Monthly Archives: December 2016
There’s really only one suitable Zionist response to last week’s UN Security Council resolution on the settlements: massive settlement construction. That’s the appropriate response for more than one reason, but I’ll focus here on the most obvious one: The resolution proves conclusively that Israel gets no credit for showing restraint on this issue, so there’s no earthly reason why it should continue suffering the costs of restraint.
As I’ve written repeatedly in the past, data from Israel’s Central Bureau of Statistics shows that there has been less settlement construction under Prime Minister Benjamin Netanyahu than under any of his predecessors. Nor is this a matter of partisan dispute: The left-wing daily Haaretz, a virulent opponent of both Netanyahu and the settlements, used the same data to reach the same conclusion last year.
Moreover, fully three-quarters of the growth in the settlements’ population under Netanyahu has been in the major blocs, which every serious international peace proposal for decades has concluded will remain Israeli under any Israeli-Palestinian deal. Again, this isn’t a matter of partisan dispute; that three-quarters figure comes from Shaul Arieli, a veteran peace activist who is also a virulent opponent of Netanyahu and the settlements.
Finally, almost all the growth in the settler population under Netanyahu has stemmed from natural increase – i.e. women having babies – rather than people actually moving to the settlements. The Haaretz report put the proportion at 74 percent; Arieli’s study, which is more recent, put it at almost 90 percent. Either way, the bottom line is that the only way Israel could have prevented this growth was by passing legislation requiring the forced sterilization of every woman in the settlements. Even the UN hasn’t demanded that yet.
For Netanyahu, this restraint has come at a real price. First, it caused him political damage, because it infuriated his voter base. The result, as I’ve noted before, is that by last month, he was facing an open revolt in his own party over the issue.
Second, it caused Israel strategic damage, because it kept the country from strengthening its hold over areas that most Israeli governments have considered essential for security under any future agreement. To take just one example, all Israeli premiers have deemed the E1 corridor, which links Jerusalem with the Ma’aleh Adumim settlement bloc, critical for Israel’s security – even Yitzhak Rabin, the patron saint of the peace process. Moreover, E1 in no way prevents the possibility of a contiguous Palestinian state, and has actually been assigned to Israel by every serious international peace plan ever proposed. Yet for years, Israel has refrained from building there out of deference to international public opinion, even as illegal Palestinian construction has mushroomed in this formerly empty area. The result is that it now has no “facts on the ground” to act as a counterweight to Palestinian claims. And since Palestinian claims always enjoy the international community’s automatic support, facts on the ground, in the form of large numbers of Israelis whom it’s
simply too difficult to evacuate, are Israel’s best guarantee of retaining areas it deems essential to its security.
Third, settlement restraint has caused major financial damage by exacerbating Israel’s massive housing crisis. As of last year, the price of an average apartment had soared to 146 average monthly salaries, more than double the ratio in most other countries, and up from just 43 in 2008; rents have risen correspondingly. In short, housing in Israel has simply become unaffordable for most people, and that’s a major threat to Israel’s future: People will neither remain in nor move to a country where they can’t even afford to put a roof over their head. Yet substantial building in the settlement blocs and eastern Jerusalem – where Netanyahu has also imposed an undeclared freeze in deference to the international community – could have alleviated the shortage responsible for this massive price rise. The settlement blocs are all within commuting distance of the center of the country, which is where the jobs are, and thus where people want to live; inside the Green Line, in contrast, there are few empty areas left in the country’s narrow waist. And in Jerusalem, the housing shortage is the main reason why the capital loses some 18,000 Jews every year.
Netanyahu was willing to absorb all this damage in the belief that international leaders, regardless of what they said publicly, would know the truth about the brakes he has put on settlement construction and support him when it mattered. But to most of the world, the facts have never mattered where Israel is concerned, and it turns out the same is true of the post-truth Obama Administration: Deputy National Security Advisor Ben Rhodes justified America’s support for the resolution (and support is the right word, because in this case, abstaining was no different than voting yes) with the spurious claim that the vote was motivated by an “acceleration of settlement activity” under Netanyahu.
It’s hard to say what impact the resolution will actually have, but there are at least two possible negative consequences. First, its declaration that the settlements are “a flagrant violation under international law” could spur the International Criminal Court, which is already considering a case against Israel over the settlements, to go ahead with it, by assuring prosecutor Fatou Bensouda that such action would enjoy widespread international support. Second, its demand that all states “distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967” provides a tailwind for international boycotts and sanctions against Israel and Israeli companies, since Israel itself considers some of those territories – for example, the Western Wall – to be sovereign Israeli territory.
