian People.” In Blaming the Victims: Spurious Scholarship and the Palestinian Question, edited by Edward W. Said and Christopher Hitchens, 235–296. London: Verso, 2001. Said, Edward W. Orientalism. New York: Pantheon Books, 1978. ———. The Politics of Dispossession: The Struggle for Palestinian SelfDetermination, 1969–1994. New York: Pantheon Books, 1994. Sangero, Boaz. “Where There Is No Suspicion There Is No Real Investigation: The Report of the Committee of Inquiry into the Disappearance of the Children of Jewish Yemenite Immigrants to Israel in 1948–1954.” Theory and Criticism 21, (2002): 47–76. Sayigh, Yezid. Armed Struggle and the Search for State: The Palestinian National Movement, 1949–1993. Oxford: Clarendon Press, 1997. Schaap, Andrew. “Guilty Subject and Political Responsibility: Arendt, Jaspers and the Resonance of the ‘German Question’ in Politics of Reconciliation.” Political Studies 49, no. 4 (2001): 749–766. Schechtman, Joseph B. On the Wings of Eagles. New York: Y. Yoseloff, 1961. Schindler, Ruben. “The Sacred and Secular: The Immigration of the Black Jews of Ethiopia to Israel.” In Jews of Ethiopia: The Birth of an Elite, edited by Emanuela Trevisan Semi and Tudor Parfitt, 131–141. London: Routledge, 2005. Scholem, Gershon Gerhard. Major Trends in Jewish Mysticism. New York: Schocken Books, 2003. Schvartz, Shifra, Nadav Davidowitch, Rhona Seidelman, and Avishay Goldberg. “Medical Selection and the Debate over Mass Immigration in the New State of Israel.” Canadian Bulletin of Medical History 22, no. 1 (2005): 5–34. Schwarz, Tanya. Ethiopian Jewish Immigrants in Israel: The Homeland — 276 —

———————————————————— Bibliography ————————————————————

Postponed. Richmond Surrey: Curzon, 2001. Scott, Marvin B. and Stanford Lyman. “Accounts.” American Sociological Review 33, no. 1 (1968): 46–62. Sebok, Anthony J. “Two Concepts of Injustice in Restitution for Slavery.” Boston University Law Review 84, (2004): 1,405–1,442. Segev, Tom. 1949: the First Israelis. Jerusalem: Domino Press, 1984. ———. The Seventh Million: The Israelis and the Holocaust. Jerusalem: Keter, 1991. Seeman, Don. One People One Blood: Ethiopian-Israelis and the Return to Judaism. Piscataway, NJ: Rutgers University Press, 2009. Shafir, Gershon and Yoav Peled. Being Israeli: The Dynamics of Multiple Citizenship. Cambridge Middle East Studies. Cambridge: Cambridge University Press, 2002. Shafir, Shlomo. “Nahum Goldmann and Germany after World War II.” In Nahum Goldmann: Statesman without a State, edited by Mark A. Raider, 207–232. Albany: SUNY Press, 2009. Shakespeare, William. Collins Complete Works of William Shakespeare. Collins Series. London: Collins, 2006. Shalev, Carmel and Sigal Goldin. “The Uses and Misuses of in Vitro Fertilization in Israel: Some Sociological and Ethical Considerations.” Nashim: A Journal of Jewish Women’s Studies and Gender Issues 12, (2006): 151–176. Shapira, Anita. “The Holocaust: Private Memories, Public Memory.” Jewish Social Studies: History, Culture, and Society 4, no. 2 (1998): 40–58. ———. Land and Power: The Zionist Resort to Force, 1881–1948. Studies in Jewish History. New York: Oxford University Press, 1992. Sheffer, Gabriel. Moshe Sharett: Biography of a Political Moderate. Oxford; New York: Clarendon Press, 1996. Shenhav, Yehouda A. The Arab Jews: A Postcolonial Reading of Nationalism, Religion, and Ethnicity. Cultural Sitings. Stanford, CA: Stanford University Press, 2006. Shenhav, Yehuda and Nadav Gabay. “Managing Political Conflicts: The Sociology of State Commissions of Inquiry in Israel.” Israel Studies 6, no. 1 (2001): 126–156. Shenhav, Yehuda and Yosi Yona. Racism in Israel. Jerusalem: Van Leer, 2008. Shlaim, Avi. The Iron Wall: Israel and the Arab World. New York: W. W. Norton, 2000. — 277 —

———————————————————— Bibliography ————————————————————

Shohat, Ella. Taboo Memories, Diasporic Voice. Durham, NC: Duke University Press, 2006. ———. “Sephardim in Israel: Zionism from the Standpoint of Its Jewish Victims.” Social Text 19/20 (1988): 1–35. Shonfeld, Moshe. Genocide in the Holy Land. Brooklyn, NY: Neturei Karta of the U.S.A., 1980. Shorten, Andrew. “Nation and State.” In Issues in Political Theory, edited by Katriona McKinnon, 33–35. New York: Oxford University Press, 2008. Shriver, Donald W. An Ethic for Enemies: Forgiveness in Politics. New York: Oxford University Press, 1997. Shvartz, Shifra, Pnina Romem, and Mordechai Shani. “The Forgotten Tinea Capitis Campaign of OZE-TOZ, Poland.” Harefuah 148, no. 4 (2009): 265–270. Simmel, Georg. Conflict. Glencoe, IL: Free Press, 1955. Slater, Thomas. “Restitution.” In The Catholic Encyclopedia. Vol. 12. New York: Robert Appleton Company (1911), http://www.newadvent. org/cathen/12788a.htm (accessed November 23, 2009). Slutzki, Yehuda. The Book of the Haganah: From Struggle to War. Vol. 3. Tel Aviv: Am Oved, 1972. Smedes, Lewis B. The Art of Forgiving: When You Need to Forgive and Don’t Know How. Nashville, TN: Moorings, 1996. Smiley, Marion. Moral Responsibility and the Boundaries of Community. Chicago: Chicago University Press, 1992. Soja, Edward W. Postmodern Geographies: The Reassertion of Space in Critical Social Theory. London; New York: Verso, 1989. Sokol, Sammy. “Only after Being Informed of the Formation of the Commission of Inquiry the Demonstrators Dissipated.” Haaretz, January 29, 1996. Solomon, Robert C. True to Our Feelings: What Our Emotions Are Really Telling Us. New York; Oxford: Oxford University Press, 2007. Soskolne, Varda and Ronny A. Shtarkshall. “Migration and HIV Prevention Programmes: Linking Structural Factors, Culture and Individual Behavior—an Israeli Experience.” Social Science and Medicine 55, no. 8 (2002): 1,297–1,307. Sousan al-Khouri, Joseph Estephan. My Testimony: Bir’Im Journal 1948– 1968. Aiblin: Sousan al-Khouri, Joseph Estephan, 1985. Stanner, W. E. H. After the Dreaming; Black and White Australians: An An— 278 —

———————————————————— Bibliography ————————————————————

thropologist’s View. Boyer Lectures. Sydney: Australian Broadcasting Commission, 1969. Star, Bradley E. “The Structure of Max Weber’s Ethic of Responsibility.” Journal of Religious Ethics 27, no. 3 (1999): 407–434. Stasiulis, Daiva K. and Nira Yuval-Davis. “Introduction: Beyond Dichotomies; Gender, Race, Ethnicity and Class in Settler Societies.” In Unsettling Settler Societies: Articulations of Gender, Race, Ethnicity and Class, edited by Daiva K. Stasiulis and Nira Yuval-Davis, 1–36. London: Sage Publications, 1995. Stein, Arlene. “Whose Memories? Whose Victimhood? Contests for the Holocaust Frame in Recent Social Action Discourse.” Sociological Perspectives 40, no. 3 (1998): 519–540. Stewart, David. “The Hermeneutics of Suspicion.” Journal of Literature and Theology 5, (1991): 311–321. Stoler, Ann Laura and Frederick Cooper. “Between Metropole and Colony: Rethinking a Research Agenda.” In Tensions of Empire: Colonial Cultures in a Bourgeois World, edited by Frederick Cooper and Ann Laura Stoler, 1–58. Berkeley, CA: University of California Press, 1997. Stonebridge, Lyndsey and John Phillips. Reading Melanie Klein. London; New York: Routledge, 1998. Summerfield, Daniel P. From Falashas to Ethiopian Jews: The External Influences for Changes c. 1860–1960. London: Routledge Curzon, 2003. Sverdlik, Stephen. “Collective Responsibility.” Philosophical Studies 51, (1987): 61–76. Sykes, Gresham M. and D. Matza. “Techniques of Neutralization: A Theory of Delinquency.” American Sociological Review 22, (1957): 664–670. Szepietowski, Jacek C. and Robert A. Schwartz. “Favus.” In Emedicine, Dermatology, Fungal Infections. Tavuchis, Nicholas. Mea Culpa: A Sociology of Apology and Reconciliation. Stanford, CA: Stanford University Press, 1991. Taylor, Peter J. “Places, Spaces and Macy’s: Place-Space Tensions in the Political Geography of Modernities.” Progress in Human Geography 23, no. 1 (1999): 7–26. Teitel, Ruti G. “The Law and Politics of Contemporary Transitional Justice.” Cornell International Law Journal 38, (2005): 837–862. — 279 —

