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Clearing the Path: The Perils of Positing Civil Society in Conflict and Transition

Published online by Cambridge University Press:  11 June 2015

Timothy William Waters
Timothy William Waters*
Affiliation:
Professor of Law and Associate Director, Center for Constitutional Democracy, Indiana University Maurer School of Law.
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Abstract

Can there be a general theoretical perspective on civil society's involvement in transitional justice? This article considers this question in its application to the Israeli–Palestinian conflict. Within the study of transitional justice and conflict resolution, civil society – a notoriously plastic concept – can be understood narrowly as rights-oriented groups working ‘for’ peace, but the term is equally available to describe a broader array of communities that can either promote or prevent peace and justice.

It is, in fact, quite difficult to sustain a theoretical distinction between them, because transitional justice does not escape the dictates of politics – of differing human desires expressed through power. Efforts to memorialise imply conflict over the particular memories to be privileged; claims for reparations are not only demands for justice, but for material redistribution that in turn may promote conflict. A narrow view of civil society problematically assumes we even know – let alone agree on – what constitutes positive change.

In the context of the Israeli–Palestinian conflict, that is a fraught proposition. Both an accurate definition of civil society and the valence of justice work slip beyond the narrow confines of the received model's assumptions: both Jewish and Palestinian groups mobilise a spectrum of resources from political engagement, to overseas support, to violent self-help. On both sides, civil society groups are instrumentalised to advance not an agenda of peace or justice in some abstract sense but a parochial claim that, seen from the other side, is, in fact, an obstacle to resolution. Indeed, there may be no peace or justice initiatives that can be analytically separated from efforts the purpose and effect of which is the very opposite of our conventional understanding of the field. The range from vocal activism to violent action, the spectrum of activation, commitment and radicalism, must be understood as fraught but connected and unbroken – as, at most, a kind of punctuated continuum.

The real work performed by civil society in promoting agendas of peace and justice cannot properly be understood without locating it in a defensible theoretical and empirical framework. Imagining a narrow civil society risks skewing our analysis of what civil society can do and actually does in relation to conflict. Civil society can clear the path to peace, or can provide the principal obstacles to it – it can simultaneously do both. In this it very much shares the ambiguous, multivalent profile of its classic counterpart: politics in the public sphere.

Keywords

transitional justicepeacecivil societyIsraelPalestine
Type
Articles
Information
Israel Law Review , Volume 48 , Issue 2 , July 2015 , pp. 165 - 187
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2015 

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References

1 Miranda, Suárez, Viajes de varones prudentes, Libro IV, Cap. XLV, Lérida, 1658Google Scholar; id est Borges, Jose Luis, ‘On Exactitude in Science’, Collected Fictions (Hurley, Andrew tr, Penguin 1999)Google Scholar (Borges, Jose Luis, ‘Del rigor en la ciencia’, El Hacedor (1960) 45Google Scholar: ‘… los Colegios de Cartógrafos levantaron un Mapa del Imperio, que tenía el Tamaño del Imperio y coincidía puntualmente con él … ese dilatado Mapa era Inútil …’).

2 Mouzelis, Nicos, ‘Modernity, Late Development and Civil Society’ in Hall, John A (ed), Civil Society: Theory, History, Comparison (Polity Press 1995) 224, 225Google Scholar (noting that civil society ‘[l]ike all key concepts in the social sciences ... has a variety of meanings’).

3 Whose discussion of the ‘political community’ (κοινωνία πολιτική) in connection with the society of the Greek city-state is thought to be the first account of civil society: see Aristotle, Politics, (Jowett, Benjamin tr, Batoche Books 1999)Google Scholar, Bk Two, Pt 1, 22 (‘Our purpose is to consider what form of political community is best of all for those who are most able to realise their ideal of life’).

4 The principal expositor of the individual's relation to a tripartite division of family, mediating civil society and state: see ‘Georg Wilhelm Friedrich Hegel’, Stanford Encyclopedia of Philosophy, 13 February 1997; subst rev 22 July 2010, http://plato.stanford.edu/entries/hegel (Hegel's Sittlichkeit describes ‘the type of sociality found in the market-based “civil society” [which] is to be understood as dependent upon and in contrastive opposition with the more immediate form found in the institution of the family ... These two opposite but interlocking principles of social existence provide the basic structures in terms of which the component parts of the modern state are articulated’).

5 Marx opposes Hegel's view of civil society as a mediating ethical space, instead seeing it as an alienating experience: see Tester, Keith, Civil Society (Routledge 1992) 18Google Scholar (‘According to Marx, civil society is basically a terrible lie’).

6 See Ehrenberg, John, Civil Society: The Critical History of an Idea (NYU Press 1999)Google Scholarxv (discussing de Toqueville's views on ‘informal norms of voluntary association’ and describing the dominant contemporary approach as ‘a hegemonic neo-Toquevillean view among American intellectuals that civil society is a set of informal norms supporting local intermediate associations’).