So if Israel is going to be accused of “accelerated settlement activity” and slapped with potentially serious consequences no matter how much restraint it shows, there’s no justification whatsoever for it to incur the very real costs of this restraint. Hence there’s only one sensible response to this resolution: Build, baby, build.
Originally published in The Jewish Press on December 28, 2016
The past month provides a textbook example of one of the major flaws in Western efforts to promote a two-state solution: a tendency to focus on all the wrong issues. The peace processing community is currently in a tizzy over something that ought to be an irrelevancy: the possibility that the Trump Administration might actually move the U.S. embassy to Jerusalem. But it had nothing whatsoever to say about a far more significant development: the outcome of recent elections for the governing organs of the Fatah party, aka Israel’s “peace partner.”
As Jonathan Tobin correctly pointed out earlier this week, the idea that moving the embassy would destroy the peace process is ludicrous. If Palestinians were willing to recognize Israel within the 1949 armistice lines, as they claim, they would have no reason to care where the embassy is located as long as it’s inside those lines, which the proposed Jerusalem locale would be.
Moreover, judging by a report in the Jerusalem Post on Thursday, ordinary Palestinians (as opposed to the Palestinian leadership) genuinely don’t care. Reporter Daniel Eisenbud wandered around East Jerusalem asking random Palestinians what they thought about relocating the embassy, and couldn’t find even one who thought it worth getting upset over. “Why should I care about where the US Embassy is located?” one asked. “They want to move it to Jerusalem? So what?” said another. “I don’t understand why it matters,” added a third. “Don’t waste my time with such unimportant things,” a fourth demanded. Indeed, the only people Eisenbud found who did care were Israeli leftists, who offered patronizing explanations for why ordinary Palestinians seemed incapable of understanding the magnitude of the impending disaster.
In short, this is strictly a manufactured crisis–one that wouldn’t actually impede prospects for peace at all, and that ordinary Palestinians consider a nonissue. Yet Western peace processers are obsessed with it.
In contrast, I haven’t heard any veteran peace processers voicing concern over the outcome of Fatah’s elections three weeks ago. Yet those results matter, because Fatah is both the main component of the PLO–the organization with which Israel signed the Oslo Accords–and the Palestinian Authority’s ruling party.
So who came in first in the election for Fatah’s top governing organ, the Central Committee? Marwan Barghouti, a man currently serving five life sentences in an Israeli jail for murdering five Israeli civilians. And these weren’t murders committed back when Israel and the PLO were still officially at war; they were committed in 2001-02, almost a decade after the Oslo Accords were signed.
In other words, the 1,311 delegates who attended Fatah’s seventh General Conference thought the best choice to head their party was a man who had repeatedly violated the one key promise the PLO made under the Oslo Accords: to stop anti-Israel terror. And if Israel’s official peace partner believes a serial violator of signed agreements is the ideal choice to lead the Palestinian people, why exactly would Israel want to risk signing another agreement with it?
Nor was Barghouti’s involvement in terrorism incidental to his election. On the contrary, his overwhelming popularity stems primarily from the leading role he played in orchestrating anti-Israel terror during the second intifada (Israeli intelligence considers him responsible for many more attacks than the crimes for which he was convicted). And if Israel’s official peace partner believes a mass murderer is an ideal choice to lead the Palestinian people, why exactly would Israel believe it wants any kind of peace, other than the peace of the grave?
But Barghouti’s first-place finish wasn’t the only problematic outcome of the vote; no less significant was the second-place finisher, who is now well-positioned to become PA President Mahmoud Abbas’s heir as long as Barghouti remains in jail. The second-place slot was won by Jibril Rajoub, who is famous, inter alia, for saying that if he had a nuclear bomb, he’d drop it on Israel tomorrow. And that was in 2013–fully two decades after the PLO supposedly recognized Israel’s right to exist. In other words, in the eyes of Israel’s official peace partner, even openly voicing a desire to commit genocide doesn’t disqualify you from leadership.
No less significant, however, is how Rajoub has conducted himself in his current role, as head of the Palestinian Football Association. Aside from doing everything he can to get Israel expelled from FIFA, the governing body of international soccer (which probably upsets soccer-mad Israelis more than his genocidal threats do), he has spent his tenure vigorously thwarting attempts to arrange soccer matches between Israeli and Palestinian youth teams.
