Opinion

Abandoning the Israeli High Court Option Is an Abandonment of Palestinian Rights

It’s easy to sit in Tel Aviv and plan an end to the occupation via the International Criminal Court, but it’s the Palestinians who will suffer from the expropriation in the meantime.

Michael Sfard
Michael Sfard
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The three Israel High Court justices hearing the petition against the appointment of Arye Dery as interior minister in Jerusalem, February 8, 2016.
Three High Court justices hearing a petition in Jerusalem, Feburary 8, 2016.Credit: Emil Salman
Michael Sfard
Michael Sfard

The enactment of the law expropriating private Palestinian land has reawakened a fierce debate on the Israeli left on an old question: Is it correct to fight violations of the Palestinians’ human rights in the occupied territories via the occupier’s legal system?

In the past few days, leftist activists, politicians and commentators have argued against petitioning the High Court of Justice to annul the expropriation law so as “not to save Netanyahu,” and even so as to “lead the government to The Hague” – the International Criminal Court.

Rights group B’Tselem has stopped filing complaints with the Military Police in cases of alleged offenses by soldiers against Palestinians, and the group’s executive director, Hagai El-Ad, explained in a Haaretz interview that “cooperating” with Israeli government institutions in order to challenge a baleful policy or fight for accountability is not only ineffective but also damaging “because it was serving the system and giving it credibility it doesn’t deserve.”

The idea of avoiding appeals to the Israeli law enforcement authorities is gaining momentum in some leftist circles, and in the context of the expropriation law it has caused such a political and social-media controversy that it seems the people promoting it believe they’ve found the formula to end the occupation.

Since I’m currently writing a petition with my colleagues from the Association for Civil Rights in Israel to get the law annulled, I feel a need to explain my position. I’d also like to warn against the risks in taking a simplistic approach to the important general question of using a tyrannical regime’s justice system to combat the regime and its injustices. This question has been a source of much deliberation for human rights and peace activists for quite some time – and not only in Israel.

A fight for the individual

Let’s begin with the expropriation law. It seems to me that precisely for those who define their activity as a struggle against human-rights violations, the dilemma regarding this law should be relatively simple. According to Peace Now, the law will lead to the expropriation of more than 11,000 dunams (4.2 square miles) of privately owned Palestinian land on which Israelis have built illegally. And according to conservative estimates, this will lead to the expropriation of another 25,000 dunams of privately owned Palestinian agricultural land that was grabbed by Israelis.

This means the expropriation of land from thousands – maybe even tens of thousands – of Palestinians and the transfer of this land to the trespassing settlers. If the opponents to petitioning the court are right and there’s a good chance the High Court will “extricate the government from this mess” and annul the law, the petition will prevent extensive and grave violations of human rights.

A struggle for human rights is a struggle for the individual, for the victim of the abuse. In such a struggle the rights of the individual must not be compromised for the sake of a general good, certainly not when the arguments for the sacrifice are speculative. It’s easy to sit in Tel Aviv and plan strategies for ending the occupation – which begin with a government that is increasingly enmeshed in problems and is becoming a leper in European capitals – and conclude with trials against the occupation in The Hague.

But given that it is very hard to rely on diplomatic pressure from abroad, and that procedures in The Hague, if they are begun at all, will take years – during which the expropriated land will be changed beyond recognition – the people who will bear the cost of the law are the inhabitants of Jalud, Silwad and al-Khader. And they, or at least many of them, are interested in petitioning the High Court because they fear losing all that’s left to them and know that the best chance to rescue it is the High Court.

Powerful byproducts

As for the broader question, it requires a complex definition of the cost and returns of struggles for regime change by legal means, like the struggle against the occupation. In light of the problematic records of the High Court and the military’s Criminal Investigations Department in the context of the occupation, the submission of petitions and complaints to these bodies indeed comes with a price.

This said, one must remember that beyond the immediate remedy requested in legal proceedings, these petitions and complaints also yield many byproducts that constitute very powerful tools in the struggle for change, and this is true even when remedy is not granted.

These proceedings rouse public debate and amplify awareness of the issue at its core; they ensure a flow of information from government bodies (while breaking off contact with these bodies might bar access to vital information). They strengthen the victims, and they, and only they, can compel the government to declare its positions and stick to its word. Moreover, they empower and mobilize the opposition camp, and they are a platform for a constant formulation and reformulation of the indictment against the situation.

Yet there is indeed a danger in collaborating with an ostensibly functioning justice system in an inherently unjust reality. Therefore there are cases when it’s better to withhold aid to a false representation of proper government. This is the case when there is a small chance of obtaining redress for the individual, when a high-prestige government body is not involved (controversial decisions by low-prestige bodies do not afford legitimacy), and above all when there are effective alternatives for the struggle.

A similar debate took place in the early 1980s in South Africa. Law Professor Raymond Wacks unleashed a storm when he argued that any judge with integrity who opposes apartheid must resign. The debate spilled over into the question of what human rights lawyers should do amid the concern that their work granted legitimacy to an evil regime.

The person who responded to Wacks was Prof. John Dugard, who later became the UN special rapporteur on human rights in the occupied Palestinian territories. This legitimization is a price worth paying so as not to abandon the fight for justice, he wrote. Resignation in these circumstances is tantamount to abandonment, and it is especially grave given that the victims of the injustice desire representation, petition for protection and hope the courts will rule in their favor. Dugard’s reply gives a precise description of the victims of the expropriation law.

Michael Sfard is the legal adviser to a number of human rights and peace groups including Yesh Din and Peace Now.