7 In whose view civil society is a site of cultural hegemony and therefore contestation: Gramsci, Antonio, Selections from the Prison Notebooks (Hoare, Quentin and Smith, Geoffrey Newell eds and trs, Lawrence, and Wisehart, 1971) 261, 271, 494Google Scholar.

8 For whom ‘the accolade civil society [is reserved] for the friendly societies and bowling leagues that only sporadically and narrowly (if at all) engage in conventional political activity’: Bob, Clifford, ‘Civil and Uncivil Society’ in Edwards, Michael (ed), The Oxford Handbook of Civil Society (Oxford University Press 2011)Google Scholar 211. See generally Putnam, Robert, Bowling Alone: The Collapse and Revival of American Community (Simon and Schuster 2001)Google Scholar.

9 Tester (n 5) 4 (continuing ‘[a]s such, civil society has tended to be banal or boring’).

10 ‘[C]ivil society is complicated, most notably in being at one and the same time a social value and a set of social institutions’: John A Hall, ‘In Search of Civil Society’ in Hall (n 2) 1, 2 (emphasis in original; also referring to ‘the fuzziness of the term’).

11 cf Tester (n 5) 8 (‘the label of “civil society” can be applied to all those social relationships which involve the voluntary association and participation of individuals acting in their private capacities ... to equal the milieu of private contractual relationships’). In keeping with contemporary sensibilities about civil society's locus, here (according to Wikipedia, ‘Civil Society’, http://en.wikipedia.org/wiki/Civil_society, 14 January 2015) is a list of institutional forms that constitute civil society:

It is, seemingly, every kind of social organisation except for-profit companies (other than social enterprises) and the state itself.

12 World Bank, ‘Defining Civil Society’, updated 22 July 2013, http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/CSO/0,,contentMDK:20101499~menuPK:244752~pagePK:220503~piPK:220476~theSitePK:228717,00.html (‘The World Bank has adopted a definition of civil society developed by a number of leading research centres: “the term civil society to refer to the wide array of non-governmental and not-for-profit organizations that have a presence in public life, expressing the interests and values of their members or others, based on ethical, cultural, political, scientific, religious or philanthropic considerations. Civil Society Organizations (CSOs) therefore refer to a wide of array of organizations: community groups, non-governmental organizations (NGOs), labour unions, indigenous groups, charitable organizations, faith-based organizations, professional associations, and foundations”’ (emphasis omitted)); Civicus, ‘About Civicus’, http://www.civicus.org/index.php/about-us-125 (‘Civicus includes the following in its definition of civil society: civil society networks and organisations; trade unions; faith-based networks; professional associations; NGO capacity development organisations; philanthropic foundations and other funding bodies’).

13 Some definitions do include them, and certainly the classical philosophical treatments consider actors in the marketplace very much part of civil society: John Ehrenberg, ‘The History of Civil Society Ideas’ in Edwards (n 8) 18–23.

14 The World Bank, lauding the influence of civil society, provides three examples: its ‘dynamism is exemplified by successful advocacy campaigns around such issues as banning of land mines, debt cancellation, and environmental protection’: World Bank (n 12).

15 See, eg, ‘What is the Relationship between Social Enterprise and Civil Society?’, NCVO UK Civil Society Almanac, http://data.ncvo.org.uk/a/almanac14/what-is-the-relationship-between-social-enterprise-and-civil-society-2 (noting that ‘[m]uch like civil society, while there is agreement about the concept, there is less consensus about how to precisely define it. Suggested definitions cover a wide range of attributes – from whether organisations identify with the term social enterprise, to their profit distribution, to the income they generate from trading. Some characteristics are easy to measure using available data – profit distribution – but others are more difficult and require judgement on an organisation's values and objectives’); Alex Nicholls, ‘Social Enterprise and Social Entrepreneurs’ in Edwards (n 8) 80, 80–92; ‘Research on the Emerging Model of Social Enterprise’, UCLA Luskin School of Public Affairs, Center for Civil Society, http://www.civilsociety.ucla.edu/scholars/research-emerging-model-social-enterprise (arguing that owing to the decline in corporate philanthropy, ‘[t]he dominant paradigm by which citizen groups and other forms of grass-root activity organize to deal with a community problem and are funded by philanthropy will have to be modified or at least supplemented by other paradigms. These will include greater reliance on self-generated income and new hybrid organizational forms that combine a social mission with commercial entrepreneurship ... It is expected that social enterprises will expand in the coming years because of the changing economic and political environment’).

16 In this, civil society is, if imperfectly, different from the arts, which may be intensely private, and which are not principally or necessarily concerned with the improvement of society as such. However, supporting the arts – as opposed to artistic production per se – can be one function of civil society.

17 Text of the Call for Papers, Third Annual Minerva Jerusalem Conference on Transitional Justice, ‘Transitional Justice and Civil Society – Learning from International Experience’, The Minerva Center, The Hebrew University of Jerusalem, November 2013.

