‘Protecting Palestinians isn’t part of Israel’s ethos’

Yossi Gurvitz talks to Atty. Emily Schaeffer, coordinator of Yesh Din’s criminal accountability of Israeli security forces project, about work, how the IDF investigates its own, the negligible prosecution rate for killing Palestinians, as well as veganism, ‘Tikkun Olam’ and Passover.

By Yossi Gurvitz for Yesh Din

Two weeks ago I met with Emily Schaeffer, coordinator of Yesh Din’s criminal accountability of Israeli security forces project, for a conversation and interview that should have been limited to the field of her work but ultimately touched upon many other areas.

Human rights attorney Emily Schaeffer. (photo: Yossi Gurvitz)
Human rights attorney Emily Schaeffer. (photo: Yossi Gurvitz)

Let’s begin with basics. Who are you?

I was born in Boston and grew up as a Reform Jew. I got my BA in political science from Goucher College in Baltimore. In my junior year I went to Hebrew University in Jerusalem and graduated in 2000. I moved back to Israel for a few months, and when the Second Intifada broke out I moved to New York, where I worked for a women’s rights organization called Family Care International, which focused on reproductive rights.

Mainly abortions?

Yes, but not only. Also the right to prenatal health, safe childbirth and things like that. It focused on the Third World, and we worked mainly in South America and Africa. We worked out of an air-conditioned office in New York and I actually didn’t like that, which is what led me to work in a place where I get to go out into the field.

I worked for that organization for two and a half or three years, and then went to Berkeley to study law. During my degree I did a few internships: first for the Israeli Committee Against House Demolitions (ICAHD) and the following summer I split my time, working half of the time for HaMoked: Center for the Defense of the Individual, and the other half for Attorney Michael Sfard. I was his first employee. That was in 2005.

I started my internship with Michael two months after Yesh Din was founded, and  worked on the first cases in the criminal accountability project. That was the only project we had at the time.

In September 2006, after finishing my degree at Berkeley and passing the American bar, I came back to Sfard’s office and to Yesh Din.

Why did you decide to work in human rights?

The reason I chose to study law was in order to work in human rights. That was my only dream, especially when it came to law. When I was younger I wanted to be a veterinarian. The first political cause I worked for was animal rights. I was already an activist by age 12, and had a subscription for the Anti-Vivisection Society, which opposes experiments on animals. I started receiving materials from them and hanging posters in the school halls. Then, during my undergraduate studies, I decided that if I really wanted to see justice in the field of animal rights, there first had to be justice among human beings, since ultimately, they’re the ones who are harming the animals.

How do you work for animal rights? After all, legally they don’t have any rights. They have the right not to be abused, and that’s it.

In legal history, animals began as property.

But it’s changing. Israel has the Animal Welfare Act, and Michael and I are working on a few animal cases to this day, especially in the context of the food industry, specifically meat and eggs. Most of the work focuses on the need for a law that anchors all kinds of rights, as well as regulations and specific provisions for each part of the industry to determine what is allowed and what is forbidden. So how do you work for animal rights? You start by manufacturing more regulations. But of course, as we know well at Yesh Din, the law is not enough. There has to be enforcement and even more than that, there needs to be an incentive. It is not enough to have law and enforcement.

Has the public’s attitude changed? Is there more awareness?

Yes, I think there is. Now when I go into a restaurant now and ask what vegan items they have on the menu, the waiters always know what to answer. This wasn’t the case even five years ago, when they would just give me a funny look, like, “what are you talking about?” Just because there are vegans who go out to restaurants doesn’t mean the restaurants have to become vegan, like Nanuchka (a famous Tel Aviv restaurant that went entirely vegan earlier this year), which is very good news. But even that’s not necessary for change to take place. As soon as there is a critical mass of vegans – or even vegetarians – who go out to eat, they become the tipping point, since everybody else in the group has to go to vegan- or vegetarian-friendly places. That means that any restaurant that wants to succeed has to make sure there are a few vegetarian or vegan items on the menu.

Getting back to Yesh Din, which of the cases that you’ve worked on was the most frustrating?

