The Wall and the Gate: Israel, Palestine, and the Legal Battle for Human Rights

by Michael Sfard

From renowned human rights lawyer Michael Sfard, an unprecedented exploration of the struggle for human rights in Israel's courts

A farmer from a village in the occupied West Bank, cut off from his olive groves by the construction of Israel’s controversial separation wall, asked Israeli human rights lawyer Michael Sfard to petition the courts to allow a gate to be built in the wall. While the gate would provide immediate relief for the farmer, would it not also confer legitimacy on the wall and on the court that deems it legal? The defense of human rights is often marked by such ethical dilemmas, which are especially acute in Israel, where lawyers have for decades sought redress for the abuse of Palestinian rights in the country’s High Court―that is, in the court of the abuser.

In The Wall and the Gate , Michael Sfard chronicles this struggle―a story that has never before been fully told― and in the process engages the core principles of human rights legal ethics. Sfard recounts the unfolding of key cases and issues, ranging from confiscation of land, deportations, the creation of settlements, punitive home demolitions, torture, and targeted killings―all actions considered violations of international law. In the process, he lays bare the reality of the occupation and the lives of the people who must contend with that reality. He also exposes the surreal legal structures that have been erected to put a stamp of lawfulness on an extensive program of dispossession. Finally, he weighs the success of the legal effort, reaching conclusions that are no less paradoxical than the fight itself.

Writing with emotional force, vivid storytelling, and penetrating analysis, Michael Sfard offers a radically new perspective on a much-covered conflict and a subtle, painful reckoning with the moral ambiguities inherent in the pursuit of justice. The Wall and the Gate is a signal contribution to everyone concerned with the Israeli-Palestinian conflict and human rights everywhere.

Genres: Israel, Nonfiction, Law, Middle East, History

509 pages, Hardcover

Published January 23, 2018

Reviews

[Laabidi Raissi · Rating 5 out of 5]

Being raised in an Arab country (Tunisia), I am very familiar with the extreme conditions of the Palestinian people under occupation. What I was not familiar with is the very existence of brave Israelis human rights activists/lawyers who defended the oppressed. This book shed the light on some of the noblest positions a human can assume: standing against your own country/people to defend the vulnerable. I am especially impressed by the courage of the late Felicia Langer, and also Leah Tsemel, and the author himself along with many others.
The book details in passionate way the legal struggle faced by Palestinians in the Occupied Territories since th 1967 Naksa: deportations, house demolition, administrative detention, torture and especially land seizure and settlements.
One of the most powerful ideas in the book: In free countries, some are guilty, all are responsible.
I first heard about this book in an article in the New York Review of Books, and I can say both the article and this book are of great significance:
https://www.nybooks.com/articles/2018...

[Alexandra · Rating 4 out of 5]

The second half made up for the first half which I found difficult to follow since it jumped around a lot. But an indispensable perspective in understanding the conflict.

“What does a human rights lawyer want in his professional life? To defend the good guys and fight the bad; to do good; to help the disempowered, the marginalized, the victims; to stop human rights abuses. Any sort of complexity that intrudes into the dichotomy between advancing good and serving evil is an unpleasant dissonance that ruins the harmony of legal human rights activism. but life is complicated. A human rights lawyer often has to choose between two bad options.”

“A moral concept evolved in Judaism that imposed the responsibility for the welfare of all of humanity and therefore a duty to better the world. These principles, hailed from the categorical edict ‘love thy neighbor as yourself’, have been and remain the bedrock of the belief in human dignity, the yearning for liberty, the longing for equality among all people created in the image of God.”

“The occupation is an Israeli project. Not only the project of those who support it. The Israeli government draws the resources to sustain the occupation from all the country’s citizens, not just those who support its continuation. And the benefits of the occupation to the country's economy are enjoyed by all its citizens whether directly or indirectly.”

“The question was somewhat misleading. Clearly there were a great many external factors that made matters worse. Measuring human rights activism against human rights abuses as a method of assessing the effectiveness of activism is an error in logic. At worst it creates the illusion that one is the result of the other. The most optimistic interpretation is that the activism has no influence on the abuse. Neither of these is the necessary conclusion and both are most likely incorrect.”

