Every human rights legal practitioner faces an existential dilemma, says Israeli lawyer Michael Sfard

In an online talk to mark the 41st annual Jayaprakash Narayan memorial lecture, the well-known lawyer for civil liberties, asked: 'Do I use the courts and system of the regime that I oppose in order to bring a change, or am I perpetuating more inequalities?'

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ISRAELI human rights lawyer Michael Sfard, in an online talk delivered on Wednesday, spoke about the challenges before human rights lawyers under oppressive regimes. Speaking at a virtual event hosted by the People's Union for Civil Liberties [PUCL], Sfard delivered his address on the topic: 'Human Rights Lawyering in an Illiberal Environment: Can the Law of the Abuser Protect?'.

The event was held to mark the 41st annual Jayaprakash Narayan memorial lecture, to commemorate the day the period of National Emergency was lifted by Indira Gandhi's union government on March 23, 1977. Narayan, one of the founders of the PUCL, was also one of the key architects of the people's movement against the draconian excesses of the Emergency.

Sfard is an expert in international human rights law and the laws of war, specializing in the law of belligerent occupation. He also serves as the legal adviser to several Israeli peace groups, human rights and humanitarian organizations. A representative of many Palestinian communities, and Israeli and Palestinian activists on international fora, Sfard also writes extensive opinion pieces in the Israeli and international press. In 2013, he won the 2012 Emille Grintzweig Human Rights Award, which was awarded by the Association for Civil Rights in Israel for his "unique contribution to the advancement of human rights in Israel".

An author of several books including the 'The Wall and The Gate: Israel, Palestine and the Legal Battle for Human Rights' (2018), Sfard opened the discussion by noting the "fondness" shared between the former Israeli Prime Minister Benjamin Netanyahu and India's current Prime Minister Narendra Modi, adding that "we should also have (such) an alliance between the human rights communities of the two countries." 

Addressing the theme of the talk, the Israeli lawyer opened with a rhetorical question to the audience: whether the fact that one uses the paths that the abuser offers, to get remedy; does this by any way "shorten the shelf-life of the regime that one aspires to change?" Or, he asked, "With all my good intentions, maybe I'm only a collaborator – a naive collaborator, by going to that system, using its courts and law enforcement agencies? Because if the latter is correct, if indeed by using the corridors of the regime that I oppose in order to bring a policy change or bring remedy to my clients, I in some way perpetuate these inequalities, then it is an existential question."

Highlighting that this was an existential professional question that many lawyers and human rights legal practitioners have gone through, Sfard spoke about possible solutions to deal with this problem.

Giving an illustration of this dilemma from his over three decades of rights-work, he spoke about a case he had been involved in. On October 21, 2021, the Israeli Minister of Defence signed six designations under the 2016 Israeli Counter Terrorism Act, which designated six Palestinian civil society organisations and NGOs as 'terror organizations'. "This legislation kind of resembles your UAPA [Unlawful Activities (Prevention) Act] in India", Sfard said.

Noting that these six Palestinian civil society/human rights organisations "aren't just any civil society organisations", he said that they "are veterans, well-known and the backbone of civil society." Among them include some of the Middle East region's oldest human rights organisations. One of the six, Al-Haq, was established not long after PUCL, in 1978. Sfard said that for the last 40 years, it had been operating as one of the foremost civil society groups in Palestine (he made a disclosure: "I represented them in the quest to overturn this designation"). As per the provisions of the counter-terrorism law, the Israeli army and police have been given the powers to raid the offices of these organisations at anytime, detain or put to trial any of the employees (even volunteers), and "expropriate every property that belongs to these groups, even their bank accounts", informed Sfard. He reiterated that the Israeli government could also block any donation to these organisations.

Sfard further added that since over five months had passed, but the Israeli govt has not released a "shred of evidence to back their serious charge" that any of these six organisations had been involved in any illegal or terrorist activities.

The lawyer then explained how the question or dilemma before these six organisations was whether to challenge this designation within the Israeli justice system, or not. He explained, "Of course they would have loved to do it in an external or international forum, but no international forum had the jurisdiction. Even if an international forum could hear the matter, they would not be effective in implementing the conclusions because Israel would not abide by some external authority. So the only possibility was to file an appeal within the Israeli system. However, the "counter-terrorism act and military legislation in occupied Palestinian territories allows for secret evidence to be shown to the judges ex-parte (without the other side being shown this evidence to refute this)".

The talk also went on to discuss the potential strategies that could be adopted as best practices amongst lawyers. Sfard drew a distinction between human rights legal activists being different from lawyers, "in the sense that while they are both representing a client (like every lawyer), the former are also representing an idea, a goal, a cause".

Moreover, he said that lawyers try to understand the "complex nature of who we are serving", in order to be better prepared. "We have the client, the cause, and at times also give representation to movements. When we understand the complex nature of who we are serving, we would be better equipped", he added.

Despite its drawbacks, Sfard concluded that there was nevertheless some importance to the system. "If we stop going internally to the courts of a mixed system, we are giving away a certain amount of victories that we could have secured. These are human lives, livelihoods and freedoms."

He also described the possible avenues for chances of success, drawing on his experience with Palestinians approaching the Israeli courts. This, he said, was when the courts were asked to intervene on questions of procedural rights. "For example, the right to a hearing. Or the right to be represented by a counsel, or freedom of information. It was easier for the court to provide these and if used wisely, it can actually touch the core interests of a regime", Sfard noted. He illustrated this with his work on the issue of deportations, a practice used more commonly in the past by the Israeli government against Palestinian activists, both violent and nonviolent. Sfard said, "All that they needed was a jeep and a soldier, to get hold of someone, throw them out of the country to Lebanon or Jordan, and that's it. But a creative group of Israeli lawyers, women, in the 70s were amongst the first to ask that before such a draconian step, at least ensure the person has a right to a hearing, should be allowed an attorney and be provided reasons as to why he was deported."

Even though several deportations were still upheld since the advent of these checks and balances and right to fair trial, Sfard pointed out that by introducing the process of a hearing, bringing in lawyers, challenging the deportation processes in courts and so on, the deportee managed to gain time to mobilise support and international campaigns to their cause.

In his address, the lawyer added that it was these delays and time allowing for building support, that ultimately led to erosion of deportations by Israeli government.

The event concluded with Sfard exhorting everyone to focus on a "better understanding of the nature of results of our struggles", as human rights practitioners.