A rights-based approach – Zaha Hassan & The dual legal system – Michael Sfard

Speaking at the Balfour Project online 2-day conference “Israel/Palestine: in search of the rule of law” on 25/26 May 2021.

Click here to view the other speakers at the conference.

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Dominic Grieve QC:

Good afternoon. We are now going to follow up with Zaha Hassan who’s going to speak to us as to why a rights-based approach makes a just lasting political solution more likely and why now. 

By way of introduction, Zaha is a human rights lawyer, visiting fellow at the Carnegie Endowment for International Peace. Her research focuses on Palestine/Israel peace, the use of international legal mechanisms by political movements and US foreign policy in the region. Previously, she was the coordinator and senior legal advisor to the Palestinian negotiating team during Palestine’s bid for UN membership, the member of the Palestinian delegation to the Quartet-sponsored exploratory talks between 2011 and 2012. She’s a regular participant and commentator on media and in the New York Times, Al Jazeera, and many other outlets. Zaha over to you and welcome.

Zaha Hassan:

Thank you so much. I appreciate it and thank you to all the organisers of the conference for including me in these discussions happening over the next couple of days. It’s really an honour to be among you and the rest of the speakers, who I admire very, very much. 

The question I wanted to consider with you for the next few minutes is the following. In light of the serious human rights situation in Palestine,/Israel which has devolved into what many consider apartheid, how ought Palestinian/Israeli peacemaking be reimagined moving forward? 

Given the title of this segment of the conference program and what you just heard, you will have guessed, I’ll be talking about a rights-based approach, but what do I mean by that and how can a new approach lead to a durable political solution?

Before getting into that, it’s a good idea to assess the events of the last 40 or so days from the start of the latest escalation of violence. There was a gradual lead-up to the 11-day bombardment of Gaza that has been allowed to drop off the news cycle and from the lips of politicians who were quick to reaffirm Israel’s right to self-defence without reference to any rights that Israel might owe to Palestinians under international law, including those contained under the law of occupation and human rights law. 

From the first day of Ramadan, we saw Israelian authorities ratchet up tensions in Jerusalem in a way that seemed gratuitous and to have no logic. The speakers for the muezzins call to prayer for example were cut by Israeli authorities in Jerusalem on the first day of Ramadan. The Easter procession was obstructed in the Old City and worshippers assaulted. Then came the barricading of the plaza of the Damascus Gate, despite it being a centre for youth and worshipers to congregate and celebrate Ramadan nights. 

We saw Israeli police side with and protect a Jewish extremist group as it paraded provocatively in front of Palestinian youth in the Old City, chanting ‘Arabs get out’. Then there was the looming forced displacement in Sheikh Jarrah, neighborhood of East Jerusalem where Palestinian refugee families who’d already been displaced before in 1948 were being assaulted and attacked by settlers under the protection of the police.

Then of course we saw the storming of the Haram al-Sharif esplanade by Israeli police on one of the holiest days of Ramadan, in the holiest month of the Muslim calendar and one of the most sacred spaces to Muslims, leaving hundreds injured. 

During the course of this escalation of tensions, where was the United States? Where was the EU, and where was the United Kingdom? Powers that hold some sway with Israel and who might have had some ability to pull Israeli officials back from further escalation, or who could have at least shown some leadership in reaffirming the international legal order to which Israel is bound.

They were not entirely absent. There were statements about both sides needing to de-escalate, but one side is a defenseless population under occupation, and the other is a militarised state that has been maintaining a brutal occupation for more than half a century and who legal experts say is guilty of the crime of persecution in apartheid against the other side. 

In effect, the statement to both sides was read as a green light to one of the sides, Israel, and that sense of impunity is what led us to the bombardment of Gaza. That’s the problem with international engagement on peacemaking between Israelis and Palestinians. It has been contradictory for the last 30 years.

While expressing support for a two-state solution and the establishment of a democratic Palestinian state, the international community has refrained from using its levers of power to stem the tide of Israel’s illegal settlement expansion and human rights abuses. In the case of the United States, not only has it refused to use the levers of its power with Israel, its very close ally, but paradoxically, it has been all too willing to use those same levers to constrain Palestinian diplomatic efforts at the UN and with third states and legal efforts to prevent impunity in places like the International Criminal Court.

The failure to hold Israel to its commitments and legal obligations during US mediation of the peace process and America’s deprioritisation of Palestinian good governance and accountability effectively undercut Israeli and Palestinian constituencies who supported a political agreement through negotiations. After all the financial, legal, diplomatic, and moral support that has been given to Israel, doing nothing now makes the international community complicit in war crimes and crimes against humanity.

How is it that there is not outrage by the international community at the fact that for 13 years, Palestinians in Gaza have been trapped inside a tiny strip of land, subjected to repeated bombing campaigns for in the last 12 years by an Israeli military whose strategy dictates the use of disproportionate force against civilian populations and civilian infrastructure? How is it that we have allowed two million people to be condemned to a subsistence level existence? A new approach to Israel-Palestine conflict resolution is obviously needed now, one that prioritises rights and human security.

Such an approach would help restore respect for the rules-based international order, something that the Biden administration is championing at the moment, by eliminating exceptions, particularly the Israel exception. It also holds the most promise for changing the political calculations currently steering Palestinians and Israelis away from a durable political solution. 

But what is the frame of reference for a rights-based approach, and how can it get us to a durable solution? First, we should acknowledge that a rights-based approach to matters involving international peace and security is not new. Prioritising universal values and norms is what undergirds the international legal order created in the aftermath of World War II that we heard discussed earlier.

