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Transitional Justice Accountability and Memorialisation: The Yemeni Children Affair and the Indian Residential Schools

Published online by Cambridge University Press:  11 February 2014

Ruth Amir
Ruth Amir*
Affiliation:
Senior Lecturer and Chair, Department of Multi-Disciplinary Social Sciences, Max Stern Yezreel Valley College (Israel); [email protected].
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Abstract

This article outlines the building blocks of transitional justice in democracies. Grounded in the premises of Historical Institutionalism, the article analyses the institutions and processes established and their effect on the outcomes. It offers a comparative analysis of two cases of transitional justice processes in democracies. These are the investigations of the disappearance of Yemeni children in Israel and the Indian Residential Schools Settlement in Canada. There are important similarities and differences between the two cases. In both settler societies the transgressions were part of aggressive assimilation policies directed at children in an attempt to wipe out the particular cultural influences of the children's family and community. In both cases, children were isolated from the influences of their ethnic group in order to be resocialised into the dominant culture. The dire consequences of both these were suppressed, denied and forgotten in official narratives. The different outcomes of these processes are explained by the differences in the intent to redress, the types of institution and the processes implemented.

Keywords

transitional justicecultural traumarenarrativisationreconciliation
Type
Articles
Information
Israel Law Review , Volume 47 , Issue 1 , March 2014 , pp. 3 - 26
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2014 

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26 UNGA Res 1(1946), 11 December 1946, UN Doc A/RES/96(I) (1946).

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29 Shafir and Peled noted that the most revealing case of Orientalist attitudes reflected towards immigrants from Asia, Africa and the Middle East was that of Yemeni Jews: see Shafir, Gershon and Peled, Yoav, Being Israeli: The Dynamics of Multiple Citizenship (Cambridge University Press 2002) 75–76CrossRefGoogle Scholar.

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32 Levitan, Dov, ‘The Immigration of Yemeni Jews to Israel: The Realization of a Dream or a Social Dilemma: The Case of the Missing Yemeni Children’ in Don-Yihya, Eliezer (ed), Between Tradition and Renewal: Studies in Judaism, Zionism and the State of Israel (Bar Ilan University Press 2005) 379–80 (in Hebrew)Google Scholar; Levitan, Dov, ‘Immigration of Yemeni Jews and their Absorption in Palestine during WWII’ (1994) 4 Thema 207, 207–26 (in Hebrew)Google Scholar. Levitan defines mass immigration as the organised 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 5,000 Yemeni Jews arrived in 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 also Zadok, Haim, From the Strait: Missives, Documents and Letters (Afikim 1989) (in Hebrew)Google Scholar.

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35 Ruppin, Arthur and Bein, Alex, Arthur Ruppin: Memoirs, Diaries, Letters (Weidenfeld and Nicolson 1971) 109Google Scholar.

36 Arthur Ruppin, My Life (Am Oved 1947) 27 (in Hebrew).

37 Yaakov Thon, director of Hachsharat Ha'Yishuv, Israel Land Development Company and Ruppin's deputy at the Palestine office of the Zionist organisation, shared this view. Thon claimed that it was doubtful whether Ashkenazi Jews were qualified to work in menial labour. See Meir (n 33) 43; Madmoni-Gerber (n 33) 26.

38 Gamlieli, Nissim Benjamin, Yemen and Camp Geula (Nissim Benjamin Gamlieli and Sons 1966) 142–43 (in Hebrew)Google Scholar.

39 Droyan (n 34) 102.

40 Nini, Yehuda, Yemen and Zion (The Zionist Library by the World Zionist Organization 1982) 229 (in Hebrew)Google Scholar.

41 Shafir and Peled (n 29) 75–76.

42 Gamlieli (n 38).

43 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 Press 2002) 68.Google Scholar

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45 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, which literally means ‘signs’. Historically, this was the main feature that differentiated them from Muslims in Yemen.

46 Yehuda Cohen and Yaakov Kedmi, ‘Report: State Commission of Inquiry in the Matter of the Disappearance of Children of Yemeni Immigrants between 1948–1954’, November 2001 (The Government Printer 2001) 38–39 (in Hebrew). Hundreds of infants were removed from their families – forcefully, if the parents objected – and were placed in infants' homes. In this the management of the immigrants' camps assumed full responsibility over these infants.

47 While about one third of the cases of missing children examined by the three Commissions (see below) belonged to other ethnicities, the disappearance of the children was almost exclusively a Yemeni ordeal. See 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’ (2002) 21 Theory and Criticism 47, 68–69 (in Hebrew)Google Scholar; Cohen and Kedmi, ibid 38, 51. Only Yemeni children were forcefully placed in infants' homes; babies from other ethnic groups disappeared from hospitals.

