Has any Israeli fought harder or longer on behalf of Palestinians in the occupied territories than human-rights lawyer Michael Sfard? Some days it hardly seems to matter.
At a Columbia law school event co-sponsored last year by several pro-Palestinian rights groups, a young man in the audience questions whether Sfard’s work does anything more than legitimize the myth that Israel is a democratic state.
“Am I a collaborator in a scam that Palestinians actually have recourse to justice?” Sfard replies. “Good question.” Even if his legal efforts can’t change the overall political situation, he says, some Palestinians still get some justice. This kind of concession to reality does not play well on the college circuit, where he’s promoting his new book, The Wall and the Gate: Israel, Palestine, and the Legal Battle for Human Rights.
A Palestinian student finds his answer “stomach-turning.” She says that he’s “whitewashing settler colonialism.” He’s using the “colonial entity’s” legal system to offer “crumbs” to Palestinians instead of actual rights.
“I am a tool of people who have to decide,” he replies. Nearly all of his clients are Palestinians living in the West Bank. They struggle against the Israeli military occupation, the separation barrier, and Israeli settlers. “They can decide if they want ‘crumbs,’ because it’s reality and not a theory. It’s about people. They decide, not me.” It’s the only time he sounds a bit irritated.
Naturally, he is asked about the boycott and divestment movement. Sfard works with groups that support BDS, but he says that he doesn’t support it himself because it doesn’t differentiate between the Israelis who are responsible for the occupation and those who are against it. It targets all Israelis, and therefore is just another form of collective punishment. If collective punishment is wrong in Gaza City it is wrong in Tel Aviv.
That doesn’t go over well, either.
Sfard has spent the last two decades challenging the occupation in Israeli courts. He is always in the news. Last month, he accused the IDF of committing war crimes on the Gaza border. This month, he won a victory on behalf of Breaking the Silence, the Israeli anti-occupation NGO. That case, dealing with charges from a right-wing organization that Breaking the Silence had treasonously undermined Israeli security, took three years.
He’s fought illegal Israeli outposts, forcing the evacuation of a few, like Amona, which was dismantled in 2017, though attempts to reoccupy the site continued as recently as last month. In a landmark case, Sfard represented Palestinian farmers in Bi’ilin who forced the government to move the security wall, “liberating” nearly 1000 dunams of their land..
He is reviled by many Israelis, not just for his work on behalf of Palestinians but also for his efforts challenging the IDF’s rules of engagement on the Gaza border and for serving as legal counsel to Israel’s best-known left-wing NGOs.
In Israel, Sfard is a radical critic of the state and a constant thorn in the Netanyahu government’s side. In America he’s transformed. Taking the stage in upper Manhattan, the human rights lawyer becomes an emissary of the settler-colonialist zionist entity.
Not Israeli enough for the right but too compromised for Ivy league university students in America. He can’t win.
A few months after the Columbia panel, I visited Sfard in his Tel Aviv office, a warren of sunny rooms on the top floor of a walk-up, situated on a drab side street off Menachem Begin Road.
On one wall, there are a few framed newspaper clippings about his best-known court victories. It’s not a very big wall; the win-loss tally for an Israeli human rights lawyer is not very high.
Rumpled and smiling, he comes across less as Israeli Public Enemy Number One and more like the popular Comp Lit professor you’d find at a small liberal arts college in the Berkshires. His cell phone vibrates incessantly with updates from a deportation hearing of a Human Rights Watch activist he’s representing.
“There are two things that drive people to attack me from the left, let’s call it, or from the Palestinian side,” he begins. “One is that they cannot see any shades. And I have a very complex picture of what Israel and Israeli society is. I’m critical to the point that I think that we’re committing crimes, and to the point that I think that Israel cannot describe itself as a democracy. But I know this place and I know Israeli society well enough to also be aware of the good things that we have here.”
Like most Israelis, Sfard served in the IDF. But he also refused to do subsequent reserve duty in the West Bank and spent several weeks in prison instead. An Israeli leftist can live within these contradictions. Anti-Israel activists abroad, however, insist on the purity of their anti-colonialist theories; the more uncompromising the better since it is not them bearing the consequences. They say that Zionism was a mistake, Israel shouldn’t exist, the nation’s more than 8 million citizens should be forced to accept new citizenship in a Palestinian state. From the river to the sea. Almost to a person, Israelis, including Sfard, find this laughable and have an entirely different vision of a just future.
“Israel was founded on contradictory values,” he says. “It’s both a society that emerged out of a huge crisis, the tragedy of genocide, and so it is obsessed with security and nationalism and doesn’t want to think about those who it victimizes. But at the same time it is a society that cherishes pluralism, or least did, and created a democracy with the rule of law and the separation of powers at a time when other new countries that were formed in the post colonial era were not democracies. These two sides are both genuine.”
He’s perfectly willing to call the military occupation in the West Bank a form of apartheid, but viewing all of Israel as a “colonial settler state,” something that must be dismantled in its entirety, shuts the door to any kind of hope. “First of all, it’s wrong. It’s just not the truth. But you also cannot advance toward a solution if Israel is just a monster. You don’t talk to monsters. There’s nothing you can do — you just have to beat it. And that’s not a recipe for anything good. There’s nothing constructive about hating.”
