David Shul­man

The New York Review of Books - - Contents - David Shul­man

Rooted Cos­mopoli­tans: Jews and Hu­man Rights in the Twen­ti­eth Cen­tury by James Lo­ef­fler

The Wall and the Gate: Is­rael, Pales­tine, and the Le­gal Bat­tle for Hu­man Rights by Michael Sfard

Rooted Cos­mopoli­tans:

Jews and Hu­man Rights in the Twen­ti­eth Cen­tury by James Lo­ef­fler.

Yale Univer­sity Press, 362 pp., $32.50

The Wall and the Gate:

Is­rael, Pales­tine, and the Le­gal Bat­tle for Hu­man Rights by Michael Sfard, trans­lated from the He­brew by Maya John­ston. Met­ro­pol­i­tan, 509 pp., $35.00

In the some­what ex­otic Jewish home in Iowa where I grew up, it was ax­iomatic that there was an in­ti­mate link be­tween Ju­daism and univer­sal hu­man rights. Like nearly all East­ern Euro­pean Jewish fam­i­lies in Amer­ica, my par­ents and grand­par­ents were Roo­sevelt Democrats, to the point of fa­nati­cism. They thought that the Jews had in­vented the very idea, and also the prac­tice, of so­cial jus­tice; that hav­ing started our his­tory as slaves in Egypt, we were al­ways on the side of the un­der­dog and the op­pressed; that the core of Ju­daism as a re­li­gious cul­ture was pre­cisely this com­mit­ment to hu­man rights, and that all the rest—the 613 com­mand­ments, the rit­u­als, the the­o­log­i­cal as­ser­tions—was no more than a su­per­struc­ture built upon a strong eth­i­cal foun­da­tion. For me, this com­fort­able il­lu­sion was shat­tered only when I moved to Is­rael at the age of eigh­teen. There is in­deed, as James Lo­ef­fler shows in Rooted Cos­mopoli­tans, a strong his­tor­i­cal link be­tween Euro­pean Jews and the strug­gle for hu­man rights in the twen­ti­eth cen­tury. Lo­ef­fler tells the sto­ries of re­mark­able peo­ple such as Her­sch Zvi Lauter­pacht, born near Lem­berg (Lvov) in 1897, who was one of the first jurists to en­gage se­ri­ously with the idea of a bind­ing in­ter­na­tional law en­com­pass­ing univer­sal hu­man rights (he wrote pre­lim­i­nary drafts of both the In­ter­na­tional Bill of Rights and Is­rael’s Dec­la­ra­tion of In­de­pen­dence); Ja­cob Robin­son, who played an im­por­tant part in de­sign­ing the United Na­tions Com­mis­sion on Hu­man Rights as well as in the Nurem­berg and Eich­mann tri­als; and Peter Be­nen­son, who founded Amnesty In­ter­na­tional in 1961 (three years af­ter he had con­verted to Catholi­cism). Sev­eral of Lo­ef­fler’s he­roes emerged from the po­lit­i­cal and cul­tural ma­trix of post–World War I East­ern Europe and from the strug­gle for what was then termed “mi­nor­ity rights.” The Jews of East­ern Europe, al­ways vul­ner­a­ble to at­tack by anti-Semitic na­tion­al­ist ma­jori­ties, pro­vided the par­a­digm for this dis­cus­sion, which, as we know too well, col­lapsed with the rise of the Nazis. Be­fore that, in the 1920s and early 1930s, Weimar Ger­many had been the great hope and model for at­tempts to en­shrine na­tional mi­nor­ity rights in po­lit­i­cal and le­gal prac­tice in the na­tions cre­ated af­ter World War I.

Sur­pris­ingly lit­tle of the lan­guage of mi­nor­ity rights has sur­vived into our gen­er­a­tion, ex­cept per­haps when it is given a neg­a­tive con­no­ta­tion, as in a re­cent speech by Is­rael’s cur­rent min­is­ter of jus­tice, Ayelet Shaked: “There is place to main­tain a Jewish ma­jor­ity [in Is­rael] even at the price of vi­o­la­tion of [mi­nor­ity] rights.” In an­other for­mu­la­tion: “Zion­ism should not—and I’m say­ing here that it will not—con­tinue to bow its head to a sys­tem of in­di­vid­ual rights in­ter­preted in a univer­sal­ist man­ner.” To some it might seem strange that Is­rael’s min­is­ter of jus­tice is the sworn en­emy of the coun­try’s high­est court, which is com­mit­ted to up­hold­ing Is­rael’s Ba­sic Laws. These pro­vide (in lieu of a con­sti­tu­tion) the le­gal ba­sis for hu­man rights, widely de­fined, among other mat­ters; they in­clude the land­mark 1992 Ba­sic Law on Hu­man Dig­nity and Lib­erty.