48 Temporary housing was provided by the state and its affiliated bodies. Thus, the conditions at the camp were under its responsibility. Moreover, the immigrants arrived from similar camps in Aden, where they lived for years under the same regime operated by Jewish organisations.

49 Ben-Gurion, David, ‘A Letter from David Ben-Gurion to Yigael Yadin’ in Rosenthal, Yemima and Shealtiel, Eli (eds), Commemorative Series of the Presidents of Israel and its Prime Ministers (The State Archives 1997) 169 (in Hebrew)Google Scholar. David Ben-Gurion wrote to IDF Chief of Staff, Yigael Yadin, about the efforts made by the Israeli Navy to take care of Yemeni immigrants at a temporary housing facility.

50 Zadok, Haim, The Load of Yemen 1946–1951: Five Countless Myriads (A'Ale Batamar 1985) 132 (in Hebrew)Google Scholar.

51 The numbers are estimated in Cohen and Kedmi (n 46) 22. The report notes that the number of cases in the reports (1,033 in Israel and 20 in Hashed, investigated by all three Commissions) does not reflect the actual number of missing children because there were no reported cases. See also Sangero (n 47) 47–48.

52 Amir (n 21) 99; Cohen and Kedmi (n 46).

53 The figures were between 1,500 and 5,000, according to Sangero (n 47) 62–64. Some Yemeni sources quote up to 10,000 children. Some accounts suggest that the children were trafficked in Israel and abroad. Testimonies suggested that children were sold to families abroad for $5,000, or given up for adoption to childless Ashkenazi families. There are uncorroborated allegations that the children were transferred to Christian missions or were subject to clandestine medical experiments. See, for example, Harris, Y, On the Claws of Eagles: The Whole Truth on the Magic Carpet Affair (Torat Avot 1988) (in Hebrew)Google Scholar; Schechtman, Joseph B, On the Wings of Eagles (T Yoseloff 1961) 433–35Google Scholar; Shalom Cohen, ‘A Baby for $5,000’, HaOlam Haze, 11 January 1967 (in Hebrew).

54 Fassin and Rechtman (n 1) 16.

55 Yosef Zuriel. ‘Twelve Mothers in Search of their Children’, Ma'ariv, 1 April 1966, 8 (in Hebrew); Baruch Meiri, ‘A Conference Held by Parents of Missing Children from “Magic Carpet”’, Ma'ariv, 22 August 1966, 8 (in Hebrew).

56 Meiri, ibid 8; Madmoni-Gerber (n 33) 70–77; Joseph Harif, ‘The Mystery of Yemeni Children – In Cabinet’, Ma'ariv, 14 October 1966, 10 ( in Hebrew).

57 Uziel was Representative of the 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 had chaired a sub-committee on the education of immigrant youth.

58 Knesset Members Parliamentary Activity, Baruch Uziel, Israeli Knesset, http://www.knesset.gov.il/mk/heb/mk.asp?mk_individual_id_t=551.

59 Joseph Bahaloul and Reuben Minkowski, ‘Report – Commission of Inquiry of the Finding Yemeni Children’ (The Government Printer 1968) 4.

60 The 13th Government, Israeli Knesset, Government of Israel, http://www.knesset.gov.il/govt/heb/GovtByNumber.asp?govt=13.

61 Harif (n 56).

62 Law on Inquiry Commissions, 1968 (Israel), s 1.

63 For example, for a government Commission of Inquiry, in accordance with the Law of Government, the composition, authorisation and charter are determined by the government. In contradistinction, once a government decides to form a state Commission of Inquiry, the judiciary takes charge of the process.

64 Bahaloul and Minkowski (n 59).

65 This can be considered to be an inter-ministerial commission of inquiry under the Commissions of Inquiry Law.

66 Moshe Shalgi, ‘Report of the Commission of Inquiry of the Disappearance of Yemeni Children (The Government Printer 1994) (in Hebrew).

67 Amir, Ruth, ‘Citizenship, Religion and Transnational Identities’ in Brickner, Rachel (ed), Migration, Globalization and the State (Palgrave 2013) 127, 140–41Google Scholar

68 The Cohen State Commission of Inquiry is known as the Cohen-Kedmi Commission. Justice Cohen resigned in February 1999 and was replaced by Justice Kedmi. A trigger for the establishment of the Commission was the Uzi Meshulam affair. Uzi Meshulam, a former school teacher, claimed 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 being persecuted because of his preoccupation with the Yemeni Babies Affair and demanded that a state commission of inquiry be formed to investigate the case of the missing Yemeni children. Meshulam and his followers entrenched themselves 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. On 10 May 1994, following negotiations, Meshulam was lured out of the compound to meet with the chief of police. Special police units seized this opportunity to break into the compound, killing one of his followers, and took eleven people into custody. Meshulam was arrested, tried and sentenced to imprisonment. See Amir (n 21) 112.