———————————————————— Bibliography ————————————————————

———. “Transitional Justice Genealogy.” Harvard Human Rights Journal 16, (2003): 69–94. ———. Transitional Justice. Oxford; New York: Oxford University Press, 2000. Teitelbaum, Raul. The Biological Solution. Tel Aviv: Hakibbutz Hameuchad, 2008. Thompson, Janna. Taking Responsibility for the Past: Reparation and Historical Injustice. Oxford, UK: Polity, 2002. Thompson, William N. Native American Issues. 2nd ed. Santa Barbara: ABC-Clio, 2005. Tolchinski-Goldstein, Shulamit. “An Experiment of the Treatment of Tinea Capitis without Irradiation.” Harefuah 55, (1958): 291–292. Torpey, John C. “Introduction.” In Politics and the Past: On Repairing Historical Injustices. Lanham, MD: Bowman and Littlefield, 2003. ———. Making Whole What Has Been Smashed: On Reparation Politics. Cambridge, MA: Harvard University Press, 2006. ———. “Modes of Repair: Reparations and Citizenship at the Dawn of the New Millennium.” In Political Power and Social Theory, edited by Diane E. Davis. Vol. 18, 207–226. Oxford: Elsevier, 2006. Trevisan Semi, Emanuela. “Ethiopian Jews in Europe: Taamrat Emmanuel in Italy and Makonnen Levi in England.” In Jews of Ethiopia: The Birth of an Elite, edited by Emanuela Trevisan Semi and Tudor Parfitt, 74–100. London: Routledge, 2005. Tuan, Yi-Fu. Space and Place: The Perspective of Experience. London: E. Arnold, 1977. Turner, Frederick Jackson. The Frontier in American History. New York: H. Holt and Company, 1926. Turner, Victor Witter. The Ritual Process: Structure and Anti-Structure. The Lewis Henry Morgan Lectures. New York: Aldine de Gruyter, 1969. Tzafadia, Erez. “Trapped Sense of Peripheral Place in Frontier Space.” In Constructing a Sense of Place: Architecture and the Zionist Discourse, edited by Haim Yacobi, 119–135. Aldershot: Ashgate Publishing, 2004. Vashitz, Yosef. The Bir’Im and Iqrit Affair: Facts, Background, Problems. Giva’at Haviva: Mapam and the Information Department and the Center for Arabic Studies, 1977.

— 280 —

———————————————————— Bibliography ————————————————————

Waldron, Jeremy. “Redressing Historic Injustice.” University of Toronto Law Journal 52, no. 1 (2002): 135–158. Walzer, Michael. Spheres of Justice: A Defense of Pluralism and Equality. New York: Basic Books, 1983. Watkins, J. W. N. “Methodological Individualism and Social Tendencies.” British Journal for the Philosophy of Science 8, (1957): 104–117. Weber, Max. “Politics As a Vocation.” In From Max Weber: Essays in Sociology. Translated by H. H. Gerth and Wright Mills C., edited by H. H. Gerth and C. Wright Mills, 77–128. New York: Oxford University Press, 1946. Weber, Max, Hans Heinrich Gerth, and C. Wright Mills. From Max Weber: Essays in Sociology. New York: Oxford University Press, 1946. Weber, Max, Guenther Roth, and Claus Wittich. Economy and Society: An Outline of Interpretive Sociology. Berkeley: University of California Press, 1978. Wegner, Daniel, M. T. Guiliano, and Hertel P. “Cognitive Interdependence in Close Relationships.” In Compatible and Incompatible Relationship, edited by W. J. Icks, 253–276. New York: Springer Verlag, 1985. Weiner, Myron and Michael S. Teitelbaum. Political Demography, Demographic Engineering. New York: Berghahn Books, 2001. Weisgal, Meyer Wolfe, ed. Letters and Papers of Chaim Weitzmann. Vol. 22. Piscataway, NJ: Transaction Publishers, 1993. Weisgal, Meyer Wolfe and Joel Carmichael. Chaim Weizmann: A Biography by Several Hands. New York: Atheneum, 1963. Weiss, Meira. “The Immigrating Body and the Body Politic: The Yemeni Children Affair and Body Commodification in Israel.” Body and Society 7, nos. 2–3 (2001): 93–109. Weiss, Yfaat. “Identity and Essentialism: Race, Culture, and the Jews in the Late Nineteenth and Early Twentieth Century.” Theory and Criticism 21, (2002): 133–162. Weitz, Joseph. My Diary. Vol. 5. Tel Aviv: Massada, 1954. Weitz, Yechiam. “Introduction: Moshe Sharett and the Reparations Agreement with Germany 1949–1952.” In Moshe Sharett and the German Reparations Controversy, Collected Documents, edited by Yaakov Sharett, 11–54. Tel Aviv: The Society to Commemorate Moshe Sharett, 2007. ———. “The Path to the Other Germany: The Attitude of David BenGurion towards Germany, 1952–60.” In Independence: The First Fifty — 281 —

———————————————————— Bibliography ————————————————————

Years, edited by Anita Shapira, 245–266. Jerusalem: Shazar Center, 1998. Weitzer, Ronald. Transforming Settler States: Communal Conflict and Internal Security in Northern Ireland and Zimbabwe. Berkeley: University of California Press, 1990. Westley, Robert. “Many Billions Gone: It Is Time to Reconsider the Case for Black Reparations?” In Should America Pay? Slavery and the Raging Debate over Reparations, edited by Raymond A. Winbush, 109–134. New York: Amistad, 2003. Williams, Charles. Adenauer: The Father of the New Germany. New York: Wiley, 2000. Wimmer, Andreas. Nationalist Exclusion and Ethnic Conflict: Shadows of Modernity. Cambridge, UK; New York, NY, USA: Cambridge University Press, 2002. Wolff, Larry. Inventing Eastern Europe: The Map of Civilization in the Mind of the Enlightened. Stanford, CA: Stanford University Press, 1994. Wyman, Kathrina Miriam. “Is There a Moral Justification for Redressing Historical Injustices?” Vanderbilt Law Review 61, no. 1 (2008): 127–196. Wyman, Walter. The Book of Instructions for the Medical Inspection of Aliens. Washington DC: Treasury Department, Bureau of Public Health and Marine-Hospital Service: Government Printing Office, 1903. Yablonka, Hannah. Estranged Brothers: Holocaust Survivors in Israel 1948–1952. Jerusalem: Yad Yitzhak Ben-Zvi and Ben-Gurion University, 1994. Yamamoto, Eric K., Susan K. Serrano, and Michelle Natividad Rodriguez. “American Racial Justice on Trial—again: African American Reparations, Human Rights and the War on Terror.” Michigan Law Review 101, no. 6 (2003): 1,269–2,337. Yavne’eli, Shmuel. A Journey to Yemen: Being an Emissary of the Eretz Israel Office of the WZO during 1911–1912. Tel Aviv: Mapai, 1951. Yew, Elizabeth. “Medical Inspection of Immigrants at Ellis Island: 1891–1924.” Bulletin of the New York Academy of Medicine 56, no. 6 (1980): 488–510. Yiftachel, Oren. “Ethnocracy and Its Discontents: Minorities, Protests and the Israeli Polity.” Critical Inquiry 26, no. 4 (2000): 725–756.