Though Lauter­pacht and Robin­son were le­gal su­per­stars dur­ing the short­lived hey­day of the League of Na­tions, Lo­ef­fler’s ac­count of their quixotic strug­gles is re­plete with irony. Both were ar­dent Zion­ists who saw no con­flict be­tween Jewish na­tion­al­ism and the strug­gle for univer­sal hu­man rights: “Zion­ism, mi­nor­ity rights, Lithua­nian in­de­pen­dence, and Euro­pean democ­racy—all went hand in hand.”

Read­ing Lo­ef­fler, one can’t help but no­tice how the Jewish fight for rights as a na­tional mi­nor­ity within ra­bidly na­tion­al­ist Cen­tral and East­ern Europe merged, af­ter an un­think­able catas­tro­phe, with the strug­gle for a Jewish na­tion-state in Pales­tine that now, seventy years later, dis­crim­i­nates against its own Arab mi­nor­ity within the Green Line (the pre-1967 bor­der) and sav­agely per­se­cutes mil­lions of Pales­tini­ans in the oc­cu­pied ter­ri­to­ries. Many would ar­gue that this present sit­u­a­tion is an aber­ra­tion from the eth­i­cal goals set forth in Is­rael’s Dec­la­ra­tion of In­de­pen­dence, which promised that the new state would be based on “free­dom, jus­tice and peace as en­vis­aged by the prophets of Is­rael” and that it would “en­sure com­plete equal­ity of so­cial and po­lit­i­cal rights to all its in­hab­i­tants ir­re­spec­tive of re­li­gion, race or sex.” Oth­ers see in this stark de­vo­lu­tion a pal­pa­ble dan­ger in­her­ent in mod­ern eth­nic na­tion­al­ism any­where.

There were also dis­sent­ing voices among the Jewish hu­man­ist in­tel­lec­tu­als whom Lo­ef­fler de­scribes, in­clud­ing Ja­cob Blaustein, a con­fi­dant of Harry Tru­man and a con­sis­tent voice in fa­vor of univer­sal ethics in pref­er­ence to, and ul­ti­mately at the ex­pense of, nar­rowly na­tion­al­ist (Zion­ist) goals. In­deed, Blaustein was overtly anti­na­tion­al­ist; in his view, Zion­ism should “be re­duced to a phil­an­thropic refugee re­set­tle­ment plan for Pales­tine,” though by 1947–1948 he had come to sup­port the United Na­tions res­o­lu­tion on the par­ti­tion of Pales­tine. Blaustein’s po­si­tion, which he claimed was drawn from clas­si­cal Jewish phi­los­o­phy, found its strong­est ex­pres­sion in the Dec­la­ra­tion of Hu­man Rights of 1944, which in turn con­trib­uted to the for­mu­la­tion of the UN Char­ter not long after­ward. In­ter­est­ingly, Lo­ef­fler has very lit­tle to say about the older Jewish sources rel­e­vant to this theme of univer­sal rights. Per­haps it’s just as well: one can eas­ily ex­ag­ger­ate their in­flu­ence and won­der about their ra­tio­nale. Take, for ex­am­ple, the fa­mous Tal­mu­dic rul­ing that a Jew is al­lowed to des­e­crate the Sab­bath in or­der to save a hu­man life. I and many oth­ers have of­ten found com­fort in this rule. How­ever, as Adi Ophir and Ishay Rosen-Zvi have shown, in the pre­mod­ern sources it ap­plies only to sav­ing a Jewish life; it can be stretched to in­clude the life of a non-Jew only if there is a dan­ger that by not sav­ing that life the Jews may face reprisals from their non-Jewish neigh­bors (mi-shum eivah). 1 So much for univer­sal ethics. Opin­ions still vary as to whether Leviti­cus 19:18, “Love thy neigh­bor as thy­self,” is sim­i­larly limited to one’s Jewish neigh­bor, as the ear­lier part of the verse sug­gests (“thou shalt not avenge, nor bear any grudge against the chil­dren of thy peo­ple”). I have had oc­ca­sion to wit­ness bit­ter de­bates on this text be­tween Is­raeli peace ac­tivists and re­li­gious Is­raeli set­tlers on the West Bank. You can guess which in­ter­pre­ta­tion the lat­ter pre­fer.