The case I still have a hard time with is a story from 2008 of a 15-year-old boy (Yaacoub Mohamed Saleh Ala Qasrawi – Y.G.) who was on his way back from school in Hebron with some of his cousins or friends. They saw soldiers on one path so they took another one. Suddenly a soldier who was hiding behind a barrel popped out and called the boy to approach him. The boy complied and started walking toward him and the soldier shot a rubber bullet in his head. To this day he suffers from brain damage.

How did that case end?

The prosecution decided not to open an investigation and informed us two and a half years after the incident. I can’t help but feel that the prosecution takes its time, especially in such serious cases. What exactly does a two-and-a-half-year delay mean? It means that unless the soldier shot the plaintiff on his first day of military service, there isn’t much of a chance of filing an indictment before he gets out of the jurisdiction of the Military Justice Law, because the law applies only one year after the soldier is discharged. So in the best case we have four years.

Assuming the crime was committed on his first day of basic training.

Exactly. Eventually I appealed against the closure of that case. Part of the negative answer to and rejection of the appeal was grounded in the claim that disturbances had taken place that day – which was not indicated in the boy’s testimony – but also that the soldier was brought before a disciplinary proceeding. What does a disciplinary proceeding mean? First of all, the punishment in a disciplinary proceeding is usually a reprimand or something of that sort, let’s say a 15-day suspension from his base. That’s probably not pleasant or comfortable for soldiers. But how much of a deterrent is it? I don’t know.

In my work with the MPCID (Military Police Criminal Investigations Division) and the Military Advocate General (MAG) there is a recurring theme: the decision not to open a criminal investigation and be satisfied with a disciplinary hearing. That decision is made only on the basis of the operational inquiry [i.e., an investigation inside the soldier’s unit, the details of which are confidential – Y.G.] and not on the basis of an MPCID investigation. As part of an MPCID investigation you also hear the plaintiff, the witnesses and the civilians: they give testimony, and at least technically, there should be an examination of the crime scene. Furthermore, suspects are investigated under warning, which is something completely different.

And two and a half years years later no crime scene, no witnesses, nothing.

Not to speak of the fact that a soldier’s word is always considered more credible than a Palestinian’s. There is no doubt that any system would respect such testimony, after all it comes from a public official. Yet, it is still surprising how ingrained this is. On Human Rights Day last year I went with Michael to an MPCID training course where he gave a presentation about Yesh Din’s work vis-a-vis MPCID. When he finished, one investigator after another said: “When a Palestinian comes and tells me a story, I first of all have to doubt the story. Because after all, if a soldier hit him, he must have done something.”

I was just shocked. I understood that as long as investigators approach complaints with the assumption that the plaintiff himself is surely guilty of something, it means that you don’t have to believe everything he says. In the end, they are not the ones who decide how much weight to give testimony – it should be the judge, if there is a trial. So even if the investigators are not the ones who decide how much weight to give a testimony, they are the ones who decide whether to continue investigating, and they can also decide not to pursue a particular line of inquiry. Then it is the MAG’s job to say whether something in the investigation wasn’t done correctly and should be completed. But we all know that takes time, and by then peoples’ memories are no longer sharp, the crime scene no longer exists and so on and so on.

Therefore, it is a real cause for concern that the people who make the decisions at the most preliminary stages, but also the most important stages, hold such opinions.

I’m going to get back to the MPCID investigative failures in a minute, but – so that our readers don’t slit their wrists while reading this interview – what was or were your most rewarding cases?

I was really happy when they decided to reopen the Tristan Anderson case, but the problem is that even then I didn’t have a lot of faith that the law enforcement system would exhaust the investigation.

Also the Bil’in case against the fence was one of the most exciting and exhilarating cases I’ve worked on so far, and I hope I’ll have more like it. It’s an encouraging story of a little village that succeeded, with a combination of popular and creative protests and litigation, in getting the separation fence uprooted and moved. For me, being part of that struggle was inspiring. The fact that afterwards it took four years to implement the verdict and move the fence, and that meanwhile the villagers’ lives got worse with night raids and arrests of teenagers and so on, was very difficult. I will never forget the night I spent in Bil’in when nightly raids began, which was a night of fear and terror, and how it felt going back in the morning to my bed in quiet, safe and frightless Tel Aviv.