“And though past experience may teach us some things, history does not really repeat itself. It just reflects itself each time from a slightly different angle.”

“Legal interpretation that puts great stock in the concrete historical context of the legislative act is not in fact purposive. Rather it is a conservative approach that looks for the legislator's original intent and assumes that this fiction exists even when the legislator is in fact representatives of scores of countries each possibly with his own object and purpose for supporting the language of the article. True purposive interpretation involves identifying the norm’s purpose in line with the values and principles that the specific legal field seeks to realize and that the law in general tries to promote.”

“What happened that night has become a bit of a war story for Israel's human rights lawyers and like any war story it suffers from the Rashomon effect.”

“Creating these enclaves of Israeli law applicable to settlers only contravenes a fundamental tenet of modern law. That is: legislation is applied on a territorial rather than a personal basis. Legal systems from ancient times had different norms for different groups of people distinguished by gender, religion, nationality, ethnicity, or social status among others. Since the French Revolution however the notion of personal law has been gradually replaced by the idea of territoriality, meaning that legal norms apply to all persons within the territory over which the legislator has jurisdiction.”

“Israel has created not only an occupation that has persisted for generations but also a regime where one group oppresses and discriminates against the other for the sole purpose of preserving its control and supremacy. This is the very core of the legal definition of apartheid which is an international crime.”

“The high court of justice is meant to rule on questions of law, not fact. And therefore witness examinations in a bid to uncover facts are rarely held.”

“Had the court accepted the state attorney’s arguments they would have, at best, broken the record for naivety or, at worst, been immortalized as nothing but a rubber stamp.”

“The Peace Now case showed that the court's glorious conquest ended at the green line. And it's evasive maneuvers to avoid ruling on the legality of settlements the court not only departed from its own judicial activism but it created an enclave of non-justiciability within the universe of justiciability.”

“So court proceedings cannot be considered a first order tool for social change (that is one that could tip the scale in favor of change). Instead, and especially when the remedy sought goes against the political brain, legal action is a second order tool. One that can help change the political trend. The outcomes of such legal battles create new ways to fortify the camp that is seeking change. That is why it is dangerous to assess what if in legal terms only. The role the legal battle played in bolstering opposition to the settlements even without decisive wins is difficult to gauge. It is impossible to know how much weaker the opposition might have been without the information that came to light thanks to litigation, the manifesto it produced, and the spotlight it put on the settlements. And besides, the fight isn't over.”

“In fact any recognition of a right is necessarily the restriction of a freedom. And recognition of an absolute right is the imposition of an absolute restriction. Which is one of the reasons why absolute rights are so rare. Also the recognition of absolute rights creates a hierarchy between absolute and non-absolute rights with the former being preferred over the latter in case of a clash. The more absolute rights that are recognized the greater the risk of irreconcilable clashes between them. For example it is impossible to recognize both the right to health and the right to property as absolute rights. If the former is absolute, those who have means must be taxed to fund healthcare for those who have not, in which case the right property is no longer absolute. Or to respect the right to property of those who have it no taxes should be extracted which amounts to sacrificing the right to health of those who do not have the means to buy health services making this right not absolute. There's no way to uphold both these rights wholly. In this sense the notion of absolute rights is almost an oxymoron. The more absolute rights are recognized the more absolute restrictions would have to be imposed, chipping away at liberties which then become non-absolute.”

“Violence instigated as a private initiative with no connection to the authorities does not count as torture in the legal sense regardless of how cruel it is.”

“A struggle that deliberately kills civilians as a means to achieve political goals is terrorism and using suicide attackers who sacrifice their lives, who blow themselves up in civilian population centers is one of its most blood curdling incarnations. 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. Suicide terrorism, like any other type of terrorism with the possible exception of using unconventional weapons, painful and difficult as it may be does not however pose an existential threat to the nation it targets. It disrupts life. It causes indescribable suffering. It muffles the voices that call for peace and moderation. But it cannot bring a country to its knees, overthrow its government, or replace the regime in the way that a conventional war can. But terrorism can produce significant changes in the character of the society it targets. As Israel learned firsthand, a reality of terror is perfect breeding grounds for ideas and acts that threaten that society's principles and values. Terrorism can elicit exceptional cruelty and extinguish any compassion a society might have had. In fact in many cases herein lies terrorism’s triumph.”