1Adi Ophir and Ishay Rosen-Zvi, Goy: Is­rael’s Mul­ti­ple Oth­ers and the Birth of the Gen­tile (Ox­ford Univer­sity Press, 2018), p. 221. In

Is­rael, how­ever, one can still find some un­usu­ally coura­geous fig­ures com­mit­ted to the prophets’ ideal of jus­tice. Among them is Michael Sfard, who in one sense fol­lows in the line of Lo­ef­fler’s ex­em­plary fig­ures and, in an­other sense, tran­scends them by far. He em­bod­ies their be­lief that there is an in­ter­na­tional le­gal, nor­ma­tive con­sen­sus on what con­sti­tutes in­alien­able hu­man rights, and on which acts by mod­ern na­tion-states have to be de­fined as crim­i­nal in this do­main. But un­like them, Sfard is a bat­tle-hard­ened ac­tivist for hu­man rights in the Is­raeli courts, where he has ar­gued land­mark cases, with enor­mous con­se­quences for the Pales­tinian civil­ian pop­u­la­tion in the ter­ri­to­ries.

Sfard’s The Wall and the Gate tells the story of that strug­gle, which he shares with other bril­liant anti-es­tab­lish­ment lawyers such as Avig­dor Feld­man, Feli­cia Langer, Leah Tsemel, Gaby Lasky, Elias Khoury, Ta­mar Pe­leg-Sryck, and Ei­tay Mack. These peo­ple op­er­ate in an im­pos­si­bly hos­tile po­lit­i­cal and so­cial en­vi­ron­ment. They have an­a­lyzed the sit­u­a­tion in the oc­cu­pied ter­ri­to­ries with sober clar­ity and drawn the nec­es­sary, prac­ti­cal con­clu­sions. Their most im­por­tant virtue is dogged per­sis­tence, which at times at­tains heroic pro­por­tions and even, though un­for­tu­nately rather rarely, achieves mean­ing­ful suc­cesses. It is not ob­vi­ous that the Is­raeli Supreme Court should have be­come the ul­ti­mate arena for this strug­gle. The High Court, like the var­i­ous lower courts in Is­rael, is an in­te­gral part of the in­sti­tu­tional fab­ric of the Is­raeli state; its jus­tices are by no means im­mune to con­tam­i­na­tion by a hy­per­na­tion­al­ist ide­ol­ogy. In prac­tice, they tend to ac­cept, more or less with­out ques­tion, the of­ten se­cret rec­om­men­da­tions of the Is­raeli se­cu­rity forces; ar­gu­ments that in­clude a se­cu­rity as­pect reg­u­larly trump ar­gu­ments based pri­mar­ily on eth­i­cal prin­ci­ples.

The mil­i­tary courts that try Pales­tini­ans in the ter­ri­to­ries ex­em­plify this to an ex­treme de­gree. A Pales­tinian brought be­fore such a court, for ex­am­ple in the no­to­ri­ous Ofer Prison north of Jerusalem, has no hope of achiev­ing even the slight­est sem­blance of jus­tice. Con­vic­tion rates of Pales­tini­ans in these courts are higher than 99 per­cent. Pro­ceed­ings take place in He­brew, which Pales­tinian de­fen­dants of­ten don’t un­der­stand, and se­cu­rity spe­cial­ists rou­tinely give se­cret tes­ti­mony to which de­fen­dants and their coun­sel have no ac­cess.