That’s why we have the Geneva Conventions, to protect civilians and occupied people during times of war, the United Nations system and the human rights treaties and associated mechanisms to promote respect for rights and well-being of peoples, and to advance decolonisation. However, the order has been buckling under the weight of its contradictions for years now. For sure, it hasn’t prevented grave human rights situations, like the ethnic cleansing in former Yugoslavia, genocide in Rwanda, and forced population transfer of the Rohingya from Myanmar, but that isn’t a reason to walk away from it. A meaningful and positive, even if modest, international response to the Israel-Palestine situation could help change the negative trends on the ground.

We shouldn’t forget that the international community bears significant responsibility for the situation in Israel-Palestine, because of its support for the partition of historic Palestine into two ethno-religious states. The UN has been occupied with the matter ever since in dealing with the humanitarian concerns of Palestine’s refugees, successive Arab-Israeli wars, and the deteriorating human rights conditions in the occupied territories. International engagement on the situation in Israel-Palestine has and will continue to come into conflict with our fundamental values, unless there is a recalibration of approach. 

We all know what these rights are. They are enshrined in the United Nations Charter and the Universal Declaration of Human Rights and in the other human rights conventions. We also know which ones Israel has been violating. As we heard earlier, the 2004 advisory opinion of the International Court of Justice determined that Israel has been violating the right to self-determination, work, freedom of movement and protection of families and children, and the right to an adequate standard of living, health, and education. The world court also determines that all states party to the Geneva convention have an obligation to ensure compliance by Israel and to cease all aid to Israel that supports its violations.

That means a rights-based approach is not only about centering values for value sake. It also is a legal obligation of the international community. 

Now I want to turn to how a rights-based approach helps us get to a durable solution. A rights-based approach improves the environment for a political solution by creating costs for maintaining the status quo. In this sense, a rights-based approach is not some placeholder that prioritises conflict mitigation until more conducive political conditions materialise. Instead, it’s the conduit for creating those very necessary conditions.

Now how does it do this? It does this in three ways. First, it makes international engagement more credible to both Israelis and Palestinians.

If human rights were centered and there was accountability for the violation of rights and international law, Palestinian trust and international engagement would grow as would support for negotiations that could lead to an agreement. 

Today, there is very little support among Palestinians for negotiations. Now in Israel, accountability would clarify expectations for leaders. Creating costs in the bilateral relationship would have ripple effects down through the Israeli electorate that could begin to reverse the trajectory toward annexation of the West Bank and further rights abuses. 

Second, centering rights can inspire the necessary public confidence and create momentum for reaching a political agreement.

Some 75% of Palestinians believe that the chances of an independent Palestinian state coming to fruition the next five years is either low, or very low. About 62% believe the two-state solution is no longer possible. Likewise inside Israel, nearly 85% of Israelis believe a solution in the next five years is somewhat unlikely, or very unlikely. These views are tied to the repeated failures of the peace process, as well as the worsening realities on the ground. Today, neither Israeli nor Palestinian leaders have an incentive to create political constituencies to back a negotiated solution. 

In Israel, the US approach failed to create any real costs for right-wing nationalist policies. The message from Washington was that the US-Israel relationship is sacrosanct and won’t be jeopardised by pressing Israel on its conduct, vis-a-vis Palestinians. In Israel, political parties coalesced around anti-Palestinian policies without fear of alienating vital allies, like the US. 

In Palestine, political parties committed to negotiations undercut their own legitimacy by repeatedly committing to a failed peace process that demanded much of them, while allowing settlements to expand cost-free. 

If Israeli policies that violated rights and previous commitments came with costs attached to the US-Israel relationship, for example, it would over time force a recalculation and promote politics that are more amenable to political negotiation. On the Palestinian side, it would allow parties committed to negotiation to garner the faith of their publics. 

Now third, a rights-based approach would correct the imbalance of power between Israel and the Palestinians, and provide Palestinians some agency to bolster international consensus around the rights. This would have a better chance of spurring Israel to take its obligations more seriously as an occupying power and to negotiate consistent with principles of international legitimacy. The previous US approach, crafting positions on peace proposals or parameters with Israel, while inhibiting Palestinian access to diplomatic or legal fora, such as the UN or at the International Criminal Court, effectively allowed Israel to maintain its occupation at no cost.

At the end of the day, even if there was no headway made on a negotiated political solution, the international community should avoid complicity and grave human rights abuses and work to uphold the legal order at the minimum, not providing political cover and financial benefits to Israel that facilitate and prolong its domination over Palestinians, and I’ll stop there.

Dominic Grieve:

Thank you Zaha. That was a very interesting overview. Now, I think it’s now our task to bring Michael Sfard into our conversation. Good afternoon Michael.

Very good to see you. I was just about to introduce you and explain that you are a lawyer, specialising in international human rights and laws of war with special emphasis on the law of belligerent occupation. You’ve served as council in many cases on these topics in Israel, including the successful litigations for the removal of settlements built on private Palestinian lands, petitions concerning the Separation Barrier, challenge to the Israeli policy of targeted killings and challenge to the constitutionality of the regularisation law, which ordered the confiscation of private Palestinian lands and allocated them for the use of Israeli previously unpermitted settlements.

You’re a legal adviser to a number of Israeli human rights and humanitarian organisations, and you represent Palestinian communities and Israeli and Palestinian activists. You grew up in Jerusalem. You served in the Israeli Defense Forces. You were sent to prison for three weeks as a conscientious objector refusing to serve in Hebron, and you are a graduate of the law faculty of the Hebrew University of Jerusalem. I won’t go into the many national and international awards you have received for your work, which I think everybody knows has been carried out in the most challenging of circumstances. You have written a number of books on the subject of Israel’s policy towards the occupied Palestinian territories. Michael welcome.