18 Walter Russell Mead, ‘Peace Out: Why Civil Society Cannot Save the World’, Foreign Affairs, Nov–Dec 2012, http://www.foreignaffairs.com/articles/138179/walter-russell-mead/peace-out.

19 Karl Marx, ‘Zur Judenfrage’ in Deutsch-Französische Jahrbücher (1844), http://de.wikisource.org/wiki/Zur_Judenfrage. The ‘sie’ refers to religion (‘It [religion] has become the spirit of civil society, the sphere of egoism, the bellum omnium contra omnes. Its essence is no longer in community but in difference’: Marx, Karl, ‘On the Jewish Question’ in McLellan, David (ed and trans), Karl Marx, Early Texts (Basil Blackwell 1971) 95Google Scholar (emphasis in original)).

20 cf Bob (n 8) 213 (noting ‘two misconceptions: that civil society speaks or potentially can speak with one voice; and that this voice resounds in a left-leaning key’).

21 cf ibid 212 (‘Some civil society devotees contrast the business world's competitive, profit-seeking activities with the harmony, sympathy, and cooperation supposedly prevailing in the voluntary sector. But this distinction is overdrawn. Most non-profit organizations ... inhabit their own Darwinian worlds, vying for members, funding, and recognition. Many are also highly professionalized bureaucratic institutions ... have opened their own profit-making ventures ... rely on corporate ... largesse ... [and] like businesses, engage in political advocacy’).

22 Ehrenberg (n 6) xiii (surveying modern civil society theorists, and arguing that in conditions of modernity, ‘[c]ivil society was no longer understood as a universal commonwealth but came to mean private property, individual interest, political democracy, the rule of law, and an economic order devoted to prosperity’).

23 Marchetti, Raffaele and Tocci, Nathalie, ‘Conflict Society and Human Rights: An Analytical Framework’ in Marchetti, Raffaele and Tocci, Nathalie (eds), Civil Society, Conflicts and Politicization of Human Rights (United Nations University Press 2011)Google Scholar 47, 50–51 (discussing the outsourcing of state services to NGOs).

24 ibid 50. See also Neera Chandhoke, ‘Civil Society in India’ in Edwards (n 8) 171, 177–78 (discussing the place of involuntary organisations in the definition of civil society).

25 See Bob (n 8) 209–19 (criticising the definitional distinction between civil and uncivil groups, and noting (at 209) that the term uncivil society ‘is used to place organization, goals, or tactics beyond the political pale’).

26 McKeon, Celia, ‘Civil Society: Participating in Peace Processes’ in van Tongeren, Paul and others (eds), People Building Peace II (Lynne Rienner 2005)Google Scholar 567, 573 (but also noting that ‘civil society also faces its own internal challenges[:] ... the heterogeneity of what is termed “civil society”: the diverse array of interests, groupings and agendas that are intrinsic to any large mass of people’).

27 Kennedy, David, The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton University Press 2004)CrossRefGoogle Scholar 21. cf Carothers, Thomas and Brechenmacher, Saskia, Closing Space: Democracy and Human Rights under Fire (Carnegie Endowment for International Peace 2014)Google Scholar 27 (civil society had ‘a pleasing, non-ideological quality, several steps removed from the dirty give-and-take of partisan politics’).

28 On networks, see Keck, Margaret E and Sikkink, Kathryn, Activists Beyond Borders: Advocacy Networks in International Politics (Cornell University Press 1998)Google Scholar.

29 One could find no better example of the admixture of politicisation and ‘apoliticalness’ than Sartre's statement about the Vietnam-era Russell Tribunal, cited in its more recent incarnation as a people's tribunal on Israel's occupation: ‘The legality of the Russell Tribunal comes from both its absolute powerlessness and its universality’: Jean-Paul Sartre, ‘Inaugural Statement at the Russell Tribunal on Vietnam, 1967’ in ‘Findings of the Final Session of the Russell Tribunal on Palestine’, Brussels (Belgium), 16–17 March 2013, http://www.russelltribunalonpalestine.com/en/full-findings-of-the-final-session-en. In less charged contexts, the apolitical view can achieve an almost touching banality: see Kang, Sungho, McDonald, John W and Bae, Chinsoo, ‘Introduction’ in Kang, Sungho, McDonald, John W and Bae, Chinsoo (eds), Conflict Resolution and Peace Building: The Role of NGOs in Historical Reconciliation and Territorial Issues (Northeast Asian History Foundation 2009)Google Scholar 11, 17 (‘Transnational NGO Networks are trying to live up to the universal values and people-centered norms, being free from exclusive national interests and authorities’).

30 There, it is a given that civil society actors – otherwise known as special interests and activists – advance preferential political agendas: the NRA and Planned Parenthood are clearly examples of civil society, and equally clearly partisan. Thomas Carothers made this point recently at a lecture at Indiana University: see also Carothers and Brechenmacher (n 27) 55.