Un­like the mil­i­tary courts, the High Court of Jus­tice is of­ten sen­si­tive to both eth­i­cal con­sid­er­a­tions and in­ter­na­tional treaty law, though I agree with Sfard that “re­view­ing the le­gal con­flict over the set­tle­ments, it is hard to imag­ine a more colos­sal fail­ure.” He is talk­ing about a moral fail­ure, not only a le­gal one. At the very be­gin­ning of the set­tle­ment en­ter­prise, which was en­tirely rooted in the theft of Pales­tinian land, the court prob­a­bly could have ended, or at least sig­nif­i­cantly re­stricted, this un­fold­ing dis­as­ter, still the ma­jor stum­bling block to any fu­ture peace agree­ment. As Sfard says, af­ter

de­scrib­ing the le­gal test cases in great de­tail, the court chose not to go that route—“a choice made of free will.”

That story of how the Is­raeli le­gal sys­tem, at the high­est level, pro­nounced the whole­sale ap­pro­pri­a­tion of Pales­tinian land by the state to be “kosher” has been told in these pages more than once; there is no need for me to re­peat it here.2 Sfard high­lights in his open­ing chap­ter and at other points in his riv­et­ing book a moral quandary de­rived from those early court de­ci­sions. It was most starkly ar­tic­u­lated some ten years ago by Ilan Paz, a for­mer head of the Civil Ad­min­is­tra­tion—the Is­raeli army unit that ad­min­is­ters the oc­cu­pied ter­ri­to­ries—at a con­fer­ence of Is­raeli NGOs ac­tive in Pales­tinian rights:

With­out hu­man rights or­ga­ni­za­tions, there is no oc­cu­pa­tion . . . . The army and the mech­a­nisms that con­trol life in the area rely on what hu­man rights or­ga­ni­za­tions do, on the fact that you rep­re­sent Pales­tini­ans and bring their re­quests, needs, and de­mands to its peo­ple. Thanks to you, the most acute is­sues are re­solved and ma­jor in­ci­dents are avoided, both lo­cally and in terms of how the world sees things. To a great ex­tent, your ac­tions al­low the oc­cu­pa­tion to go on.

Put sim­ply: Is­raeli hu­man rights ac­tivists work­ing in the oc­cu­pied ter­ri­to­ries man­age at times to cor­rect egre­gious abuses on the lo­cal and in­di­vid­ual level and thus en­able Is­raeli gov­ern­ments to claim—falsely—that the oc­cu­pa­tion is not in­dif­fer­ent to the ba­sic needs of the oc­cu­pied.

Paz was re­fer­ring not only to ac­tual lit­i­ga­tion in the courts but also to the daily ef­forts of an im­pres­sive spec­trum of or­ga­ni­za­tions: the As­so­ci­a­tion for Civil Rights in Is­rael, B’Tse­lem, HaMoked: Cen­ter for the De­fense of the In­di­vid­ual, Ta’ayush, Mach­somWatch, Rab­bis for Hu­man Rights, Haqel, Physi­cians for Hu­man Rights–Is­rael, Mo­lad: The Cen­ter for the Re­newal of Is­raeli Democ­racy, and Break­ing the Si­lence, among oth­ers. These groups ac­com­pany Pales­tinian farm­ers and shep­herds to their fields and graz­ing grounds and pro­tect them from the pre­da­tions of Is­raeli set­tlers and sol­diers; they pro­vide a re­strain­ing pres­ence at the in­nu­mer­able check­points and road­blocks manned by sol­diers; they pub­li­cize rou­tine crim­i­nal acts by mil­i­tary units op­er­at­ing in the ter­ri­to­ries; they of­fer emer­gency med­i­cal care to Pales­tini­ans un­able to reach clin­ics and hos­pi­tals in the West Bank or in Is­rael; and, with par­tic­u­lar em­pha­sis, they are part of the un­end­ing le­gal bat­tle for Pales­tinian lands, res­i­dency rights, and per­sonal se­cu­rity, as well as a host of other press­ing hu­man rights is­sues. Clearly, there is a prob­lem here both of long-term strat­egy and of prin­ci­ple. Given the dis­ap­point­ing record of the High Court on is­sues in­volv­ing Pales­tinian rights and lands, Sfard and sev­eral 2Most re­cently by Raja She­hadeh, “This Land Is Our Land,” Jan­uary 18, 2018; and my “Oc­cu­pa­tion: ‘The Finest Is­raeli Doc­u­men­tary,’” May 22, 2014. See also Eyal Press, “How the Oc­cu­pa­tion Be­came Le­gal,” NYR Daily, Jan­uary 25, 2012. of his col­leagues briefly con­sid­ered boy­cotting the court or lim­it­ing their ap­peals to cases of acute hu­man­i­tar­ian ur­gency (such cases are, un­for­tu­nately, all too com­mon). “Af­ter all,” Sfard writes, “the Supreme Court had gone ahead and ap­proved al­most ev­ery harm­ful pol­icy and prac­tice pur­sued by the mil­i­tary in the Oc­cu­pied Ter­ri­to­ries.” Has the very act of ar­gu­ing such cases be­fore the court made hu­man rights lawyers like Sfard com­plicit, in some sense, in the on­go­ing, sys­temic evil of the oc­cu­pa­tion?