In 2013, for instance, the Barcelona FC soccer team thought it could use its popularity on both sides of the Green Line to promote Israeli-Palestinian peace: It offered to host separate soccer clinics for Israeli and Palestinian youth, culminating in an exhibition match between the two sides. The clinics took place, but the match was canceled because Rajoub refused to allow Palestinian youth to participate.
In other words, in the eyes of Israel’s official peace partner, the ideal choice to be Abbas’s heir apparent is someone so opposed to “normalization” with Israel that he won’t even let Palestinian and Israeli kids play soccer together. And if someone won’t let children play soccer together, how exactly is he supposed to make peace?
No two-state solution will ever be possible as long as Israel’s “peace partner” sees men like Barghouti and Rajoub–men whose conduct is the antithesis of peace–as its preferred leaders. Hence, any effective Western policy to promote peace would focus first and foremost on education to change Palestinian attitudes. Instead, the West ignores the all-important issue of Palestinian attitudes and behavior while obsessing over issues with zero impact on the prospects for peace, like the location of the U.S. embassy. And then it wonders why more than two decades of efforts to promote Israeli-Palestinian peace have produced no progress at all.
Originally published in Commentary on December 23, 2016
In 2015, following lengthy negotiations, President Barack Obama concluded an executive agreement marking the accomplishment of a cherished policy goal: the nuclear deal with Iran known as the JCPOA. Also in 2015, after similarly lengthy negotiations, Prime Minister Benjamin Netanyahu concluded an agreement realizing a long-cherished policy goal of his own: a deal enabling development of Israel’s largest natural-gas field by a private American company and its Israeli partner. Both agreements included a commitment by the respective governments to refrain from adverse legislative action over the next ten to fifteen years: in Obama’s case, action to reinstate nuclear sanctions against Iran; in Netanyahu’s case, action to alter the regulatory regime for natural gas to the disadvantage of the private energy companies.
As it happens, neither country’s executive branch has the authority to bind the legislature without the latter’s consent. But this didn’t trouble either the Iranians or the energy companies; they took it for granted that both executives would use all of the considerable power at their disposal to prevent such legislation, and that sufficed.
But what about the role of the third branch of democratic government, namely, the judiciary? That is where the two stories diverge. The Iran deal was never challenged in an American court. But in Israel, two left-wing opposition parties (Zionist Union and Meretz) and two nongovernmental organizations, alarmed by the encroaching specter of capitalist development, immediately petitioned the country’s supreme court (also known for some purposes as the High Court of Justice) over the gas deal—and won. The court struck down the agreement, saying the government either had to procure legislation enacting the prime minister’s commitment to regulatory stability or renegotiate the deal to exclude the commitment altogether.
A week later, speaking at a conference of the Israeli bar association, Justice Minister Ayelet Shaked accused the court of wielding its power “irresponsibly” by intervening in “political and macroeconomic questions” that were better left to the elected branches. She also reiterated a longstanding pledge, in her role as head of the judicial-appointments committee, to seek the appointment of justices to the court who would respect the government’s “authority to act on political matters that don’t violate human rights.” For this effrontery, opposition members of the Knesset promptly accused her of undermining democracy and demanded her dismissal. MK Shelly Yachimovich of the Zionist Union, for instance, charged Shaked with “trying to destroy the legal system’s independence, intimidate judges, and threaten them,” adding that if this sort of behavior continued, “Netanyahu would no longer be able to boast that Israel is the only democracy in the Middle East.”
This was hardly the first time in recent years that domestic critics of Israel’s government have accused it of “anti-democratic” behavior that wasn’t actually anti-democratic at all. But such accusations have served to obscure the real anti-democratic revolution that has occurred in Israel over the last few decades: the judiciary’s steady usurpation of policy-making powers that were once reserved—as they still are in other democracies—for Israel’s executive and legislative branches.
Friedmann, an Israel Prize laureate, may be uniquely qualified to address this topic. In addition to being one of the country’s top legal scholars, he has practical experience of the problems he describes, having served from 2007 to 2009 as justice minister in the government of Ehud Olmert. Moreover, contrary to the conventional wisdom that opponents of the supreme court’s overreaching tend to be right-wing religious activists, Friedmann is a secular leftist whose loathing for settlers, the ultra-Orthodox, and the center-right Likud party is made crystal-clear within the first few pages.Unfortunately, for readers not already well-versed in Israeli law and politics, the book is not an ideal introduction to its topic. It assumes a fair amount of prior knowledge, and suffers from other flaws as well. Yet given the importance of the issues, and the wealth of relevant material that Friedmann brings to bear, it is eminently worth our while to follow him along.