31 This occurred at a time when democratic institutions were weak, but there is no reason to think this is a necessary condition; the recent rise of the illiberal right in Hungary has been driven by civic organisations which have flourished in a stable, institutionalised democracy: see Virág Molnár, ‘Civil Society, Radicalism, and the Rediscovery of Mythic Nationalism’, presented at the 19th World Convention, Association for the Study of Nationalities, Columbia University, 26 April 2014 (discussing recent Hungarian events and illiberal civil society during the interwar period).

32 See generally Bob, Clifford, The Global Right Wing and the Clash of World Politics (Cambridge University Press 2012)CrossRefGoogle Scholar. Nor do civil society organisations necessarily model liberal and democratic virtues in their internal process; ‘indeed, some would argue that the most nimble and effective organizations are almost Leninist’: Bob (n 8) 213. By contrast, illiberal organisations can be internally democratic and participatory.

33 See Carothers and Brechenmacher (n 27) 22–23; Marc Morjé Howard, ‘Civil Society in Post-Communist Europe’ in Edwards (n 8) 134, 134 (noting that the transitions in Eastern Europe were ‘the source of the revitalization of the term “civil society” itself. Indeed, had it not been for Solidarnosc ... and the subsequent “people's revolutions” ... the term civil society would almost certainly not have become so widely used by academics or policy makers’).

34 cf Marchetti and Tocci (n 23) 48–51 (and arguing (at 49) that civil society operates differently in conflict societies, producing ‘a wide range of civil society actors, including both “civil” and “uncivil”, carrying out a wide range of actions’).

35 cf Carothers and Brechenmacher (n 27) 18 (‘International assistance to help strengthen party development in transitional countries has always been an especially sensitive area of democracy and rights work, for understandable reasons – it is easy for citizens of the country to interpret outsiders’ work with political parties as efforts to favor certain parties and thereby influence electoral outcomes'), and 54–55 (discussing the political effects of notionally neutral party aid). Immunisation campaigns in Pakistan and West Africa have become a source of suspicion about Western intervention.

36 The list is drawn from the sample topics in the text of the Call for Papers, Conference on Civil Society and Transitional Justice, The Minerva Center, The Hebrew University of Jerusalem, May 2014.

37 The valence is apparent in the title of one of the most prominent texts in the field: Kritz, Neil (ed), Transitional Justice: How Emerging Democracies Reckon with Former Regimes (United States Institute of Peace 1995)Google Scholar.

38 I recently heard a presentation on the Hungarian White Terror, following the Tanácsköztársaság (Hungarian Soviet Republic) of 1919, which referred to its denunciations, trials and purges as ‘transitional justice’: Emily Gioielli, ‘Burning out this Nest of Serpents: Counter-Revolution in the Hungarian Domestic Sphere, 1919–1922’, presented at the Midwest Slavic Conference, Ohio State University, 29 March 2014. However, this is rare – a divergence from the restrictive vocabularies of the discipline.

39 cf Marchetti and Tocci (n 23) 52 (‘Considerable attention has been devoted to global civil society and transnational social movements ... role in preventing and resolving war; yet insufficient attention has been devoted to the role of local civil society in conflict creation’) (citations omitted).

40 Laure Fourest, ‘Human Rights, Civil Society and Conflict in Israel/Palestine’ in Marchetti and Tocci (n 23) 75, 78–79.

41 GWF Hegel, Grundlinien der Philosophie des Rechts oder Naturrecht und Staatswissenschaft im Grundrisse (Zusatz), in GWF Hegel, Werke (Band 7) 340 para 182 (Suhrkamp 1989) (‘Since particularity is inevitably conditioned by universality, the whole sphere of civil Society is the territory of mediation where there is free play for every idiosyncrasy … and where waves of every passion gush forth, regulated only by reason glinting through them’: GWF Hegel, Elements of the Philosophy of Right, Third Part: Ethical Life, ii, ‘Civil Society’ para 182 (addition)). The translation freely mentions ‘civil Society’ – words not literally appearing in the excerpt, but clear from the surrounding context.

42 Qur’ān 109:6, Al-Kāfirūn’ (The Disbelievers) (‘Unto you your religion, and unto me my religion’: Marmaduke Pickthall (tr), The Meaning of the Glorious Koran (Everyman's Library and Alfred A Knopf 1992).

43 On Israeli Palestinian NGOs generally, see Payes, Shany, Palestinian NGOs in Israel: The Politics of Civil Society (Tauris Academic Studies 2005)CrossRefGoogle Scholar.

44 See Fourest (n 40) 75 (‘Although their fates are closely intertwined, Palestinian and Israeli civil societies have grown increasingly and dramatically oblivious to one another since the second Intifada’).

