I
n September 2001, the United Nations Commission on Human Rights held a major conference in Durban, South Africa, ostensibly to mark the end of the apartheid regime. But the event, and particularly an “NGO Forum” attended by 5,000 delegates, was hijacked and turned into what some participants termed an anti-Israel and anti-Semitic carnival. In the final session, the leaders of the NGO Forum announced a plan to transfer the tools used in the anti-apartheid campaign to the dismantling of Israel, declaring the nation-state of the Jewish people guilty of apartheid, ethnic cleansing, and war crimes.
Since Durban, a small but generously funded army of ideologues has sought to implement this strategy, seeking to persuade governments (particularly European) and international institutions, such as the International Criminal Court, to isolate and demonize Israel.
Michael Sfard is among the most energetic, passionate, and articulate warriors on this battlefield. As an Israeli fiercely opposing the policies of his own nation, he automatically gains credibility among some audiences. Over many years, he has waged war in the Israeli courts and, more important, in arenas around the world that specialize in anti-Israel campaigns.
Sfard’s weapon is international law—a nebulous, plastic, and readily manipulated commodity that has the feel and texture of real law (as practiced by lawyers and judges in individual nation-states), without the constitutional backbone.
His book The Wall and the Gate is a polemic, and there are no shades of gray or self-doubt. At no point does Sfard ponder complexities and contradictions, such as the absence of universality or reciprocity—two essential dimensions of any legitimate legal system. Thus, he glosses over the daily human-rights violations and war crimes committed by his “clients,” as he paternalistically refers to Palestinians, repeating the standard victimization myths. His references to the horrors of terror that have taken so many Israeli lives are minor and parenthetical. For example, in condemning the Israeli separation barrier that has prevented many terrorist attacks, he says, “there will come a day, maybe when the conflict is over, when Palestinians will be unable to escape the duty to reckon with some of their organizations tactics.”
In 528 pages of detailed legalese, with numerous footnotes and references, primarily to court cases, Sfard manages to cover a very narrow spectrum of reality. He offers no solutions to the conflict, because international law on its own cannot resolve anything. The mass labeling of Israeli political leaders (who, unlike Sfard, were elected) and military officers as “war criminals” is neither moral nor productive.
The publication of the book in English rather than Hebrew reflects Sfard’s emphasis on persuading outsiders to help him impose his agenda on Israel. Readers likely to be convinced by this volume include those who already agree with him (including European officials who have provided Sfard’s law office and associated “human-rights organizations” with substantial taxpayer funds over the years), and others with one-dimensional views based on maps that begin at the Mediterranean and end at the Jordan River. Iraq, Iran, Syria, al-Qaeda, and the rest do not exist in Sfard’s imaginary Middle East. The unstated assumption behind this book and Sfard’s legal crusades is that the only issue that matters is the post-1967 “occupation,” which must end, regardless of what comes after.
His main argument begins with a chapter on “deportations”—the focus of the first legal battles challenging the occupation policies, beginning in the late 1970s. At the time, and particularly during the first Rabin-led government in 1976, Israel sought to deport PLO leaders involved in incitement and violence, such as Abu Awad, Mustafa Natshe, Bassam Shaka, and others. Their defenders Felicia Langer and Leah Tsemel, who were Sfard’s role models, are portrayed as talented legal technicians—manipulating an archaic legal system, outmaneuvering government lawyers, and persuading judges who ruled strictly according to their understanding of the law. The issues of war and peace, of terror attacks and real people being ripped apart—Israeli lives and families destroyed in unspeakable evil—are conveniently erased. Throughout the book, Israeli Jews are the all-powerful Other; the victims of Palestinian terror are nameless, without families or mourners. Only Palestinian victims, real and constructed, are given the dignity of being named.
Sfard dismisses the complex legal and political challenges in this and other chapters by facile references to the 1949 Fourth Geneva Convention (prohibiting civilian population transfers in situations of occupation), and again highlighting Sfard’s simplistic interpretation of international law. He views these instruments not only as unambiguously binding (ignoring conflicting interpretations, laws, and principles), but more important, as a means of leveraging international pressure in order to force Israel to change its policies.
