Justice, Justice Shall You Pursue (Deuteronomy 16:20)

The Hebrew University’s Minerva Center runs seminars, conferences and workshops to promote human rights * Sigall Horowitz, director of the Transitional Justice project, tells us about the latest conference * Tomer Haramati, a past participant in the transitional justice workshop, shares his unique experiences in Rwanda and Tanzania in a project run by the Minerva Center.

At the end of November 2012, the Minerva Center for Human Rights at the Hebrew University held a three-day conference on the subject of transitional justice, one of its areas of expertise. Sigall Horowitz, a doctorate student and teaching fellow in the faculty, is the director of the center’s Transitional Justice project and a research fellow in a project on effective international adjudication. Horowitz explains: “Transitional justice examines the legal approaches and the social non-legal approaches by which societies cope with past injustices in order to ensure a future of peace, democracy, the rule of law and respect for human lives.” The field relates to societies in transition from conflict or dictatorship that seek to move toward peace or democracy while addressing their past.

The conference examined the question as to how transitional justice is applied in a democracy, leads to democracy or encourages a return to democracy, and what tensions are encountered in these processes. Thirty experts from around the world attended the conference, including Dr. Tomer Brody, Dr. Guy Pessach and Professor Ruti Teitel ( a guest lecturer at the faculty this year). Among other issues, the conference discussed aspects of transitional justice in the Israeli context. In her lecture, Horowitz mentioned the official commission of inquiry to investigate the events of 2000 (the “Or Commission”) as an example of various mechanisms of transitional justice that have been applied in Israel.

“The Or Commission had individual objectives relating to personal liability, i.e. who attacked and why, but it also had broader social objectives, including recognition of the victims and the restitution of justice.” Horowitz explains that these broader objectives relate to the concept of transitional justice. The Minerva Center organizes numerous conferences in order to expose students to the issue and to expose the issue to the general public in Israel and the relevant international community. “This is an interdisciplinary field that also touches on international relations, political sciences and other disciplines,” Horowitz emphasizes. “People came from around the world to attend the conference, which was a serious and professional event.”
 

In addition to its impressive conferences, the Minerva Center also organizes seminars for the general public and workshops for faculty students. Each workshop focuses on a particular region of the world. Tomer Haramati, 28, a fourth-year law student, participated in a workshop two years ago on the subject of transitional justice in Rwanda. The workshop included 14 sessions and a ten-day tour of Rwanda and Tanzania. “On the academic level, the workshop exposed me to a fascinating new field. We aren’t used to thinking about law as a tool for promoting broad social values such as peace and reconciliation. You don’t really think about that as a law student, and this was something the appealed to me.”

The highpoint of the workshop was the tour, which included an examination of Rwanda as a case study. “Rwanda suffered an enormous disaster, and we were astonished by what they have achieved since,” Tomer relates. The civil war in Rwanda in 1994 included mass genocide that killed hundreds of thousands of people. “The situation in Rwanda is extreme, and accordingly the solutions are very broad based. The mechanisms of transitional justice have led people who murdered their neighbors to stand before their victims’ relatives,” Tomer adds. 

 

The “Gacaca” Courts – Social Healing

One of the main examples of a mechanism for transitional justice is the gacaca, a community court used to try defendants accused of genocide. The Rwandans took the brave but controversial decision that any person who played an active role in genocide was to be brought for trial. “This is a very extreme example of individual liability,” Tomer explains. “The result was that in a relatively small country with some 11 million inhabitants, hundreds of thousands of people had to be put on trial. It sounds impossible, but they managed to achieve it by the sophisticated use of community courts.” Tomer describes a situation whereby the entire village sits on the grass listening to evidence, hears the victim and the assailants, and reaches its verdict. People from different ethnic groups cooperated in a project that included the entire community. “Apart from the fact that this is an effective way to prosecute a large number of individuals, it also led to a kind of social healing. The prosecution did not come from above, from an international tribunal, but from the community itself,” Tomer emphasizes. This type of process can have far-reaching individual consequences. A person who was a victim is asked to forgive another person who murdered his family, or to live alongside him in the same village. This is obviously a demanding process: “It asks a lot of a society and of its individual members. We were astonished by the full complexity of this process,” Tomer recalls. This type of process inevitably creates tension between the international tribunal and the means of adjudication implemented in Rwanda: “