This is not a new ques­tion, and the in­tegrity of court­room lawyers is not the only thing at stake. In 1983, at the height of apartheid in South Africa, a well-known South African pro­fes­sor of law, Ray­mond Wacks, called on judges of con­science who knew the apartheid sys­tem was morally re­pug­nant to re­sign their posts. Such judges were, he said, ef­fec­tively im­part­ing le­git­i­macy to the regime. A lively de­bate de­vel­oped; a par­tic­u­larly co­gent re­sponse was pub­lished by the em­i­nent ju­rist John Du­gard (later UN spe­cial rap­por­teur on the Oc­cu­pied Ter­ri­to­ries in Pales­tine). Du­gard ar­gued that there was more to South African law than the racist prin­ci­ples of apartheid and that a con­sci­en­tious judge still had some free­dom, how­ever limited, to pro­tect hu­man rights—and a duty to ex­er­cise that mar­gin of free­dom.

We in Ta’ayush, Arab–Jewish Part­ner­ship, have faced ver­sions of this ar­gu­ment many times. We have had con­sid­er­able suc­cess in restor­ing Pales­tinian lands to their right­ful own­ers and in pro­tect­ing the civil­ian Pales­tinian pop­u­la­tion from at­tacks by Is­raeli sol­diers and set­tlers. Are we still, how­ever, oil­ing the gears of the oc­cu­pa­tion ma­chine? In some sense, we are. Once a BDS (Boy­cott, Divest­ment, Sanc­tions) ac­tivist who had read one of my re­ports from the field ac­cused us of nor­mal­iz­ing the asym­met­ri­cal re­la­tion be­tween oc­cu­pier and oc­cu­pied and thus main­tain­ing the un­ac­cept­able sta­tus quo.3 I can un­der­stand the logic of this claim, which re­states dis­cus­sions we have had among our­selves. But I think the dilemma out­lined by Sfard and oth­ers is, in fact, far less ag­o­niz­ing than it might seem.

3“T. M. Kr­ishna in Is­rael: Crit­i­cism, and a Re­sponse by David Shul­man,” The Wire, Fe­bru­ary 4, 2017. What is a de­cent hu­man be­ing sup­posed to do in the face of dev­as­tat­ing threats to hu­man dig­nity and ba­sic hu­man rights? Are we to turn our backs on our Pales­tinian friends in the South He­bron Hills and stand idly by while the state de­mol­ishes their homes, ar­rests them, and ex­pels them from their lands? When the goal is sav­ing lives, liveli­hoods, homes, and land, one doesn’t cling to eth­i­cal pu­rity; one takes ad­van­tage of ev­ery crack or chink in the sys­tem.

