Responsibility without Guilt: A Proposed Palestinian Refugee Narrative

Perhaps Israel can acknowledge responsibility for the Palestinian refugee problem without acknowledging guilt.

If there is ever going to be an Israeli-Palestinian peace deal, then the parties will have to agree on what to do about the Palestinian refugees and their descendants. The issue is in my view the most difficult of the conflict, as Israelis refuse to grant a right of return, which could turn Israel demographically into an Arab state, and Palestinians refuse to relinquish what they consider to be a sacred principle.

Closely related to all of this is the search for a narrative of the problem: what exactly caused the Palestinian refugee problem? Of course, thousands of gallons of ink have been spilled on the issue (with Benny Morris’ book being by far the best work on the issue). But Morris’ work, like all great history, is too subtle and nuanced for a usable past. The Palestinians say that they were the victims of premeditated ethnic cleansing; the Israelis deny it, and point to the Arab rejection of the UN Partition and the subsequent Arab invasion of the infant Jewish state. The long and short of it is that the Israelis cannot accept that their country was born through original sin, and the Palestinians cannot accept an end to the conflict unless the Israelis plead guilty to such a sin.

As a practical matter, it seems impossible to square this circle. But I’m wondering whether, strangely enough, the language of the law might assist here.

Anglo-American law has long known the concept of responsibility without blame. Sometimes it recognizes responsibility without any fault whatsoever: if someone engages in an “abnormally dangerous activity”, like making hazardous chemicals, they can be extremely careful, but if the stuff leaks out and injures people, then the manufacturer is responsible and must pay. Even in the typical tort situation, we don’t say that the defendant was a criminal; we say that at best she was negligent. But even though no moral blame attaches to her, she still must pay damages to the victim.

So how might this apply to the Palestinian refugee problem? Israel could acknowledge that it was “responsible” for the situation (at least partially — a key qualifier that would make this post even longer than it is now). Indeed, it’s hard to see how anything else could have been the case: without Zionism, there would have been no Palestinian refugee problem (At least not this one: there would have been one, as Egypt, Syria, and Jordan fought over the province and displaced hundreds of thousands, but that’s another story.).

But this “responsibility” does not imply that Israel is “guilty” of some sort of national crime, or that Zionism is to be “blamed” for the Palestinian refugee problem. People and nations can be responsible for terrible things without being guilty or blamed for them. And that means that they must pay some damages — lots of damages — for them. But it doesn’t make them criminals.

This formulation would allow the Palestinians to state — accurately — that finally the Zionists have accepted responsibility for the horrible events of the Naqba. And it would allow Israelis to state — accurately — that finally the Arabs have acknowledged that Zionism is not to blame.

Too clever by half? Maybe. Maybe it doesn’t even work in Hebrew or Arabic. But there is an interesting, if incomplete, precedent for it.

That precedent is a now-famous 1985 speech by then-West German President Richard von Weizsacker. Commemorating the 40th anniversary of the end of the Second World War, von Weizsacker rejected the notion that Germany as a nation was somehow “guilty” of the crimes of the Holocaust:

There is no such thing as the guilt or innocence of an entire people. Guilt, like innocence, is not collective but individual.

Nevertheless, von Weizsacker argued, this does not absolve the German people of a collective responsibility for the past.

All of us, whether guilty or not, whether young or old, must accept the past. We are all affected by its consequences are held responsible for it. Young and old must and can help one another to understand why it is vitally important to keep the memory alive.

I am not comparing the Naqba to the Holocaust: that would be obscene. Rather, I am suggesting that perhaps a nation like Israel can acknowledge its collective responsibility to remember and acknowledge what happened to the Palestinians without fearing that it will be held guilty of a collective or national crime. And perhaps the Palestinians can be satisfied with that.

Just a thought.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.