There are advantages in a situation where an international tribunal prosecutes some defendants, but the difficulty relates to the broader processes they are trying to promote,” Tomer notes. “If the ultimate goal is to bring society to a better place, then the judging need not necessarily be undertaken by an international tribunal.” During the tour, the group also visited the international tribunal in Tanzania. “It was very interesting to see how the tribunal workers and to see the representatives of the international community meeting to rule on cases,” Tomer notes. “This conveys a clear message, not only that the person has done something wrong, but that the international community has come in to declare that their actions are unacceptable.” Tomer heard the closing speech in one trial that had lasted for 11 years. “The man was a member of the ruling party that committed genocide and one of the main offenders responsible for the murder,” he emphasizes. “He made a closing speech on the subject of peace and reconciliation, which created a very strange situation for the Rwandans who had come to the trial and had seen the man’s earlier actions.”

The TIJ Mechanism – Rehabilitative Punishment

Some 20 years after the genocide, most of the offenders have been prosecuted and some are serving prison sentences. Tomer continues: “Another amazing thing we saw was punishment for the purpose of rehabilitation.” The Rwandans soon reached the conclusion that it was pointless imprisoning all the offenders, which would also have been impossibly expensive. “So they reached an arrangement where, instead of spending time in prison, people could be placed in other programs, provided they admitted their guilt. This was another mechanisms designed to encourage recognition of the crimes within society.” One of these rehabilitation frameworks is TIJ, which involves community service such as building roads and schools. “Our meeting with a TIJ group was one of the most meaningful experiences during the tour,” Tomer relates. The students met the group after they had already visited the areas affected by the genocide. “We came to the meeting with the TIJ group in a very charged emotional state. We were shattered by what we saw – simple, ordinary people. You look at them and don’t know what to feel – hatred or pity.” Tomer’s impression was that “they don’t even know why they did it. They don’t look like the sort of people you would imagine would commit premeditated murder. They look haunted.”

Tomer describes intense emotions that cannot be encountered in a classroom. “The direct personal contact makes you realize how complex these situations are. We tend to focus on the victims, but in the final analysis there is society as a whole, and the people who took part in the genocide are also part of society.” 

How do you move on from that kind of experience?

“I think we came out of it overwhelmed. The question now is what to do and how to do it. As complex as the situation is in Rwanda, at least we could see that something is working there. Twenty years ago no-one thought the country had a chance of recovery. What happened there was one of the worst crimes in history, but despite all the problems you can see that the country is functioning. Rwanda has one of the leading economies in Africa, the majority of its members of parliament are women, and it is at a very advanced stage of the process of reconciliation. People who underwent terrible abuses declare that they want to move forward – even if they don’t want to forgive, they realize that they have to. Even if they don’t want to see someone who committed crimes, there is no alternative. They accept it, even though it demands a very high personal price.” For Tomer, the tour was a profoundly personal experience. “They invested a lot of resources in this tour and it gives you a great deal on the personal level. I hope I will be able to apply this in the positions I fill in the future.” 

Researchers in the Field / Adam Hofri-Winogradow

Many researchers compete for the prestigious grants awarded by the Israel Science Foundation (ISF). The ISF is the main state body responsible for supporting academic research in Israel. The competition is based on criteria of scientific excellence and includes diverse research fields. Dr. Adam Hofri-Winogradow, a senior faculty member, is one of the lucky few who have received a substantial grant from the ISF.

In 2009, Hofri-Winogradow requested funding from the ISF for a study examining the use of trusts in Mandate Palestine and the State of Israel. The research project was focused on legal history, with economic history angles. “In 2010, I received a substantial four-year grant of over NIS 400,000. To the best of my knowledge, this was the largest grant the ISF had, to that time, awarded a legal scholar,” Hofri-Winogradow recalls. Legal scholars who manage to secure ISF grants usually receive smaller sums than members of other academic faculties. Needless to say, the grant is not a personal gift to the scholar; it is used to cover various costs, such as research assistants' salaries.

We asked Hofri-Winogradow whether the State of Israel should be investing NIS 400,000 in legal research. “In some legal fields,” he replied, “such as freedom of expression and other aspects of constitutional law, the quantity of research is enormous.

However, in some other fields, fields that attorneys and accountants encounter in their daily work, there is hardly any research.” To date, trust law has barely featured in legal studies and research in Israel. “I searched high and low for material, and discovered that the field has been badly neglected in the past. When Israeli  university faculties and non-university law schools provide trusts courses, they are usually given by external lecturers rather than faculty members,” Hofri-Winogradow explains. While trusts practice is varied and increasing, the discipline has rarely been engaged by academics. 