It is not sur­pris­ing, then, that hu­man rights lawyers have kept on ham­mer­ing at the High Court, de­spite their fre­quent losses, even as they rec­og­nize that the courts will never be the ap­pro­pri­ate mech­a­nism for achiev­ing struc­tural and po­lit­i­cal change. “Non­par­tic­i­pa­tion is not al­ways a vi­able op­tion,” Sfard writes. “A hu­man rights world­view does not con­done sac­ri­fic­ing the in­di­vid­ual for the greater good (es­pe­cially when this good is spec­u­la­tive and in­di­rect).” There is ev­ery rea­son to be­lieve, on the ba­sis of long ex­pe­ri­ence, that the Is­raeli gov­ern­ment, if freed from even the mild con­straints that hu­man rights ac­tivists pro­vide, would be only too happy to carry out in full the de­fault pol­icy of the right: vi­o­lent ex­pul­sions of Pales­tini­ans and an­nex­a­tion of their land. In re­cent months, these poli­cies have ac­cel­er­ated at many points in the oc­cu­pied ter­ri­to­ries, in­clud­ing Susya, Khan al-Ah­mar, and the north­ern Jor­dan val­ley. Just last month, on May 24, the Supreme Court ruled that the gov­ern­ment can pro­ceed with its plan to ex­pel the Khan al-Ah­mar Be­douins—sev­eral hun­dred peo­ple—from their homes just off the Jerusalem–Jeri­cho road and to de­mol­ish, along with their tents and shacks, the first school they’ve ever had, built there in re­cent years.

Sfard and his col­leagues have had some sig­nal vic­to­ries. Fore­most among them was the 1999 High Court de­ci­sion pro­hibit­ing tor­ture in in­ter­ro­ga­tions of Pales­tinian de­tainees sus­pected of in­volve­ment in ter­ror­ism. Be­fore the de­ci­sion, Pales­tini­ans ar­rested by the Shin Bet were rou­tinely tor­tured to elicit in­for­ma­tion and con­fes­sions. The state and the Shin Bet ar­dently defended these prac­tices, claim­ing that they were nec­es­sary in cases of a so­called tick­ing bomb, that is, a ter­ror­ist at­tack about to take place—though the vast ma­jor­ity of in­ter­ro­ga­tions were not framed so dra­mat­i­cally but served only to am­plify the data on Pales­tini­ans that the se­cu­rity ser­vices con­tin­u­ally seek to com­pile. At a con­ser­va­tive es­ti­mate, many thou­sands of Pales­tinian ar­restees were tor­tured, of­ten se­verely, over the two or three decades be­fore 1999. The High Court post­poned se­ri­ous con­sid­er­a­tion of this is­sue for years, un­til it was forced by public pres­sure and ac­tivist lit­i­ga­tion to con­front it. Un­der the en­light­ened lead­er­ship of Aharon Barak, the court ruled, on moral grounds ar­tic­u­lated in in­ter­na­tional law, that tor­ture was il­le­gal un­der most cir­cum­stances. That “most” was part of a sig­nif­i­cant loop­hole that al­lowed the se­cu­rity ser­vices to have an in­ter­nal con­sul­ta­tion when there was a per­ceived need for phys­i­cal pres­sure on sus­pects. Tor­ture has sig­nif­i­cantly di­min­ished in Is­rael in re­cent years, but it has not dis­ap­peared, as a re­cent re­port pub­lished by the Public Com­mit­tee Against Tor­ture in Is­rael (PCATI) makes clear.4 Sfard was also in­volved in mostly frus­trat­ing lit­i­ga­tion against the pro­posed route of the sep­a­ra­tion bar­rier set up dur­ing the sec­ond in­tifada, nearly all of it on Pales­tinian land in­side the West Bank, at some dis­tance from the Green Line. The route was cho­sen by gov­ern­ment plan­ners op­er­at­ing on the as­sump­tion that the bar­rier might be­come the fu­ture bor­der of the state, so it was drawn to keep to the west of the bar­rier ev­ery pos­si­ble Is­raeli set­tle­ment in the ter­ri­to­ries. Huge tracts of Pales­tinian land were thereby ef­fec­tively an­nexed to Is­rael, and many vil­lages were rav­aged, los­ing ac­cess to fields and graz­ing grounds. The High Court gave its bless­ing to this en­tirely du­bi­ous, not to say crim­i­nal, route.

But Sfard and oth­ers per­suaded the judges to or­der sig­nif­i­cant ad­just­ments at sites such as Bil’in—which be­came a fo­cus for pop­u­lar, non­vi­o­lent re­sis­tance to the bar­rier and its an­nex­a­tion­ist tra­jec­tory—and a clus­ter of vil­lages near the set­tle­ment of Alfei Me­nashe in the north-cen­tral West Bank. Thou­sands of acres were re­stored to their Pales­tinian own­ers. In­evitably, the dilemma out­lined above sur­faced again: by ar­gu­ing for changes in the route be­fore a court that had al­ready ac­cepted the premise that the bar­rier would be built deep within Pales­tine, “the lawyers be­hind the lit­i­ga­tion be­came part of the cre­ation of the bar­rier.”

