Human Rights Lawyers — A Stalwart Breed

HUMAN RIGHTS LAWYERS are a stalwart breed, commonly driven by a visceral need to pursue justice. They do not typically represent the well-heeled; they stand for the disenfranchised and those without a voice. Assaults and threats — even death threats — can be an occupational hazard. In polarized environments, one who defends the underdog may be called an “enemy sympathizer” or “traitor,” such as the Serb representing the Kosovo Albanian, the African American lawyer protecting Ku Klux Klan rights to assemble, or the Jewish lawyer defending Palestinian rights.

In The Wall and the Gate: Israel, Palestine, and the Legal Battle for Human Rights, Michael Sfard is that Jewish lawyer. An Israeli human rights advocate, Sfard has a unique vantage point from which to chronicle the legal battle against Israel’s occupation of the Palestinian Territories. [1]

He presents a compelling, and often moving, account of the long-term efforts to dismantle Israel’s policies toward the Palestinian “residents” living within the occupied territories, tracking political, legislative, and judicial developments to the British Mandate and leading them through present-day Israel. Sfard does not shy away from his disdain for Israeli actions, referring to the continued occupation of the Palestinian Territories as “humiliating, brutal and cruel” for Palestinians who find themselves in the path of Israel’s expansionist policies. Sfard argues that Israel has violated international law in its draconian treatment of the Palestinians under its control for the past 50 years. The international community has, almost unanimously, called for an end to these violations, but to Sfard these pleas have fallen mostly on deaf ears.

At the core of his book is the ­­­­unremitting tension between political provocations and the principle of international humanitarian law. I admit my own bias in the primacy of international law. I tend to lionize its underlying principles and applaud its universality, particularly when assessing international humanitarian law, the cornerstones of which are the 1949 Geneva Conventions. The Conventions establish the absolute minimum legal standards that states must abide by. Many of the provisions are part of “compelling law” (jus cogens) that make them inviolable with no derogation permitted. And yet states do derogate. This is the ultimate struggle central to Sfard’s book: the battle for legitimacy between the Israeli government and the human rights advocates, like Sfard, who challenge particular policies carried out by that government.

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Sfard’s frustration with the Israeli judicial system resonates throughout the book. He recounts in a vivid narrative how human rights lawyers march into battle armed with clearly defined international law, only to be met by evasive decisions and even ridicule from Israel’s highest court. In one of the more chilling revelations of the book, the deputy president of the Supreme Court stated in a decision that the human rights lawyers “sympathize[d] with the enemies of the country who seek its destruction.”

Where international law clearly dictates that the rights of the Palestinians should prevail, the High Court of Justice [2] is only willing to offer perfunctory, de minimis, consolation prizes. For Sfard, this injustice leads to a fascinating and personal examination of the ethical and moral dilemma faced by human rights lawyers in Israel. By protesting Israeli violations of Palestinian human rights in an Israeli court, Sfard gives the appearance of legitimacy to a system he sees as clearly illegal and one that helps perpetuate the same injustice he fights. But if he refuses to take the case of Palestinian clients, Sfard is leaving innocent victims without representation. While he has found satisfaction with his own belief that success doesn’t necessarily require victory in court, the reader is left feeling uneasy — and rightly so. There seems to be no solution in sight.

Sfard focuses on several crucial court battles over acts such as extrajudicial killings, administrative detentions, illegal outposts, and torture. But there are four types of rights infringement that particularly resonate with me, perhaps because I have witnessed their consequences firsthand in my visits to the region. They are: (1) the wall, (2) Israel’s deportation of Palestinians from the West Bank, (3) Israeli settlements in the West Bank, and (4) the demolition of Palestinian homes.

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The wall [3] that winds through the West Bank is a stark reminder of the volatility of the region. It bars Palestinians from traveling to sections of their own territory. Palestinian farmers have been cut off from their crops and villages. The Israeli Defence Force prevents Palestinian passage into the “seam” zone, the area of Palestinian territory on the Israeli side of the wall, without a permit, while Israeli citizens and tourists can enter and exit as they wish.