“Legally these two factors are extremely important. First international law absolutely prohibits unilateral annexation of land that was captured by force. Which is why the international community does not recognize Israel's annexation of East Jerusalem and the Golan Heights. Second, the route was determined with settlement interests in mind. Which constitutes a political rather than a security consideration. And according to the jurisprudence on settlements, the land seizures were illegal.”

“This is part of Israel's tragedy. The best of the best driven by a genuine desire to serve their society and do good end up serving the machinery of occupation and disposition.”

“In the past few years Palestinian administrative detainees have increasingly turned to a means of protest practice by political prisoners around the world: hunger strikes. One reason why detainees have embraced so extreme a measure could be the futility of the legal fight. As I learned early in my career when I was mostly involved with criminal cases, the law is built on hope. Defendants hope to be acquitted. Appellants hope their conviction will be overturned. Convicts hope to get clemency or early parole. If none of these happen maybe exculpatory evidence will turn up. Maybe there’ll be a retrial. Each and every individual has good reason not to break the rules. What do administrative detainees have? All they can do is punch at the wind. Their despair is great Their hopelessness, and that of their lawyers, is absolute.”

“Though she admitted that the ‘issues raised in the petition are difficult and troubling’ and though ‘toeing the line of case law in this issue is not easy’, she could not agree to revisit the legality of the subject “without turning the court of justice into a court of justices”. Justice Hayut was alluding to the danger that, despite the existence of a clear case-law, each justice would reach their own decision, undermining the unified voice of the institution to which they belonged. This position is an expression of a thesis of ‘narrow personal discretion’ as I called it. The thesis is that the personal position of a justice is subordinate to previous rulings by the court. But it has two weaknesses. First, the Supreme Court is not bound by its own precedent and a justice sitting on the panel has no collegial duty toward the other justices presiding on the same panel or to previous panels. Instead the justice may, indeed must if her conscience so demands, dissent. Second, bowing down to previous judgments is a self-fulfilling prophecy that creates the mirage of a broad unified body of jurisprudence.”

“Self-diminution and pinning responsibility on a higher norm is a known phenomenon in studies of cognitive dissonance among judges who are asked to cooperate with actions they oppose and choose to do so. Judges who are caught in such dilemmas are in effect saying everyone has ruled this way and I’m bound by that. They're giving their approval of collective punishment and taking cover in collective responsibility. They reach back to their predecessors… seeking to diminish their own responsibility.”

“What is wrong with the policy should be self-evident. But after years of dealing with the subject I have learned that even people who consider themselves humanists need to be convinced that killing terrorists is problematic. The first problem is that killing a person deliberately is murder. Modern law recognizes a very small number of instances in which intentional killing is not considered murder. Self-defense and necessity provide a defense in cases where lethal force is immediately required to deflect an attack or other life-threatening situation. The laws of war allow combatants to kill enemy combatants during armed conflict. These exceptions to the prohibition against taking human life are shared across legal systems. Other permitted killings are more debatable and some are sources of bitter controversy. Capital punishment (international human rights law takes quite an antagonistic approach severely limiting capital punishment and pushing for its abolition), assisted dying, and abortion (which centers on the dispute about the start of life). Killing suspected terrorists does not fall under any of these categories.”

“The IDF department for national law came up with a typical solution for an occupying army that also serves as the legislature which has over many decades grown used to the idea that if the law is inconvenient, the law must be changed.”

“Tipping the scales in illegal struggle over human rights is sometimes accomplished by adding small weights over time. We see no change until the final weight shifts the balance. I would like to believe that this is also true of the struggle against the wide use of administrative attention and that the scarcity of achievements only means that the scales are still being loaded.”

“Litigation is usually a tool used by the weak to force change indirectly. The powerful do not need this workaround. If they want change they can use direct means to make it happen.”

“The active cost of our court cases would appear to be the danger of enhancing the regime's standing. The judicial process can give the regime an extremely important asset: shielding it from accusations of arbitrariness and lack of oversight. Paradoxically it is not just our losses in court that helps strengthen the regime but also, perhaps especially, our victories. When the court grants relief it sends a message that the system contains a mechanism to remedy injustice. To those critical of the regime this message could weaken the demand for change or at least suppress the sense of urgency.”

