The Wall and the Gate

The legal fight for human rights for Palestinians living under the occupation  JFJFP signatory David Sperlinger reviews Michael Sfard’s new book, (Metropolitan books, 2018, 509 pp.)

Michael Sfard is a leading Israeli human rights lawyer, who has been involved in many of the key legal battles fighting for Palestinians’ legal rights in the face of the Occupation. This impressive book combines a history of some of those battles that have taken place over the last 50 years, along with his descriptions of some of the cases that he has personally been directly involved in. The main sections of the book focus on the litigation relating to five main areas: the deportation of Palestinians from their homeland to other countries (in effect making them stateless refugees); the creation of the settlements on occupied land; the use of torture against Palestinian prisoners; the building of the separation barrier (‘the Wall’); and the development of ”unauthorized” outposts (which has often led to the development of permanent settlements).

From the outset, Sfard makes clear that his work as a lawyer on these cases is underpinned by his uncompromising opposition to the Occupation:

The longer it goes on, the more our rule over the occupied resembles the regimes our parents (…) fought to defeat. This is our current national project: Our army controls the lives of the occupied, who need its permissions and the permits it issues for every daily action. Our soldiers protect, and often help, thieves from among our people who invade the territory we have captured and, at gunpoint, do as they please. Our jurists design a two-tiered legal system: one (modern, generous, respectful) for our brethren living in occupied land, and another (military, cruel, brutal) for their neighbors, the people we occupy.

The book evokes two rather contradictory responses. On the one hand, as well as giving graphic accounts of some of the human rights abuses daily suffered by the Palestinians, the book provides a concrete and depressing picture of the failure of the higher courts generally to protect those rights. Sfard detailed accounts of individual cases make clear the extraordinary lengths the courts have gone to avoid making decisions that would be in line with international human rights laws, especially when those decisions would be highly politically contentious and are presented and perceived to affect “security” matters. These strategies include postponing hearings and putting off making decisions (often for years) and finding ways to decide that the matters involved are not within in the courts’ powers to address.

On the other hand, it is inspiring to read, in spite of these obstacles, of the brave and dogged commitment to continuing the legal fight for human rights which is being shown by so many Israeli and Palestinian lawyers and civil rights groups. This commitment does result, eventually, in some victories in individual cases and some slowing down in the remorseless oppression of the Occupation, although Sfard also recognises the myriad ways that the Israeli state often, in practice, avoids implementing the decisions in many of these cases (including simply not doing what it is legally required to do).

In one of his concluding chapters, Sfard outlines some of the ethical dilemmas for lawyers working on human rights in Israel and attempts to draw up a realistic balance sheet of the impact of all this legal activity on the fight against the Occupation. He looks at this evaluation in terms of three layers: providing a remedy for the client; challenging a policy; and regime change – that is the impact on the Occupation’s shelf life and durability. This is a very nuanced account (that it is not possible to briefly summarise in this review) that recognizes that “victories” in individual cases, may actually have long-term negative impacts that mean that they should be seen as “failures” in terms of halting the Occupation. (On the other hand, he also recognises that a few of the “defeats” in individual cases may actually be “successes”, in terms of mitigating some aspect of the Occupation, when seen from a longer-term perspective. For example, in relation to deportation, where, despite all the legal defeats, the succession of legal cases, along with other forms of struggle, raised the political cost of deportation and ultimately the campaign ended in success.) He is also well aware that one of the costs of litigating in these cases is that they can provide legitimacy to the practices of the regime and his overall conclusions are typically measured and honest:

Litigation can help a public movement, providing tools and information. It can also compel the authorities to make a decision or take a position. But it is not the main tool for change: it cannot replace a public movement and is rarely able to effect clear social change without one. (…) Even if the wall we face seems impenetrable, our scraping at it might make a dent. Tipping the scales in legal battle for human right is sometime accomplished by adding small weights over time – we will see no change until the final weight shifts the balance. (…) It seems clear that the litigation against human rights violations of the occupation did produce some positive outcomes over the years: a few victories, more successes and many clients who received remedy. (…) But the question remains: How much damage has been done by the legitimacy lent to policies upheld by the court and to the occupation regime itself?

I was initially daunted by the detail that the book goes into at times about the individual cases and the Israeli and international legislation to which they relate. But such is the clarity of the Sfard’s writing and the importance of the issues being addressed, that I ended up being gripped by the book’s lively account of the numerous legal battles. This is an important and, ultimately, moving book that provides a fascinating insight into one significant aspect of the struggle for justice for the Palestinians living under the Occupation.

Other books about Israel/Palestine can be found in the list of books on Israel/Palestine in the Resources section

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