On January 31, 2018, the WCL Center for Human Rights and Humanitarian Law and the International Human Rights Law Clinic, in partnership with the New Israel Fund, the Foundation for Middle East Peace, and Americans for Peace Now, held a discussion with author Michael Sfard about his new book, “The Wall and the Gate: Israel, Palestine, and the Legal Battle for Human Rights.” Mr. Sfard is a former conscientious objector and one of Israel’s leading human rights lawyers. Mr. Sfard was joined by Lara Friedman. Ms. Friedman is president of the Foundation for Middle East Peace and is a leading authority on U.S. foreign policy in the Middle East. Ms. Friedman interviewed Mr. Sfard about his book as well as his overall beliefs about the human rights situation between Israel and Palestine.
Ms. Friedman started off by asking, “What about the occupation makes it a human rights issue?” Mr. Sfard stated that the occupation in itself is one vast human rights violation. He clarified that a military occupation is supposed to be an event that takes place only during armed hostilities. International law has regulated the conduct of warfare in an attempt to alleviate the impact on civilians. While the international organizations and inter-governmental organizations that create international law haven’t outlawed armed conflict, they are trying to create limits on what an occupying force can and can’t do in occupied territory (The treaties that that lay out these International Laws are: the 1907 Hague Regulations (arts. 42-56), the Fourth Geneva Convention (GC IV, arts. 27-34 and 47-78), certain provisions of Additional Protocol I of the Geneva Convention, and customary international humanitarian law). Mr. Sfard further clarified that occupation is not sovereignty within international law. Sovereignty cannot be acquired by brute force. Therefore, international law stipulates that occupations have to be temporary. However, one of the big problems with this stipulation is that it does not define “temporary.” It does say that an occupying power has to inspire in its actions to end the occupation. This means that the occupying power has to act in a way that leads the international community to believe that the occupiers are working to end the occupation. If it doesn’t inspire this belief, then it is in violation of what an occupation is meant to be under international law.
In the current situation, there are people that for the duration of the Israeli occupation have been stripped of their human rights. The occupation of Palestine, though legal as long as there is a constant effort to end it, is perpetuating human rights violations. The people under occupation have no say in government and have to ask a foreign authority for anything they may need. Mr. Sfard further stated: “People don’t like living in occupation. When an occupation lasts, people resist, and then the occupying force generally commits human rights violations to fight the resistance.”
Ms. Friedman then stated that there was a difference of opinion in the international human rights community about the correct human rights approach to the occupation. She next asked: What is the correct human rights approach to the occupation: fighting for a change of policy or protecting the rights of the victim?
Mr. Sfard answered by first stating that “doing the right thing is complicated.” He then gave an example. He once worked with two Palestinian villages who had olive groves on the other side of the wall. This wall did not follow the green line of the armistice of 1949. It was two kilometers past the line. Israel’s position was that because of small arms fire they had to push the wall back some, but even they stated that it only needed to be pushed back four hundred meters. This meant that the wall was 1.6 kilometers farther into Palestinian territory than it should have been, and the olive groves were within this disputed territory. He told the elders of the village that they had a good case and he thought that it would have good implications for the future. However, when the elders found out that it would take at least two years or more, they asked for a gate to be installed instead, because many families were losing over fifty percent of their income by not being able to get to their olive groves. Mr. Sfard then explained that the main objective of a human rights lawyer sometimes conflicts with the cause served in the work. The gate looked good for the Israelis, and helped the Palestinians, but ultimately might have prolonged the occupation of that piece of land.
Ms. Friedman expanded on the earlier question by asking: “Is what you are doing facilitating the occupation more than ending it? Do human rights groups keep the occupation going?” Mr. Sfard explained that in Israel there is no parliamentary opposition to the occupation. Because of this, the human rights groups have had to step in to become the artificial opposition to the government. He further stated that in Israel, human rights groups are effective, and if one wants to know how effective one should just look to how venomously Israeli leaders oppose the human rights groups.
Ms. Friedman next stated that people in Israel often think that the occupation is not their problem. Mr. Sfard responded by sharing a quote: “In a free society some are guilty, all are responsible.” He explained that the occupation is an Israeli project. The relationship between an individual and the state is one of the most important relationships today. The individual gives a lot to the state and are a part of the society. Having this relationship makes all the group one in the States relationships with other countries. In this case the Israeli people are part of Israel’s relationship with other nations, they cannot be separated out and therefore share the responsibility for what the government does. He emphasized that the difference between guilt and responsibility is significant: Responsibility gives one the need to resist, while guilt presents the need for sanctions. This means that while the whole country is responsible for what the government is doing, only those who are truly guilty of breaking international law deserve punishment by sanctions.
Ms. Friedman next asked how the collective responsibility extends to those outside of Israel. Mr. Sfard stated that the entire occupation is a colonial enterprise, because it makes two communities: one with rights, and one without. Colonialism is supposedly no longer tolerated by the international community; therefore, the international community has an obligation to facilitate the end of the occupation. In addition, he stated that Israel claims and speaks for all Jewish people. Therefore, what Israel does affects what other people think of Judaism. He further stated that the Jewish community in America is the biggest enabler of the occupation, outside of Israel itself. He concluded that because of this, there is an even bigger responsibility for Americans to help the occupation end. He further stated that in the last twenty years he has seen more and more American Jews working to end the occupation.
While no one believes that the situation is easily solved, it is clear that something does need to change. Although Mr. Sfard doesn’t provide a fast solution, at least he is working to end the occupation however he can. With more people working toward ending the occupation, and more people throughout the world accepting that we all share the responsibility to hold each other accountable, it is an attainable goal to one day end the occupation of Palestine.