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.