— 282 —

———————————————————— Bibliography ————————————————————

Zadok, Haim. From the Strait: Missives, Documents and Letters. Jerusalem: Afikim, 1989. ———. The Load of Yemen 1946–1951. Holon: A’Ale Batamar, 1985. Zameret, Zvi. The Melting Pot in Israel: The Commission of Inquiry concerning Education in the Immigrant Camps during the Early Years of the State. SUNY Series in Israeli Studies. Albany, NY: State University of New York Press, 2002. Zeid, Shoshi. The Child Is Gone: The Yemeni Children Affair. Jerusalem: Gefen, 2001. Zembylas, Micholinos and Zvi Beckerman. “Education and the Dangerous Memories of Historical Trauma: Narratives of Pain, Narratives of Hope.” Curriculum Inquiry 38, no. 2 (2008): 125–154. Zertal, Idith. Israel’s Holocaust and the Politics of Nationhood. Cambridge Middle East Studies. Cambridge, UK; New York, NY: Cambridge University Press, 2005. Zimmermann, Moshe. German Past: Israeli Memory. Tel Aviv: Am Oved, 2002. Zipursky, Benjamin C. “Philosophy of Tort Law: Between the Esoteric and the Banal.” In Blackwell Guide to Philosophy of Law and Legal Theory, edited by Martin Golding and William Edmundson. London: Blackwell, 2004. Zweig, Ronald W. German Reparations and the Jewish World: A History of the Claims Conference. 2nd ed. London; Portland, OR: F. Cass, 2001.

— 283 —

———————————————————— Bibliography ————————————————————

— 284 —

————————————————————— INDEX —————————————————————

Index

Abdel-Nour, Farid 47–8 Abel, Richard L. 36n69 aboriginality 166–7 Aborigines, colonial reparations 11n23 Abramski, Professor 143 Absentees’ Property Law (1950) 171– 2 accountability, state responsibility for injustice 230–1 accounts 51 Acheson, Dean 65n30 acquired immunodeficiency syndrome (AIDS) 212–23 Adamson-Kienbock technique 135–6 Addis Ababa, Ethiopia 213, 215 Aden 88–94, 96, 104, 110 Adenauer, Konrad 61–3, 65–71, 65nn30-2, 69n48, 74–8 Adler-Rudel, Shalom 57 adoptions, forced 14–15, 105, 111, 113, 114, 120–1 African Americans 36 AIDS see acquired immunodeficiency syndrome Albek, Pliah 143 Alford, C. Fred 247 Al-Hawari, Muhammad Nimr 177–9, 181–2, 184 al-Husseini family 177, 177n94, 178 Alliance Israélite Universelle 209 Allies, war reparations 58–60 Alon, Gideon 217n93 Aloni, Shulamit 234n130 Amir, Michael 61 Amit, Arye 214–15 Amrani, Haim 100–1

anti-Semitism, Jewish identity 127–9 antisystemic reparations schemes 35 Apartheid 10 apologies 35 Adenauer’s Holocaust declaration 1951 67–71, 74–8 Barak’s apology to Palestinians 1999 35n61 from the many to the many 76–8 historical redress 224, 230 Tinea Capitis Affair 158 Arab Revolt 1936-1939 240 Arabs influence of the Holocaust in Israel 80–2 offensive ethos 237–8, 240, 243– 5 see also Palestinian Arabs Arendt, Hannah 51, 52, 55–6, 243n29 Aristotelian justice 40–1 Arthur, Paige 10n19 Aschheim, Steven V. 128–9 Ashkenazim negation of exile 128 offensive ethos 224, 239, 241 recognition of Holocaust survivors 202 social structure in Israel 132 Tinea Capitis Affair 158 Yemeni Babies Affair 90, 95, 99, 104 Zionist marginalization of Others 224, 239, 241 Assa, Dr. Ben 152n110 assimilation Aboriginal children in Canada 98 Ethiopian Jews in Israel 211–12

— 285 —

————————————————————— INDEX —————————————————————



Yemeni immigrants in Israel 95– 8, 104, 107, 116 Assistance and Rehabilitation of Tinea Capitis Survivors 136n53 Association of Central European Immigrants 58 Association of Ethiopian Immigrants 216, 218, 219 Association for the Immigration of Falash Mura 217 Association for Promoting the Realization of Rights of Tinea Capitis Victims 136, 142, 154 Asulin, Shlomi 112 atonement, Holocaust reparations 72–82 atonement model 31, 32n45, 33–4, 36, 226 atrocities definitions of historical injustice 25–6 definitions of reparations 34 Attwood, Bain 167 Australia 165–6, 167 Avidar, Yosef 179, 181 Avital, Colette 199n21 Azoulay, Yuval 220n99 Bahaloul, Joseph 102 Bahaloul-Minkowski Commission 102–9, 110, 113, 119–22, 232 Baillie, J. B. 242n26 Balint, Jennifer 225 Balkan Jews 241 Barak, Ehud 35n61, 191 Bard, Mitchell Geoffrey 210n69 Barkan, Elazar 9 Barou, Noah 66, 67, 70 Bastuni, Rustum 180 Bates, Stanley 48n127 Bauer, Yehuda 241n23 Bauman, Zygmunt 82n109 Bechor, Labao 145 Beckett, Jeremy 166n32

Bedouin, Tinea Capitis Affair 152–3 Begin, Menachem 70, 189 Beigel, Dr. 91–2n45, 92–3 Beinish, Dorit 147 Ben-David, Dr. Amnon 216–18, 221 Ben-Gurion, David Holocaust reparations from West Germany 57, 64n29, 65n30, 69n48, 70, 74–5 Iqrit 180 Kafr Qasim massacre 243–4 transit camps for immigrants 131 Yemeni immigrants 97, 116n105 Benjamin, Walter 7, 51, 53–6, 79–80, 249 Ben-Menachem, Eli 142 Benvenisti, Meron 173, 194 Ben-Zvi, Yitzhak 94 BErgG see German Federal Restitution Law Bergman, Ronen 135n47, 137n58, 139n66, 153 Beta Israel 208–23 Bevin, Ernest 59 Bhabha, Homi K. 166n32, 243 Biala, Rachel 208 Bialik, Hayyim Nahman 237–9 Bier, Jean-Paul 37 Bir’im 21, 162–94, 228–30 Bishara, Azmi 160–1 bivalent justice 38–9 allocation of Holocaust reparations in Israel 196 Ethiopian blood donations affair 223, 232 Iqrit and Bir’im 194 Blankenhorn, Herbert 65n31, 66, 67 blood donations, from Ethiopian immigrants 15, 16, 21, 196, 208–23, 228, 232 body rights, Tinea Capitis Affair 152 Bouvier, John 41–2n97 Brandenburg, Broughton 132–3 Brooks, Roy L. 25–6, 27n25, 30–1,

— 286 —

————————————————————— INDEX —————————————————————

33–4, 36, 224 Bruce, James 208–9 Buber, Martin 169n51, 237 Bulgarian Jews, recognition of Holocaust survivors 201, 206 Bureau for the Rehabilitation of Invalids 203, 205–6, 207 Calhoun, Craig 81n105 Canada 9n11, 11n23, 98, 124–5, 165 capitalism 38–9n85 Carmel, Major General Moshe 174, 183 Catholicism Iqrit and Bir’im 193 Maronite Church 182–3, 185–6, 187 Chayes, Abram 31, 32n44, 227 Chemtob, D. 222 Chinski, Sara 128 Choper, Jesse H. 30 Christians Falash Mura in Ethiopia 211, 215, 230 Iqrit and Bir’im 15, 21, 162–94, 228–30 civil law litigation limitations of 226–7 Tinea Capitis Affair 143–6, 157 see also court cases CJMC see Claims Conference on Jewish Material Claims Claims Commission 206 Claims Conference on Jewish Material Claims (CJMC) 66–71, 196, 200, 207 Cohen, Haim 197–8 Cohen, Hillel 177n96, 178 Cohen-Kedmi Commission 105, 112– 17, 118, 119–22, 232 Cohen, Mauda 104–5 Cohen, Rachel 104–5 Cohen, Shalom 120n117 Cohen, Yehuda 113, 189n140

