Favourite Readings 2021 – Continuing the Never-Ending Search for Justice and Explanations

Diane Orentlicher, Some Kind of Justice: The ICTY’s Impact in Bosnia and Serbia (Oxford University Press, 2018) 

Joseph P. Forgas, William D. Crano, and Klaus Fiedler (eds), The Psychology of Populism: The Tribal Challenge to Liberal Democracy (Routledge, 2021)

Sayed Kashua, Track Changes (Kinneret Zmora Dvir, 2017 [Hebrew]; Grove Press, 2020 [English translation by Mitch Ginsburg])

Mark Taylor, War Economies and International Law (Cambridge University Press, 2021)

As in previous years, EJIL’s Review section, has invited EJIL board members and editors to offer short reflections on their favourite books of the year. No strict rules apply — the posts are meant to introduce books that left an impression, irrespective of their genre. Today we have selections from Michal Saliternik. You can read all the posts in this series here. 

On 24 November 2021, the Israeli Supreme Court delivered a short judgement that put an end to the eleven years long legal battle fought by Izzeldin Abuelaish, a Gaza resident who lost his three daughters and niece in 2009 as a result of an Israeli military attack against Hamas. In this judgement, the Court ruled that Abuelaish was not entitled to compensation from the Israeli government. The Court relied on an Israeli law that released the Israeli government from civil liability for any act pursued during a “war operation”. While expressing empathy for Abuelaish’s suffering, the Court emphasized that in terms of legal redress, the damage suffered by the bereaved father remained “orphan”.

Before, during, and after the judicial process, Abuelaish stated that he trusted that the killing of his daughters by the Israeli army was not intentional. Accordingly, he was not seeking to blame or shame anyone, only to establish responsibility and gain recognition, which, he deemed, were essential for promoting justice, peace, and reconciliation. Immediately after the Supreme Court dismissed his appeal, Abueliash declared in a newspaper article that he would continue seeking for justice outside Israel. In a strange coincidence, two weeks later the Court of Appeals in The Hague dismissed a lawsuit brought by another Palestinian, Ismail Zaida, against Israeli military commanders who were responsible for a 2014 airstrike that killed six members of his family in Gaza. The Dutch court reasoned that the Israeli commanders enjoyed functional immunity from foreign jurisdiction with respect to acts implementing Israeli governmental policies.

These cases bring to the fore one of the core questions underlying the so-called transitional justice literature, namely, whether and how legal proceedings can achieve justice and promote other appropriate goals such as reconciliation, democratization, and stabilization in the aftermath and also in the course of violent conflicts. In Some Kind of Justice: The ICTY’s Impact in Bosnia and Serbia, Diane Orentlicher examines this question in the context of international criminal proceedings, focusing on the case of the International Criminal Tribunal for the Former Yugoslavia (ICTY). On the basis of interviews with victims, activists, and other local actors, Orentlicher, once an enthusiastic advocate of post-conflict criminal prosecutions, portrays a far-from-ideal picture of the achievements of the ICTY in Bosnia and Serbia.

Orentlicher evaluates the local impact of the ICTY according to three main criteria, two of which are of relevance not only to criminal trials but rather to a broader range of transitional justice mechanisms, including reparations and truth commissions. The first criterion refers to the satisfaction of victims’ desire for justice. Orentlicher finds that victims of war crimes in the former Yugoslavia were seriously disappointed by many aspects of the ICTY trials, including their length and their lenient outcomes. At the same time, however, many victims were of the feeling that the very fact that these trials took place entailed recognition of the wrongful harm that they suffered and of the inalienability of their human rights. As Izzeldin Abueliash put it in his newspaper article, legal remedies were essential to affirming the status of his daughters and other victims as equal bearers of human rights.