We asked Dr. Hofri-Winogradow to tell us a little more about the contents of his research project. The project is divided into several articles, some of which have already been published (e.g., in the Law and History Review) while others are due to appear (e.g., in Law and Social Inquiry).

One part of Hofri's research project examines the uses to which Zionist settlers in Mandate Palestine put private trusts. Hofri-Winogradow has discovered that “during the British Mandate, the Supreme Court ruled that private trusts were not then a part of the law of Palestine. Yet Zionist settlers were then making extensive use of trusts, including private trusts.” Even more interestingly,  settlers used trusts to transfer the assets of Germany's persecuted Jews to Mandate Palestine. Hofri-Winogradow explains: “Until the outbreak of the Second World War, Jews could leave Germany but were forced to leave their money and assets behind. Besides the quota system, the British only allowed people to immigrate to Palestine who had a minimum sum of money, which was gradually increased. Accordingly, a Catch 22 situation developed that made it very difficult for Jews to leave Nazi Germany.” The World Zionist Organization created a complex legal structure based on the trust model, thereby enabling some 52,000 Jews to immigrate to Mandate Palestine and bring a large proportion of their assets along.

Another part of Hofri's research project presents a legislative history of the Trusts Act of 1979. “I wanted to expose how our Trusts Act acquired its unprecedented features,” Hofri-Winogradow explains. It emerges that the drafting process took no less than 14 years. The unusual solution incorporated in the Act reflected  Israeli practice more than the orthodox conceptual foundations of the trust, as developed in English or American law. “The Israeli Act is highly unusual, and is, surprisingly, similar to the 2001 Trust Act  [信托法, Xintuo Fa] of the People’s Republic of China,” says Hofri-Winogradow.

The third and final part of Hofri's project is not a piece of legal history. It examines the construction of Israel's trusts taxation regime, added to the Income Tax Ordinance in 2005. “Until 2005, the subject was not fully regulated in Israel,” Hofri-Winogradow recalls. “Many legal experts and professionals reached a conclusion that  irrevocable trusts were tax-exempt, so long as they were not dedicated for unmarried beneficiaries aged 20 or less. Such trusts were therefore  a loophole in the Israeli tax system.” The use of such trusts was one mechanism facilitating Israel’s transition from a poor, socialist society to a richer, less egalitarian one. “When the Tax Authority finally began to formulate a trusts taxation regime in 2002, two attorneys and an accountant who were active in exploiting this loophole joined the Authority’s representatives to work on a legislative regime  closing it down.” Hofri-Winogradow continues: “How did it transpire that private professionals who had profited from a situation where there was no taxation acted in a manner that was contrary to the interests of some of their clients?” He argues that the state needed professionals capable of cracking the tough nut of trusts taxation. “The Tax Authority managed to encourage three professionals to distinguish between their clients’ interests and their own, and to help develop a complex new regime which itself created plenty of work for lawyers and accountants.”

According to Hofri-Winogradow, trust law has so far largely remained “under the academic radar” in Israel. His study is unique in dealing with both the mid-20th-Century realization of Zionism and the current hot-button issue  of Israel's increasingly inegalitarian society. Trusts were and are central to both processes. “The trust is one of the main tools used by High Net Worth Individuals in order to retain and increase their worth,” he concludes.

The American Media and the US Supreme Court – An Inside Look / Interview with Dahlia Lithwick

Dahlia Lithwick, an American journalist who covers the US Supreme Court for Slate magazine, will be teaching a course this year at the faculty. The course examines the attitude of the American media toward the Supreme Court – an attitude Lithwick describes as “a case of Stockholm Syndrome.” 

Every year the Law Faculty at the Hebrew University invites several guest lecturers from overseas to teach courses for the students on selected subjects. The guests come from diverse fields of law and include judges and academics. One of this year’s guest lecturers is the journalist Dahlia Lithwick, senior editor with the well-known online magazine Slate. Lithwick, who was the first internet journalist to cover the US Supreme Court, will teach a course on the special relationship between the court and the staff of journalists that report on it.

What is unique about the journalistic reporting in the United States?

“The American press is biased in favor of the Supreme Court and the myth the court seeks to project.”

What do you mean?

“The myth of the justices as apolitical beings – as if when they put on their black gowns they no longer have an ideology or agenda and merely decide according to the law.”