Michael Sfard:

Thank you Dominic and I want to thank the Balfour Project for inviting me. I’m really happy to be here, and thank you for a really fascinating conference up till now. 

Miss Hassan had the opportunity to suggest some solutions, or a road map to solving the Israeli/Palestinian conflict. I have the thankless task of highlighting some sides of the problem and in order to do so, I will have to dive from the heights of international law which were discussed before me and into the ground resolution of domestic law, and how the rule of law is being professed, abused in the occupied Palestinian territory.

One of the things about the Israeli/Palestinian conflict that one has to acknowledge is that Israel has fragmented the Palestinian people into several parts, each one with a different legal status. We have the Palestinians that live in the occupied Palestine territory, which also can be divided between the West Bank which are governed by a specific set of norms, policies, and practices. There are Palestinians who live in East Jerusalem, who are subjected to a different set of policies and normative framework. Then you have the people in Gaza where they are in a completely different situation. Also, the Palestinians who live in Israel and are Israeli nationals, and they enjoy and suffer from different normative rules altogether. I won’t even get to the Palestinian refugees who live in other countries, which of course this is another story. 

I want to focus on the law that applies to Palestinians in the West Bank and East Jerusalem, but I just wanted to make sure that all the audience understands that this is only part of the Palestinian people and only part of the Palestinian people who are under Israeli domination. 

The idea of the rule of law which is the topic of this conference is a noble idea. As a lawyer, I think it is a noble idea. The idea that we all participate in the process of adopting the norms that will equally apply to all of us and that way, the chances that we will be living under norms that would enable us to flourish is much bigger. That idea of the rule of law is not being applied in the occupied Palestinian territory. Dominic has mentioned that the opposite of the rule of law is not necessarily anarchy, but the rule by law, the use or the abuse of law as a sword, rather than a shield, not as one that generates defense for rights, but otherwise allows the power to abuse rights.

The rule by law sometimes is a diabolical idea, and one of the ways that the rule of law becomes a rule by law is when one group, one community is using and exploiting its power, its political power, economic power, military power to divide the law, the norms that govern a certain area in a way that will apply differently to different groups. This is exactly what happens in the West Bank. 

Now I’ll focus on the West Bank, and then I’ll say a word about East Jerusalem. As you all know, Israel has engaged in a massive project of colonisation of the West Bank and East Jerusalem and in the past, in Gaza strip as well. To date, there are more than half a million Israeli nationals, all of them Jewish, living in the West Bank in the midst of a community of three million Palestinians. The international law, as was discussed before, prohibits with no exception the transfer of citizens from the occupying power into the occupied territory. 

When I’m asked by students and by people that I talk to why international law prohibits, I direct them to the situation in the West Bank job to prevent exactly what is going on in the West Bank. When communities of the occupying power occupies, immigrates, colonises the occupied territory, two communities are created that are completely different, in rights, in political power, and in every other aspect and this is exactly what happened in the West Bank. 

We have a community of Israelis who live there. They have full political and civil rights as nationals of the State of Israel. In that way, they have an impact on the corridors of power, where the norms that govern their lives is being decided. There is another community, the community of Palestinians and they are a community that are completely dispossessed of political and civil rights. According to international law, their civil and political rights are being suspended for the duration of the occupation. When we have this huge imbalance, one community that has full civil and political rights, the possibility to vote and to be elected and run to government, and the other has none of this, it is almost inherent that all the resources of the land will be diverted to the community of citizens of the occupying power.

Now, what has happened in the West Bank was that not only that the community of Jewish settlers that have colonised the West Bank have been provided, through policy and practice, with all of the riches and all of the resources of the land in matter of land, water, natural resources, et cetera, but also in terms of law, they have been showered with modern law to apply to them when their neighbors in the Palestinian villages, towns, and cities have none of this. How did that happen? 

When Jewish Israelis have immigrated to the West Bank, they did not think that they are moving outside the State of Israel. They didn’t go there to be under a military occupation government.

They went there in order to extend the borders of the State of Israel, and they wanted and still want to feel that when they are there, they are still in Israel, and they are governed by the same norms and same laws and the same policies that their brethren inside 1948 or 1949 Israel are being subjected to. Israel indeed has applied Israeli law in different ways to them, to the Israelis when they are in the West Bank. 

I’ll lay down three such mechanisms that Israel has used in order to apply Israeli law, Israeli Knesset legislated, Israeli parliament legislated laws on Israelis when they are in the West Bank. 

One thing is that many Israeli laws, many Israeli acts of parliament have been applied to Israeli nationals extraterritorially and personally when they are in the West Bank.

Modern law speaks of a territory as the field where laws of a certain legislator apply, right? When I go to London, I am subjected to English law and when I go to the Netherlands, I’m subjected to a Dutch law, but when Israelis go to the West Bank, when I go to the West Bank, I’m driving or I’m traveling to the West Bank with a bubble of Israeli law that is surrounding me. I get there, whether I live there or if I’m just visiting there, I’m still subjected to Israeli laws that have application extraterritorially on me personally because I’m an Israeli. Now, what that makes is two systems of laws. One applied to Israelis and one applies to Palestinians.

The laws that apply to Israelis are modern laws that have been legislated by a parliament that was elected by the people of Israel, and the laws that apply to Palestinians are a combination of the previous rulers’ of the West Bank laws, Jordanian, even Ottoman and British mandatory laws together with military laws that have been issued by ordinances of the military commander of the West Bank.