Thus, he notes: “The international debate over the prohibition set down in Article 49…ultimately had an effect…. The claim that Israel is violating a convention signed after World War II whose purpose is to prevent humanity from committing war crimes against civilians could not be more troubling.” Far more troubling, however, is Sfard’s exploitation of these agreements to weaken Israel’s ability to address terrorist violence directed at its civilian population.
As he moves from one topic to the next, and from decade to decade, we can see how what began as the legal and political crusade of a few individuals became a major industry. The Association for Civil Rights in Israel (ACRI) was one of the first nongovernmental organizations involved, followed by Hamoked, B’tselem, Yesh Din, Breaking the Silence, Adallah, and others—all seeded by the New Israel Fund. European governments then multiplied the grants and resources to Sfard’s network, thereby promoting their policies, prejudices, and interests. On the sensitive issue of foreign funding for what are essentially opposition advocacy groups operating without democratic checks and balances, Sfard is unusually silent. His successes with major donors gave a major boost to his own prestige, influence, and financial status, including the grant from the Open Society Foundations (George Soros) that enabled him to write this book.
Legal battles over settlements are the focus of another lengthy chapter, in which political processes, elections, Knesset debates, security considerations, and other dimensions are erased from the background. On this crucial issue, democracy and the system of checks and balances between different branches of government are deemed irrelevant. From this perspective, determination of land ownership (an extremely murky topic, involving Ottoman, British, Jordanian, and Israeli laws) and related issues are determined strictly by the skills of the lawyers arguing the cases on the side Sfard supports. No wonder that Israelis —for whom questions of borders, security, and the right to live and build in ancient Jewish sites are central—are not comfortable when these and other issues are decided by a narrow legal fraternity.
The chapter on the separation barrier follows the same template, accompanied by some particularly egregious propaganda. In a one-paragraph summary of the origins of this strategic innovation, Sfard repeats the slogans and myths of the so-called second intifada. Arafat’s terror wave, in which more than 1,000 Israelis were brutally murdered, is falsely attributed to Ariel Sharon’s decision to reassert Jewish rights after the Palestinians used violence to close the Temple Mount. Placing issues of life and death for millions of Israelis into the background, the legal claims of Palestinians are again the primary focus.
Among many omissions in this tome, the absence of any reference to Richard Goldstone stands out. In 2009, Judge Goldstone agreed to head the Commission of Inquiry into the Gaza warfare that was established by the UN Human Rights Council. In the spirit of the 2001 Durban NGO Forum, the Commission’s absurdly biased mandate was to find evidence of Israeli war crimes, which they did, as reflected in their report. Afterward, Goldstone—who had served on the South African court in the transition from apartheid—belatedly realized that he had been massively deceived. Sacrificing his career, he courageously denounced the report that bore his name, acknowledging that its legal and factual claims were unsupported. Michael Sfard and the NGO network that he founded were among the main sources of this infamous document.
As the book concludes, Sfard focuses on one hero in particular—Michael Sfard. Citing experts such as John Dugard, the UNHRC’s special rapporteur on the Palestinian Occupied Territories (whose words of praise are included on the book’s jacket cover), Sfard chronicles his dubious successes. The anti-terror barrier was transformed into a “photojournalistic disaster” due to his efforts, he claims. Dugard, it should be noted, has been condemned by the Geneva-based UN Watch as “a disgrace” whose “‘see no evil’ approach to Palestinian terror contradicts each of the UN Policy Working Group’s criteria for UN reporting on terror: clarity, principle, unacceptability of terrorism, and dissuasion.” Praise from Kenneth Roth, the leader of Human Rights Watch and another obsessive Israel-basher who, like Sfard, is funded by George Soros, is also featured on the book jacket. No buyer can say he wasn’t warned.
