Interview Michael Sfard and Emily Schaeffer (Israeli human rights law office): Going to the abuser’s court, the human rights lawyer’s existential dilemma

Palestinians have a hard time enforcing their human rights in Israeli courts. Still it is in many cases the only option open to them to obtain some kind of justice facing large scale human rights violations. Israeli lawyers often serve as their legal counsel. Michael Sfard is one of the most famous Israeli human rights lawyers. His law office in Tel Aviv represents numerous Palestinian ànd Israeli victims of human rights violations. Considering the scale of these violations, Sfard is obviously a busy man. He has defended Palestinians whose cases where also taken on by Amnesty International and has prosecuted foreign companies involved in settlement building. Emily Schaeffer works as a lawyer in Sfard’s Office. We had a conversation with Sfard and Schaeffer about the failure of the Israeli legal system to protect human rights, the existential dilemma human rights lawyers in Israel are faced with and the subsequent but equally problematic quest for justice abroad.  

Michael Sfard’s name pops up whenever there is a high profile human rights case in Israel. He is the lawyer of the village of Bilin, a Palestinian village that has been involved in a legal battle against the wall and a settlement on its land for years now. Among other cases and projects, his office also represents two Israeli NGO’s in their legal projects: the Settlement Watch team of Peace Now and Yesh Din. Like no one else, Sfard and Schaeffer have seen the limits of their own domestic legal system to obtain justice for individual victims of human rights violations arising from the occupation of the Palestinian territories. In Israel, the legal path is also used as a political tool to fight the structural cause of these violations: the occupation.  

Schaeffer: Yesh Din was founded to use law as a tool to fight the Israeli occupation of the Palestinian territories. Our office takes on all the legal cases that come out of the organization’s projects, and advises on the direction of the projects. In its founding project, ”Law enforcement on settlers,” we track Palestinian complaints of violence, property damage and other criminal acts by Israeli settlers. We pressure the Israeli authorities to conduct proper investigations. In another project we aim to promote the accountability of Israeli security personnel – soldiers and border police – for their crimes against Palestinians and also human rights defenders. In the Land Project we file legal petitions against illegal outposts, settlements, and other structures built on private Palestinian land. Apart from our work for Yesh Din and Peace Now we take on a large variety of cases: cases against the wall, cases in defense of Palestinian and Israeli-Palestinian security prisoners and Israeli conscientious objectors, cases of foreign activists and journalists injured or killed by the Israeli army, cases against the responsibles of assassinations and targeted killings,… We also defend Mordechai Vanunu, the famous Israeli whistle blower on Israel’s nuclear program who was in prison and now under house arrest. If something interesting comes along that matches our values, we accept it.  

Your office also defends Shawan Jabarin, the director of the Palestinian human rights organization Al-Haq, whose case Amnesty has recently taken up.
Sfard: Shawan has been a target of the Israeli military since he got involved in human rights activism as a young man. Today he is the director of the internationally respected human rights organization Al-Haq. The state of Israel has been imposing a travel ban on Shawan since 2006. He cannot leave the West Bank to travel abroad to human rights conferences for his work, because he’s being accused of membership of a terrorist organization. We have been fighting in the Israeli High Court for a long time now, through procedures that are extremely problematic. The state is advancing secret evidence that is not known to me nor to Shawan and the High Court accepts it. Knowing Shawan as I do, I am convinced that he is one of Palestine’s most important human rights defenders. I believe that the ban is imposed on him explicitly because of his work as a human rights defender. We will keep on filing petitions until the travel ban will be lifted. At the same time we use every means possible to make his case widely known in the international arena, to pressure the state of Israel to do what every rule of law state would do: either bring him to court and produce evidence or lift the travel ban.

A lot of human rights cases in Israel pass through the Israeli High Court. This court obviously has some kind of relevance in the field of human rights. But as Shawan’s case shows, there are problems. What is the real importance of this court when it comes to the human rights violations of Palestinians?
Sfard: This is an issue I’m struggling with quite a lot: whether turning to the High Court is helping or hurting us. Research has shown that the High Court has been extremely conservative and has been upholding most of the abusive policies and practices of the Israeli army during the four decades of jurisprudence in occupation cases. The vast majority of cases filed by Palestinians were dismissed. Cases ruled in favor of Palestinians usually get much publicity, because they are so exceptional. It’s the Israeli human rights lawyers’ existential dilemma: should a human rights lawyer in a large scale rights abusing regime like the Israeli occupation turn to the abuser’s court, to get justice for the victims and by doing so legitimize the court itself?  