I’ll give you an example of how that plays out. Let’s say that an Israeli commits a crime in the West Bank. Let’s say in the settlement of Tekoa, there is such a settlement named Tekoa, and that crime is a crime of manslaughter. Now let’s say that a neighbor in the Palestinian village of Tekoa, yes, there is also a Palestinian village with the same name Tekoa, also commits the same crime, the crime of manslaughter. They will be treated by different authorities. They will be tried by a different court and according to a different penal code and a different penal procedure. Of course, the penal procedure and the penal code that applies to the Israeli is a modern penal procedure and penal criminal code, which allows all the rights of the suspected and the people who are being detained, while the Palestinian will be subjected to a military law that is very draconian and allows for a great violations of his rights.

One will be detained by the Israeli civil police. They can hold them up to 24 hours because this is what the Israeli law prescribes. If they want to extend the detention, they will have to bring the detainee before a magistrate court judge which will be able to extend the detention by up to 15 days and altogether 30 days. The Palestinian, however, will be detained by the Israeli army, will be held for up to four days and then will be brought before a military court judge that can extend the detention by a whole month and up to three months altogether. 

The Israeli, if charged with manslaughter, will face a trial in the Jerusalem district court and will face up to 20 years imprisonment, which is the maximum penalty for manslaughter in Israel. The Palestinian, if charged with the crime of manslaughter, will be tried in a military court before military officers, and will face up to life imprisonment because this is the maximum penalty for manslaughter in the military law. 

Two identical crimes committed in the same geopolitical territory, the only difference is the nationality of the suspect or perpetrator. 

Now, this was just one example. There are many laws that apply to Israelis and to Palestinians that are completely different through the mechanism of applying Israeli laws extraterrestrially and personally on Israelis while in the West Bank. 

The second mechanism that was used by the Israeli system was the application through military orders of Israeli administrative laws on the local governments of the settlements.

We have local governments of Israeli settlements in the West Bank and one can ask oneself how does the Israeli Ministry of Education have the power to run schools in the settlement? How does the Israeli Ministry of Health have the power to run clinics or hospitals in settlements? These settlements are located in areas where the Israeli law does not apply. 

Well, the military commander, given an order by the Israeli government, has issued orders applying Israeli administrative law to the territory of the settlements. We call it the enclave law. There is enclaves of Israeli administrative law that pertain to the settlements, and that is why when an Israeli immigrates, colonises the West Bank, they do not feel a change in government. They still have the Israeli officials and the Israeli ministries taking care of their business there. 

The third type of discriminative norms that apply to Palestinians and Israelis in the West Bank are military ordinances that have been issued by the military commander and explicitly and blatantly applied to either Palestinians or Israelis. 

For example, Professor Sands (I’m calling him Professor Sands because he was my teacher at the University College of London many years ago), he mentioned the wall case and the Israeli separation wall or separation barrier.

All the territory between the separation barrier and the Green Line that composes some more than 8% of the West Bank has been designated a closed military zone, which means that whoever wants to enter that zone must have a permit from the military commander, but the declaration of the closed military zone made it clear that it does not apply to Israelis. By the way, Israel is being defined as one of the following three; citizens of the State of Israel, permanent residents of the State of Israel, and embarrassingly any person who has a right to become a citizen of the State of Israel according to the Israeli law of return.

That means any Jew everywhere in the world. That means that every yeshiva student from Brooklyn has more rights to enter the military zone, the seam zone between the separation barrier and the Green Line than people Palestinians who have lived there for generations, whose parents were born there. They need a permit from the military commander in order to enter there and again, this is just an example. There are many military orders which apply different sets of prohibitions and rights or privileges to the Jewish Israeli community of the West Bank and to Palestinians.

All three of those things create a system, a reality, a legal reality of two different sets of laws that apply to each group, and that is in place in order to facilitate the privileges and the rapid development of the Jewish community in the West Bank, and to curb any development of the Palestinian community. That has been in place for years, and just became more and more complicated as years went by. 

Now, that is one aspect of the military government of the West Bank and again, the word apartheid has been spelled out here. I want to say that for me, there are many practices and policies that Israel applies in the West Bank, which facilitate this notion of domination and oppression of one group by another group, of the Palestinians by the Jewish Israelis in the West Bank.

There are many policies and practices including land expropriation on a massive scale, forced displacement of communities, persecution, all kinds of inhuman acts that together with this context, this reality of domination or an oppression of one group over another brought me a year ago in June of 2020 to author a report for the Israeli human rights organisation Yesh Din, which I’m the lead legal advisor of and one of the founders, which reaches the very sad conclusion for me as an Israeli that the crime of apartheid, which is classified as a crime against humanity, is being committed in the West Bank. Unfortunately, I think it is very difficult today to refute that argument.

It’s not a risk or a threat of apartheid. We have apartheid and I think one of the one of the most striking facets of this apartheid is indeed the dual legal system that we have applied in the West Bank. 

I want to say a word about East Jerusalem. East Jerusalem as you all know is also an occupied territory, although it was annexed illegally by Israel. Israeli law and administration have been applied to East Jerusalem. Now one of the things that I’m not sure many people know is that the Palestinian community of East Jerusalem was not granted with Israeli citizenship. I mean the territory was annexed by the Israeli government, but the people were not.

The people were provided with a permanent residency status. Now, that is a very problematic status because unlike citizenship permanent, residency is something that is dependent on presence. East Jerusalemites who leave the Jerusalem for several years to study or to work or for whatever other reason and then they want to come back, they find that their residency has been revoked and they cannot go back to the city where they were born, raised, and lived all their lives and their parents and great parents, et cetera, et cetera.