Coleman, Jules 28n26 collaboration 9, 10–11 collective identity cosmopolitan order 10 Israeli identity and the Holocaust 19–20, 80–2, 233–49 transitional justice 10 victim-perpetrator dichotomy 21–2, 233–49 Yemeni immigrants in Israel 95–8 collective memory commemorative/symbolic reparations schemes 35 Holocaust 233–4, 235, 240–1 trauma 8 Zionist marginalization of Others 224, 241–2 collective responsibility 41–50, 76–7 collectivism 206–7 colonialism 8–9, 11, 19–20 colonization, settler societies 163–74 commemorative reparations schemes 35 commissions of inquiry control through 109–10, 119, 121–2, 225–6 effectiveness of redress 121–2, 225–6, 227–8, 231–3 ethic of conviction 231 Kafr Qasim massacre 244 neutralization of guilt 231 see also Bahaloul-Minkowski Commission; Cohen-Kedmi Commission; Dorner Commission; Fromkin Commission; Naftali Commission; Navon Commission; Shalgi Commission commodification of suffering 72–82, 158 commutative justice 193 Conrad, Joseph 164–5 contract law 27–31 conviction, ethic of 19, 42–4, 108, 120, 231

— 287 —

————————————————————— INDEX —————————————————————

Corlett, Angelo 47 corrective justice 193n149, 232 cosmopolitanism 9, 56 cosmopolitan order 9–10 Coughlin, Brenda 25 court cases Civil Appeal District Court Tel Aviv 1954/04 202n31 Civil Claim (Jerusalem) 350/92 143n87, 145 Civil Claim (Jerusalem) 2004/01 142n81, 145–6 Civil Claim (Tel Aviv) 1443/90 143–4, 145, 153n115 High Court 64/51 176n90, 176nn84-6, 179n104 High Court 141/81 189n138 High Court 195/51 184n123 High Court 239/51 180–1, 180n108, 180n114, 181n116 High Court 840/97 190n143 High Court 5263/94 72n60, 198n13, 200, 203, 204, 228 Labor Appeal 1231/02 (Jerusalem) 151nn108-9 Labor Appeal (Jerusalem) 1159/02 151nn108-9 Motion (Haifa) 3556/95 143n88, 144 criminal guilt, collective responsibility 45–6 cultural defense 30–1 cultural injustice Iqrit and Bir’im 192 multiculturalism and historical redress 38–9 Yemeni Babies Affair 119 cultural reparations schemes 35 cultural trauma 8 Czarnota, Adam 225 Dagan, Hanoch 38 dangerous memories 7, 20, 53–6, 195 Yemeni Babies Affair 122, 228,

229 Daoud, Mobada Hanna 175, 175n78, 180 Davar 243 Davey, James 27n23 The Day 96–7 Dayan, Aryeh 136 Dayan, Moshe 187–8, 235–7, 245 DDR see East Germany deconstructivism, historical redress 38–9 Delaney, David 172n66 Dema’an, Deeb 175n78 democracy collective responsibility 47 Israeli collective identity 19–20 regime transitions 8, 10–11 demographic engineering 164 denial of responsiblity see neutralization of guilt Deri, David 154 Development Authority 172, 182, 186, 188 Development Authority (Transfer of Property) Law (1950) 172 Diaspora Holocaust reparations 60–1, 69 as source of disease 104, 220 Zionism as transformation of the body 127 Zionist negation of exile 60, 80– 1, 128, 237–9 disease HIV 16, 212–23 Tinea Capitis Affair 123–61 Don-Yihya, Eliezer 240n22 Dorner Commission 203–8, 227–8, 229–30, 231–2 Dorner, Dahlia 21, 203–4 Droyan, Nitza 83n4 Durkheim, Emile 50 duty of care 153 Dvorjetski, Meir 77

— 288 —

————————————————————— INDEX —————————————————————

Easterman, Alex 67 Eastern Europe collapse of Communist regimes 10, 11n22 irradiation as treatment for favus 135 as Other 128–9 property claims 199 recognition of Holocaust survivors from 16, 201–2, 205–6 transitional justice campaigns 10 see also Mizrachim East Germany (DDR) 11n22, 23n2, 65n31, 70 Eder, Klaus 10 education of immigrants to Israel 95–8, 116, 211n72 transmission of trauma 8 Efros, Israel 237n10, 238n12 Eichmann, Adolf 243 Ein-Gil, Ehud 114 Eisikovits, Evi 204 Elkana, Dr. Daniel 93 Elmo, Yefet 217 Emergency Regulations (Security Zones) (1949) 176, 187 Eshkar, Milad 175 ethic of conviction 19, 42–4, 108, 120, 231 ethic of responsibility 42–4, 108, 231 Ethiopia, Jews in 208–11 Ethiopian Jews 15, 16, 195–6, 208– 23, 230, 232–3 ethnic cleansing 170–1 ethnicity allocation Holocaust reparations 16, 201–3, 205–6 blood donations from Ethiopian Jews 16, 208–23, 232 collective identity and trauma 8 collective responsibility 48 Ethiopian Jews 15, 16, 195–6, 208–23, 230, 232–3



ethnic politics in settler societies 163–74 Iqrit and Bir’im 15, 21, 162–94, 228, 229–30 offensive ethos 18–19, 82, 235– 49 racism towards immigrants to Israel 130–2 recognition of Holocaust survivors 16, 200–3, 205–6 Tinea Capitis Affair 15, 21, 126– 33, 141, 152, 156 twentieth century deaths in ethnic conflict 7n3 Yemeni Babies Affair 15, 83, 86–7, 100, 118, 122 Zionist marginalization of Others 17, 224–5, 241–2 ethnification 163–4, 170–94 ethnonationalism 19–20, 164, 167–9 excuses 51 exile, negation of 60, 80–1, 128, 237–9 existentialism 45–6 expropriation of land see land expropriation Eyerman, Ron 8, 53n153 Fabian, Nachman 188n135 Fackenheim, Emil L. 12–13, 80–2, 240–1 Fairchild, Amy L. 125n8, 126n14 Faitlovitch, Jacques 209, 210 Falashas see Ethiopian Jews; Falash Mura Falash Mura 211, 215, 230 Falk, Raphael 128n22, 134–5 Fanon, Franz 242nn25-6, 243 Fassin, Didier 7–8, 40n90, 53n152, 80, 245 favus 15, 97, 123–61 El-Fayoush Camp, Aden 91 Feinberg, Joel 48–9, 52 Feinberg, Dr. Olga 93 Fein, Lawrence 248n48, 248n52

— 289 —

————————————————————— INDEX —————————————————————

Fischbach, Michael 172–3 Fischer, Morris 65n30, 65n31 Fischer, Ronel 212 Fogarty, Paige A. 29nn30-2, 31 forced labor for 8–9, 73, 88–9, 199 forgiveness, Holocaust reparations 72–82 Foucault, Michel 125–6, 162–3n8 France 9, 23n2 Fraser, Nancy 36, 38–9, 157n126, 194, 196n2 Freud, Sigmund 133 Freundlich, Yehoshua 130n27 FRG see Germany, Federal Republic of Friedman, Commander Emmanuel 175, 183–4 Fromkin Commission 97, 116 FSU see Soviet Union, Former Gabay, Nadav 121n119 Gadassi, Bat-Sheva 138, 154 Gamlieli, Nissim Benjamin 93 Gelber, Yoav 170 Gelblum, Arie 131n32 General Federation of Laborers 197 Germany (pre-1949), war reparations 23n2 German Federal Restitution Law (BErgG) 72 Germany, Federal Republic of (FRG: West Germany) (1949-1990) arms trade with Israel 75, 195 collective guilt 52 collective responsibility for the Holocaust 45–6 Holocaust reparations 11–12, 20, 21, 37, 57–82, 196–200 return to full diplomatic relations with Israel 75–6 Germany, Federal Republic of (FRG: post-1990) 11n22, 200 Geula, Camp, Aden 91–3, 95 Giddens, Anthony 162 Gilboa, Malka 137