He also argues that protecting Israelis is also a human rights issue. “Look, if you are serious about human rights, you have to ask what people want,” he says. It’s a kind of lawyer’s jiu jitsu, using the left’s human-rights arguments against itself. And he’s willing to go even further: Jewish settlers in the West Bank have rights. Arguing that to an anti-Israel audience, as I’ve seen him do, takes chutzpah.
Sfard is equally disdainful of current calls for a binational state, the so-called one-state solution. Though he has no philosophical objection to a binational state, he knows it’s impossible. “There are six million Jews that feel strongly about having political self-determination in this small place in the Middle East,” he says. “If you are serious about human rights you cannot ignore that. Of course I have problems here: How do you square that with the rights of others and so on but you can’t just dismiss it and say it’s a colonial enterprise. These are real people!”
Sfard’s experiences in the U.S., where a fairy tale version of the conflict predominates, illustrates the gap between the left here and the left in Israel. But it also reflects the dangerous tendency of pro-Israel forces to turn their back on potential allies. His most consequential critics are not on the left. It’s people on the right who call him an Arab lover, who say he supports BDS, that he’s undermining the security of Israel itself.
“When I’ve taken on the army, the security establishment, when I’ve litigated cases challenging the separation barrier, litigated cases challenging home demolitions of families of suspected terrorists, and a six-year case against the targeted killings policy — the kinds of cases where I challenge or try to uproot certain practices seen and presented as a major component of Israeli security, that’s where I get heat from a much wider audience.”
Gerald Steinberg, the founder of NGO Monitor, wrote a memorable piece criticizing Sfard for his “disreputable allies,” particularly the far left, anti-Israel groups he speaks to abroad. “He attributed to me their views because I’m in the same room with them; he didn’t address at all what I said in that room,” Sfard complains. “It was guilt by association.”
One of Sfard’s frequent adversaries, a lawyer for the settler movement, told me I should trap him by asking him point blank if he’s a Zionist. Yes or no.
Sfard laughed. “Jewish Israelis do not wake up in the morning and ask themselves if they are Zionist. We speak Hebrew. We live here. Our our national holidays are all Jewish holidays. We don’t go to work and school on Sabbath. So we don’t have to ask that. The question only comes up as a political charge. You’re not Zionist, you’re anti-Zionist!”
“Okay,” I said, “But are you a Zionist?”
“My position is that if Zionism is his ideology then I’m not a Zionist.” He means the expansionist vision of the settler movement. “Maybe I’m even an anti-Zionist! But if Zionism means that in this place there should be a homeland for Jewish people where they can exercise their right of self defense alongside others, then yes I am a Zionist. I do think that Jewish people are entitled to a place that they can call home where they can exercise their culture and their religion as a group.”
Wherever Sfard goes, he fails the purity test. In one room the very fact of his Israeliness makes him irredeemable and reduces his life’s work fighting injustice to imperial accessory. Next door, he must prove that he’s a lock-step Zionist or risk being seen as just another anti-Semitic co-conspirator.
For Israel’s supporters, this symmetry should be discomfiting. But there is a way out of this trap—an alternate strategy for fighting against the campaign to delegitimize Israel taking place in this country. The old demarcations separating enemies from allies might have made sense a decade ago, but today they are balkanizing the pro-Israel movement in America at the exact moment it should be making new alliances and girding for battle.
What the right refuses to see is that Sfard’s defiance of the left’s anti-normalization policies around Israel could make him a uniquely effective ambassador for the country. He might be the rare Israeli figure whose can speak to a room full of alienated Jewish kids with a taste for anti-Zionism, without pandering to their views.
The time has come to give the loyal opposition a voice and invite critics and gadflies like Sfard and Peter Beinart back into the big tent of mainstream American pro-Israel groups. Hell, AIPAC could lead the way by inviting them to speak at their big annual Policy Conference next month, even if that means dealing with their troublesome positions head-on and openly debating the politics of the occupation and Israeli security, a minefield most mainstream organizations are still reluctant to enter. The alternative, which we’re already seeing today, is to drive potential allies further into the arms of the opposition.
The Israeli left has become invested in prophecies of doom and gloom, while the right isn’t selling much more than the status quo. Sfard’s most compelling trait is his persistent optimism. He thinks if he talks to people, he can win them over. And he still believes that despite the horrors he encounters every day, justice will prevail in the end.
“One day the occupation will end,” he writes in the surprising final chapter of his otherwise dispiriting book. “Today it might look strong and stable, but it will end.”
It may not be the outcome everyone out there is looking for, but optimism is in short supply, and I’ll take it where I can get it. Where does it come from, anyway? It may be a variation on the perversely Jewish positivity he picked up from his father, who emigrated to Israel in the late 60s after being driven out of Poland during one of that country’s periodic anti-Semitic campaigns. Israel was there as a haven when he most needed it.
“I always have these discussions with my father about how critical I am about what happens here,” Sfard tells me, “and he always says, “Well you know, it can be much worse!”
Like this article? Sign up for our Daily Digest to get Tablet magazine’s new content in your inbox each morning.
Mark Horowitz is Senior Editor at Tablet magazine. He tweets @MarkHorowitz.