But apart from that problem and apart from the fact that residency does not confer the residents with political rights in the sense of the right to vote and to be elected and so on, the East Jerusalemites are also subjected within Israeli law, not within the law of the West Bank, not within the military law, but within the Israeli civil law, they are subjected to an official discriminating normative framework. 

That is done in many ways, but I want to address one of them because it’s very relevant to the things that are happening and unfolding these days with the eviction campaigns in Sheikh Jarrah and in Silwan and otherEast Jerusalem neighborhoods, which I know well. I was born in Jerusalem and raised on the borderline between East and West Jerusalem.

Now, one has to acknowledge that in 1950, two years after the establishment of the State of Israel, the Israeli parliament has enacted a law that basically nationalised all the property of the Palestinian refugees, the Absentee Property Act. That applied to the full territory of the 1949 ceasefire lines, the Green Line territory. 

Now in 1967, the East Jerusalem was seized by Israel and annexed. That law, the Absentee Property Act automatically also applied to East Jerusalem. Now I will not discuss that, but bear in mind that people who live in Jerusalem, many of them were refugees from West Jerusalem or other areas in Israel and they lost their property because of the Absentee Property Act. Their property was nationalised by Israel. 

In 1970, three years after the occupation of East Jerusalem and its annexation, Israel has enacted another law, the 1970 Law and Administration Regulation Act, which basically said the following. It said many things, but for our sake, what is important is that it said a property that belonged to Israelis prior to 1948 and was seized by the Jordanian custodian of enemy property in East Jerusalem will be retrieved, will be released back to the original owners. 

While a Palestinian that lives in Sheikh Jarrah has a house in West Jerusalem, his house from prior to 1948 was nationalised by the State of Israel, it’s no longer his or hers, any Israeli who has property in East Jerusalem that was administered by the Jordanian custodian of enemy property, because the Jordanians have not nationalised the property of Jewish refugees who fled East Jerusalem, will be able to receive his or her property back. 

You see, there is a discriminative, racialised, normative framework in which an Israeli Jew can retrieve his or her property, while the Palestinian refugee cannot. Now, that’s not the end of it because the original owners of course of land or property in Jerusalem have long perished and instead of them came all kinds of Israeli settler associations that have a target to Judaise East Jerusalem.

In a very controversial way which I will not get into details, they took over these associations that have been the owners of the land prior to 1948, and then they began litigating eviction cases. 

Now, this is one example. The context of the eviction cases in East Jerusalem is the imbalance that is ingrained in Israeli law. I’ll stop here and I can’t wait for the discussion. Thank you.

Dominic Grieve:

Michael, thank you very much for that. Now, we need to bring Zaha back because Zaha is key to the next bit of this process, she’s been listening to you, and I think I will start by passing over to her for her comments on what you’ve been saying, so that you can have a conversation. Then when you’ve done that for a while, we do have some questions that have been fed in by the audience and I will feed those into both of you, but at the moment, I’m going to pass over to Zaha, so that she can continue this discussion. Thank you very much Michael. Zaha.

Zaha Hassan:

Thank you. Hi Michael. Thanks so much for your intervention, and I’m really looking forward to asking you some questions that have been pressing for me for some time. 

The first one is I’m wondering what your thoughts are on the passage of what’s been called as the Jewish nation-state basic law which basically forecloses Palestinian refugee return. It makes non-Jewish citizens of Israel open to the possibility of denationalisation, and it would foreclose Palestinians living in the occupied territories from being citizens of an Israeli State to the extent that Israel extends its sovereignty in those parts of the occupied territory. That’s in a nutshell basically what the basic law does and because it has quasi-constitutional power, it’s been extremely controversial.

I wondered if you could shed more light on why that Knesset legislation passed when it did, and what you think the prospects are for it being reversed or repealed in the future, given the extent to which it would entrench disenfranchisement of Palestinians wherever they may be between the Mediterranean Sea and the Jordan River.

Michael Sfard:

That’s a huge question. The nation state law is despicable law, which makes it very difficult to refute the charge that is being mainstreamed these days that it’s not only the occupied territories that are under a form of apartheid, but that Jewish supremacy is being advanced also in Israel itself. 

There have been already some remarks by judges, not in the main case that challenges the constitutionality of this law, but there were already some hints and I think we’ll see that getting more and more force as judges address this law, that this law will be interpreted as a declaratory law that has no practical implications.

One has to appreciate Israel is an internal war, it’s a cultural war, it’s a war of values, it’s a war on the soul of the Israeli society, and there are competing ideologies drastically opposing one another. Every day, if you read reports that come out of Israel, you’ll see that these are reports from the battle lines. Of course, the Israeli nationalistic right would like to have the nation state law as a law that is a source of interpretation for all other laws and will allow finally – Baroness Hale mentioned that our laws do not provide for equality. Now we have a law that specifically says there will be no inequality. 

On the other hand, the self-proclaimed Israeli liberals would like to have this law sidelined as a declaratory that has no practical meaning. Now, I have my best friends litigating the challenges against this law. I don’t want to say anything that would undermine their very important work, but it seems to me that in the current climate, it will be very difficult for the court to strike out this basic law. It could dilute it, it could diminish its importance, but I’m not sure that actually striking out is something that is in the cards. 