Gindi, Mathilda 150 Gluska, Zecharia 90 Goldmann, Nachum 58, 59, 60, 66– 70, 74 Gopin, Rabbi Marc 78 Gordon, Aaron David 127 Great Britain Jewish claims for World War II reparations 59 Palestine mandate 60, 127, 169 Yemeni refugees in Aden 90–1 greater good 193, 231 Greenspan, Louis 82 Grob, Leonard 12n29, 82 Grossman, Z. 222 group mind 49–50 Guiliano, M. T. 49–50 guilt 50–6 Barak’s apology to Palestinians 1999 35n61 collective responsibility 45–50 Holocaust 68, 74 reparations 246–7 vicarious 52 victim-perpetrator dichotomy 19, 22 see also neutralization of guilt Haaretz Kafr Qasim massacre 243 Tinea Capitis Affair 134n46, 136, 138, 142n84, 153 Habermas, Jürgen 9–10, 19–20, 51, 56 Ha’Cohen, Rabbi Kook 88 Hadar, Menachem 245n36 Hadassah 157 Haganah 170–1, 177–8 Halévy, Joseph 209 Hampton, Jean 77n81 Hanegbi, Tzachi 191 Hansen, Kjell 163n12 HaOlam Hazeh 243 Harper, Prime Minister Stephen 98

— 290 —

————————————————————— INDEX —————————————————————

Harris, Y. 91–2, 93, 93n55 Hawaii 11n23, 39 Hegel, Georg Wilhelm Friedrich 242n26 Held, David 9–10 Held, Virginia 48 Henderson, Michael 77 Henkin, Louis 73n63 Hertel, P. 49–50 Herzog, Rabbi 96 Herzog, Esther 212 Hess, Moses 128n21 Hickinbotham, Tom 89n27 Higham, John 125n7 Hillel, Natamar 217, 220–1 Hill, Harold A. 13, 135n49 Hinshelwood, R. D. 247n44 Hiram, Operation 174–5 historical injustice allocation of Holocaust reparations in Israel 15–16, 21, 195, 196–208, 228–32 definitions 24–7 Ethiopian Jews 15, 16, 195–6, 208–23, 230, 232–3 Iqrit and Bir’im 21, 162–94, 228–30 Tinea Capitis Affair 15, 21, 123– 61, 227–9 Yemeni Babies Affair 14–15, 20– 1, 83–122, 229–30 historical redress 24 collective responsibility 41–50 definitions 23–7 effect on future injustices 195 Holocaust reparations cases 73, 195 liberal and transformative conceptions of 32–41 preoccupation with the past 39– 40 structural inequalities 224–5 tort model 226–7 use of commissions of inquiry

121–2, 225–6, 227–8, 231–3 Hitler, Adolf 24 HIV see human immunodeficiency virus Hofi, Major General Yitzhak 188 Holocaust allocation of reparations 15–16, 21, 195, 196–208, 228–32 dangerous memories 54 “first” and “second” circle victims 201–3 forced labor case 29 German collective responsibility 45–6 historical revisionism 30 influence on US Indian Claims Commission 23 Israeli collective identity 12–13, 17, 18–19, 80–2, 233–49 legitimacy of State of Israel 12–13 recognition of survivors in Israel 16, 17, 200–3, 205–6 reparations paid by West Germany 11–13, 20, 37, 57–82 Holocaust Memorial Day 202 Holzman-Gazit, Yifat 171n62 Honneth, Axel 194n152, 196n2 Horowitz, David 65–6, 65nn30-2, 68, 69n48, 70 Hovav, Ami 102 human immunodeficiency virus (HIV) 16, 212–23 human rights definitions of historical injustice 25–6 Holocaust reparations 72–3 lessons of the Holocaust 243–4 Tinea Capitis Affair 152, 158 identity collective responsibility 47–50 colonial redress campaigns 11 cultural trauma 8 race 127–9

— 291 —

————————————————————— INDEX —————————————————————

transitional justice 10 trauma 8 see also collective identity IDF see Israel Defense Forces Ignatieff, Michael 9 immigration Ethiopian Jews 21, 195–6, 208– 23 ethnic politics in settler societies 164–74 medical inspection of immigrants 123–6, 212–13 Second Aliyah (1904-1914) 83– 98 Tinea Capitis Affair 15, 21, 123– 61 Yemeni Babies Affair 83–98 Zionism and transformation of the body 127–9 Indian Claims Commission Act (ICCA) (US 1946) 23–4 indigenous peoples, ethnic politics in settler societies 162–74 individualism, collective responsibility 44–5 informed consent blood donations from Ethiopian Jews 223 Tinea Capitis Affair 145, 152, 158, 228 injustice see historical injustice Innuit 11n23 Institute of Jewish Affairs 58 Inter-Allied Declaration against Acts of Dispossession Committed in Territories under Enemy Occupation or Control (1943) 58 internal refugees 228 see also present absentees international law 9 internment, World War II 9, 26, 30 Invalids (Nazi Persecution) Law (1957) 197, 198–9, 202 Invalids (War against the Nazis) Law

(1957) 197 investigative commissions see commissions of inquiry ionizing irradiation, as treatment for favus 133–61 Iqrit 15, 21, 162–94, 228, 229–30 Israel allocation of Holocaust reparations 195, 196–208 blood donations of Ethiopian immigrants 208–23 collective identity 19–20, 80–2, 233–4, 239–42 diplomatic relations with West Germany 75–6 education of immigrants 95–8, 116 Holocaust and collective identity 12–13, 18–19, 80–2, 233–49 Holocaust reparations paid by West Germany 11–13, 20, 37, 57–82 Iqrit and Bir’im 15, 21, 162–94, 228, 229–30 offensive ethos 21–2 racism 127–9, 130–2 recognition of Holocaust survivors in 200–3, 205–6 Tinea Capitis Affair 15, 21, 123– 61, 227–9 unrestricted Jewish immigration 129–30 victimhood 12–13, 18–19, 239– 42 victim-perpetrator dichotomy 13–14, 21–2 Yemeni Babies Affair 83–122 Israel Defense Forces (IDF) Bir’im 183, 184 Iqrit 174–6, 179, 180 Tinea Capitis Affair 136 Israel Medical Association Journal 140– 1

— 292 —

————————————————————— INDEX —————————————————————

Jabotinski, Zeev 127 Jaffe, Dr. 136n50 Jaffee, Martin 239 James, Matt 11n24, 36 Japan 9n10 Jaspers, Karl 45–6, 47, 51–2 Jessup Newton, Nell 23–4, 36n65, 39n87 Jewish Agency allocation of Holocaust reparations 196–7 creation 59n7 Ethiopian Jews 210 Holocaust reparations negotiations 58, 59, 60, 62, 64 immigration policies 127 Tinea Capitis Affair 137, 143–4, 148, 157 treaty with Maronite Church 1946 182–3 Yemeni Babies Affair 92–3, 95–8, 102–4, 115n103, 116–17, 120–1 Jewish Chronicle (London) 96 Jewish Joint Distribution Committee 60 allocation of Holocaust reparations in Israel 196 Tinea Capitis affair 135, 148, 157 Yemeni refugees in Aden 91, 92–3 Jewish National Fund 62, 169, 172 Jiryis, Sabri 180 Judaism Ethiopian Jews 208–12 forgiveness 79 tikkun olam 247–8 Yemenis 83–4 juridical discourse 73–4, 226 justifications 51 Kafr Qasim massacre 180n113, 243– 5 Kahalani, Avigdor 112–13

