Will the anti-democratic legislation underway in Israel soon make progressive advocacy redundant? Is it an exaggeration to say Israel is on the high road to fascism? And what can the Left do to reverse the process? An interview with Israel’s pre-eminent human rights lawyer, Michael Sfard.
It’s no longer a secret to anyone Israel is facing a rising tide of anti-democratic legislation – from new restrictions on free speech to the chipping away at the separation of powers between the legislature and the judiciary. Earlier this month I took a broad look at these trends in a piece published two weeks back on the New York Review of Books website, titled “The Knesset vs Democracy.” Because the premise was so broad, only a handful of quotes from the interviews conducted for the piece made it into the final text, which is a pity, as my interviewees had stark and startling analysis to offer. With the NYRB’s kind permission I’ll be publishing the full transcripts here over the coming weeks, beginning with this interview with Michael Sfard – probably Israel’s most prominent human rights lawyer.
Can you imagine the constitutional situation becoming so dire NGOs stop petitioning the Supreme Court?
You’re going into murky waters here, but I want to make clear it’s not an option that isn’t being discussed. I wrote about it in 2004, in an article called “The human rights lawyers’ existential dilemma.” When you’re faced with a system that’s systematically violating human rights, on a huge scope, is it right or wrong to sustain internal, as opposed to external, resistance? Because when you resist from within, you legitimise the system. There are many prices that you pay. And it’s a very, very difficult question. The Supreme Court today is making a horrible, horrible mistake by rendering petitions by or on behalf of Palestinians less and less worthy of the effort. Really, even in simple terms of supply and demand. For years, the success rate of Palestinians approaching the Supreme Court has been absolutely appalling. There hasn’t been a single instrument the army wanted to use against the Palestinian that the Court failed to approve. However, the Court did provide – through informal pressure, through comments in the rulings and the hearings, what they call “in the shadow of the court” – some highly localised achievements for the Palestinians, as well as a handful of rulings that were later translated into English and seriously exploited for PR. And this constituted the oxygen that allowed this machine to work and made the Palestinians to remain willing to appeal.
Today, the Court is creating a situation that’s a lot less attractive for Palestinians. It sends a chill wind in the direction of everything concerning the human rights of Palestinians. It’s not happening all in one go, it’s a process. The latest ruling, on families, is practically a death blow. It prompted quite a few debates even among Palestinians on whether it’s right to go on petitioning the Supreme Court. And then we’ll see whether there’s a particular Palestinian individual who will still say that for even one percent chance of a success he has nothing to lose by going to the Supreme Court; or, the general feeling of collaborating with the occupant’s system will grow and grow. Because at the end of the day attorneys dealing directly with human rights, like myself, would find it very difficult to tell an individual Palestinian who wants to petition the court not to do that “for the greater good.” Because this is what we’d need to say to him: We won’t exhaust the one-percent chance you’ll get to reunite with your partner, because the Palestinian struggle for freedom will suffer for it. This is a legitimate statement, politically speaking, but it is not a legitimate position for a human rights lawyer to take, because this lawyer is supposed to always prefer the benefit of the individual person over some highly abstract political greater good. But this question is being constantly debated – both by human rights organisation and by individual lawyers who deal with such cases, and by the Palestinians. And I can tell you that there are cases that I’ve taken to court that I would take up today.
I wouldn’t take up any principal cases, cases that don’t focus on the benefit of a particular individual. I’ve taken up such cases before, and I wouldn’t today, because in my estimate, the harm in taking them up will be greater than the good. When it’s about an individual, I don’t feel I have the privilege to refuse. Can I imagine a situation in which I would refuse to approach the court altogether? Well. If, say, a bill is passed saying that only IDF veterans can serve in the Supreme Court. I’ve brought this up as a hypothetical scenario with my colleagues, when we discussed the appointment of conservative judge and settler Noam Solberg to the Supreme Court. Here we have a situation in which one of the justices is a settler, which, to me, makes the Supreme Court less legitimate an institution. If it becomes an institution in which only Jews may sit, it will make it an illegitimate institution, period.
Solberg’s appointment is an interesting case in point, because it raises the question – where do you actually draw the red line? Why is the appointment of a settler such a big deal when the Justice Ministry itself constitutes a settlement by virtue of residing in the East Jerusalem neighborhood of Sheikh Jarrah?