There’s also the story of Shawan Jabarin, the director of Palestinian human rights organization al-Haq, who in 2006, almost at the very moment he took office as executive director, had an injunction issued against him leaving the West Bank. What that means is that a person who couldn’t go into Israel anyway because of a ban that had already been previously imposed on him now became a prisoner of the West Bank. And if it weren’t bad enough for any person to be imprisoned in a small area, this man represents one of the oldest and most established Palestinian human rights organizations, and is therefore always invited to meetings and conferences abroad.

Our office filed petition after petition. Every year another petition, and every year the same rejection – based on the most frustrating practice lawyers in our field must deal with, confidential material. This meant that each time, we lost due to unforeseen arguments, without having the opportunity to try and refute them.

In 2012 Shawan was invited to a meeting in Geneva on a special UN report regarding freedom of speech. Since the petition from the previous year there had been some developments in British law about similar issues, and anyway, six years of injunctions felt beyond reason. We submitted another petition, and this time, despite the confidential material, the judges were convinced that enough was enough and the MAG agreed to allow Shawan to fly to Geneva as a trial flight. It was really like releasing a prisoner. Now Shawan flies more than all of us and if I’m not mistaken still has chocolate for me from his last trip.

Without a doubt the most moving prisoner release for me was the release of a Sudanese asylum seeker last year. I wrote the administrative appeal that freed him from Saharonim over Passover. This is the story of a refugee, if there ever was one. He was 13 when he saw both of his parents murdered right in front of his eyes and ran away, alone, to Khartoum. From there he went to Cairo, was recognized by the UN as a refugee but then suffered persecution there. Finally when he was 16 he came to Israel and thanks to ASSAF (Aid Organization for Refugees and Asylum Seekers in Israel), he received housing and aid. Last year he was 21, living in Tel Aviv, working at a restaurant and trying to get by in Israel. Suddenly he found himself under investigation on suspicion of robbery, and even though he swore he was innocent and even though the police closed the case for lack of evidence, he was taken to Saharonim indefinitely, all supposedly legally – under a law that allows the Interior Ministry to jail people indefinitely and without fair trial, even if they are only suspected of a crime; even if the police have no interest in prosecuting them!

The custody court at Saharonim rejected the motion to release him and I appealed the decision again on Passover 2013, which is when the court decided to release him!

After that I went with him when he renewed his visa at the Interior Ministry, and he talked about his future plans, such as perhaps studying at a university. A week earlier, while we were on the phone, he didn’t speak of any future. Suddenly everything was possible for him.

I studied law precisely to attack such draconian practices, and if I contributed even a drop in the bucket of that struggle, it’s an honor.

Just like law enforcement regarding the settlers, the same is true for the MPCID and the MAG: the system simply doesn’t work as it should, far from it.

Everyone is a cog in the system. I believe that if it did work effectively it would lead to more indictments and when we saw closed cases we would agree that they should have been closed – not only because there was not enough evidence and the investigation couldn’t be completed, but because we would see that all of the possible investigative actions really were exhausted and that there was no case.

If Israel really had an interest in improving the situation, it would invest resources to do so. That is the clearest answer. I can’t say what the reason is, what the motive of each of the decision maker is. But there is a lack of will, or a lack of prioritization when it comes to improving the system. It’s been a year since the Turkel recommendations, and anyone who wants to defend the military investigation system can say: “it’s all happening, but slowly. What do you want? One thing at a time. There was the Turkel commission, there are recommendations, there is a report, and now there is an implementation committee. Everything will happen if you just be patient.”

But I’m not patient. And I don’t think I should be. The bottom line is that the problem runs very deep, and the question is whether [the system] is fundamentally rotten or there are specific improvements that can be made to achieve a state of justice. Justice and deterrence.

Yesh Din’s datasheet shows that there is a negligible rate of prosecution for crimes of killing.

And never for deliberate killing.

After years of working with the MPCID, do you think there is any point for a Palestinian to file a complaint with the MPCID?