Kahn, Haim 102 Kaplan, Edward H. 221–2 Kaplan, Eliezer 61, 62–3 Kara, Jacob 175–6 Kedmi Commission see Cohen-Kedmi Commission Kedmi, Yaakov 113 Kessler, David 209n57 Khazzoom, Aziza 167n39 Kimmerling, Baruch 168n43, 169nn53-4, 188n134, 211n73, 239n14 Kineret affair 87n18, 90n35, 96 Klagsbald, Avigdor 121n118, 135n48 Klein, Melanie 19n44, 49, 243, 245–7, 249 Kliger, Ruth 131 Kochavi, Dan 154–5 Komagata Maru affair 11n23 Konforti, Ori 211n70 Koval, Dahlia 113 Kresnansky, Major Yisrael 176 Kull, Andrew 28 Kupat Holim Clalit 143 Kutz, Christopher 41 LaCapra, Dominique 8n7 Lancet 140 Land Acquisition (Validation of Acts and Compensation) Law (1953) 182 Landauer, Georg 58 land expropriation 15 Eastern Europe 199 expulsion of Palestinian Arabs 1948 171–3 Iqrit and Bir’im 21, 162–94, 228– 30 United States Indian Claims Commission 23, 24 Laqueur, Walter 90n40 Laramore, George 133n40 Lauritzen, Paul 77n80, 78–9 Lausanne Conference (1949) 177–8

— 293 —

————————————————————— INDEX —————————————————————

Lavie, Michael 142 Lavon, Pinhas 78, 185 Law of Government 5761-2001 225 Law of Return (1950) 130 law see also civil law litigation; court cases; private law litigation; public law litigation Lebanon 182–4 legalistic discourse 35, 73–4, 122 legal reparations schemes 35 Lev, Boaz 153 Levenberg, Haim 177n94 Levitan, Dov 85n12, 94, 109, 110 Lewis, H. D. 45 Libai, David 147–8 Libai Ministerial Committee 190 liberalism, historical redress 32–41 Liebman, Charles S. 240n22 Lindenstrauss, Judge Micha 202 litigation see civil law litigation; court cases; private law litigation; public law litigation Livni, Tzipi 198 London Commission 71 Luginaah, Isaac N. 223n106 Lukes, Steven 50 Lurie, Zvi 96–7 Lutzky, Harriet 249 Luxembourg Treaty (1952) 15–16, 38n80, 72–4, 196, 199 Lyman, Stanford 50, 51 Maariv 100–1, 212, 244 MacCreagh, Gordon 210 MacDonald, David 11n27 McGarry, John 163n11, 164n21 McMahon, Msgr. Thomas J. 186 Madmoni-Gerber, Shoshana 85n13, 86n14, 112n95 Magat, Ilan 193n147, 229n121 Magen David Adom (MDA) see Red Star of David Magic Carpet, Operation 94 Maier, Charles 39n88, 79

Maimon, Major General David 113 Mamdani, Mahmood 10n21 Mann, Michael 163 Maronite Church 182–3, 185–6, 187 Martin, Paul 165, 166n31 Marx, Karl 62n22 Mashiach, Moshe 220–1 Massey, Dorren B. 162n5 Matsuda, Mari J. Hawsaiian native claims 11n23 historical redress 119 reparations 34, 36–7, 39, 158, 160 Matza, David delinquency 50 neutralization of guilt 18n40, 19n45, 108n88, 193, 233–4 social rules and norms 230–1 May, Larry 46 MDA see Red Star of David medicalized discourse, Ethiopian blood donations 233 Meir, Golda 188, 233–4 Meister, Robert 9n12, 19n43, 41n95, 46n119 Melamed, Abraham 211n71 memory forgiveness 79–80 Holocaust in Israeli collective identity 12–13, 18–19, 80–2, 233–49 Iqrit and Bir’im 229 transactive 49–50 Yemeni Babies Affair 119, 229 see also collective memory; dangerous memory mens rea 31n40 Meshulam, Uzi 112, 113 Messele, Addisu 215–16, 217–18 metaphysical guilt 45–6 Metz, Johannes Baptist 53n150, 54– 5, 122 mimeticism 8 Ministry of Finance, Bir’im 184

— 294 —

————————————————————— INDEX —————————————————————

Ministry of Health Ethiopian blood donations affair 219–20, 221 Tinea Capitis Affair 136, 142–4, 153, 154–6 Ministry of Religious Affairs 187 Ministry of Welfare 120 Minkowski, Reuben 102 Mizrachim assimilation 212 ethnic politics in Israel 128–9, 130–2 offensive ethos towards marginalized Others 237 Orientalism 218–19 recognition of Holocaust survivors 201–2, 205–6 social structure in Israel 132 Tinea Capitis Affair 15, 133–61 Yemeni Babies Affair 14–15, 20– 1, 83–122, 229–30, 232 Zionist negation of exile 80 Moav, Professor Omer 204 mobs, collective responsibility 48 Modan, Baruch 135, 137–43, 145, 150, 153–4, 159–60 Modan File 139–42, 149, 153–6, 159–60 Mola, Shlomo 218 moral guilt 45–6 moral redress 74 Morocco 137–8 Morris, Benny 172n67, 174, 178n99, 180n110 Moses, Operation 221 Moses, Siegfried 58 Moskovitch, Amichai 136n53, 138n62, 149, 155 Motram, M. E. 134, 135n49 Muir, Diana 168n44 Muller, Eric L. 25–6, 30–2, 46n117 multiculturalism 11, 35, 38–9 Murphy, Alexander B. 162n5 Murphy, Jeffrie G. 77n81

Naftali Commission 62–3 Naftali, Peretz 62 Nagan, Lehaim 217n95 Najar, David 106 Najar, Miriam 106 al-Najjada 177 National Center for the Compensation of Tinea Capitis Victims 137, 140n70, 150–1, 154, 160 national groups, collective responsibility 47–50 nationalist movements 164 national pride, collective responsibility 47–8 nation-building 167 Native Americans 23, 24, 39, 165–6 Navon Commission 214n85, 217–23, 230, 231–3 Navon, Yitzhak 217 negation of exile 60, 80–1, 128, 237–9 negligence, Tinea Capitis Affair 143–6 Netanyahu, Benjamin 190, 191 neutralization of guilt blame 50–1 blaming the victim 104, 108, 116–17, 119–22 ethic of conviction 230–1 Holocaust in Israeli collective identity 233–4 Iqrit and Bir’im 192–4 Kafr Qasim massacre 244–5 perceived common good of the dominant group 193 state responsibility for injustice 231 victimhood 18–19, 233–4, 242 victim-perpetrator dichotomy 22, 242–6 Yemeni Babies Affair 104, 108, 111, 115–22 Newell, R. R. 134 Newman, Lewis 79 Nietzsche, Friedrich Wilhelm 51–2

— 295 —

————————————————————— INDEX —————————————————————

Nini, Yehuda 84, 86n16, 87nn17-18 Noach, Dr. 136n50 Nordau, Max 127 North African Jews Holocaust survivors 16, 81, 201– 2, 241 Tinea Capitis Affair 135–41, 152 Nozick, Robert 40–1 offensive ethos 21–2 expulsion of Palestinian Arabs 1948 170–3 Others 18–19, 235–49 victim-perpetrator dichotomy 18–19, 21–2 Ogletree, Charles J. Jr. 24n7, 27n22, 29n32 Olick, Jeffrey K. 25 Olmert, Ehud 142 On Eagles’ Wings, Operation 94 Orientalism 94, 102–3, 119, 218–19, 240 Oriental Jews see Mizrachim Osatzki-Lazar, Sara 175n81, 182n117, 183n120 Ostovich, Steven T. 53n150 Other Ethiopian Jews 223 favus as disease of 133 Holocaust survivors as 17 immigrants 126, 133 Iqrit and Bir’im 164, 169 Jewish identity 128–9 marginalization by Zionism 18– 19, 82, 224, 235–49 offensive ethos 18–19, 82, 235– 49 success of redress campaigns 224 Tinea Capita Affair 15, 21, 126– 33 Yemeni Babies Affair 15, 86–7 Zionism and ethnicity 224 Palestine



