Sfard says ‘fight on’ in Israeli courts. I agree.

Suppose you’re a top lawyer who represents clients in courts and other fora. Your political and moral views lead you to devote your professional work to matters of the public interest. Unsurprisingly most of your clients’ complaints rest on similar understandings to yours of where the public interest lies. Frequently the clients are members of a minority or a less powerful or a dominated group seeking relief from ongoing and irreparable harm. Their claims stem from injurious policies and behavior of a government exercising power and jurisdiction over them. You share their beliefs that the policies and behavior that are being contested are unfair, unjust and illegal.

In the courts, your record of successes is not impressive. Indeed, if we put aside judicial decisions in favor of individual petitioners that generally are closely confined to the immediate facts, and concentrate on how courts have dealt with the weighty issues underlying this litigation, your record is dismal.  Perhaps, you wonder, is it time to reconsider your clients’ and your strategies?  Other fora of a more political and public character may make more sense – in a democratic government, perhaps mobilization for recurrent large demonstrations, thorough planning for coming elections including intensive campaigning and lobbying, marches, use of newspapers, pamphlets and social media.  Could your accustomed recourse to courts be diverting thought, funds and energy from other, more fruitful types of action?  Could it actually erode the power of the claims and claimants by creating the sense of a rule-of-law regime apolitically applying the governing law to the field of conflict?

Surely the state involved and the political context within it will bear importantly on your answers.  In an authoritarian state a cowed judiciary may decide cases as the executive suggests or demands.  Little hope there; in such circumstances, radically different strategies like popular mobilization may offer more hope to your clients. But at a given historical moment, many claimants may view the judiciary as the sole government branch that would look objectively and perhaps even sympathetically on their demands.

Such choices among strategies to remedy alleged governmental wrongs have arisen and will continue to arise in many countries, particularly within democracies if the judiciary is among the choices. In the United States, for example, we appreciate the degree to which the judiciary has become engaged in many serious, deep-reaching conflicts and decided in favor of constitutional claims of minorities or members of less powerful or dominated groups. It has also decided important issues against them. On some notorious issues Its decisions have changed dramatically over time. No one doubts that the likelihood of the U.S. Supreme Court’s deciding one way or the other on foundational questions will be influenced by the present and evolving political context and by prevailing or growing moral sentiments —  as well as by the Court’s ever-changing membership. Nonetheless, over time the Supreme Courts’ decisions have brought about major legal, social-cultural and political changes on highly contested issues within a polarized electorate.

Israel presents a radically different situation. Lacking a national constitution, courts have used as a surrogate its specially enacted and powerful Basic Laws of far less breadth and thoroughness.  On matters involving principally internal considerations – free-speech conflicts arising within Israel proper between the government and citizens, for example – the Israeli Supreme Court (sometimes sitting as High Court of Justice) has strengthened civil and human rights in numbers of its decisions.  After the 1967 war a new set of concerns came to occupy an increasingly salient part of the Court’s work.  That work grew out of Jewish-Palestinian conflicts and the Occupied Territories. – particularly matters related to the striking growth of the Israeli-Jewish population in those territories and of the settlements where they live.  Israel’s power over and governance of the Palestinian population has assumed ever greater significance.  In this broad field, of major importance to the country’s character and future, the Court plays a far more restrained role in judging claimants’ arguments.

Explanations abound.  The country’s far briefer and stormy history, the seriousness of ongoing threats to safety and security that it confronts, as well as its parliamentary and proportional-voting structure for forming governments, offer several. Settlements supported and protected by the government and the military dominate life in the Occupied Territories. They have become a central feature of the decades of conflict. Underlying all lies the ultimate question of two states.

The cases dealing with these phenomena bring an additional level of complexity to the choices made by lawyers about which avenue complainants should pursue. In justifying their conduct, the government and military officers before the High Court often stress that conduct’s link to national security and military strategy, even to the high interests of the state in its long-run power and wealth and in its territorial boundaries. Judicial decisions in such cases may affect the state’s very size and configuration. Within the judicial proceedings, claimants may insist that it must be kept secret. In such circumstances, courts traditionally have been more reluctant to decide against the government, out of belief that these issues have been committed for decision to the government and military, and out of the related fear that the judiciary might cause serious harm to the state’s high interests.

In confronting these and other obstacles to gaining relief, the petitioners do benefit from the exceptionally high quality of many lawyers engaged on their behalf in this field. From this group a first-rate literature has emerged, descriptive and theoretical, analytic and prescriptive. Over the decades, it has probed deeply and perceptively the dilemmas confronting recourse to the judiciary on occupation-related matters. Of course that literature reaches well beyond the threshold observations in this blog.

One such book has just been published (in English and Hebrew), Michael Sfard’s exciting historical analysis in The Wall and the Gate. Sfard stands securely among the stars of the civil-rights and human-rights committed lawyers/scholars of his generation. The book concentrates on the occupation and its significance for Israeli life and politics in general. Many occupation-related phenomena draw his detailed attention: settlements, detentions, boundaries, land expropriation and seizure, separation and exclusion within the population of the West Bank, house demolitions….the list is extensive. A number of asides deal with major conflicts on the other side of the Green Line.

The energy and passion that inform this superb book exist side by side with meticulous detail, informed by a historian’s love for tracing attitudes, themes, and politics as they have evolved over a half century. Sfard gives ongoing attention to the question of choice of path or forum in the effort to correct wrongs. His despair over what history has thus far yielded in this tormented part of the world does not appear to have weakened his commitment to keep going, to continue to engage the courts together with other, explicitly political strategies. The issues are too close to the core of the state of Israel, to its basic character and future. They cannot be wished away, or ignored. Fight on, he counsels. I agree.

About the Author
Henry Steiner is a professor emeritus at Harvard Law School. His teaching and scholarship concentrated on transnational and international law, with particular attention to international human rights.
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