BDS IN THE PEWS
Yesh Din, the EU, and Lawfare: Exposing the False Claims behind Deceptive Political Campaigns
December 07, 2011
Yesh Din is an Israeli political advocacy NGO, almost entirely funded (94%) by foreign donations. Government funders include the EU, Belgium, Norway, Netherlands, Ireland, UK, and Germany.The New Israel Fund (NIF) and George Soros’ Open Society Institute are also donors.
In its reports, activities, and partnerships, Yesh Din attempts to portray Israel and its security forces as unaccountable to the rule of law. This is part of a wider “lawfare” strategy of pressing “war crimes” cases against Israeli officials in foreign courts and in the International Criminal Court (ICC) – as exemplified in the NGO-Goldstone process. Undermining Israel’s rule of law and investigatory practices is a prerequisite for these universal jurisdiction cases, which will only proceed if Israel has failed in its legal duties.
As part of this campaign, on December 7, 2011, Yesh Din published a report “Alleged Investigation: The Failure of Investigations Into Offenses Committed by IDF Soldiers Against Palestinians.” The report was funded by the European Union, which is providing Yesh Din with €150,000 for a project “To change Israeli policy vis-a-vis criminal accountability of Israeli Security Forces Personnel in the occupied Palestinian Territories, in such a way that acknowledges and takes into account the severity and the different nature of War Crimes, as distinguished from regular, domestic crimes” (emphasis added).
NGO Monitor’s analysis of the “Alleged Investigation” report shows:
- The report is premised on a flawed methodology, including irrelevant data, the presumption of guilt, and conclusions that distort and undermine the authority of the Military Advocate General Corps (MAGC) and the Military Police Criminal Investigations Division (MPCID).
- Yesh Din claims that “only 3.5% of the complaints received...regarding alleged criminal offenses committed by soldiers against Palestinian civilians and their property in the West Bank result in indictments.” However, these statistics are presented without reference to other legal systems (Israeli civilian or other militaries); it is impossible to determine if the situation in the West Bank is an aberration or reflective of a well-functioning mechanism.
- According to data from the Knesset’s Research and Evaluation Center, which were not included in the Yesh Din report, 9% of criminal investigations against Israeli police officers in 2009 resulted in indictment. In the same year, according to Yesh Din, the figure for the IDF in the West Bank was 7%. This highlights the importance of using comparative data, which Yesh Din did not do.
- Yesh Din admits that it does not address the central question of “whether one military advocate or another was ‘right’ or ‘wrong’ when they decided to close a specific investigation file.” Without these essential details, Yesh Din’s report and statistics are worthless. (One could also interpret the statistics as reflecting thousands of frivolous complaints that, with the help of groups such as Yesh Din, are filed against Israeli soldiers.)
- The high rate of conviction (90% of indictments, according to Yesh Din) demonstrates that prosecutors use discretion before proceeding with indictments, ensuring that cases without merit or usable evidence do not clog the system.
- Yesh Din also falsely implies that Israel’s “failure” is a result of discrimination against Palestinians: “It is difficult not to feel that, if the victims came from another social group, one that has greater power and status in Israeli society, the pressure on the IDF to conclude investigations within a more reasonable length of time would bear fruit.” This claim is refuted by the abovementioned statistics from the Knesset’s Research and Evaluation Center.
- Three additional European- and NIF-funded Israeli NGOs – HaMoked, Breaking the Silence, and Rabbis for Human Rights – provided “assistance” to Yesh Din and are also responsible for the shoddy report.
- On December 26, 2010, Israeli daily Yisrael Hayom published excerpts from a Yesh Din document entitled “Law enforcement against security forces: Concept 2011-2012.” In this strategy document, Yesh Din details a project to “encourage the entry of the topic of war criminals into the legal discourse relating to the actions of security forces in the occupied territories.” The goal, then, is to make accusations of “war crimes” against Israeli soldiers an integral part of the discourse about Israel.
- In 2011-2013, Yesh Din is undertaking a €234,000 project “To change Israeli policy vis-a-vis criminal accountability of Israeli Security Forces Personnel in the occupied Palestinian Territories, in such a way that acknowledges and takes into account the severity and the different nature of War Crimes, as distinguished from regular, domestic crimes” (emphasis added). (The EU is funding €150,000 of this project; according to Yesh Din’s website, Ireland also contributed NIS 331,200 to a project on “criminal accountability of security forces.”)
- Yesh Din also partners with Breaking the Silence, a group of former Israeli soldiers that accuse the Israeli army of “questionable orders in many areas regarding Palestinian civilians [which] demonstrate the depth of corruption which is spreading in the Israeli military.”
- In its submission to the Turkel Commission on the Gaza Flotilla (April 2011), Yesh Din claims that “Israel fails to meet its duty to investigate complaints of violations of justice by soldiers.” Yesh Din also alleges a “weakness of the rule of law in the West Bank,” and criticizes the enforcement of Israeli court decisions and police investigations into settler violence.