Holocaust reparations 60 influence of the Holocaust in Israel 80–2 Jewish claims for World War II reparations 59 selective immigration policy 126, 127 Tinea Capitis Affair 135 Yemeni immigration to 83–98 Palestinian Arabs ethnic politics in settler societies 163–74 expulsion 1948 167–9, 170–1, 236 Holocaust in collective memory 80, 82, 233–4 Iqrit and Bir’im 15, 21, 162–94, 228, 229–30 Kafr Qasim massacre 243–5 offensive ethos 12–13, 237–8, 240, 243–5 right of return 192, 193–4, 228 social structure in Israel 132 Tinea Capitis Affair 152–3 treated with irradiation for favus 139n67 Palmon, Yehoshua 177n95, 181n116, 182, 183 Pappé, Ilan 170–1 Parfitt, Tudor 89n28, 91n43, 93n52, 210n65 Paris Conference on Reparations (1945) 59–60 Paris Reparations Agreement (1946) 60 Parliamentary Committee for Immigrant Absorption 216–17 Paul, Daniel N. 165 Pearson 164n22, 166n33, 167n35 Peled, Yoav 19n49, 194n153, 211, 239n13 Peltason, J.W. 226n115 Pensky, Max 9n17, 56 Peres, Shimon 215–16

— 296 —

————————————————————— INDEX —————————————————————

Peretz, Dr. A. 136n52 Peretz, Amir 146–8 perpetrators apologies from the many to the many 76–7 collective national identity 50 denial of responsibility by claiming to be a victim 185 Israel as 18–19 perceived common good of the dominant group 193 see also victim-perpetrator dichotomy Perry, Richard John 166–7 Persia 137–8 Plan D 170 Polack, S. 213 Poland 57 political guilt 45–6 political question doctrine 30 political reconciliation 79 Pollefeyt, Didier 13n32, 18n42, 82 Posner, Eric A. 25, 33, 34–5, 46n116 postcolonialism 11, 38–9 postmemory, trauma 8 Potsdam Agreement (1945) 58 power relations 125–6 present absentees, Iqrit and Bir’im 171–2, 179, 186–7 private law litigation limitations of 226–7 Tinea Capitis Affair 143–6, 157 United States slave trade cases 27–31 procedural justice, tort model 226 Proche-Orient Chrétien 186 property rights allocation of Holocaust reparations 73, 200, 207, 232 US slave trade cases 27–31 Pross, Christian 66n34, 71, 73, 202–3 Prucha, Francis Paul 23n1 Public Commission for Discovering the Missing Children of Yemeni

Immigrants 101–2, 104–5, 109, 110, 111 public law litigation 31, 227 Public Services Parliamentary Committee (Israel), Yemeni Babies Affair 101–2 Qerdahi, Andreas 175, 175n78 quantum meruit arguments 27–8 quasi contracts 27n24 quasi-public litigation 31 Quirin, James Arthur 208 Rabinow, Paul 162n4 Rabin, Yizhak 190 race Ethiopian Jews 210, 211 immigrants in Israel 130–2 Zionist selective immigration policies 127–8 see also ethnicity Rachmilevitch, Eliezer 217n95 radiation treatment 15, 133–61 Rainbach, Anson 37 Rama 175–6 Rav-Hon, Avri 136, 149, 155 Raviv, Alex 65n30 Raya, Archbishop 188 Raz-Krakotzkin, Amnon 80, 237 Rechtman, Richard 7–8, 40n90, 53n152, 80, 245 recognition of Holocaust victims in Israel 16, 17, 196, 200–3, 205–6, 207 Iqrit and Bir’im 194 reconciliation apologies from the many to the many 76–7 Holocaust reparations 73–4 rectification 40–1 redemption 76–7 redistribution allocation of Holocaust reparations 196

— 297 —

————————————————————— INDEX —————————————————————

Iqrit and Bir’im 193–4 Tinea Capitis Affair 157, 158 redress see historical redress Red Star of David, blood donations from Ethiopian Jews 212–13, 214, 216–23 refugees Ethiopian Jews 210–12 see also present absentees regime transitions 8, 10–11 Reinhartz, Jehuda 59n12 Religious Bloc of America 97 remembrance, trauma 7–8 Renteln, Dundes 31n38 reparations antisystemic/economic schemes 35 atonement model 31 collective responsibility 41–2 commemorative/symbolic schemes 35 as commodification of suffering 36–8, 70–1 definitions 32–4 definitions of historical injustice 25–6 Holocaust 11–13, 20, 38n80, 57– 82, 195, 196–208 Iqrit and Bir’im 21, 182, 185, 187, 192–3, 228 Kafr Qasim massacre 244–5 liberal and transformative conceptions of historical redress 32–41 structural inequalities 224–5 tikkun olam 248–9 Tinea Capitis Affair 21, 146–51, 153, 155, 157–61, 227, 228 tort model 27–31 transitional justice 41 United States cases 11n23, 27– 31, 36 victim-perpetrator dichotomy 245–7

war-related 23n2 Yemeni Babies Affair 20–1 responsibility collective 41–50 definition 41–2n97 national 47–50 state responsibility for injustice 230–1 responsibility, ethic of 42–4, 108, 231 restitution, definition of 28–9 Restoration Commission 61 restorative justice 207, 239–40 Reuben, Sima 142, 145–6 revenge forgiveness 77–8 Holocaust reparations 74 revisionism, reparations cases 31–2 Ricœur, Paul 122n120 right of return 192, 193–4, 228 right to dignity 152 right to privacy 223 ringworm see tinea capitis Robinson, Jacob 58 Romanian Jews 201, 241 Romem, Pnina 140 Ron, E. 141 Rose, Jacqueline 54, 237, 239–40 Rosenberg, Gerald 226 Rosen, Leah 60n17 Rothberg, Ro’i 235–6 Roth, John K. 12n30 Rubinstein, Amnon 180 Ruppin, Arthur 87–8, 127 Ryan, Joseph L. 183–4, 183n119, 186n126, 187n131 Saady, Menachem 105 Saady, Rachel 105 Saar, Reli 142n84, 214n86, 218n97 Sacks, Rabbi Jonathan 248 Sadetzki, Siegal 134n43, 135n49, 137n57, 159–60 Said, Edward W. 168, 169, 173, 240n20, 242n26

— 298 —

————————————————————— INDEX —————————————————————

Sanbatu, Ayanawo Farada 220n99 Sangero, Boaz 118, 204n40 Satmar Hasidic movement 83, 84 Sbeit, Shiban 175n78 Schaap, Andrew 46n114 Schvartz, Shifra 130n30 Schwarz, Tanya 211n74, 213–14 Scott, Marvin B. 50, 51 Sebok, Anthony J. 28–9, 37–8 Seeman, Don 213n80, 215–16 Segev, Amira 214n86 Segev, Shmuel 244n31 Segev, Tom 69n48, 127n16, 130n29, 196n3, 197n6, 207 self-defense 239, 242 “sense of place” 162–3 settler societies, ethnic politics in 163–74 Shachar, Eli 137, 151 Shafir, Gershon 19n49, 194n153, 211, 239n13 Shafir, Shlomo 58n6, 59n9, 66 Shakespeare, William 245 Shalgi Commission 108, 109–11, 112, 113, 119–22, 232 Shalgi, Moshe 109 shame 50–6 Shamir, Yizhak 109 Shani, Mordechai 140 Shapira, Anita 13, 18n41, 168, 170n58, 235–8, 240n21 Shapiro, Justic Minister 101 Sharett, Moshe 62, 63–4, 65n30, 66, 68, 244 Sharon, Ariel 189, 191–2 Shehadeh, Aziz 177–8 Shenhav, Yehouda A. 141n79 Shenhav, Yehuda 121n119, 128n17 Shitrit, Bechor 183 Shlaim, Avi 169, 170n56 Shochat, Abraham 147, 200 Shohat, Ella 83n5, 103, 224n108 Shonfeld, Moshe 97n64 Shorten, Andrew 46n118, 47