That is the question. Lately I’ve been thinking it a lot. I think it breaks down into two questions: will the Palestinian ultimately see justice at the end of the process if he does file a complaint? And the second question is, isn’t it important to document, that is, to file the complaint just so that the information about the incident is there in order to create documentation, so that organizations like Yesh Din and others active in that arena can point to where exactly the defects in the system are. I think the second factor is very important. Besides, we can’t shout to the rest of the world, “the system is broken, the system is broken,” if we can’t say exactly how it is broken.

Is it the individual Palestinian’s job to document these things, or even to take responsibility for telling the world what is wrong with the system that is supposed to protect them? I don’t know. It depends what that particular Palestinian is looking for. But the figures do speak for themselves.

One of the common occurrences in the West Bank is acts of soldiers standing idly by: besides the violence and injustices the soldiers commit themselves, there are very many situations where they stand idly by and allow settlers to commit crimes. What is the responsibility of the investigative bodies to prevent such behavior? How does the failure to investigate and ignoring such events contribute to the phenomenon?

We have a serious problem. I think many players in this game don’t understand their jobs. After all, one of their basic duties, as we always say at Yesh Din, is to protect the Palestinian population. Our review of the materials soldiers receive in their training shows that they don’t know that they are allowed to detain or arrest Israelis unless, exceptionally, there is some left-wing activist they want to detain. I saw that the day before yesterday.

But in general, there is a symphony of failures in the “standing idly by” type incidents, and there are so many of them. Because even if the police arrive, it’s not like they’ll suddenly start running after the settlers. In the end, however, these are not problems of guidelines, orders or procedures; in the end it’s a problem of education and ethos, of the IDF and the State of Israel, where the very raison d’être of soldiers and police is to protect Jews.

And it doesn’t matter how much Yesh Din and others shout that it is Israel’s obligation to protect the occupied population – nobody gets it. Because it is not part of the country’s ethos.

Isn’t this actually a structural cognitive dissonance? When a soldier goes into the field he’s told it’s a hostile population. And sometimes it is hostile. Are we putting the soldiers in an impossible situation when we tell them they have to protect a hostile population?

That’s the other side of the same coin. That’s why I think the whole thing is broken to begin with. Which brings me to the same conclusion, which is a no-brainer: that we must end the occupation. That there can be no law enforcement, Israel cannot protect the Palestinian population as long as there is an occupation, and especially when it is is a prolonged occupation.

You are an American citizen who was born in the States. You don’t have to be here. Unlike most of us, you can get on a plane tomorrow and move to another country. I imagine you hear this question a lot: why are you here?

The truth is that I am very aware of choosing to be here every day. Sometimes I regret it but I still stay. I came here because I felt things were being done here in my name and that I have a moral responsibility for those things.

A kind of Tikkun Olam?

A kind of Tikkun Olam. I grew up on the idea of Tikkun Olam, and I stay because I really think that the privileges I have here, in Israel and in the region as a whole, give me access to decision makers and officials at the highest levels, which allows me to make a difference. I no longer believe that I have more responsibility for what’s happening here than I do for what’s happening in China or Bulgaria or Kenya. Today I understand that it’s disturbing that these things are being done in my name, but it doesn’t make me particularly responsible.

I stay because I have the ability to make a difference, again because of my privileges and status here, and the fact that if we don’t use our privileges we waste them.

And the last question. We are celebrating Passover now, which is considered the holiday of freedom. What does it mean to you?

For me it is the holiday of contradiction. For many years I have suffered during Passover in Israel, and that’s a shame because it used to be my favorite holiday. When I was little my mother and I used to make a list of songs and poems that we would sing and recite at the Seder that we hosted every year at our house. We would talk about the freedom we have and about all the people who don’t have those same freedoms. And since I grew up in Boston we talked about the homeless, we talked about Native Americans, we talked about poor refugees and immigrants. In general, it was the season of giving, in our home and at our synagogue.

And here, two things happen: on the one hand, nobody cares what it says in the Haggadah. It is read as if it were a NASCAR race. On the other hand, nobody mentions those who are not free. And I, as someone who ran away from religion but still loves the spirit of many of the traditions, can’t stand the holiday that I used to love anymore, neither the statements nor the lack of statements. That is, what people do say and what they don’t bring up.