Then why do Palestinians and Israeli human rights lawyers keep turning to this court? 
Schaeffer: Because in many ways it remains one of the last beacons of hope to actually secure Palestinian human rights on an individual case by case basis. Our clients turn to us and hope, by going to this court, to at least get one piece of their land back, for instance. Even if the chance of succeeding is slim, there is very little for the petitioner to lose, in a tangible sense. For example: when the Israeli army has decided to uproot an olive grove, there is only a very small chance of securing a dismissal of that decision. Still, it’s a chance. 
Sfard: But by going to this court and securing limited successes, we pay a high price. Instead of getting a ruling of the court that clearly establishes the right not to have your olive grove intruded, the court proposes a settlement through negotiations between the army and the petitioner. It allows the army to take the ‘humane’ decision not to violate the petitioners rights as some kind of a humanitarian gesture. But human rights should be respected as rights, not as a humanitarian gesture. Instead of cementing the solidity of human rights, the Israeli High Court is transferring those rights into privileges. 
Schaeffer: For example, the High Court ruled that the route of the barrier in Bilin is illegal, but the new route it ordered was still on Bilin’s land, leaving the most fertile land on the ‘Israeli’ side’ and thereby ‘rubber stamping’ the occupation.

Aren’t you looking for justice under occupation, instead of getting rid of the occupation? 
Sfard: That’s the dilemma and that’s why we partner with NGO’s that use the legal path as a political advocacy tool against the occupation. But in allowing the Israeli High Court to take decisions like partially removing the barrier, we allow the Court to promote the image of Israel as a democratic rule-of-law state while at the same time upholding most of the army’s destructive and arbitrary policies in the occupied territories. I regularly meet diplomats and delegates from foreign countries. I know how the existence of the High Court is taken seriously by the international community. We are fuelling the best public relations tool the Israeli occupation has and that is the Israeli High Court.   
Schaeffer: As lawyers, the needs of our clients force us to do this. As you see, in Israel there is always a tension between what’s good for human rights overall versus what’s good for individual human rights of Palestinians. This concern plays every time we accept and strategize about a case.  

Is universal jurisdiction and legal accountability abroad for human rights violations in Israel and the occupied territories a solution to this domestic accountability puzzle?  
Schaeffer: Universal jurisdiction shouldn’t be a goal in itself. It’s a tool that we need when the domestic legal system cannot enforce laws properly and guarantee justice for all people under its jurisdiction. Then we have to turn to universal jurisdiction, as a last resort. There are issues that will never be justiciable before Israeli courts in the foreseeable future: the wall, settlements and other trademarks of the occupation including extrajudicial killings.  
Sfard: The question is when do we get to this red blinking light. When do we cross the line? From which point the atrocities become such that you are no longer able to enjoy the privilege of limiting your legal battle to the national system. For me, every morning, this is the question when I wake up: have we crossed the line or not? I have definitely crossed the mental barrier to engage in universal jurisdiction cases. Still, we have a long way to go for universal jurisdiction to be truly effective.  

What are the obstacles? 
Schaeffer: One of the reasons why strengthening universal jurisdiction is a slow process, is because it touches on a paradox in international relations: on the one hand governments want to preserve national sovereignty and on the other hand governments are encouraged to criticize each other on their human rights conduct and enforce universal principles on each other. Governments are reluctant to do that for all sorts of economic, political and military reasons. These interests have a much heavier weight on the international scene than law has. The only way we can change this is by going back to living in much smaller communities that are in much less contact with each other. In the global community the world has become, the interdependence of states is damaging possibilities of universal criminal justice.  

In 2004 the International Court of Justice established the obligation for states not to recognize the illegal situation arising from the building of the wall.
Schaeffer: It is difficult to hold states accountable in front of a court today. State responsibility is the kind of thing that should be taken on by NGO’s as a political advocacy project. This is why civil or criminal law suits against corporations and individual actors have proven so far to be a compelling and powerful tool. In Israel, one of the biggest fears of military officials is being sued personally, especially in another country. It limits their freedom of movement. When an Israeli military official can’t get off a plain in the UK, it influences his life in a meaningful way. For us, this is an accomplishment in itself. 