Shriver, Donald W. 79n92 Shtarkshall, Ronny A. 213n79 Shvartz, Shifra 140 sidelocks, forced trimming of 83, 97– 8, 118 Sidi, Tamara 150 Simmel, Georg 76n78 Slater, Thomas 193n148 slavery 27–31, 36–8 Smedes, Lewis B. 77, 78 Sneh, Ephraim 214, 216, 217, 220–1 socialism, historical redress 38–9 social solidarity 48–50 sociological/theological discourse Holocaust reparations 73–4 Yemeni Babies Affair 122 Sokol, Sammy 215n87, 216n91 solidarity collective responsibility 48–50 cosmopolitan 56 dangerous memories 54, 55 Solomon, Operation 211, 221 Solomon, Robert C. 79 Soskolne, Varda 213n79 South Africa 10 Soviet Union (FSU), Former HIV screening of immigrants from 222 recognition of Holocaust survivors from 16, 201, 241 reparations in context of regime transitions 41 transitional justice campaigns 10 speech communities 51 split identity 243 Stanner, William E. H. 165–6 Star, Bradley E. 42–3 Stasiulis, Daiva K. 163n13 state commissions of inquiry 225–6, 228 Stein, Arlene 81n106 Stelzer, Keith J. 133–4n40 Stern, Yuri 198 Stonebridge, Lyndsey 242n27

— 299 —

————————————————————— INDEX —————————————————————

substantive justice 226 Sukar, David 105 Sukar, Miriam 105 Summerfield, Summerfield 209–10 Sykes, Gresham M. delinquency 50 neutralization of guilt 18n40, 19n45, 108n88, 193, 233–4 social rules and norms 230–1 symbolic claims 35, 36 Holocaust reparations 73 Iqrit and Bir’im 192 multiculturalism and historical redress 38–9 Tinea Capitis Affair 157, 158 Yemeni Babies Affair 119, 232 Taabazuing, Mary-Margaret 223n106 Taustein, Dr. Y. 136n52 Tavuchis, Nicholas 35n61, 76, 230 Taylor, Peter J. 164n23 Teitelbaum, Michael S. 164n16, 198n16, 199n18 Teitel, Ruti G. 10, 72n62, 73n64, 196 temporal defense 31, 157–8 theological/sociological discourse 226 Thompson, Janna 27n21 tikkun olam 248–9 tinea capitis 97 affair 15, 21, 123–61, 227–9 Torpey, John C. 11n25 definition of historical injustices 24 historical redress as dwelling on the past 39–40 reparations 8n9, 35–6, 73 shared consciousness of past suffering 233 symbolic and cultural claims 119, 192 tort model 27–31, 36–8, 226–7 Toubi, Tewfik 187 Tourgeman, Morris 143n88, 144 Tov, Menachem 106n83

transactive memory 49–50 transgenerational trauma 8, 37 transitional justice Holocaust reparations 57, 72–3 regime transitions 10–11 regulation of the past by 225 reparations 41 trauma cultural 8 dangerous memories 53–6 latency of 40n90, 80, 100 reparations as commodification of suffering 37 Tinea Capitis Affair 149 transgenerational transference 8 as a way of relating to the past 7–8 Trevisan Semi, Emanuela 209n62, 210n65 truth commissions 10–11 Tunisia 202 Turner, Frederick Jackson 167n38 Tuvia, Ovadia 93 Tzaban, Yair 214 Tzafadia, Erez 167n40 Tzur, Yaakov 142 ultra-Orthodox Jews 96, 237 United Jewish Appeal 95, 96 United Nations Commission on Human Rights (UNCHR) 32 United Nations (UN), Universal Charter of Human Rights (1948) 9, 25 United States constitutional interpretation 30–1 immigrants to 123–6, 132–3 Indian Claims Commission Act (ICCA) (US 1946) 23–4 internment of Japanese Americans 26 Native Americans 11n23, 11n27, 39, 166 private law litigation 27–31, 36

— 300 —

————————————————————— INDEX —————————————————————



tinea capitis 134 World War II redress campaigns 9n11 universal human rights definitions of historical injustice 25–6 Holocaust reparations 72–3 World War II redress campaigns 9 unjust enrichment 27–31, 38, 71 UNSCOP Partition Plan of Palestine 60, 170–1 Uziel, Baruch 101 Uziel, Rabbi 96



Van Buren, President Martin 166 Vashitz, Yosef 170n57, 176, 183n121, 186n128 Vermeule, Adrian 25, 33, 34–5, 46n116 Versailles Treaty 44 vicarious guilt 52 victimhood Holocaust and Israeli collective identity 17, 80–2, 233–4, 239–49 offensive ethos 12–13, 18–19, 246–7 victim-perpetrator dichotomy 12–14, 20, 21–2, 82 victim-perpetrator dichotomy Holocaust in Israeli collective identity 234 offensive ethos 12–13, 18–19, 235–49 victimhood 12–14, 20, 21–2, 82 victims apologies from the many to the many 76–7 blaming of 104, 108, 116–17, 119–22 collective national identity 50 definition of 196 definitions of historical injustice 24–7 denial of 108

Waldron, Jeremy 40 war reparations 57–82 Weber, Max 19n46, 42–5 Wegner, Daniel 49–50 Weiner, Myron 164n16 Weiss, Meira 229n120 Weiss, Yfaat 128 Weitzer, Ronald 163n9 Weitz, Joseph 185–6 Weitz, Yechiam 71n54, 75n70 Weizmann, Chaim 57, 59, 67 West Germany see Germany, Federal Republic of (1949-1990) Westley, Robert 34 Wimmer, Andreas 164 WJC see World Jewish Congress World Bank 11 World Jewish Congress (WJC) 58, 58n5, 66–7, 66n35 World War I 9n11, 23n2, 57 World War II German collective responsibility for the Holocaust 45–6 redress campaigns 8–9 United States Indian Claims Commission 23 war reparations claim 57–82 see also Holocaust

eligibility for reparations 196 forgiveness for the Holocaust 76–82 historical redress as preoccupation with the past 39–40 recognition of 149, 200–3, 205–6 reparations as commodification of suffering 36–7 state responsibility for injustice 230–1 transitional justice 41 see also Bir’im; Ethiopian Jews; Holocaust; Iqrit; Tinea Capita Affair; Yemeni Babies Affair Vinograd, Eliahu 217

— 301 —

————————————————————— INDEX —————————————————————

World Zionist Organization (WZO) 57, 59n7, 87 WWII see World War II Wyman, Kathrina Miriam 24–5, 26, 36, 40–1 Wyman, Walter 123n2, 124n4 WZO see World Zionist Organization xenophobia, immigration 133 Yablonka, Hannah 130n28 Yahya, Imam 89 Yavne’eli, Shmuel 88, 89n29 Yedioth Achronoth 244 Yemen 102–3, 118–19 Yemeni Babies Affair 14–15, 20–1, 83–122, 229–30 effectiveness of commissions 228, 232 parralells with the case of Ethiopian Jews 212, 214, 216 Yew, Elizabeth 126 Yiftachel, Oren 167n39 Yiridoe, K. 223n106 Yona, Yosi 128n17 Yosef, Ovadia 210 Yoseftal, Giora 116–17 Yugoslavia, former 55 Yuval-Davis, Nira 163n13 Zadok, Haim 92n46-7, 93n48 Zadok, Tov 100–1 Zagher, Professor 136n50 Zakai, Yehezkel 217, 221 Zameret, Zvi 96n60, 98n65 Zangwill, Israel 168–9 Zeid, Shoshi 117n109 Zertal, Idith 240n19 Zimmermann, Moshe 80 Zionism collective identity 19–20, 80–2, 233–49 Ethiopian Jews 210–11 ethnonationalism 167–9



expulsion of Palestinian-Arabs 167–74, 186 Holocaust reparations 59, 60–1, 66n35 marginalization of Others 18–19, 82, 224, 235–49 negation of exile 60, 80–1, 128, 237–9 offensive ethos 18–19, 82, 235– 49 selective immigration policies 126–9 transformation of the body 127– 9 victim-perpetrator dichotomy 12–13, 17, 18–19, 80–2, 233–4, 239–49 view of Diaspora and disease 220 Yemeni Babies Affair 83–5, 87– 98, 103, 116 Zucker, Commander Yehezkel 175 Zuriel, Yosef 100–1 Zweig, Ronal W. 58n4

Compiled by INDEXING SPECIALISTS (UK) Ltd. www.indexing.co.uk

— 302 —