69 Cohen and Kedmi (n 46).

70 ibid 26.

71 In January 2013 the proceedings of the Cohen-Kedmi open hearings became available.

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73 Zaid, Shoshi, The Child is Gone: The Yemeni Children Affair (Gefen 2001) 101 (in Hebrew)Google Scholar. Madmoni-Gerber (n 33) 136.

74 Cohen and Kedmi (n 46).

75 See the allegations regarding the child-rearing practices of the parents in Zaid (n 73).

76 Sangero (n 47) 75.

77 ibid; Ehud Ein Gil, ‘Questions to Members of the Commission’, Ha'aretz, 7 December 2001, 60 (in Hebrew).

78 Sangero (n 47) 54–55.

79 ibid 48.

80 Cohen and Kedmi (n 46); Amir (n 21) 118–19.

81 ibid 119.

82 Throughout the reports of all three Commissions one can detect the Orientalist views about the Yemenis in the blaming of the victims' child-rearing practices, their naiveté, their naming convention and hygiene. Their testimonies on issues such as their child's sex, age or condition were often rejected as false: see ibid; Zaid (n 73) 45–47; Madmoni-Gerber (n 33) 131–34, 137; Sangero (n 47) 57–58.

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86 Denham (n 84).

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91 Indian Act, RSC 1985, c I-5.

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96 Law Commission of Canada (n 83) 5.

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99 Bill Curry and Karen Howlett, ‘Natives Died in Droves as Ottawa Ignored Warnings: Tuberculosis Took the Lives of Students for at least 40 Years’, Globe and Mail, 24 April 2007; Sproule-Jones, Megan, ‘Crusading for the Forgotten: Dr Peter Bryce, Public Health, and Prairie Native Residential Schools’ (1996) 13 Canadian Bulletin of Medical History 199, 204CrossRefGoogle ScholarPubMed.

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102 The Potlatch was one of the most important ceremonies for First Nations in Pacific Canada (and the US). This ceremony is a gift-giving festival in which a family holds a feast for its guests. Alongside its ceremonial role, Potlatch played a crucial role in the distribution of wealth in the community. Later, other practices such as the sun dance were also banned. The purposes behind these bans were to destroy Aboriginal practices and ceremonies but mostly to shift the Aboriginal Peoples from an economic system of redistribution to one of private property ownership. Section 141 of the Indian Act outlawed the hiring of lawyers and legal counsel by Indians. This ban was a reaction against the attempts by Aboriginal Peoples to organise and fight for their rights through the legal system. Eventually, any gathering of Aboriginal Peoples became strictly prohibited.

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105 This section was abolished by Bill C-21 in June 2008 by the House of Commons.

106 Sandra Lovelace v Canada, Communication No R.6/24, UN Doc Supp No 40 (A/36/40), 166 (1981).

107 See RSC 1985, c. I-5 (the amended Indian Act). Bill C-31 to Amend the Indian Act is still considered to be unconstitutional, as those who were reinstated according to the amended Indian Act can only pass their status to one generation. The ruling of the Appellate Court for British Columbia of April 2009, in the matter of Sharon McIvor v Canada, stated that this provision was inconsistent with Canada's Charter of Rights and Freedoms. The Court ruled that restricting inheritance of status to the children of women reinstated by Bill C-31 violates equality rights guaranteed in section 15 of the Charter of Rights and Freedoms: http://laws-lois.justice.gc.ca/PDF/I-5.pdf. See McIvor v Canada (Registrar of Indian and Northern Affairs) 2009 BCCA 153 (CanLII).

108 Law Commission (n 83) 1.

109 ibid 10.

110 The Charlottetown Accord was an attempt to resolve some long-standing disputes in Canadian politics surrounding the division of powers between federal and provincial jurisdiction. Its central component, the Canada Clause, granted recognition to the rights of the Aboriginal Peoples and their right to self-government, and was to be an interpretive section of the Constitution.

111 Royal Commission on Aboriginal Peoples (n 85) 360.

112 ibid.

113 Avigdor Klagsbald, State Investigative Commissions (Nevo 2001) 47 footnote 96 (in Hebrew).

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117 Law Commission of Canada (n 83) 2.

118 Minister of Indian and Northern Development, Gathering Strength: Canada's Aboriginal Action Plan, A Progress Report (Minister of Public Works and Government Services Canada 2000)Google Scholar, http://publications.gc.ca/collections/Collection/R32-192-2000E.pdf.