Sometimes you need artificial red lines, lines that you draw yourself. Coming back to the frog in the cooking pot – that frog has to set itself a deadline. To say, when the water boil to forty degrees Celsius, we need to reconsider. Why forty and not thirty-nine or forty-one? Simply because you need to reevaluate your situation at some point. And you also need to decide, way in advance, what is the temperature at which you jump out and run for it. So I can tell you with absolute certainty that a court in which, by definition, only Jews may serve as justices, is an illegitimate court. Unequivocally illegitimate. But then what if you have a person who has a chance, via that illegitimate court, to obtain the rescinding of an order to uproot the orchard that sustains him, do we go to that court or do we not? Or if he can go to that illegitimate court and persuade it to let him leave the Gaza Strip and undergo a life-saving operation: Do we go to the court or do we not?
And then there’s also the issue that every ruling in favour of human rights group instantly becomes ammunition for politicians who want to curb the powers of the court.
That’s right – and don’t forget also that when you go to court you have to use a very particular language. I for instance had to insist to use the term “assassinations” rather than the official “targeted subversions”. To call the wall a “separation wall” rather than “security fence.” But then, in all honesty, this creates antagonism. If, tactically speaking, I want to win the sympathy of the justices, I can’t tell them, like I did in the permits system case, that this is apartheid. But there are things you simply have to do because you realise that otherwise you really do become complicit.
Looking at the bigger picture, how would you describe the transformation Israeli democracy is going through?
The attempts to define the Israeli regime in the past few decades have made use of many terms that will be familiar to your readers – an occupying regime, colonialism, imperialism, ethnocracy, and so on. Each of these has a role, even if none on its own paint the whole picture. But I think too little attention has been paid to fascization. And this is the process that we see. I don’t think you can presently describe the Israeli government as fascist – absolutely not. We can, however, see vectors that contain clearly fascist elements. Now, it’s an Israeli genre of fascism, not your classical European one. What makes this trend worthy of being described as fascism are the extreme nationalism that sees the People and the Nation as something metaphysical, organic, alive; and the rejection of liberal values that are seen as being detrimental to this nationalist zeitgeist. Israel has always been a very nationalist country – Zionism is, after all, a nationalist movement.But at least until today there was the aspiration and the pretence – pretence is important, even if it’s only pretence – that this can walk hand in hand with liberal values, especially where Jews are concerned. So we had this quaint mix – very strong nationalism hand in hand with freedom of speech, which was one of our strongest values, and as a lawyer who deals with this issue quite a lot, I can tell you that many Western countries could be proud of the way freedom of speech has been enshrined here in Israel. And these values are currently being taken apart.
The trends have always been there, but the point at which I think they really came into the open was Operation Cast Lead and the Goldstone Report and the “realisation” on part of the Israeli public that our “enemies” have “allies” from within. And this really let all the demons loose and cracked the apparently all-too-thin surface of liberal values – even when applied to Jews.
It’s not that there haven’t been clampdowns on freedom of speech before. It’s not that there haven’t been attacks on liberal values. But now we are suddenly seeing it happen systematically, in legislation – not something abrupt like shutting down a particular newspaper. You have the Nakba Law, the Boycott Law – fully fledged assaults on freedom of speech, and not on any particular instances of freedom of speech, but on entire genres. This is a whole other story – it’s different even from someone saying or doing something and being prosecuted for it, like the Kamm-Blau affair. And looking at it altogether, the only term I find useful for understanding all of this is fascism. And I’m happy to admit I’ve been searching for a different name, because I felt it was all too convenient. But the more I think about it, the more it appears to line up.
And it’s not that there’s much support for civil society among the public, either. People won’t go onto barricades if the government actually clamps down on progressive NGOs.
I’m not sure you’re right, but it really is difficult to guess where is the actual red line might be. The metaphor most apt, I think, is that of the proverbial frog being cooked slowly and not necessarily knowing when to jump out of the pot. This is why the idea of attacking not the NGOs themselves but their sources of income is so sophisticated. To slowly starve them out without confronting what they actually do or outlawing their positions. I don’t think we’re far gone enough just yet, however. I do believe people will come out into the streets if B’tselem was to be abruptly banned. After all, considerably weaker moves, like the attempt to set up parliamentary inquiry commissions, do provoke very strong emotions. But what we have here is more than a political struggle; it is a culture war. We are fighting over the very character of the state, the regime that controls it and how this regime interacts with the civil society. And while one side of this struggle has reared its head and took the lead, it doesn’t mean it has taken over yet. They [the conservative legislators – DR] still discover on occasion that they’ve aimed too high. There’s a kind of a tussle of trial and error there. But the general direction is downward, no question about it. The fact that we have twenty monstrous bills and only ten of them pass into law, still leaves us with ten new monstrous laws.