While I’m saying that, I’ll take one more minute to say something that I didn’t have the time before. Baroness Hale applauded the Israeli Supreme Court and mentioned Aharom Barak and so on. I have to say there are two Israeli supreme courts. When a chief justice or a president of a foreign court comes, he or she is only being greeted by one of the supreme courts, and that’s the Dr. Jekyll’s Israeli Supreme Court, but Mr. Hyde Supreme Court that governs matters of security and the occupied territories is one of the pillars on which the system of the dual legal system and the discriminative and racialised system that I described is responsible for cementing, supporting, allowing, and mainstreaming. I just wanted to put that on the record.

Zaha Hassan:

On the political side, I was involved in the negotiations. I’ve been watching how the trajectory got to this point, where we had the Jewish nation state law passed in 2018. It seemed to me that the beginnings of this came out of the Palestinian citizens of Israel and their vision document and their efforts to articulate a political platform for Israel’s relationship to Palestinians, and trying to develop a permanent constitution that would recognise Palestinian indigeneity, support the two-state solution, allow for refugee return, and freedom and rights for Palestinians living in the occupied territories in a state of their own.

That was the first time you ever heard Israeli politicians, and in particular, Israeli negotiators talk about the need for Palestinians to recognise Israel as a Jewish state. That was the first time that became a parameter that Israelis were calling for, but it seemed to me that it came out of that effort by Palestinian citizens of Israel to push for a constitution and to put push for recognition of Palestinian indigeneity. I wonder what you think of that.

Michael Sfard:

I completely agree and having said what I said about the law, now I want to say something else. The legislation of this law shows weakness. It shows that the Israeli proponents of that law are afraid, and I think that this comes out of another issue, which I think you are referring to in a way and that is the question of whether the Israeli/Palestinian conflict is about ‘67 or about ‘48. 

In the Oslo years, Israelis were told that once we solve this thing about ‘67, then the conflict is over. By the way, I got my political education in the ’80s and I became an adult in the ’90s. For me, that was a major thing. The occupied territories are bad, and we have to end the occupation. Then you have Israel and yes, we have a minority that is being discriminated against and we have to deal with that, but every country, hey there are many democracies that have a minority that is discriminated and the understanding, the acknowledgement that the Israeli/Palestinian conflict cannot be solved without going back to 1948. 

It’s a scary thing. I’m telling you as an Israeli Jew, it’s scary. Some people try to look at the reality straightforwardly and hold the bull by its horns and try to see what can be done, and others legislate nation state laws. 

But I want to ask you something. When someone says rights-based approach in many cases and it’s not something against it, but I just want to make sure, usually rights-based approach is a euphemism for one state, for one democratic state. Do you agree?

Zaha Hassan:

No, I think that it could be. I think there are those who would advocate for a one state and a rights-based approach is their conduit to that one state, but I think you can equally advocate for a two-state and a rights-based approach would be your conduit to a two-state. 

We developed a policy paper at Carnegie and at the US-Middle East Project that talks about this. The idea though is that just as we now see, you can’t sublimate the 1948 issues and think you’re going to get to a durable political solution.

You have to address all of the rights issues that are implicated between Israelis and Palestinians, or you’re going to postpone indefinitely a political solution, and you’re going to perpetuate violence on the ground because there’s always going to be an effort to push the limits of Israeli territorial intentions, and that automatically means Palestinian displacement as we’ve seen. 

You could conceive of a solution where there are two states. There’s rights for Palestinian refugees, a choice given of where to live and a mode of getting there, and resettlement being an option as choice of return. #

These things have already been developed by the negotiating teams on both sides. It’s not like we don’t know how to do this. We’ve had other experiences with refugee displacement in the past. The problem is we’ve exceptionalised the case of Palestinian refugees and acted like it’s just impossible. The reason for that is because the international community has really adopted this idea that it needs to support ethno-religious divisions and partition. 

In the United States, in particular, we’ve seen under the Obama administration, the idea that Palestinians need to recognise Israel as a Jewish state and a homeland for the Jewish people at a time when Israel doesn’t have declared borders. That is a prerequisite for the US in terms of a peace agreement. That has to happen before US is going to support re-engagement between Israelis and Palestinians on parameters for peace, that is the starting point.

If that’s your starting point and there is no mechanism to curb Israeli expansion because the US is not willing to use its political leverage, nor are any other countries in the international community thus far and willing to do so, what you’re signaling to Israel is that you better take what you can while you can, because there’s no incentive not to. In fact, there’s every incentive to take as much as you can, and that’s what we saw when we got to the Trump administration because the Trump administration was basically saying, ‘We got your back, Israel. You’ve already put your markers down. We’ll accept them, and now we need to move on. We need to move on to an end of claims basically.’

Palestinians weren’t even relevant to that conversation. They were nice to have signing on the dotted line, but if they didn’t, it was not necessary to have them.

Michael Sfard:

I share with you the rights-based approach, and I’m part of a group that is called A Land For All, One Homeland, Two States. I would call it the two-state solution the next generation, which has a federative or confederative element in it, because one of the things that seemed to us that was problematic in the Oslo thesis was the separation, that Israelis would stand with their lines to the wall and look westwards and, there’ll be a big wall between us and they will look eastwards and will not see each other again. This is not possible. 

We will live with each other, and the idea to have open borders and freedom of residency in all of the land – just to say that I know that some of the people who hear me now think that I have to go to an asylum if I say that these days.

I just want to remind people that in 1945, if someone would tell a French person that in several decades, they will have the same currency, open borders, freedom of movement, and shared institutions with the Germans, and they shed much more blood than we and the Palestinians have, they would also be seen as crazy. I think we have to fantasise and we have to develop the paradigm, or the model of shared life in this little space.