“There's a certain amount of energy for the fight that might be applied to protest (writing, lobbying, civil disobedience, or even violence). Once the cause goes to court much of the energy that might have led people to engage in other action is directed at the slow, organized channels of legal procedures. the movement switch is gears and hoping it will affect immediate change. The drive to move mountains diminishes. Legal proceedings almost inherently jeopardized grassroots action because they set the course for change while engaging the street with the media or the political process seems but only seems to be the wrong locus of change.”

“But the justices also believe that regime change is not part of their mandate. And so they shy away from decisions that could shape the regime’s foundations or change its character. injurious policy is certainly a matter for judicial review but an injurious regime is not, even when it is clear that the regime's nature is the main source of the violation of rights.”

“But the price of legitimacy is worth paying [John Dugard] believed so as not to desert the fight for justice. [A justice’s] resignation would be abandonment and a particularly grave act considering that the victims of injustice sought representation, petitioned for protection, and hoped the courts would rule in their favor.”

“It is important though, as we near the close of this book, to acknowledge that the battles recounted here are not just about ending the occupation.In a profound sense they are a struggle for the character of Israel’s society. In their petitions lawyers try to stop the mutation. In their arguments, they try to spread sand on the slope. From that perspective, the significance of this legal fight for Israel's society is greater than the sum of its victories and successes. Based as it is on moral and ethical values the fight preserves an alternative to the policies of settlement, belligerence, and dispossession. Even when no one seems to be interested in that alternative.”

[David · Rating 4 out of 5]

The author is a prominent lawyer and the co-founder of the Israeli human/legal rights NGO "Yesh Din." this book details his work over many years arguing cases before Israel's supreme court. Unfortunately it was written prior to the recent "judicial reform" controversy (which was largely put on hold since Oct 7), but it's still valuable in understanding the activities of the court and the attitudes towards it.

As someone who generally doesn't find the minutia of legalese particularly interesting, the details were a bit much in spots, but still easily understandable for a general reader such as myself. And the details did help understand the larger moral and ethical issues, as well as the strategic decisions and societal implications.

There are chapters covering the legality of most of the main issues Israel has contended with during the occupation of the West Bank since 1967. Starting with fundamental questions such as which laws apply, and who decides. He then goes on to discuss the settlements (both recognized and illegal "outposts"), deportations, targeted assassinations, house demolitions, administrative detention, enhanced interrogation (i.e. torture), the separation barrier aka "border wall", and questions such as whether terrorists are considered as civilian criminals or military enemy combatants under the law. He has personal involvement in arguing cases on all of these issues in front of the supreme court, and writes with deep insight.

Although this is a book written primarily with an Israeli audience in mind, he also clearly worked hard to make it accessible for a wider readership. He doesn't hold back from his opinions on the Shamgar and Barak courts during the 80's and 90's, or the more recent political situation. But in addition to airing his grievances, he explains the judges' wrestling with national vs universal values, Israeli vs International law, how the Legal system operates vs what is portrayed in the media vs political maneuvering vs general public opinion. He sympathizes with the competing interests of adhering to and upholding the law in the face of competing interests and very real security concerns.

Personally I think that sometimes people like Sfard get too caught up in doing "what's right" rather than doing the "right thing" (e.g. the ticking bomb dilemma), at a certain point reality has to be taken into account and potentially supersede the pure idealism. He argues persuasively that I am wrong, that even the most heinous baby-murdering terrorists deserve full and equal rights under the law and that denying them any of those rights is the path to moral degradation, hypocrisy, and the collapse of legitimate civilization. I get it, but also can't disregard the fact that some of the people whose rights he so vigorously strives to defend would disembowel him in a heartbeat given half the chance.

[Maxyne]

This book outlines the legal fights happening in opposition to the Israeli occupation of Palestine. Written by an Israeli human rights lawyer who represents Palestinians. A big part of his thesis is why the legal fight against the occupation is worth it. He presents the question at the beginning - is there value in fighting the occupation in court even though this can be seen as legitimizing the occupation? And then the book goes through various categories of legal fights that human rights lawyers in Israel are fighting - deportation of Palestinians, Israeli settlements, the separation barrier, torture of Palestinians, assassinations of Palestinians (and bystanders), home demolitions, etc.