I. The Court Transforms Itself
Friedmann begins with a brief tour of Israel’s legal history in the days before the judicial revolution, when no one—including, as he demonstrates, supreme-court justices themselves—questioned the primacy of the elected branches of government. But in the 1980s, under Meir Shamgar and his then-deputy, Aharon Barak, who would succeed Shamgar as chief justice in 1995, the court introduced three innovations that dramatically altered the legal landscape.
First, it abolished the restriction of standing: that is, the rule that only someone directly harmed by a government action could petition the court for redress. Thereafter, anyone could petition the court over any government decision.
Second, it abolished the restriction of justiciability, which deemed certain domains—including foreign affairs (“the sword”) and budget policy (“the purse”)—to be the prerogative of the elected branches and therefore beyond the court’s purview. Thereafter, virtually every government decision became subject to judicial review.
Third, it began evaluating not just the legality but also the “reasonability” of government decisions, and asserted the right to overturn those it held “extremely unreasonable.” Since deciding the reasonability of a given action is essentially a policy judgment of the kind that governments are elected to make, the court was now asserting veto power over government policy. And since its other two innovations insured that virtually every significant government decision would end up in court, its veto power was almost unlimited.
Then, in the 1990s, the court introduced two further and no less crucial innovations. In 1993, reinventing the role of a key government position, it ruled that the opinions rendered by the state’s attorney general were no longer to be considered merely legal advice, but were binding on the government and all of its agencies; that only the attorney general was authorized to represent the administration in court; and that, should the administration disregard his “advice” on a given issue, the attorney general could refuse to defend the government’s position in court. This deprived the executive branch of fundamental legal rights accorded to every ordinary person. It could neither seek a second opinion from a different lawyer nor challenge the attorney general’s opinion in court; should it do so, it would be denied legal representation, thereby insuring its defeat. Not only that, but rules were instituted that severely circumscribed the government’s ability to choose an attorney general to its liking or fire one it disliked.
Finally, although Israel doesn’t have a written constitution, the court asserted in 1995 that two “basic laws” passed in 1992 effectively made up a constitution. Consequently, the court, which previously had asserted “only” the right to overturn executive-branch decisions, was now empowered to overturn any subsequent legislation that it deemed to contravene those two laws. As Friedmann explains, this claim had no legal basis. Most members of the Knesset (MKs) hadn’t intended to endow the 1992 laws with primacy over future legislation, and never dreamed the court would interpret them in that light; indeed, in presenting the laws to the full Knesset for approval, the chairman of the Knesset committee that prepared them explicitly assured his fellow MKs that they did not grant the court “special power to nullify laws.”
Moreover, constitutions are generally approved by supermajorities and require supermajorities to amend them. But the two “basic laws” were approved by a mere one-quarter of the 120-member Knesset, and the more consequential of the two, titled the Basic Law: Human Dignity and Liberty, could also be amended by a simple majority of those present and voting. Hence, Friedmann sums up, Israel’s supreme court “presumed to become a constitutional court in a country that lacks a constitution.”
II. The Revolution Begins Slowly
Scholars are still debating the factors that enabled this judicial revolution to occur and survive. Friedmann has his own take on the matter, which I’ll come to in due course. What’s incontestable is that opposition to it developed only slowly. This owed partly to the enormous esteem accorded both Shamgar and Barak, the latter of whom was the revolution’s theoretician, and partly to their political acumen. Generally, the court began by asserting new powers to strike down government decision-making without actually doing so; only after the assertion became “accepted precedent” did the justices begin applying it. Similarly, Shamgar and Barak initially intervened mainly in government decisions already widely viewed as outrageous; only after such intervention had become accepted practice did they expand into more controversial areas.
By this means, the revolution proceeded virtually unimpeded for decades, as Friedmann details in case study after case study showing how it played out in reality. In doing so, he illuminates the extent to which the court has, first, gutted the ability of any elected government actually to govern, and, second, ended up undermining rather than protecting both human rights and the rule of law.