45 ibid 85–86 (discussing P2P programmes promoted by international donors ‘based on the assumption that a better way to achieve peace was to encourage bi-communal projects that should come from the people themselves’). For an example of analysis steeped in hagiographic assumptions about unified purpose see Boulding, Elise, ‘Hope for the Twenty-First Century: NGOs and People's Networks in the Middle East’ in Boulding, Elise (ed), Building Peace in the Middle East: Challenges for States and Civil Society (Lynne Rienner 1994)Google Scholar 319, 319–20.

46 Fourest (n 40) 79 (‘In Israel, a number of CoSOs [conflict society organisations] use the human rights discourse to assert their non-political identity: they may develop worthy programmes defending human rights in the OPT [occupied Palestinian Territories], but avoid taking a clear political stand regarding the occupation, which is the primary cause of human rights violations. Here, defending human rights has sometimes become a synonym for political neutrality’).

47 Kaufman, Edy, Salem, Walid and Verhoeven, Juliette (eds), Bridging the Divide: Peacebuilding in the Israeli-Palestinian Conflict (Lynne Rienner 2006)CrossRefGoogle Scholar 223 (noting that only groups that provided information were included).

48 Some articles in the volume that includes the directory explicitly note the problem and examine a broader spectrum: see, eg, Tamar Hermann, ‘Civil Society and NGOs Building Peace in Israel’ in Kaufman, Salem and Verhoeven, ibid 39, 39–40 (‘Too often civil society experts, researchers, and activists alike have a blind spot for grassroots activities that contravene their own political preferences, which in most cases are on the liberal end of the spectrum. These analyses often try to portray unidimensional civil societies that are benign in terms of civil rights, human rights or peacemaking, while ignoring the groups that promote discrimination or racism or that oppose resolution of ethnic or national conflict’), and 45–47 (analysing the activities of right-wing NGOs in response to the Oslo process). The rightist group discussed by Hermann, Zo Artzenu, does not appear in the directory; the left-oriented groups do.

49 And self-associated: its website declares it is ‘[w]idely credited with building Israel's progressive civil society from scratch, we have provided more than $200 million to more than 800 cutting-edge organizations since our inception’: New Israel Fund, ‘FAQS’, http://www.nif.org/about/faqs. The Fund does not consider itself a peace organisation, but closely aligns itself with the movement and its goals, which it identifies as progressive:

NIF is not a ‘peace’ organization in that we do not involve ourselves in the specifics of the ongoing peace process. Since our inception, the New Israel Fund has believed that only a just and equitable society can make peace with its neighbours. Our work for human rights, social justice and religious pluralism is the natural complement of progressive groups who are advancing the two-state solution and the peace process.

As a matter of policy and organizational values, NIF:

  • •

    • supports an end to the occupation of Palestinian territories as a central principle of the strategic framework in which we operate;

  • •

    • supports two states for two peoples and strongly advocates for efforts to realize that goal;

  • •

    • opposes the settlement enterprise as inimical to the peace process and to the future of Israel as a just and democratic society.

50 Isabel Kershner, ‘Israeli Rights Groups View Themselves as under Siege’, The New York Times, 5 April 2010,http://www.nytimes.com/2010/04/06/world/middleeast/06israel.html?_r=1&.

51 ibid.

52 ibid (‘“Up until now [such organisations] have enjoyed a halo effect as highly regarded human rights watchdogs,” said Gerald Steinberg, an Israeli political scientist and president of NGO Monitor, a conservative watchdog group financed by American Jewish philanthropists. “They were not seen as political organizations with biases and prone to false claims”’).

53 Im Tirtzu describes itself as a registered association ‘covered by Section 46 of the Income Tax Ordinance’ with a funding relationship with the Central Fund of Israel, which has 501c3 status in the United States: Im Tirtzu, ‘Frequently Asked Questions’, http://en.imti.org.il/faq.html.

54 Im Tirtzu, ‘Our Mission’, http://en.imti.org.il/ (‘Im Tirtzu's goal is to strengthen Zionist values in academia and in society as a whole while providing a home for students who know and truly understand that Zionism is their heritage and their birthright’).

55 Im Tirtzu (n 53):

10. What is Im Tirtzu's position on the issue of the unity or division of Jerusalem?

Im Tirtzu believes it is crucial to preserve the unity of Jerusalem under Israeli sovereignty in any future political settlement ...

The issue of the unity of Jerusalem should stand above any disagreements within Israeli society and the Zionist ethos ... In the words of the late Prime Minister Yitzhak Rabin ... : ‘... Jerusalem is not an issue to compromise on and there is no peace without Jerusalem’ (title emphasis in original)

56 The directory referred to earlier appears in a volume prepared by the European Centre for Conflict Prevention, with funding from the United States Institute of Peace, Cordaid Netherlands, and the Netherlands Ministry of Foreign Affairs: Kaufman, Salem and Verhoeven (n 47) front material.