- According to Emily Schaeffer, a lawyer on Yesh Din’s legal team, “Yesh Din was founded to use law as a tool to fight the Israeli occupation of the Palestinian territories.”
- Michael Sfard, Yesh Din’s primary legal counsel and an editor of the NGO’s reports, claims, “If war crimes are committed and an apartheid system is being deployed under our eyes, it is the moral duty of a citizen of the country responsible, to combat this, even if it means using external legal means.”
- Despite their attempts to discredit the Israeli legal system, Yesh Din regularly petitions the High Court of Justice to alter Israeli policy (for example, to cancel the law prohibiting the transportation of Palestinians in Israeli vehicles within the West Bank and to gain access to military court records).
The Lawfare Process
- The Goldstone Report’s false claim that Israel deliberately targeted civilians in Gaza is a major component of NGO calls for criminal prosecutions of Israeli officials in national courts and/or at the ICC.
- Undermining Israel’s rule of law and investigatory practices is a prerequisite for these universal jurisdiction cases, which will only proceed if Israel has failed in its legal duties. The centrality of this issue was seen in the dismissal of a 2010 lawfare case in Canada (Michael Sfard and Emily Schaeffer were two of the plaintiff’s legal counsels), where the court determined that “review of the evidence simply does not bear out [the] preconception” made by plaintiffs that the Israeli High Court was “unwilling to adjudicate on a politically sensitive matter.”
- After the 2008-2009 Gaza War, seven Israeli NGOs including Yesh Din submitted a joint report to the Goldstone Commission claiming that “Israel’s failure to conduct an independent investigation of the totality of events, there is also a systemic-intrinsic flaw in the investigation of concrete events.” According to the NGOs, this “failure to investigate instances in which civilians were wounded or killed has led to a sense of impunity and immunity from sanctions among soldiers and commanders.”
- Following the Goldstone Report, a common theme in NGO statements was that Israeli investigations are inadequate and themselves a violation of Israel’s international legal obligations. As such, according to these NGOs, Israeli officials allegedly responsible for the alleged violations should be prosecuted in national courts under universal jurisdiction laws and/or at the ICC.
- These conclusions were rejected in the final report of the U.N. Goldstone Report follow-up committee – chaired by former New York judge Mary McGowan Davis – which assessed “investigations for compliance with international standards of independence, impartiality, effectiveness, thoroughness and promptness.” The Committee found that “Israel’s military justice system provides for mechanisms to ensure its independence, in particular the fact that the MAG is not hierarchically subordinate to the Chief of General Staff and that his decisions are subject to review by the Attorney General and by the Supreme Court. The Committee has not received any new evidence that challenges this finding.”
- Israel’s investigations and the McGowan Davis report were cited by Judge Richard Goldstone in his April 2011 Washington Post op-ed declaring, “If I had known then what I know now, the Goldstone Report would have been a different document.”
The Role of Michael Sfard Law Offices
- The full nature of the relationship between Yesh Din and Michael Sfard is unclear: The Michael Sfard Law Office, along with seven individuals, is listed by Yesh Din as “Legal Counsel.” Emily Schaeffer – an associate in Sfard’s law firm, describes herself on linkedin as “Lawyer for NGO Yesh Din.” Additionally, some Yesh Din reports have Sfard listed as editor (with his office providing legal counsel), while others list both him and Emily Schaeffer as editors.
- Michael Sfard is the leading Israeli figure in the global “lawfare” movement. Sfard has written that “International law obligates all states in the world to investigate [war crimes] and prosecute them if there is enough evidence. If not Israel, then England. If not the Supreme Court, then the House of Lords.” (translated from the original Hebrew by NGO Monitor)
- As part of his lawfare activites, Sfard worked with Al-Haq on a lawsuit filed in Canada, seeking a judicial declaration that Israel is guilty of committing “war crimes” and that the security barrier is illegal. The case was dismissed with partial costs. Sfard was prominently featured in the Al Jazeera documentary, Courtroom Intifada, where Sfard stated, “You cannot escape responsibility for immoral and illegal actions just because you are committing those atrocities in a jurisdiction that allows it. You will be hunted in other places. That is our message.”
- Schaeffer has a history of activism with organizations operating on the extreme fringe including Jews Against the Occupation, Ta’ayush, and Israeli Committee Against House Demolitions (ICAHD). She has written, “unless I'm with people who I am certain do not espouse Zionism or any form of oppression, I cannot comfortably honor the tradition, or even be sure I want to be part of it.” She also worked on the Canada case.
- Both Sfard and Schaeffer appeared at sessions of the widely discredited Russell Tribunal on Palestine, on “complicities and omissions of the European Union and its member states in the... perpetuation of the violations of international law committed by Israel” and “whether Israel’s treatment of the Palestinian people fits the international legal definitions of the crime of apartheid” respectively.