Although the International Court of Justice has found the wall in violation of Israel’s obligations under international law, the Israeli High Court has stood its ground, time and time again, and accepted the argument that security risks justify the government’s actions. The Court has refused to examine the legality of the wall in its entirety, instead hearing cases on individual wall sections. However, there have been individual cases that, while underwhelming to Sfard, are, nevertheless, steps in the right direction. The High Court has, on a number of occasions, recognized the harm the wall has inflicted on Palestinians and ruled that the security benefit received must be proportional to the harm caused. The result has been court rulings that require specific sections of the wall to be moved to a less harmful location. Of course, the courts have always upheld the overall legality of the wall. This is Sfard’s frustration. He calls it Israel’s “apartheid.”

A similar position has been taken by the High Court on the effective deportation of Palestinian communities, leaving them stranded in foreign states without citizenship or residency. The Court provided human rights lawyers some small victories by finding that that the Israeli Defence Force [4] had to give Palestinians a hearing before their deportation in most situations, stopping the practice of detention followed by immediate deportation. But like the other major international pronouncements, the High Court ruled against international law and found the general policy of forced deportation legal, shockingly stating that the fourth Geneva Convention that forbids the deportation of civilian populations from occupied territory did not apply.

International law also played a role in Israel’s long-standing and, to date, irrevocable policy of permitting officially approved settlements in the occupied territory, often taking Palestinian land for the benefit of its own citizens. Again, human rights lawyers were able to claim small victories. For instance, the High Court required that the taking of private Palestinian land be justified by an actual security need.

However, when it came to interpreting international law within the context of Israeli actions, the High Court once again summarily dismissed any connection. It ruled that the Geneva Conventions’ prohibition on the transfer of the occupying powers’ population into the occupied territory was not enforceable in domestic courts and that the Hague Convention’s prohibition on the confiscation of private property could not be addressed. [5] Sfard finds this position particularly offensive because of the international community’s condemnation of the settlements. It would be a challenge to find any government in the world that holds the position that the settlements are legal. Likewise, not a single international body would dispute that they constitute a violation of international law. The UN Human Rights Council, the UN General Assembly, and the UN Special Rapporteur on human rights in the occupied Palestinian territories have all found that the settlements, like deportations, are flagrant and prima facie violations of the Fourth Geneva Convention. Most damaging to Israel was the 2016 UN Security Council Resolution (Res. 2334) that forcefully condemned Israeli settlement activities and called for the immediate cessation of all future settlements.

Lastly, Sfard delves into the Israeli government’s use of punitive house demolitions as a form of deterrent to dissuade Palestinians from committing violent acts against Israelis. This policy has been in place since the occupation began in 1967. The family homes of alleged offenders (terrorists in the eyes of the Israeli government) are destroyed or sealed, often before any judicial proceeding, leaving families on the street. Unchanging regulations permit the destruction of neighboring houses, entire streets, and whole neighborhoods, even if the occupants played no direct role in the illegal act. Not surprising, this type of collective punishment causes immeasurable harm and deepens the alienation between Israelis and Palestinians.

Once again, the High Court dismissed the argument that this punitive house demolition policy violated the prohibition against collective punishment articulated in the Geneva Conventions. The Court stated that since the demolition regulation predated the occupation, it applies, even if in violation of the Fourth Geneva Convention. [6] But as with the other occupation policy measures, the High Court has made decisions to incrementally limit the use of demolitions, such as requiring the Israeli military to consider partial demolition. The High Court also tends to rely on a more formal reasoning to revoke demolition orders, such as insufficient evidence against the alleged wrongdoer or that the punishment is disproportionate to the crimes committed. Unlike the other court decisions on occupation policies, however, Sfard sees “winds of change” when it comes to the demolitions. It is the only time in the book that he seems to see a real shift in the way the High Court addresses occupation policy. High Court rulings in demolition or sealing cases shifted dramatically in 2015 and 2016 when the Court revoked seven orders in one year, “something that had not happened in the preceding thirty-six years of house demolition hearings.” But such success comes with consequences.