57 At least, this was the interpretation given by a representative of Breaking the Silence: Oded Na'aman, ‘J Street U Rejected for Standing Behind IDF Soldiers’, The Daily Beast, 11 October 2013, http://www.thedailybeast.com/articles/2013/10/11/idf-soldiers-j-street-u-rejected-for-standing-behind-us.html; J Street U, http://www.jstreetu.org.

58 ibid.

59 cf Marchetti and Tocci (n 23) 52 (arguing that ‘using the definitions “civil” and “uncivil” society would convey the false understanding that the two types of actor are easily separable’).

60 cf Fourest (n 40) 88 (listing the types of activity in which civil society organisations involved in the conflict take part: legal action; grassroots organisations, political activism and peace advocacy, bi-communal activities, and violent action); Marchetti and Tocci (n 23) 53, Table 3.1 (listing, under activism, ‘NGOs, Lobby groups, Grassroots social movements, Local communities, Combatant groups’).

61 Abraham Foxman, ‘Israel Cannot Wait Any Longer to Crush Price Tag Attacks’, Ha'aretz, 18 May 2014, http://www.haaretz.com/opinion/.premium-1.591287 (describing the attacks as ‘reprisal assaults’ by ‘extremist, and often young Israeli Jews ... react[ing] to any number of events – including the dismantling of illegal settlements by government officials, progress in the Israeli–Palestinian peace process and terror attacks against Israelis’). cf Jonathan S Tobin, ‘The Price Tag of Palestinian Violence’, Commentary, 17 April 2014, http://www.commentarymagazine.com/2014/04/17/the-price-tag-of-palestinian-violence-abbas-terrorism (calling for punishment of the ‘tiny group of extremists who have attacked Palestinians in what they call “price tag” attacks’, but also arguing that ‘those who claim to constitute the “peace camp” in Israel and the United States tend to regard any attention given to Palestinian crimes as a distraction from the more important work to negotiate an agreement’).

62 ‘Israeli Mosque Entrance Torched in Suspected Price Tag Attack’, JTA, 18 April 2014, http://www.jta.org/2014/04/18/news-opinion/israel-middle-east/israeli-mosque-entrance-torched-in-suspected-price-tag-attack.

63 ‘Price Tag Attacks’, Anti-Defamation League, updated 6 March 2015, http://www.adl.org/israel-international/israel-middle-east/content/backgroundersarticles/price-tag-attacks.html (noting Defence Minister Moshe Ya'alon's announcement that ‘price tag attacks would henceforth be defined as “illegal organizing” and treated in a similar fashion to acts of terror’ – clearly, therefore, the work of organised groups).

64 See, eg, Foxman (n 61) (calling Price Tag an ‘abhorrent phenomenon, which ... is antithetical to Jewish values, and stands in stark contrast to the democratic ethics on which the State of Israel was founded’, and arguing that ‘the vast majority of Israelis ... recognize the danger price tag attacks pose to the moral fiber of Israeli society and to the democratic and Jewish nature of the state’).

65 See, eg, McKeon (n 26) 567, 567–73 (identifying four roles of civil society: ‘advocating dialogue as an alternative to armed violence ... facilitating dialogue between the parties ... monitoring compliance and violations ... [and] participating at the negotiating table’).

66 See, eg, Hermann (n 48) 47 (discussing the invocation of Martin Luther King by right-wing group Zo Artzenu as a model for civil disobedience and the acquittal of the group's leader on free-speech grounds of charges of disrupting public order).

67 See generally Payes (n 43).

68 Fourest (n 40) 86.

69 ibid 90.

70 United Nations (UN), Division for Palestinian Rights, UN International Conference of Civil Society in Support of Israeli–Palestinian Peace, Brussels (Belgium), 30–31 August 2007, 39 (noting, in the context of a common position adopted by Palestinian civil society organisations at the 2005 Durban conference, that ‘[t]he ANC in South Africa had a very clear four-part strategy: to mobilize the local population for a symbolic arms [sic] struggle; a diplomatic strategy; mobilization of global civil society; and ... leadership about how each of those parts fitted together’); cf Mohammaed Abu-Nimer, ‘Nonviolent Action in Israel and Palestine: A Growing Force’ in Kaufman, Salem and Verhoeven (n 47) 158–65 (discussing strategic and tactical debates among Palestinian groups concerning the use of violence).

71 See, eg, Russell Tribunal (n 29) (recommending referral to the ICC, and describing itself thus: ‘the RToP dealt with ... violations of international law committed by Israel. It also highlighted the continuity and comprehensiveness of Israeli policy that intends, ultimately, to render impossible the establishment of a Palestinian state’); Bill van Esveld, ‘Why Palestine Should Seek Justice at the International Criminal Court’, Ma'an News Agency, republished by Human Rights Watch, 6 December 2013, http://www.hrw.org/news/2013/12/06/why-palestine-should-seek-justice-international-criminal-court (discussing the politics surrounding a new application, and arguing for joining the Court to avoid ‘impunity for crimes fueling [sic] further abuses’, and linking this to the settlements).