Sfard is per­fectly aware of the com­plex­i­ties—le­gal, moral, po­lit­i­cal, hu­man— in­her­ent in the sit­u­a­tion in which he and his col­leagues op­er­ate. Is­rael and oc­cu­pied Pales­tine are lab­o­ra­to­ries for ex­is­ten­tial and eth­i­cal ex­per­i­ment; one way or an­other, ev­ery­one makes his or her choices day by day. Most or­di­nary, de­cent Is­raelis ac­qui­esce pas­sively to the hor­rors of the oc­cu­pa­tion (a siz­able mi­nor­ity ac­tively sup­ports the set­tle­ment en­ter­prise).

Some­times, how­ever, protest erupts in un­ex­pected ways. The Is­raeli gov­ern­ment has re­cently be­gun de­port­ing asy­lum seek­ers from Su­dan and Eritrea. Close to 40,000 were sched­uled for de­por­ta­tion or, if they re­fused to go, for open-ended in­car­cer­a­tion in mis­er­able con­di­tions. The Is­raeli 4“In­de­pen­dent Re­port on Is­rael to the UN Com­mit­tee Against Tor­ture To­wards the Re­view of the Fifth Pe­ri­odic Re­port on Is­rael,” March 1, 2016.

gov­ern­ment was ready to pay the gov­ern­ments of Rwanda and Uganda to take these peo­ple, as later be­came clear. Very real, pos­si­bly life-threat­en­ing dan­gers awaited the de­por­tees in these coun­tries, in­clud­ing pos­si­ble con­fis­ca­tion of their iden­tity pa­pers, the theft of their pos­ses­sions, phys­i­cal abuse, im­pris­on­ment, ex­tor­tion, and the threat of be­ing forcibly repa­tri­ated to their coun­tries of ori­gin (both South Su­dan and Eritrea are en­gulfed in night­mar­ish vi­o­lence). Most of these refugees have been in Is­rael for close to ten years; He­brew is now their pri­mary lan­guage; their chil­dren go to Is­raeli schools; for all in­tents and pur­poses apart from cit­i­zen­ship, these peo­ple are Is­raelis.

An un­prece­dented wave of pop­u­lar protest brought many thou­sands of Is­raelis to the streets. El Al pi­lots and flight crews re­fused to fly the de­por­tees to their deaths. Doc­tors, aca­demics, lawyers, and many or­di­nary cit­i­zens, in­clud­ing Holo­caust sur­vivors and their rel­a­tives, spoke out. Some syn­a­gogues joined the strug­gle. Many stressed the un­think­able cog­ni­tive dis­so­nance that arises from watch­ing a Jewish state, founded by refugees from lethal op­pres­sion, send­ing tens of thou­sands of des­per­ate African refugees to an un­known and pre­car­i­ous fate.

To add to the bit­ter irony, Gil Naveh, the spokesman for Amnesty In­ter­na­tional Is­rael, is­sued a state­ment de­mand­ing that Is­rael halt the de­por­ta­tions at once. The gov­ern­ment, said Naveh, was us­ing “hate speech” to de­hu­man­ize African asy­lum seek­ers as “in­fil­tra­tors,” “crim­i­nals,” and “eco­nomic mi­grants” in or­der to ra­tio­nal­ize their ex­pul­sion. In prac­tice, most of their ap­pli­ca­tions for asy­lum were never ex­am­ined by the au­thor­i­ties, and those that were ex­am­ined were al­most in­vari­ably re­jected. Sfard, in a re­cent in­ter­view in Haaretz, said:

The only ex­pla­na­tion that I can find for the de­por­ta­tion [of the Africans] is that they have brown skin . . . . Ev­ery­thing about the asy­lum seek­ers’ story and about Jewish his­tory should lead to the con­clu­sion that we are the first among all na­tions that should have em­braced them.