119 John DeMont and Bruce Wallace, ‘Ottawa Apologizes to Natives’, The Canadian Encyclopedia, 19 January 1998, http://www.thecanadianencyclopedia.com/articles/macleans/ottawa-apologizes-to-natives.

120 Larry Philip Fontaine and Others v Attorney General of Canada, Ontario Court File No 05-CV-294716 CP (16 August 2011), http://turtletalk.files.wordpress.com/2011/08/8-31-11-fontaine-v-canada-attorney-general1.pdf. Chief Phil Fontaine, Head of the Assembly of First Nations, is an Indian residential school survivor. He was the proposed representative of the Survivor and Aboriginal sub-classes.

121 Lisa L Patterson, ‘Aboriginal Roundtable to Kelowna Accord: Aboriginal Policy Negotiations 2004–2005’, 4 May 2006, http://www.parl.gc.ca/Content/LOP/researchpublications/prb0604-e.htm.

122 The Indian Residential Schools Settlement Agreement (IRSSA) was approved by the courts and came into effect on 19 September 2007, http://www.residentialschoolsettlement.ca.

123 According to Fraser, some collectivities, such as the exploited working class in capitalist economies, fall victim to injustices arising exclusively from capitalism: Fraser, Nancy, Justice Interruptus: Critical Reflections on the ‘Postsocialist’ Condition (Routledge 1997) 11Google Scholar.

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127 Prime Minister of Canada, Stephen Harper, ‘Prime Minister Harper Offers Full Apology on Behalf of Canadians for the Indian Residential School System’, 11 June 2008, http://www.pm.gc.ca/eng/media.asp?id=2149.

128 Llewellyn, Jennifer J, ‘Dealing with the Legacy of Native Residential School Abuse in Canada: Litigation, ADR and Restorative Justice’ (2002) 52 University of Toronto Law Journal 253, 272CrossRefGoogle Scholar.

129 United Nations Declaration on the Rights of Indigenous Peoples, Annexed to UNGA Res 61/295 (13 September 2007) A/RES/61/295.

130 Jung (n 115) 217, 218.

131 Logan, Tricia E, ‘Lost Generations: The Silent Métis of the Residential School System: Revised Interim Report’ in Chartrand, Larry N, Logan, Tricia E and Daniels, Judy D (eds), Metis History and Experience and Residential Schools in Canada (Aboriginal Healing Foundation 2006) 21–23Google Scholar.

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133 Sivumuapallianiq, National Inuit Residential Schools Healing Strategy: Journey Forward (Pauktuutit Inuit Women of Canada 2007) 8–9Google Scholar; Amagoalik, John, ‘Reconciliation or Conciliation? An Inuit Perspective’ in Castellano, Marlene Brant, Archibald, Linda and Degagne, Mike (eds), From Truth to Reconciliation: Transforming the Legacy of Residential Schools (Aboriginal Healing Foundation 2008) 91Google Scholar; see also Truth and Reconciliation Commission (n 125).

134 Murry Sinclair, ‘Proceedings of the Standing Senate Committee on Aboriginal Peoples Evidence’ in the Standing Committee on Aboriginal Peoples (tr), Parliament of Canada, Vol 10, 28 September 2010, http://www.parl.gc.ca/Content/SEN/Committee/403/abor/10ev-e.htm?Language=E&Parl=40&Ses=3&comm_id=1.

135 Lissak, Moshe, The Large-Scale Immigration of the 1950s: The Failure of the Melting Pot (Bialik Institute 1999) 73–74 (in Hebrew)Google Scholar.

136 The Israeli ‘melting pot’ ideology was abandoned with regard to immigrants from ‘Western’ countries (including the former Soviet Union) although it is still exercised in the absorption of Ethiopian immigrants. This ideology was associated with ‘total immersion’ assimilation policies such as sending adolescents to boarding schools in order to isolate them from their families and culture, and the changing of names into Hebrew names: Herzog, Esther, ‘The Role of Diseases in Constructing Bureaucratic Patronage over Ethiopian Immigrants in Israel’ (2010) Anthropology of the Middle East 71, 72–74Google Scholar; Amir (n 67) 132–35.

137 Cohen and Kedmi (n 46) 317–18.

138 According to Commissions of Inquiry Law, art 19A, investigative commissions are not required to issue recommendations in their report, but may certainly do so.

139 Jung (n 115) 219.

140 Teitel, Ruti G, ‘Transitional Justice Genealogy’ (2003) 16 Harvard Human Rights Journal 69, 94Google Scholar.

141 In Canada, the campaigns for transitional justice by Ukrainians, Chinese, Japanese and Italian Canadians; in Israel several simultaneous campaigns by Ethiopians, victims of tinea capitis irradiations, the Villagers of Iqrit and Bir'im, and Holocaust survivors.

142 Leebaw (n 24).