72 Mahmoud Abbas, Declaration Accepting the Jurisdiction of the International Criminal Court, 31 December 2014, http://www.icc-cpi.int/iccdocs/PIDS/press/Palestine_A_12-3.pdf (recognising the jurisdiction of the ICC under art 12 of the ICC Statute (Rome Statute of the International Criminal Court (entered into force 1 July 2002) 2187 UNTS 90) for crimes committed in occupied Palestinian territory since 13 June 2014); Human Rights Watch, ‘Palestine: ICC Prosecutor Opens Initial Inquiry,’ 29 January 2015, http://www.hrw.org/news/2015/01/29/palestine-icc-prosecutor-opens-initial-inquiry.

73 UN International Conference on Civil Society (n 70) 39. The UN is traditionally no great friend of Israel – the conference was organised by the ‘Division for Palestinian Rights’, and one will look in vain for an equivalent division to protect Israelis; but this is to the point: there is no neutral transitional justice position.

74 Thaif Deen, ‘Palestinians Draw Line at Criminal Court’, Asia Times Online, 8 April 2014, http://www.atimes.com/atimes/Middle_East/MID-01-080414.html (noting the criticism by Human Rights Watch of US objections to a renewed ICC application, and paraphrasing Congressional testimony by US UN Ambassador Samantha Power that ‘Washington is absolutely adamant that Palestine should not join the ICC because it poses a profound threat to Israel and would be devastating to the peace process’); Jeff Rathke, US State Department, Statement on ICC Decision (Press Statement), 16 January 2015, http://www.icc-cpi.int/iccdocs/PIDS/press/Palestine_A_12-3.pdf (reacting negatively to the Palestinian Authority's acceptance of ICC jurisdiction and noting that the US ‘will continue to oppose actions against Israel at the ICC as counterproductive to the cause of peace’).

75 UN International Conference on Civil Society (n 70) 40 (discussing ‘a global strategy to apply the International Convention on the Suppression and Punishment of the Crime of Apartheid to the situation in the occupied Palestinian territory’); BDS Movement, ‘What is BDS’, http://www.bdsmovement.net (‘In 2005, Palestinian civil society issued a call for a campaign of boycotts, divestment and sanctions (BDS) against Israel until it complies with international law and Palestinian rights’); Chemi Shalev, ‘West of Eden’, Ha'aretz, 28 April 2014, http://www.haaretz.com/blogs/west-of-eden/1.587895 (‘the term “apartheid” remains a highly toxic label for Israel ... [It] goes hand in hand with an international boycott campaign aimed at toppling its instigating regime’).

76 Eitan Bronstein, ‘They are Afraid: Israeli Jews and Palestinian Refugees’, The Electronic Intifada, 3 June 2005, http://electronicintifada.net/content/they-are-afraid-israeli-jews-and-palestinian-refugees/5615.

77 UN International Conference on Civil Society (n 70), Annex I (‘Call to Action: Realizing the inalienable rights of Palestinian people’) 16, and see also 14 (noting comments of Na'eem Jeenah of the International Coordinating Network on Palestine on this proposal).

78 cf ‘On World Refugee Day, PLO Wants Israel Held Accountable’, WAFA, 19 June 2013, http://english.wafa.ps/index.php?action=detail&id=22661 (Hannan Ashrawi calling for accountability for al-Nakba and noting ‘[t]his process of victimization, exclusion and oppression continues until this day – Israel persists in its violations ... enjoying full immunity. The military occupation of the West Bank and Gaza that began in 1967 is an added form of oppression manifesting itself in the cruel captivity of the people and their land and resources ... The Palestine case ... remains an issue of indisputable justice and humanity’).

79 Ramona Wadi, ‘Compensation to Palestinian Refugees and the Search for Palestine-Israel Peace’, Middle East Monitor, 31 August 2013, https://www.middleeastmonitor.com/media-review/book-review/7164-compensation-to-palestinian-refugees-and-the-search-for-palestine-israel-peace (‘The consequences for Israel are striking and might even be interpreted as a preliminary step towards a dismantling of the foundations of the illegal state, as any form of compensation would imply acknowledging historical and moral responsibility for human rights violations against Palestinians’). On the interactions of restitution and a broader settlement, see generally Brynen, Rex and El-Rifai, Roula (eds), Compensation to Palestinian Refugees and the Search for Palestine-Israel Peace (Pluto Press 2013)Google Scholar.