The second criterion against which Orentlicher assesses the impact of the ICTY is the extent to which it bolstered acknowledgment of past wrongdoing and helped develop social commitment to preventing their repetition. It is in this respect, Orentlicher observes, that the ICTY saw its most remarkable failure. By and large, the proceedings at the ICTY have not transformed the views of Serbs and Bosniaks regarding their own responsibility for the war horrors and have not made them accept the other group’s narratives. According to Orentlicher, it is doubtful that the ICTY, or indeed any other international tribunal, could have done better in dispelling denialism in a society so deeply divided by ethnic rivalries and so intensively exposed to nationalist propaganda.   

To me, the most intriguing question related to acknowledgment and denialism remains: Why? Why is it so difficult for people to acknowledge the equal moral worth and equal human rights of people belonging to other cultural groups? What is there about national and ethnic identity that drives us to distrust, dislike, and be indifferent to the suffering of those who do not share our identity? This question has been the subject of many studies in various disciplines, yet one never tires of looking for further explanations. In a previous favourite readings post I discussed a book that offers sociological insights into this question (as well as a book that ridicules the phenomena ad absurdum). I would now like to turn to a recently published book that offers possible psychological explanations.  

The Psychology of Populism: The Tribal Challenge to Liberal Democracy (edited by Joseph P. Forgas, William D. Crano, and Klaus Fiedler) features a collection of essays that explore the psychological underpinnings of populism. Although populism, understood as a political movement of resentment of “the people” against “the elites”, is not necessarily associated with national or ethnic identity and does not always lead to violent conflicts, at least some of its underlying psychological mechanisms are likely to resemble the ones that facilitate ethnic rivalries and violent conflicts. Among other explanations, the book suggests that populism is attractive because it allows people to achieve social status through dominance over others; nurtures a positive collective identity that adds meaning to life; and offers cognitive certainty and emotional relief by pointing to an identifiable enemy who is assumed to be the cause of all trouble. The book also sheds light on the ways in which populist leaders manipulate people’s psychological needs to gain political power, including the dissemination of conspiracy narratives and of other distorted information. Finally, the book mentions economic, cultural, and other structural factors that nurture populism, reinforcing the common thesis that the recent rise of populism around the world is supported mainly by traditionally privileged groups who fear that contemporary global phenomena such as economic integration, increased digitalization, and ideological liberalization leave them behind while empowering other groups.

In Track Changes, Sayed Kashua offers a different take on the psychology of collective identities. This is the fourth novel written by Kashua, whose usual protagonist is an Israeli Arab man torn between his Israeli and Arab identities. In this engaging novel, the protagonist, Saeed, has immigrated to the United States, and returns to Israel to meet his dying father with whom he hasn’t spoken for fourteen years. During this visit, Saeed, who works as a personal biographer of peoples’ life stories, reflects on the main events in his own life, of which he has never been the author. Alongside the intriguing plot, the thing that grips me most in this book is the unfiltered glance into the alienated existence of a man of multiple identities who feels like a stranger everywhere. Among his conflicting identities, the only thing he really cares about is his troubled relationships with the people he loves. Rather than showing any tendency to “tribalism” that could alleviate his identity crisis, he strives to eschew collective identities altogether. These identities, however, continue to haunt him, apparently dooming him to eternal grief.

Back to legal scholarship, Mark Taylor’s War Economies and International Law spotlights another major driving force behind violent conflicts and the social and psychological processes that enable them, namely, war economy. The book provides a systematic, well-needed analysis of the manners in which international law shapes the nexus of political violence and economic activity. Starting with a historical overview of the sporadic regulation of war economy by international law, Taylor describes how in recent years, international law has been making increasing efforts to constrain war economy, most notably by prohibiting and punishing various forms of exploitation of people and resources in war zones, and by disrupting global value chains which, on the one hand, integrate such activity into global flows, and, on the other hand, supply to warring parties people, raw materials, money, and weapons.  While acknowledging the contribution of these developments to undermining both the incentives for war and the ability to sustain it, Taylor also emphasizes the need to further consolidate the international legal regulation of war economy.