Michael Sfard on some consequences of the Palestinian State

Michael Sfard, an Israeli lawyer who specializes in human rights and military matters, and who is legal adviser for the organization Yesh Din among others, wrote an article published in Haaretz yesterday predicting that if a Palestinian State is admitted into the UN in September (or anytime soon), then “The mechanisms of legal defense that it [Israel] built since the occupation of the West Bank and Gaza Strip, to combat the ‘danger’ of international jurisdiction about its conduct toward millions of people who are under its control” are about to collapse.

The article, published here also says that “Together with the diplomatic ‘tsunami’ that Defense Minister Ehud Barak has forecast, Israel can expect a legal tsunami, which for the first time will claim a price for violating human rights in the occupied territories. The Israeli-Palestinian conflict, and the prolonged occupation of the Palestinian territories that Israel conquered in 1967, are not an internal Israeli issue. This is an international conflict in which the international community has a legitimate interest. However, during the years of the occupation the state of Israel has repelled the professional legal mechanisms of the United Nations, that deal with protecting human rights, from discussing its actions there…”.

Sfard’s argument continued: “In the territories Israel refused to apply the various human rights treaties that deal, inter alia, with discrimination against women; rights of the child; racial and other discrimination; and torture. Some of Israel’s most talented advocates were sent to Geneva to claim that these treaties were not binding on Israel beyond the Green Line. Israel considers itself the representative of the victims and survivors of the Holocaust, and as such was one of the initiators of the establishment of an international criminal court for war crimes. The height of jurisdictional isolation came when Israel decided not to ratify the court’s statute so as not to grant it authority to investigate and discuss crimes that, allegedly, were/are being carried out by Israeli officers and soldiers. Over the course of 44 years, Israel has succeeded in putting the job of judging its actions in the occupied territories in the hands of [Israel's own Supreme Court, the] High Court of Justice, which approved almost every policy and practice of the army in the territories, deepening the occupation and making possible massive violations of human rights under its patronage. Israel succeeded in leaving the investigations of its crimes to [Israel's] military advocates/attorneys who made sure that the policy of investigation would be such that enforcing the rigor of the law on soldiers and officers who had violated it would be a sort of miracle. All of this is about to come to an end”.

He wrote that “The significance of a Palestinian state joining the UN is that, for the first time, it will be the Palestinians who will decide what the international legal framework is that is binding in their territory. After more than 40 years in the wilderness of the occupation, the Palestinians will have the possibility of influencing their fate through legal means”.

This is because, he noted, “the significance of accepting Palestine as a member of the UN is that the new member will be sovereign to sign international treaties, to join international agreements and to receive the jurisdictional authority of international tribunals over what happens in its territory”.

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Gideon Levy in Haaretz: Palestinian negotiators should have focussed on the occupation

Gideon Levy writes in Haaretz today that, in advance of the Annapolis, “The public discourse in Israel has momentarily awoken from its slumber. ‘To give or not to give’, that is the Shakespearean question – ‘to make concessions’ or ‘not to make concessions’. It is good that initial signs of life in the Israeli public have emerged. It was worth going to Annapolis if only for this reason – but this discourse is baseless and distorted. Israel is not being asked ‘to give’ anything to the Palestinians; it is only being asked to return – to return their stolen land and restore their trampled self-respect, along with their fundamental human rights and humanity. This is the primary core issue, the only one worthy of the title, and no one talks about it anymore. No one is talking about morality anymore. Justice is also an archaic concept, a taboo that has deliberately been erased from all negotiations. Two and a half million people – farmers, merchants, lawyers, drivers, daydreaming teenage girls, love-smitten men, old people, women, children and combatants using violent means for a just cause – have all been living under a brutal boot for 40 years. Meanwhile, in our cafes and living rooms the conversation is over giving or not giving. Lawyers, philosophers, writers, lecturers, intellectuals and rabbis, who are looked upon for basic knowledge about moral precepts, participate in this distorted discourse. What will they tell their children – after the occupation finally becomes a nightmare of the past – about the period in which they wielded influence? What will they say about their role in this? Israeli students stand at checkpoints as part of their army reserve duty, brutally deciding the fate of people, and then some rush off to lectures on ethics at university, forgetting what they did the previous day and what is being done in their names every single day. Intellectuals publish petitions, ‘to make concessions’ or ‘not to make concessions’, diverting attention from the core issue. There are stormy debates about corruption – whether Prime Minister Ehud Olmert is corrupt and how the Supreme Court is being undermined. But there is no discussion of the ultimate question: Isn’t the occupation the greatest and most terrible corruption to have taken root here, overshadowing everything else? Security officials are terrified about what would happen if we removed a checkpoint or released prisoners, like the whites in South Africa who whipped up a frenzy of fear about the ‘great slaughter’ that would ensue if blacks were granted their rights. But these are not legitimate questions: The incarceration must be ended and the myriad of political prisoners should be released unconditionally. Just as a thief cannot present demands – neither preconditions nor any other terms – to the owner of the property he has robbed, Israel cannot present demands to the other side as long as the situation remains as it is

Gideon Levy continues: “Security? We must defend ourselves by defensive means. Those who do not believe that the only security we will enjoy will come from ending the occupation and from peace can entrench themselves in the army, and behind walls and fences. But we have no right to do what we are doing: Just as no one would conceive of killing the residents of an entire neighborhood, to harass and incarcerate it because of a few criminals living there, there is no justification for abusing an entire people in the name of our security. The question of whether ending the occupation would threaten or strengthen Israel’s security is irrelevant. There are not, and cannot be, any preconditions for restoring justice. No one will discuss this at Annapolis. Even if the real core issues were raised, they would focus on secondary questions – borders, Jerusalem and even refugees. But that would be escaping the main issue. After 40 years, one might have expected that the real core issue would finally be raised for honest and bold discussion: Does Israel have the moral right to continue the occupation? T he world should have asked this long ago. The Palestinians should have focused only on this. And above all, we, who bear the guilt, should have been terribly troubled by the answer to this question“. Gideon Levy’s pre-Annapolis analyis in Haaretz is published here.

Just my own footnote: Condoleeza Rice has never once, to my knowledge, pronounced the word “occupation” in dealing with the Israeli-Palestinian situation.