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The Quandaries of National Human Rights Litigation – Legitimisation through Resistance?

Michael Sfard a renowned Israeli human rights lawyer who is often recalled for his work with cases concerning the route of the Separation Wall in the OPT and the founding of the lawyers’ volunteer network, Yesh Din, has recently published an article titled ‘The Price of Internal Legal Opposition to Human Rights Abuses’ in the first issue of the new Oxford Journal, Human Rights Practice.

The abstract reads as follows:

Many of the legal campaigns against governmental practices and policies in large-scale human-rights abusing regimes are waged ‘internally’, through the regime’s own institutions. Such litigations raise serious dilemmas for human rights lawyers and for human rights organizations. This essay is an attempt to dig out the implications of these internal legal struggles, whatever their effectiveness, for the project of bringing an end to the human rights abusing regime. The essay analyzes 35 years of ongoing, occupation-related human rights litigation in the Israeli court as a generic example of a massive ‘internal’ legal opposition. The author of this essay, an Israeli lawyer, involved in such litigations, reaches a painful conclusion: although internal legal action might ease human sufferings in individual cases, it nevertheless potentially empowers the regime and contributes to its sustainability.

Sfard examines a situation that local lawyers around the world have faced in varying conditions; namely, the pursuit of an unremitting struggle for the protection of human rights that coincides with a strong collaborating role in upholding the present regime and helping the authorities better it through its own judicial system.

Having practiced law under the auspice of the Israeli Supreme Court for some time with a particular focus on the violations generated by the practices of the Israeli Occupation Forces in the Palestinian territories, he notes with regards to the 40 year long jurisprudential practice of the occupation of the Palestinian territories that,

[T]he Israeli human rights legal establishment has never missed an opportunity to challenge abusive practices and policies; these efforts were systematically undermined by the Court, which invariably went a long way to secure the legitimacy of the military actions. It dismissed well- grounded and legally sound petitions even when it meant violating basic tenets of legal interpretation. The Court went so far as to compromise the consistency of its own decisions. The few exceptions to this rule won, by the sheer force of their rarity, disproportionate public attention. Legal analysts and the Court itself, by translating those extraordinary rulings into English, would deliberately make them more noticeable than any other. (p 40)

The article lists a non-exhaustive record of the various cases of violations of fundamental human rights and basic rules of war that the Israeli Supreme Court has approved throughout the years, amongst them the construction and extension of settlements in the OPT, the deportation of Palestinians within and outside the occupied territory and the arbitrary and wide-ranging confiscation of Palestinian soil. Whilst considering matters from the perspective of the lawyerly saying ‘you lose some, you win some’, Sfard observes that as for the latter cases,

In many cases, petitioners’ success is achieved, in whole or partially, without a court ruling. The change in the administration’s position prior to a judicial decision usually happens at one of the following three stages: during preliminary informal procedures involving the Attorney General’s office; at the time of negotiations conducted while a petition is pending; and after a hearing takes place, as a result of pressure imposed by the Judges through their comments.  (p 43)

The gist of Sfard’s work is to transpose the unfortunate conclusion that is noted in the abstract above; namely that “petitioners’ success, be it in ‘the shadow of the Court’ or in actual court rulings, is important for the authorities too, albeit for different reasons.” (p 45) The allowance of what Sfard calls the “transference of moral responsibility from the individual to the justice system” is what provides “the oxygen that enables the occupation to operate” (p 45) and legitimizes amongst other things Israel’s creation of a “new version of the crime of apartheid” (p 48).

Sfard concludes his piece by considering alongside his conclusions on the role of practitioners in such complex paradoxical contexts as the Israeli occupation of the Palestinian territories, he submits his more fond perspective on the role of academics in, interestingly enough, inter alia balancing out the damage done by practitioners,

A serious academic discussion will help the human rights establishment to understand better the processes of which it is a part and to see the prices we are all paying for choosing to engage in internal opposition legal campaigns. Moreover, by uncovering the truth about the limited success of human rights victims in a given legal system, and by pointing to the processes that transform these limited successes into regime-empowerment tools, academic debate is likely to weaken those tools. Since at least some of the perils listed above are vested in the image-creating force which internal opposition grants the regime, revealing them may defuse their sting. This can only be done by academics. And they have failed to do so for all too long. (p 49)

3 Comments

  1. Innocent Mawire Innocent Mawire 4 May 2009

    This is an interesting observation with which relates to the practical difficulties and problems faced by human rights lawyers across the globe in respect of litigating for human rights. Africa in general and Zimbabwe in particular is not spared from these practical difficulties. It is a serious cause for concern to really see judges acting political actors. The Zimbabwe government, for example, under the Mugabe administration has been at the forefront of reversing some of the progressive Supreme Court rulings whereever they feel that they have been antagonised of their political agendas. Such reversals have been done via Constitutional amendments. It is not surprising, therefore, that out of 19 amendments to the Constitution of Zimbabwe, the bulk of them were reversals of Supreme Court rulings in human rights cases whereever the government feels threatened.
    In the same manner, the delays in the hearing of electoral petitions filed by the opposition Movement for Democratic Change in the 2002 Presidential elections are also a classic scenario of the challenges of internal human rights struggles. It is interesting to note that the High Court, which also sits as the Electoral Court in the country failed to hear these petitions and only entertained them the day before the much disputed 29 March 2008 elections, despite the many criticisms and constitutional challenges by the local human rights NGOs.
    So it is always difficult to assert human rights in a system with a partisan judiciary or where judges have assumed a political role to advance the interests of political parties.
    Valentina, I can’t download this article, would you send it as an email attachment to me please. I would love to read the entire article.

  2. Joe Joe 4 May 2009

    It’s such an old struggle –the abuse of power and those who would fight it. At least it is starting to be fought increasingly in the legal arena and slightly less with guns and bombs. Sort of.

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