Having said that, while we are sliding in a very negative direction, it’s not yet free-fall. What I often tell the folks at my office when they get depressed is that even if we are standing on the breaks and the car is still sliding towards the precipice, it doesn’t mean we can take our foot off the breaks. It also doesn’t mean that it doesn’t matter whether we continue hitting the breaks or not – of course it matters. The speed of the slide, after all, also matters. So the struggle is still on. We might be retreating, but it’s not yet a rout. There is opposition here yet.
Is there anything that can reverse the process?
First of all, you have the wildcard – a war, some other kind of a disaster, would change everything. In the less-then-apocalyptic scenario, we should remember that we keep tightening the noose around ourselves as far as international isolation is concerned. I don’t accept the argument that this doesn’t matter. I don’t know at what point the isolation will grow bad enough for Israelis to say, alright, that’s too much, let’s toe the line that the international community draws. Now, it’s true that when you apply pressure, the first reaction that you get is resistance. At some point, though, this spring will begin to slack. I don’t know when and I certainly wouldn’t like that to have to be the way to make things right here. The world at large has an understandably complex relationship with Israel, and that makes it more difficult to apply pressure to us than to other countries. And even so, if you take a look at the past five years, you see a very clear change in how Europeans and Americans approach us. It hasn’t borne much fruit yet, but that doesn’t mean it never will.
A third scenario for change, and I wish I could see it happening, is a different kind of leadership appearing here. It’s hard for me to say how and when it can appear, but then again, who could possibly have foretold 400,000 people coming out into the streets over social justice? And who could have guessed this massive wave will simply sip away and leave us with nothing? Is it impossible then that 400,000 come out into the streets again over something different? I can’t tell. But there’s no doubt that leadership is something we very seriously lack.
Do you think all these negative trends will prompt American Jews to take some sort of action? And what if it does? After all, the States’ interest in Israel is not merely cultural – it’s also military…
I find American politics on Israel very complicated. I’ve been trying to understand it for years – both in the macro and in terms of the Jewish community, AIPAC, J-Street. I think I understand it better than the average Israeli but I still find it difficult to understand just how it works. I can tell you that although this may be naive, American elections are a cardinal event, not just domestically but also in terms of the relationship with Israel. Because despite the fact Obama’s administration didn’t manage to push Israel or lead Israel in a more desirable direction, there is still the feeling that this alliance based, at least rhetorically, on common values, is cracking up, not least because of the loss or change of values here in Israel. We had Hillary Clinton’s comments at the Saban forum, for instance, and comments from high up in the military that we are becoming a burden for the United States. And then the thing that keeps it together is the power of AIPAC. Which, I think, can only last for so much. Because if the American administration maintains, over time, that Israel’s values are changing to something very distant from the fundamental values to which the United States themselves lay claim, that Israel is becoming a security burden, AIPAC will not be able to keep it going for very long. Internal political interests, the courting for Jewish votes and Jewish donors will no longer be enough. Which is why the question of whether Obama gets reelected is so important. Republicans, obviously, have a very different view on this – significant parts of the American society are undergoing a change similar or parallel to Israel’s. So will the value gap change anything? It may, but right now I don’t have enough information to tell you if it will.
So what do you do for now- just keep hitting the breaks?
First of all, yes, you do not take your foot off the breaks. Second, I believe there’s a historical duty on our part to share with the world what is going on here – it’s not an internal, private Israeli matter. So long as there’s the Occupation, and even when it’s gone, what’s happening here is anything but our own private matter. And third, since I diagnose our disease as symptomatic of fascism, I think the situation calls on us to set up an anti-Fascist League. Such a league is an excellent endeavour to attempt because it can bring forces that will not come together under any other circumstances. I can clearly see parts of the Israeli public that cannot cooperate in almost any situation, but can join hands against this legislation. So for instance the fact that you had (Kadima) MK Meir Sheetrit speak at the protest against the non-profits law shows me that even if only subconsciously, people still sense this thing that I’m trying to name. It’s not happening yet but it has to happen, as it happened whenever fascism actually took power – and it’s yet to take full power here. I don’t think it will happen soon and in one fell swoop; we won’t have someone crank up the heat suddenly to 100 degrees. But, I think we are slowly being cooked, just like that frog in the pot.