On the all-important national security front, one salient example involves events that occurred after a Lebanese militia, Amal, captured the Israeli airman Ron Arad in 1986. Mustafa Dirani, the commander of Amal, later gave Arad to a senior Hizballah commander named Abd al-Karim Obeid, who apparently then gave him to Iran; thereafter, Arad disappeared. Seeking information of his whereabouts, Israel captured both Dirani and Obeid with the intention of holding them until Arad was returned. But the two men petitioned the supreme court, which ordered them freed on the pretext that since they posed no personal danger to Israel, they were being illegally held as “hostages.”
As Friedmann notes, it’s standard practice to hold enemy combatants until a prisoner exchange is arranged, even if a war is already over. In this case, fighting in Lebanon was still ongoing. Nor were Dirani and Obeid low-level grunts who might be considered innocent of blame; they were personally responsible for Arad’s disappearance. Thus, by any normal standard, the government’s action was neither illegal nor unreasonable—as two members of the five-justice bench agreed. Yet the majority, on the basis of a radically expansive interpretation of terrorists’ rights, overrode not just government policy aimed at securing knowledge of a serviceman missing in action, but also, as one of the dissenting justices wrote, “the dignity and liberty of [all of Israel’s] prisoners and missing soldiers.”
The court has even gone so far as to intervene in wartime combat decisions while fighting is still in progress. Friedmann cites several cases of petitions challenging the army’s handling of humanitarian issues in Gaza, with the surreal result that the very officers tasked with resolving such issues were instead spending their time writing affidavits or explaining the situation by phone to their lawyers in Jerusalem.
On the domestic side of the spectrum, consider the lowly municipal budget of Kfar Vradim in northern Israel. A few religious families in this small and mainly secular town had requested that the municipality provide them with a ritual bath, or mikveh. (Local governments in Israel are in general responsible for building and maintaining religious facilities.) The local committee on budgetary priorities, basing itself on such criteria as the number of people expected to use the facility and the cost of maintaining it, and noting that similar facilities were readily available in several nearby communities, ranked a mikveh last out of seventeen proposed public-construction projects. The families then asked the supreme court to intervene. Even though setting budgetary priorities is precisely what governments are elected to do, the justices ruled that, given the mikveh’s importance in Orthodox Judaism, the town’s decision was unreasonable and the mikveh must be made a top priority.
III. Personnel is Policy—And the Court Controls Personnel
Overturning government decisions on the basis of its own radically expansive interpretation of human rights is not the only tool through which the court has usurped political power. Another, to which Friedmann devotes considerable attention, is control over government appointments.
It’s a truism that in government, people are policy; to accomplish anything, a mayor or a minister needs to fill key positions with people who share his vision. But the attorney general and the court have repeatedly intervened to disallow nominees, no matter how qualified. They have also issued a blanket ban on party colleagues or friends—the very people most likely to share an elected official’s views—unless a nominee can be shown to possess some unique qualification lacking in “apolitical” candidates. Further exacerbating matters, search committees for government posts in Israel aren’t restricted to considering the government’s nominees, but are free to consider any applicant and even to propose their own candidates.
Thus, in 2011, Benjamin Netanyahu’s then-finance minister, Yuval Steinitz, wanted a particular person to head the tax authority. Steinitz, writes Friedmann, “clearly acted in good faith and genuinely believed that his candidate was the best man for the job.” But a search committee preferred a different person, and the supreme court, deeming the panel’s recommendation “almost decisive,” ordered the cabinet to consider him; bowing to the inevitable, the cabinet appointed the committee’s favorite.
In another case, Eli Zohar—a leading criminal-defense attorney—was forced in 2003 to withdraw his candidacy for the post of attorney general simply because he was a friend of the justice minister. Rejecting the minister’s second choice as well, the committee ultimately recommended only candidates whom the government hadn’t nominated.
Compounding this problem, Friedmann writes, is that prosecutors and courts have repeatedly viewed disregarding the advice of professional civil servants as grounds for suspecting a minister of criminal malfeasance, whereas ministers who accept such advice can cite this as a legal defense. The upshot is that not only are ministers barred from appointing the people they want, but for fear of being charged with criminal wrongdoing, they are virtually forced to obey the decisions of appointees they don’t want. This raises an all but insurmountable barrier to substantive policy change.
Still another tool at the court’s disposal for controlling government activity is its power to “interpret” legislation. True, any court does this, but Israel’s supreme court takes it to extremes, simply interpreting out of existence any law it happens not to like. Conversely, if it wants a law that the Knesset hasn’t been accommodating enough to pass, or that legislators have explicitly decided to omit, it “discovers” the law in existing legislation.