In what appears to be a response to the increasing number of judicial decisions at odds with current government policy in the West Bank, a recent bill, through the Knesset, would remove the High Court’s jurisdiction to hear a variety of petitions from Palestinians in the West Bank, in the first instance. This type of perceived judicial “gerrymandering” is not unheard of in democratic countries. For example, President Franklin Roosevelt attempted, and failed, to add six additional justices to the US Supreme Court in response to the court’s invalidation of a number of his New Deal initiatives. However, such actions fundamentally undermine the principle of the rule of law.

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So where do we go from here? It seems unlikely that legal condemnation for the practices outlined in the book will result in any real change. The pendulum has swung, apparently irreversibly, to the side of the Israeli government and the military. The international community will undoubtedly continue to speak out, demanding adherence to international law, but its impact is likely to be negligible. New legal arsenals have emerged. The International Criminal Court (ICC) has opened an examination into alleged crimes committed in the West Bank and the Gaza Strip. [7] However, due to the methodical and often plodding nature of ICC proceedings, not to mention Israel’s hostility toward the Court, the current reality in the region is not likely to change.

Israel has also been reinvigorated by new support from an old ally — the United States. The election of Donald Trump reverses eight years of US foreign policy under an Obama administration that Israel saw as hostile and ruinous. Israel will now have free rein to pursue its policies, without fear of retribution from the United Sates.

Remarkably, Sfard remains optimistic. He believes the occupation, although impregnable now, will eventually end and Israel’s liberal and democratic nature will emerge victorious over its growing nationalistic tendencies. This idealism only makes sense when you remember who is speaking. It’s the human rights lawyer. The one who, against all odds, fights the powerful to uphold the principle of equality for all people before the law.

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Dr. Mark Ellis is executive director of the International Bar Association, London, England.

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[1] The UN General Assembly granted Palestine the status of non-member observer state in 2012. However, the statehood of Palestine is not universally recognized. The term Occupied Palestinian Territory is still widely used to describe the area, even by the Permanent Observer Mission of The State of Palestine to the United Nations.

[2] In the Israeli legal system, the High Court of Justice (or High Court) is essentially the same as the Supreme Court. The Israeli Supreme Court sits as the High Court of Justice when exercising judicial review over the other branches of government or dealing with matters that do not fall under the jurisdiction of any other court. The High Court acts as a trial court rather than an appeals court.

[3] I am using the term “wall” because the United Nations General Assembly chose that term to refer to the Israeli construction in a resolution calling for its destruction. The International Court of Justice chose to adopt this usage in its advisory opinion as opposed to “fence” or “barrier.”

[4] It is important to note that those military commanders wield legislative authority in the occupied territories. The orders they issue constitute primary and secondary legislation. They also serve as the head of the executive branch in the occupied territories; they can establish military courts with jurisdiction over security matters.

[5] The High Court’s decisions, at times, have affirmed the applicability of what Israel calls the “humanitarian provisions” of the 1949 Fourth Geneva Convention and 1907 Hague Regulations that codify the law of occupation. But the rulings have not rejected the government’s claim that the 1949 Fourth Geneva Convention does not apply de jure or en bloc. This arbitrary standard on what to include in the “humanitarian provisions” category gives unrestricted discretion to Israel to reject, for instance, the provision in Article 49(6) of the Fourth Geneva Convention prohibiting the transfer of civilians of the occupying state into occupied territory.

[6] In its judgment on the legality of this practice in 1979 (HCJ 434/79 Nuzhat Taher Ahmad Sahweil v. Commander of the Area, IsrSC 34(1): 464 (1979), the Court claimed that the laws of occupation would require the occupier to respect the laws in force prior to the occupation. The case is cited to in a series of decisions used to uphold the commander’s ability to issue demolition and sealing orders and which affirm that there is no conflict with international law.

[7] Palestine lodged a declaration granting the ICC jurisdiction over crimes committed in the occupied Palestinian territory and acceded to the Rome Statute of the International Criminal Court in January 2015.