Dahlia mentions in particular the confirmation hearings of justices in the US Supreme Court, events she describes as a “week-long media circus.”

What is the origin of this attitude?

“Americans are very romantic, particularly when it comes to the Supreme Court,” she explains. “It’s a kind of secular religion. Even the Supreme Court building has the architectural appearance of a church or Greek temple. I think Israelis would laugh if they saw it.”

Is this image a good thing or a bad thing?

“Both. It’s good because it strengthens the independence of the judiciary. But at the same time it is unrealistic to imagine that judges do not have their own ideology. We need to be critical and to recognize that the court has a strong influence, precisely because of its romantic perception as a symbol.”

How does the American press shape this image?

“It protects the myth,” Dahlia claims. “You have to understand that we are talking about a relatively small group of journalists, on the one hand, but one that is extremely focused. There are no more than 40 or so journalists who report on the Supreme Court, and most of them have been doing it for decades.”

You are yourself part of the staff of journalists that reports on the Supreme Court. How do you assess the working process from the inside?

“Remember that the Supreme Court in the United States is very different from what you are familiar with in Israel. It processes about 70 cases a year, and it is only active for few months a year. You might think that we have a lot of spare time on our hands, but we make up for it by preparing in-depth reports. In order to report properly on the Supreme Court, I really think it is important to read all the material, all the decisions and rulings on any given subject.”

How would you characterize the journalists’ attitude toward the court?

“I’d describe it as a case of ‘Stockholm Syndrome.’ They are trapped in the myth. There is a kind of gentlemen’s agreement that the journalist is committed to protecting the Supreme Court’s legitimacy and image.”

How is this approach manifested?

“One way is the selection of subjects to be covered. The journalists report on the Supreme Court as if the law itself is a living entity. The judges do not form part of the reporting. There is a kind of silent agreement that any report about the judges as individuals is considered gossip rather than real journalism.”

Female Judging and Male Judging

At the same time as teaching the course on the attitude of the media toward the US Supreme Court, Lithwick is also writing a book examining the attitude of the American public toward the women Supreme Court justices. “Israelis may take this for granted, for the situation is different with Americans,” she suggests.”Today, there are three women justices, and in the court’s entire history there have been just four. This subject is the focus of lively debate among the American public.”

What specific question are you exploring?

“The question is whether women judge in a different way from men. This question arose in the past when Justice O’Connor was the first female justice on the Supreme Court. Academics discussed the question whether female judging would be different. But then Justice Ginsburg was appointed, and it emerged that she did not agree with Justice O’Connor on anything.”

Is this line of discourse still being pursued?

“Sure. When they asked President Obama for his opinion of the Supreme Court, he argued that the court lacks empathy. Many people connected this comment with femininity, and it’s true that Obama has appointed two female justices, Sonia Sotomayor and Elena Kagan.”

Basically this brings us back to the question as to whether justices have an agenda.

“Right. Until now, Americans have not tended to examine the justices’ background too closely – whether Catholic justices make different decisions than their Protestant or Jewish peers. But clearly it has an impact. Justice Ginsburg is due to retire, and people have asked whether it is important that her replacement also be a woman, which brings us back to the concept of female judging. I am examining whether and how women judge differently, and whether this is a good thing.”

Lithwick was born and raised in Canada but later moved to the United States, studying at Yale and Stanford before beginning work in a law firm specializing in divorce law. “I found the work very unpleasant,” she recalls, “and eventually I quit. I remained jobless for a brief time until I happened to be in Washington DC while the Supreme Court was hearing the Microsoft antitrust case. Slate magazine asked me to cover the case, and later I became a regular reporter. I’ve been covering the Supreme Court for 13 years now.”

What made you decide to teach the course?

“This isn’t my first position as a teacher. I have already taught similar versions of my courses at University of Georgia and University of Virginia. I like teaching. Students have an ambivalent attitude toward the court and its ethos. They know that it’s unrealistic to expect judges to be completely neutral, but they would still like to believe that this is the case.”

Why did you come to Israel?

“For several reasons. Firstly, I have two children aged 7 and 9 and I wanted them to spend a year in Israel. My parents are also here, so they get to spend a year with their grandchildren. Another reason is because of my book – I knew that if I stayed in America I wouldn’t get any writing done.”

What about the course?

“Professor David Enoch heard that I was planning to spend the year in Israel and invited me to teach the course. I was really pleased, because I knew that otherwise I would just spend the whole day at home working on my book, and I’d slowly lose my mind.”