In 2002, in a follow-up effort to apply the law to Arab as well as Jewish parties, the Knesset amended it, among other things adding a new ground for disqualification: supporting armed struggle against Israel. The following year, the elections committee duly disqualified the Balad party, then led by the radical Arab activist Azmi Bishara, a sitting MK. Balad went to court. The court’s own ruling in the case would suffice to convince most people that Balad met the legal criteria for disqualification. Bishara’s rejection of Israel as a Jewish state and his support for armed struggle against it, the majority wrote, “stand at the center of his goals and actions . . . Furthermore, these actions are not a theoretical idea, but rather a political potential that MK Bishara has taken from theory into practice . . . with great force.”
Nevertheless, the court overturned the disqualification, declaring that the evidence wasn’t sufficiently “persuasive, clear, and unambiguous.” Effectively, Friedmann writes, it set such a high evidentiary standard that disqualifying any Arab party became all but impossible. This ruling also spurred the Knesset to pass several new versions of the disqualification law, in each case sparking accusations from Israel’s left of racist and undemocratic conduct. Yet all those subsequent bills were merely attempts to get the court to finally enforce the original law’s reasonable intent: that people who want to abolish the Jewish state or support armed struggle against it shouldn’t sit in its parliament.
The flip side of gutting legislation the Knesset actually passed is creating legislation it didn’t pass. The catchall vehicle for this purpose has been the Basic Law: Human Dignity and Liberty. As Friedmann observes, the court has “discovered” several rights in this law that the Knesset intentionally excluded under the political compromises that enabled its passage.
One example, which Friedmann mentions but doesn’t elaborate on, is the “right to family life.” This may surprise anyone familiar with Israel’s fairly restrictive marriage laws; since marriage and divorce are controlled by each faith’s religious courts, there’s no legal way to conduct a marriage—say, an interfaith marriage—that violates religious law. And indeed, when legislating the Basic Law, the Knesset deliberately made several changes to the original bill in order to ensure the preservation of that system, thereby making it clear that the law was not intended to confer a right to family life with the partner of one’s choice; had legislators imagined it did, the law wouldn’t have passed.
But in 2006, as Israel was recovering from the second intifada, the court ruled narrowly (six to five) that the Basic Law not only confers such a right but confers the most expansive imaginable version of it: whereas other Western countries restrict the immigration of enemy nationals, Israel must in principle allow all Palestinians who marry Israelis to move to Israel to be with their spouses. (Bizarrely, however, the law restricting such spousal immigration survived anyway because one of the six justices in the majority, although agreeing with his colleagues that the law was unconstitutional in principle, wasn’t yet ready to overturn it in practice.)
In a subsequent email to an overseas colleague, Aharon Barak was breathtakingly honest about how the majority reached its conclusion. Rather than examining what the law actually said, Barak decided what he wanted it to say, then inserted that view into the law in defiance of the legislature’s intent. Or as he put it, according to a Hebrew translation of the email published in Haaretz:
I determined that the right to family life is a constitutional right of the Israeli spouse and his children. . . . Since we do not have specific articles in our Bill of Rights that deal with equality and the right to family life, I decided that these rights are part of the right to human dignity.
IV. The Court Selects Its Own Members
It’s by means of such judicial tactics, Friedmann sums up, that the supreme court has created “a split between authority and accountability.” While arrogating to itself the power to mandate executive-branch action or strike it down, to abolish Knesset legislation or create laws the Knesset never enacted, it remains unaccountable to the public for its own actions. Meanwhile, the executive and the legislature, both of which must answer to voters for their actions, increasingly lack the power to decide anything for themselves; without the court’s permission, they can neither act nor refrain from acting.
All of this is further exacerbated by Israel’s uniquely undemocratic system of appointments—not only, as we have seen, in the executive branch, but also to the court itself. In most democracies, supreme-court justices are chosen by the elected branches of government; in Israel, they are chosen by a nine-member committee on which sitting justices themselves occupy three seats. Two more are held by representatives of the Israeli bar association—who must argue cases before those same justices—while four “political” seats, which change hands with every new government, are set aside for three coalition members and one opposition MK.