Dominic Grieve:

Thank you. I’m conscious that I didn’t want to interrupt this conversation because in a way, it becomes better and better. There are a large number of questions that come through and some of them may be quite relevant. I direct them to both of you. There’s one from Wutana Sumara

‘Hello, I’m an Israeli Arab Palestinian, British as well. I’m married to a British Palestinian wife. Being Israeli Arab, I cannot transfer my nationality automatically to my wife and it’s possible she will never get it due to her origin as a Palestinian. While a Jewish person who’s married to any person in the world, they can grant their spouses the Israeli nationality that they themselves hold.’

Michael, you spoke about the different rules for Israelis living in the West Bank in settlements and West Bank Palestinians, but what about the nature of the Israeli state in terms of its differential rules for those living within Israel, within its ‘48 borders itself, and how you see that?

Also, I’d be quite interested about the attitude of the Israeli Supreme Court to that facet of the issue and particularly, in the light of Brenda Hale’s comments and yours about Jekyll and Hyde. Indeed, there was also another associated question I’ll come on to which came in which was, ‘how does the Supreme Court view the obligations of Israel under the Fourth Geneva Convention, which of course it is signatory.

Michael Sfard:

Well, as for the second question, I don’t want to promote my writings, but I wrote 500 pages on that question of how does the Israeli Supreme Court deal with the question of laws of occupation. I mean in general, the Supreme Court has accepted that the laws of occupation, international laws of belligerent occupation apply.

But in many, many, many cases, the interpretation that the Israeli Supreme Court has given to those to the norms of the Fourth Hague Convention and the regulations annexed to the Fourth Hague Convention and into the provisions of the fourth Geneva conventions, let’s put it that way, they were in at odds with most interpretations of international legal scholars around the world.

Most importantly, the Israeli Supreme Court has refused to arbitrate the question of the legality of settlements, claiming something that is similar to the political question doctrine in America that is non-justiciable and should be left for the politics to resolve when the politics is only participated by Israeli citizens, and not by the subjects, by the victims of the settlement project. 

While the Israeli Supreme Court has accepted the international laws of belligerent occupation as the normative framework, it distorted them in almost every possible way. 

I have a whole presentation on the rule of the exception. The exceptions that you have in international laws of belligerent occupation became the rules in almost every possible way. If there’s an exception that allows administrative detentions, that became the rule. Tens of thousands of Palestinians have been subjected, even maybe, even more than tens of thousands throughout the years to administrative detention. 

It’s a very big topic. The Israeli Supreme Court and the occupation and I refer you again to my book The Wall and the Gate. 

As for the first question about the discrimination that is engraved in Israeli law and in the Israeli system, yes, there are some laws that are obviously discriminating and provide privileges to Jews and deny them to members of any other groups. 

These examples are very famous, but they’re very important. Like the immigration policy, the immigration laws to Israel are probably the most obvious example. But I think that most of the discrimination of Palestinians with Israeli nationality is not done through law necessarily, but through policy, through policy and through practice and through the intentions and direction of the Israeli governments, the consecutive governments. All of them from 1948 onwards have been advancing the interests of the Jewish majority. You find these discriminations I think more in policy, rather than in the law itself. 

Of course, then you have these very important constitutional examples like the law of return and then now the nation state law, but these do not tell the full story. That’s why I said before that you cannot get to ‘67 before going through ‘48.

The membership of Palestinians that have Israeli nationality in the Israeli society and in the Israeli state is of paramount importance, and you cannot solve the Israeli-Palestine conflict by disregarding that issue.

Dominic Grieve:

Thank you. Chris Greenwood has texted in a question. I mean in a way, it’s taking us away from analysis to trying to find a way forward, and I’d be interested both for your take and also Zaha. He said, ‘To what extent does the pathway to a peaceful and equal rights for all solution lie in the political power of the USA, or for that matter to a lesser extent the United Kingdom, or we could also the EU have a role?’

If one was trying to change the situation and granted also picking up Zaha’s point that asking people who are frightened of each other or dislike each other or have grown up to see the other as being a subject of distrust, putting them together and saying you’ve got to get on with it is never the easiest thing to achieve, and we can see that in a lot of other contexts including Northern Ireland, where ultimately the ring is held by external actors forcing them to do it, which is not very satisfactory. 

How do you see the route ahead that might start to make a difference? 

Zaha Hassan:

Since I’m coming from the US, I probably should offer some thoughts on that. I think the US has a critical role to play, precisely because the US has been the driving force behind peacemaking efforts between Israelis and Palestinians, and it holds so much sway with Israel. That’s not to say that if tomorrow the US all of a sudden decided it wanted to adopt a rights-based approach and was willing to use its levers of power, that that would move Israel the next day to change. 

It’s going to take time, but it’s absolutely critical for the US to be on board for that to happen, because the US has been the party that has provided Israel with the political cover and international fora. It has been the party that has been arming Israel, providing it with $3.8 billion in security assistance, free money, that has allowed the military occupation to endure and to allow Israel to really prosper. 

It’s able to continue to build settlements and whatever because its defense needs are being provided for to a large extent by the US and because of the role that the Jewish-American community has played as well and its support for Israel, which is now starting to change because of the very heavy-handed ways in which Israel’s domination over Palestinians has now entered the psyche of folks everywhere in ways that it never could before because of social media and access to information, and visuals that people didn’t have before.

Think how powerful it was for Americans to be able to see how African-Americans are treated by police in this country when they hadn’t seen those visuals before, but were able to because of everyone carrying a smartphone and because of police cameras when they’re open. 