It's a view of the occupation from the perspective of the court room. And reading this book really made me realize how much human rights lawyers are up against in the fight for justice for their Palestinian clients. But it also leaves you with hope, and offers some perspective on the value of the legal fight alongside other methods of seeking justice and change.

[Abu Dzar · Rating 4 out of 5]

Having a chance perusing this book during my quarantine. This book simply expose me to the different side of Palestinian's struggles. Since child I was always hearing about the physical torture and the terrorism acts done by Israel. The same thing also happened in their legal battles. Reading Sfard's stories about how the Israeli twist and rip the law to their narrative and interest did not surprise me anymore. It is their nature and habits.

Deportation, extradition and banishment that are always known as Geneva's crimes has always been their main trump. The law has been interpreted like a football street. But somehow there are little hopes that still shine. This is what has been dug up by human rights lawyers like Michael Sfard and Felicia Langer. It is worth knowing the legal fight of our brothers there.

Thank you Lutfil for recommending this masterpiece !

[Ariel · Rating 5 out of 5]

Amazing, amazing work of legal scholarship. Long but fascinating the entire way through. In each section, Sfard breaks down a different category of Israeli violations of Palestinian human rights (e.g. home demolitions, settlement construction, torture, administrative detention, deportation, security checkpoints, etc.) and explains it, analyzes it within Israeli and international legal frameworks, and brings in stories from his own experiences as a human rights attorney + witness to the incomprehensibly inhuman treatment of Palestinians. I can't imagine a job more demoralizing than being a human rights attorney in Israel, where the judges are basically spineless political hacks owned by the military. This book was really eye-opening in the most devastating way.

[Kara Whipple · Rating 5 out of 5]

1) just absolutely incredible

2) 20 hour (regular speed) audiobook squished into a 24 hour period at 1.75-2x speed b/c Libby only gives you a three day warning when a book is no longer available through your library 😳 my brain is gonna sit with all this for a minute

[Wmba Dams · Rating 2 out of 5]

bought this for a buck from the dollar store remainder pile

not a novel so DNF

history book that is way too long
lots of footnotes in the back

too specialized so way too long for casual reader

limited audience for a very specialized recent event tome that is way too long.

[Hannah Miller · Rating 5 out of 5]

this is one of my favorite books and i decided to go to law school after reading it.

[Nelson · Rating 5 out of 5]

Great book by a great human rights lawyer. The dilemma Sfard posed in the intro applies to most of the cases described: you can find relief for your clients, but you end up legitimizing the Occupation because it gives Israel a veneer of democracy in the occupied territories. Ultimately, though, he decided that it's better to just give relief to your clients. It takes too much to boycott the judicial systems.

I personally believe this is the case; I also have no confidence in the direction Israel is headed (it takes the USA to threaten to pull aid if Israel keeps it up.).

As Sfard explained. Israel applies administrative law, where suspects are guilty until proven innocent, to the territories. International law allows for administrative law in sparing instances, but Israel made it the rule instead of the exception. And Israel even holds minors in administrative detention. Learning about this distinction was the most useful knowledge I gained from the book.

Another interesting issue was building the separation wall in Palestinian territory. A wall would reduce terrorism, but building it along the green line would upset a lot of religious fanatics in Israel who believed the West Bank would be theirs. So Ariel Sharon built it in Palestinian territory.

Human rights lawyers forced the Supreme Court's hand, because if the court ruled that the wall is legal, then they'd become the laughingstock of the international legal community. If they ruled against it, they'd upset the religious right wing in Israel. So they ruled that the wall was non-justiciable, and let the wall-building proceed. They couldn't upset the religious right wing.

Yet, as Sfard points out, they expended their political capital ruling in favor of Israel's secular upper-middle class's right to watch movies on the Sabbath and eat non-Kosher foods, instead of protecting Palestinians.

[Bettina · Rating 5 out of 5]

A must read for all interested in the state of Human Rights in the state of Israel and especially the Palestinian Occupied Territories.
Well written, well translated - which makes for fluent and enjoyable reading (the topic is of course at times frustrating....)

[T.J. Burns]

I received a copy of this book from Henry Holt & Company via NetGalley in exchange for an honest review.