80 A reminder, as well, of how problematic it can be to definitionally divide civil society and the state.

81 cf Naomi Darom, ‘Why I Don't Stand for the Siren’, Ha'aretz, 29 April 2014, http://www.haaretz.com/opinion/.premium-1.587884 (discussing the politicisation of Holocaust remembrance); Carolina Landsmann, ‘How to Traumatize a Nation of Children’, Ha'aretz, 30 April 2014, http://www.haaretz.com/opinion/.premium-1.588117 (criticising plans to introduce Holocaust studies into all classrooms). cf Almagor (Terror Victims Association), ‘Goals’, http://al-magor.com/en/?page_id=19 (listing the following activities: emergency activism, social activities, legal action, information about terrorism, and memorialisation about terror victims – all typical of civil society – and noting that among its legal services ‘Almagor petitions to the Supreme Court and provides representation for terror victims to demand harsh punishment for terrorists, expulsion of suicide terrorists’ families, and demolition of terrorists' homes').

82 cf ‘Israel Approves New Settlements in East Jerusalem for the First Time in 12 Years’, Al Arabiya News, 19 December 2012, http://english.alarabiya.net/articles/2012/12/19/256008.html (discussing construction plans for Givat HaMatos, and quoting Palestinian negotiator Mohamed Shtayyeh that ‘[t]he intensification of settlement activity [in east Jerusalem] and all the Israeli actions, from killings to arrests, are pushing us to accelerate our recourse to the International Criminal Court’).

83 Fourest (n 40) 85–86 (noting that ‘Israelis and Palestinians disagreed on their very nature and purpose [of P2P programmes]: Palestinians tended to use them as political platforms, while Israeli activists were motivated by social and cultural concerns’), and 92 (noting Palestinian groups' resistance to projects to normalise relations with Israelis while the occupation continues).

84 Intra-Israeli difference is not only left-right, but temporal. The main lines of civil society have shifted over time, with ‘“enlightened” Jewish Israeli public opinion [evolving] in its attitude towards the morality of military action’ from republican solidarity to ‘disenchantment’ to uncritical acceptance: Peled, Yoav, ‘From Oslo to Gaza: Israel's “Enlightened Public” and the Remilitarization of the Israeli–Palestinian Conflict’ in Stavrianakis, Anna, Selby, Jan and Oikonomou, Iraklis (eds), Militarism and International Relations: Political Economy, Security, Theory (Routledge 2012)Google Scholar 19. cf Jonathan Freedland, ‘The Liberal Zionists’ (2014) LXI(13) New York Review of Books 14 (‘The squeezed nature of the liberal Zionists’ position is hardly new, but in recent years the predicament has become more pronounced. The decline of the peace movement in Israel, along with the serial failure of the Israeli liberal party, has suggested a cause in retreat. In the United States, the liberal lions have come to resemble an endangered species').

85 Aristotle (n 3). For ‘community’ another translation has ‘... and every partnership ...’: Aristotle, The Politics, (Aristotle's Politics 1.1252a, Harris Rackham tr, 1957) Ch 1.

86 ‘Because its antecedents have not been adequately explored, civil society is often deployed in a thin, undertheorized and confusing fashion’: Ehrenberg (n 6) x.

87 cf Jessica Montell, ‘Making Universalism Resonate Locally’, Open Democracy, 23 August 2013, http://www.opendemocracy.net/openglobalrights/jessica-montell/making-universalism-resonate-locally (discussing differing views of human rights among Israelis, including highly critical views of rights organisations as ‘unresponsive to local concerns, dismissive of traditional values and anti-religion’).

88 cf Bob (n 32) 3 (noting that civil society's ‘“failures” are simultaneously victories for opponents’).

89 Text of the Call for Papers, Conference on Civil Society and Transitional Justice (n 36) (and noting earlier: ‘From local grassroots organizations like the Mothers of the Plaza de Mayo in Argentina to international networks like the Coalition for the ICC, civil society organizations have been central in struggles for justice, truth and accountability across various contexts, while other civil society groups have been key actors in efforts of reconciliation, inter-community dialogue and conflict-transformation’).

90 Ruti Teitel, the originator of the field of transitional justice, defends just such a limitation, both in her writings and in conversations we had on the margins of the conference from which these papers arise. I greatly respect her body of work and her views more generally, but on this point I think she is defending a preference, not something probative. cf Mouralis, Guillaume, ‘The Invention of ‘Transitional Justice’ in the 1990s' in Israël, Liora and Mouralis, Guillaume (eds), Dealing with War and Dictatorships (Asser 2014)Google Scholar 83–100 (describing the rise of the concept and arguing that transitional justice is a political rather than an analytical category).

91 cf Bob (n 8) 209 (‘This is not to say that academics should abjure the quest for the good society or should remain neutral ... But ... these goals should be segregated from analysis – not least for the sake of achieving them’).

92 cf Bob (n 32) 7 (‘[C]ontending groups in democratic societies hold irreconcilable values. They see the world from incompatible perspectives ... There is limited room for the deliberation so cherished by idealists. Indeed, the combatants do not seek compromise ... Given these chasms, current theories emphasizing appropriateness, learning, and jawboning need to be supplemented’).