Many Israeli human rights organizations are afraid to promote universal jurisdiction, because that would make them lose legitimacy in Israeli society.
Sfard: This is a very important issue. Israeli organizations are very sensitive to losing credibility. That’s why engaging in criminal cases against army officers, is problematic. The Israeli army is considered holy in Israeli society. It fights terrorism and protects the security of Israel. Handing army officers over to foreign courts to be ‘hanged’, is seen as betrayal.  
Schaeffer: Israeli society is always very quick to be skeptical about external pressure. Part of the national ethos is that no one else in the world understands us. This is the Jewish collective ethos you grow up with. The constant mantra is that Israel is the only country whose existence is questioned and that everyone singles us out. Promoting and using universal jurisdiction runs the risk of encouraging this mentality, and could make constructive criticism of Israel fall on deaf ears. 

That leaves the corporate world as one of the most important frontiers of universal justice and enforcing human rights today? 
Sfard: I don’t rule out prosecuting Israeli army officers for war crimes. If war crimes are committed and an apartheid system is being deployed under our eyes, it is the moral duty of a citizen of the country responsible, to combat this, even if it means using external legal means. For now, my office is involved in civil universal jurisdiction cases against companies. I am lucky enough to represent the well known Palestinian village of Bilin in their law suit in Quebec against Canadian companies that are constructing infrastructure in the settlement of Modin Illit on the land of the village, a violation of international and Canadian law. It is a land mark case: for the first time ever a foreign private company is sued for investing in the settlements. We’ll win it, in the sense that we will get to the issues we want to uncover. It will serve as a deterrent for future corporations considering investment in the settlements. Universal jurisdiction is the only way out to combat settlement construction legally. The Israeli High Court admitted it does not have the power to rule on this matter, not because it judged that settlements are legal, but because it’s a political question. That’s why I feel a moral obligation to take the perpetrators to courts all over the world. Moreover, it’s not an internal affair, it’s an international affair. I wouldn’t be surprised if our next Bilin case would be in Spain, England or Belgium.  

How important is Amnesty International to your work?  
Schaeffer: We use the research and reports that Amnesty puts out. A lot of what’s happening in Israel and the occupied territories is not getting enough attention. Media, campaigning, information dissemination are all different ways to attack the problem. Amnesty is an essential player because it has the unique capacity to collect information from the ground and use it for advocacy around the world. Even though Amnesty’s recommendations are rarely implemented by the Israeli government, they do affect policy makers in Israel on some level.

Amnesty International often recommends Israel to investigate and prosecute perpetrators of human rights violations. Amnesty even recommends the Israeli army to internally investigate crimes by its soldiers. What do you think of these recommendations?  
Schaeffer: This is one area in which internal pressure might have an advantage over external pressure. Our law office is constantly tracking and pressuring investigations within the IDF. Amnesty’s recommendations are helpful to us, but perhaps Amnesty should consider turning to local NGO’s and lawyers for partnering on those issues. Having a complaint actually lodged via an Israeli legal team or organization could have a deeper impact. The Israeli army serves of course as the three branches of state power in the occupied territories: the judiciary, the legislative and the executive, as well as being the military. This complicates even our work.  

It must be a Sisyphean work. Where do you get your motivation from? 
Schaeffer: When I decided to follow this career path, a lot of my friends warned me. ‘Be ready to lose a lot of cases and don’t get your ego and pride involved in your work’ they said. The situation is often bleak, that’s true, but I just can’t not do this work. I can’t imagine giving up, throwing in the towel and going home. I get my pride and motivation not only from winning cases, but from the community I am working in and for. Our clients appreciate every effort we put into making their lives a little bit better. Colleagues come to me and say: ‘You lost but you did a fantastic job.’ Don’t forget there is a whole community in Israel and around the world that is motivated to keep going. In the office every day we are reminded that the road ahead is long but that it’s worth going it. And maybe one day all our efforts will have made some kind of a difference.

http://www.haaretz.com/hasen/spages/990429.html
http://www.guardian.co.uk/world/2002/may/19/1
http://www.peacenow.org.il/site/en/peace.asp?pi=370
http://www.yesh-din.org/site/index.php?page=law.enforcement&lang=en
http://www.yesh-din.org/site/index.php?page=criminal&lang=en
http://www.yesh-din.org/site/index.php?page=presscoverage&lang=en
http://www.pchrgaza.org/files/campaigns/english/almog/main.htmlhttp://www.pchrgaza.org/files/campaigns/english/almog/main.html