In March, when it turned out that there was no agree­ment with Rwanda and Uganda to pro­tect the refugees (Ne­tanyahu, as usual look­ing for a scape­goat, fool­ishly ac­cused the New Is­rael Fund of hav­ing ru­ined the deal he thought he had with Rwanda), the gov­ern­ment’s scheme col­lapsed un­der the weight of public pres­sure and the in­ter­ven­tion of the High Court. Ne­tanyahu then an­nounced a rea­son­able plan worked out with the UN High Com­mis­sioner on Refugees, whereby nearly half of the asy­lum seek­ers would be ab­sorbed by West­ern coun­tries and the rest would be al­lowed to stay in Is­rael; less than a day later, he re­neged, cav­ing in to pres­sure from the right and, some say, his wife and son. The threat of mass de­por­ta­tions has thus not dis­ap­peared, but so far the High Court, un­der Chief Jus­tice Es­ther Hayut, has re­fused to sanc­tion the state’s piti­less de­sign.

Mean­while, the gov­ern­ment, driven by its ex­trem­ist coali­tion part­ner the Jewish Home, is fur­ther­ing a bill aimed at by­pass­ing the High Court al­to­gether by al­low­ing a sim­ple ma­jor­ity of six­ty­one mem­bers of the Knes­set to over­ride the court’s rul­ings, par­tic­u­larly in cases in­volv­ing ba­sic hu­man rights. This move is the most far-reach­ing at­tack ever made on the fun­da­men­tal struc­ture of Is­raeli democ­racy. If the bill passes, it will en­shrine a tyranny of the ma­jor­ity and un­der­mine the very con­cept of in­alien­able rights. We have come a long way from the days of Lauter­pacht and Robin­son.

So to re­turn to our point of de­par­ture: Is there some­thing rec­og­niz­ably Jewish, how­ever we de­fine the word, about the work of peo­ple like Michael Sfard or the public cam­paign in Is­rael to save the African refugees? It’s pos­si­ble that Sfard him­self and his col­leagues would un­der­play this theme. They would cer­tainly want to put them­selves in the com­pany of out­stand­ing Pales­tinian hu­man rights lawyers such as Elias Khoury, Muham­mad Dahleh, and Qua­mar Mishirki. Like the Ta’ayush ac­tivists with whom I’ve worked, these unas­sum­ing fig­ures in­vari­ably think of them­selves as sim­ply try­ing to do the right, hu­man thing un­der ex­treme con­di­tions—the an­ti­heroic ideal of “com­mon de­cency” that Al­bert Ca­mus elo­quently rec­om­mends to­ward the end of The Plague.

The Jews have, need­less to say, no mo­nop­oly over such sen­ti­ments, but they do, de­spite ev­ery­thing, have an in­escapable affin­ity with them. Not even fifty years of oc­cu­py­ing and col­o­niz­ing Pales­tinian land can en­tirely vi­ti­ate the em­pa­thy for the op­pressed that is the Jews’ his­toric in­her­i­tance—though it is pos­si­ble that the oc­cu­pa­tion is it­self a cruel and dis­torted mu­ta­tion of that same trau­matic his­tory. It is, how­ever, a deep be­trayal of one ma­jor strand of the tra­di­tion that pre­dates, by many cen­turies, En­light­en­ment at­tempts to de­fine univer­sal val­ues.

There have al­ways been prom­i­nent voices like that of the Tal­mu­dic Hil­lel sage: “Where there is no one, try to be a hu­man be­ing” (my some­what mod­ern­ized trans­la­tion).5 Some­times I hear those words in my mind when sol­diers are about to ar­rest us in South He­bron or when Is­raeli set­tlers try to kill us with heavy rocks, as hap­pened last Fe­bru­ary 10 on the way from alTuani to Tuba. As has been the case through­out Jewish his­tory, hu­mane voices such as Hil­lel’s are to­day at war with sanc­ti­mo­nious, atavis­tic ones such as those that now dom­i­nate the public sphere in Is­rael. But as Sfard says in what might be the most im­por­tant line of his book, “The fight isn’t over.”

5Ethics of the Fathers, Chap­ter 2.

Rabbi Sharon Klein­baum and oth­ers protest­ing in sup­port of ‘Dreamer’ im­mi­grants, Wash­ing­ton, D.C., Jan­uary 2018

Pro­test­ers at a rally against the Is­raeli gov­ern­ment’s plan to de­port African mi­grants, Tel Aviv, April 2018

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