Similarly, in the case of Israel-Palestine, people everywhere and in particular, people in America are now seeing images of buildings in Gaza pancaked. They’re seeing bombardment every three years of that isolated enclave. They’re seeing images inside of Israel of mob violence and hatred and incitement, and they’re seeing what’s going on in the occupied territories in the West Bank as well.

It’s not something that can be easily dismissed anymore as part of Israel’s effort to defend itself. People aren’t buying that anymore. It’s being challenged in the US definitely, but at the same time as we’re seeing challenges to the narrative that we’ve had in the past, that Israel’s policies towards the Palestinians are reactive to Palestinian violence, while we’re seeing challenges to that finally, we’re also seeing public spaces close and attempts by not just government, but also by private platforms like Facebook and Google and these kinds of social media companies are closing off a discussion and debate right at the moment in which there’s this opportunity for people to reconsider are a past US policy in particular, and what’s going on in Israel/Palestine more generally.

I do think it’s really important. I’m concerned though that this effort to contain public spaces and to censor what we’re seeing and hearing about what’s taking place is going to impact how fast we’re going to be able to get to the point where we can see that translated into policy change in congress and within the administration.

Michael Sfard:

I agree with Zaha about the crucial role of the American administration, but I don’t want to take Europe and the UK off the hook, so let me say something about you guys. Our neighborhood, Israel’s neighborhood is not America, it’s Europe. Most of our commerce is with Europe. When Israelis go for a weekend, they don’t go to New York for a weekend. They go to London, to Paris, to Rome. 

What I’m trying to say is that Europe has much more leverage than it thinks or is ready to use, and that is because the European and British policy on Israel/Palestine is pathological. It is handicapped for historical reasons, for whatever reasons.

I think this is changing because the first step is a change that we see and Zaha talked about it in America, but also in Europe in civil society. International civil society is in a completely different place than it was several years ago. Jewish communities in Europe and especially in America have traveled miles from where they were a decade ago. There are things that can be said today in a synagogue in whatever city in America that was unheard of, unspeakable only a few years ago. 

I think that there is a gap between the change in civil society and the time that it translates into political capital. I think that this is something we’ll see coming in the future and unfortunately, we need that.

We need that external pressure because it seems like we do not have the internal strength to do it by ourselves. Of course, there is a need for an internal force for change also, but it has to be enhanced and coupled and quadrupled by pressure from outside.

Dominic Grieve:

Thank you very much. That’s I think very interesting as to whether there might be a route forward. Michael, you spoke about this internal debate. I think on the whole we don’t hear very much of that here. The question is, is Michael Sfard a complete exception to what’s going on in Israel, or is this really quite a widespread point of view, where we’re failing to pick up the nature of the democratic dialogue which does still exist in Israel and anybody who goes there realises this? Is this something that can be built on, or is it always going to be rather one-sided as it would appear to be at the moment?

Michael Sfard:

Now, so I don’t want to provide any illusions. The positions that I express here are a minority, in a very small minority in Israel, but I was not referring to specifically my positions or my colleagues, my friends, the human rights community in Israel which is a progressive, you can almost say avant-garde, but not more than of avant-garde because we have more influence than just an avant-garde, but it is a minority. Even within what again what used to be called the democratic camp in Israel. 

But I was referring more to the set of values. What is the set of values that Israelis want our country to be based on? Here, you have a split. You have a real split. Is it going to be a country that goes the path of rule of law in the good sense of the concept with civil liberties and human rights and the separation of powers and freedom of the press and freedom of art and all of these liberal things, or we go on the path of a Putinist type of majority? It’s all about a technical democracy. Once the majority makes its vote, that’s it and in that respect, there is a clash. 

Now, how do we get more Israelis to the point of agreeing with the ideas that I expressed? I believe that first and foremost, you cannot think of it as a linear process. We have a tendency as human beings when we want to get somewhere, we want to see signs that we’re coming closer and closer. We’re driving somewhere. We’re seeing you’re 60 miles away, now you’re 50 miles away, you’re making progress.

But it doesn’t work that way. There are many, many things, many processes that happen underground and create cracks. We don’t see the cracks because they’re underground. We’re standing on the ground and it seems firm. One day these cracks will combine for whatever reason. All the stars would be aligned and the pressure would be right, and the force from within will be right. Then it will all happen at once and then suddenly, everyone was in the resistance. Everyone was fighting against apartheid. Everyone was against the occupation. I don’t know when it will happen, but it has to.

Dominic Grieve:

Thank you. Zaha, any thoughts?

Zaha Hassan:

No, I think I pretty much agree with everything Michael said.

Dominic Grieve:

Well, I’m conscious, but we are coming I think quite close to the time when we were going to draw this to a conclusion, and you’ve been in the hot spot, both of you for really rather for a long time. In a way, I think I quite like to leave it on this note because it was rather an optimistic note, rather than going somewhere else.

I think it’s my task really to draw the strands to conclusions. Somebody said, “Do I want to make a few remarks?” Well, yes, I do. I’d like firstly to thank you Zaha and Michael very much because I did find this a riveting presentation. As I say, it left me with an optimistic sense and ultimately as we all know in politics, change does come because people are prepared to articulate it and do it in a way which says there’s a way through this, whereas I think that’s so much of the problem that exists at the moment is because nobody has any faith that there’s a way through it. It’s much easier to live with a status quo.

I certainly felt that when I came to Israel back in my couple of visits I’ve made while as attorney general, and then went over to Ramallah and stayed with Vincent in Jerusalem. That does always seem to me to have been one of the main problem.

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