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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Israel rarely prosecutes its own troops

The Associated Press this week carried a story reporting that “In the past seven years, the Israeli military has indicted just 10 percent of soldiers suspected of criminal offenses against Palestinians, an Israeli human rights group reported Tuesday … The Yesh Din group said just 9 percent of investigations led to convictions. The conviction rate was less than 7 percent when the investigations focused on the killing and injury of civilians in the West Bank and Gaza Strip, it said. ‘The low number of investigations opened and the minute number of indictments served reveal the (military’s) de facto derogation of its duty to protect the civilian Palestinian population against offenses committed by its soldiers’, said Michael Sfard, Yesh Din’s legal counsel … Israeli government spokesman Mark Regev said that ‘Israel is a country in which we pride ourselves on our independent and professional judiciary’, he said. ‘No one — no institution and no individual — is above the law’. The military said it was looking into Yesh Din’s report”. The AP report is published here.