This arrangement gives the justices enormous influence over the choice of their own successors, which they have employed to stack the court with people who share their activist worldview. Among other egregious abuses, Friedmann cites their veto of the proposed appointment of Ruth Gavison, a preeminent legal scholar and veteran human-rights activist, solely on account of her outspoken criticisms of judicial interventionism.
Numerous bills have been submitted to curb this interventionism by changing the system for appointments to the court—for instance, by allowing the Knesset Constitution Committee to vet nominees. That none has ever passed is largely because opponents, usually but not exclusively from the political left, have tarred these bills, too, as anti-democratic attempts to politicize the court or destroy its independence. Aharon Barak, the former chief justice, famously decreed that such legislation would turn Israel into a “third-world country.” Yet the appointment of justices by elected officials hasn’t impaired judicial independence in other democracies, nor has anyone ever questioned the independence of Israel’s first justices, who, as Friedmann points out, were appointed by the cabinet and approved by the Knesset.
On the contrary, enabling the appointment of justices who pay greater deference to the separation of powers would enhance democracy by restoring policy-making power to the elected government, where it belongs. Far from seeking to undermine democracy, the Knesset is merely seeking some way to get the court to respect a fundamental democratic right: the right to have policy set by elected officials rather than unelected justices.
V. Subverting the Rule of Law
The executive and legislative branches of government are far from the only victims of judicial activism. In some of the strongest parts of his book, Friedmann shows how this activism, ostensibly intended to protect individual rights and the rule of law, often ends up subverting both.
Examples abound. Some of them arise from the conferral of sweeping authority to the attorney general. Legal questions are rarely black-and-white, and no human being is infallible; thus, by giving dictatorial powers to a single legal official, the court has effectively eliminated the legal checks and balances that can help prevent irreparable mistakes. Indeed, Friedmann cites several cases prior to the judicial revolution in which the court actually sided with the government against the attorney general. But under the court’s current approach, he writes sardonically, “the rule of law is to be preserved by means of requiring the government to act in accordance with the opinions of the attorney general even if, in doing so, the government violates the law.”
One major casualty of this approach has been the rights of criminal suspects and defendants. Friedmann illustrates this point with a notorious 1984 case in which an army officer was suspected of killing two captured terrorists. The attorney general wanted the officer court-martialed and suspended from active duty, but the military advocate general (MAG), deeming the evidence fishy, refused. Eighteen months later, three senior Shin Bet security officers proved the MAG right when they admitted that their agency had framed the officer. Had the rule granting binding authority to the attorney general’s decisions been in force back then, an innocent man’s career would have been destroyed.
Moreover, the supreme court has repeatedly ordered attorneys general to file indictments that they themselves have regarded as unwarranted, thereby subverting the defendants’ right to a fair trial since it is difficult, in Friedmann’s words, “for a lower court to acquit (or even impose a light sentence) after the highest court has ordered an indictment.” Similarly, the justices have “discarded the traditional rule that, in case of doubt, the law should be interpreted in favor of the defendant.” The result has been a stunning rise in conviction rates, from 77.8 percent in 1961 to 92.3 percent in 1981 to an incredible 99.9 percent in 2005.
If this raises serious questions about due process, no less serious is that justice is routinely delayed in both civil and criminal cases. Thanks to the court’s preoccupation with policy issues that aren’t its business, it has little time for its core job of hearing civil and criminal appeals. Consequently, even after it does finally hear a case, litigants often wait “four or five years, and sometimes longer,” for a ruling.
Equally disturbing is the court’s impact on Jewish-Arab relations in Israel. For instance, its persistent refusal to disqualify Azmi Bishara’s Balad party was presumably intended to benefit Israeli Arabs, but Friedmann argues convincingly that it backfired. Over the past three decades, he writes, the presence in parliament of provocative extremists like Bishara has been accompanied by a rise in violence by Israeli Arabs, has in general “soured Jewish-Arab relations,” and has “probably also strengthened the Israeli right-wing parties.”
Another case from the mid-1980s is instructive in this regard. In 1984, Meir Kahane’s Kach party (subsequently disqualified from the Knesset, as we’ve seen) won a single seat and promptly submitted bills to deny citizenship to non-Jews, to mandate separate beaches for Jews and Arabs, and to bar Jews from marrying or engaging in sexual relations with non-Jews. Under Knesset bylaws at that time, legislative proposals couldn’t be brought to a vote without the authorization of the Knesset speaker; deeming the bills racist and anti-democratic, Speaker Shlomo Hillel refused to let them through. Kahane then petitioned the court, which ordered Hillel to allow the votes. Later he also petitioned the court over the refusal of the public broadcasting authority to air stories about his bills and speeches, and won again.
As Friedmann notes, it’s virtually unprecedented for a court in a democracy to dictate the legislature’s internal work procedures, much less force it to vote on bills it deems unworthy of consideration; this grossly violates the separation of powers. It’s also unprecedented for a court to order journalists to cover news they deem unworthy of coverage; this grossly violates freedom of the press.
But while Friedmann doesn’t say so explicitly, the implications for Jewish-Arab relations were also significant. Although the Knesset swiftly amended its bylaws to bar explicitly racist bills, the supreme court had just effectively decreed that racist legislation and speech, once ostracized by the Knesset and Israeli media alike, deserved and even required consideration. It thereby eroded institutional and social barriers against manifestations of racism. Three decades later, bills or statements by the radical fringe, however minuscule their chances of enactment, routinely garner outsized attention from journalists and legislators rather than being quietly sidelined as they might have been in the past. The result is that although anti-Arab prejudice in Israeli society has actually been declining, expressions of prejudice enjoy more public exposure than ever before—to the obvious detriment of Jewish-Arab relations, as well as of Israel’s public image.
And this brings us to a final victim of the judicial revolution: public respect for the court itself and the entire legal establishment, and hence for the very “rule of law” the court claims to champion. By 2007, Friedmann observes, confidence in the supreme court among the Jewish public had plummeted to 56 percent, from 85 percent in 1996, while confidence in the court system as a whole had plunged to 36 percent. By turning itself into just another political player, and “the rule of law” into a mere euphemism for its own policy preferences, the court has inevitably led the public to view it accordingly.
VI. Eviscerating Israel’s Dual Character
As I remarked early on, Friedmann’s book isn’t without its weaknesses. Some of these are major. Aside from the frequent lack of critical background information, his account lacks any treatment of a principal source of friction between the court and elected officials: namely, the long list of court rulings that legislators rightly view as eviscerating the Jewish component of Israel’s self-definition as a Jewish and democratic state.
In ruling after ruling, the court accomplished this feat by adhering to Aharon Barak’s dictum that it should interpret “Jewish” at a “level of abstraction . . . so high that it becomes identical to the democratic nature of the state.” Without being aware of these rulings, it’s impossible for an outsider to grasp that many controversial recent bills, like those seeking to define Israel as the nation-state of the Jewish people, aren’t aimed at giving the country’s Jewish character more weight than its democratic character—as critics recklessly charge—but are merely trying to restore a parity enshrined in law yet systematically ignored by the court.
It’s important to stress here that viewing Israel’s dual character as an inevitable source of conflict between Judaism and democracy is a misapprehension. In most cases, a conflict would exist only if democracy were regarded not as a system of government—that is, a procedural mechanism for decision-making—but as synonymous with the all-encompassing set of social and moral values known today as liberalism. Unfortunately, that happens to be exactly how Israel’s supreme court, along with most of the Israeli left, does view democracy. By definition, therefore, the court sets its own sweeping universalism at odds with particular and often perfectly defensible Jewish concerns.
Perhaps no issue in recent years has highlighted this conflict more than the court’s decision, no fewer than three times, to overturn legislation aimed at stemming illegal migration, before finally upholding a fourth version whose terms were essentially dictated to the government by the court. All four versions of the legislation restricted migrants’ freedom in some fashion while their asylum applications were being processed, or in cases where applications were rejected but migrants couldn’t be deported (if, for instance, their country lacked diplomatic relations with Israel); the argument was over the nature and duration of those restrictions.
As the only Western country that shares a land border with Africa, Israel is uniquely vulnerable to an influx of illegal migrants; the first version of the law was passed in 2012 after years of sharp annual increases in the number of such migrants. Having reason to believe that most were labor migrants rather than bona-fide refugees, the government sought to discourage further waves by making it clear that, for a non-trivial period of time, illegal migrants would be unable to earn a wage. Illegal migration in fact dropped sharply after 2012, though whether that was due to the law, to a new border fence, or to both is disputed.
But aside from the general problem that mass migration poses to every Western country, Israel faces a unique problem related to its Jewish identity. Clearly, unless Israel preserves a substantial Jewish majority, it cannot remain a democratic Jewish state. Already its non-Jewish, primarily Muslim, minority totals 25 percent of the population (excluding the territories), and many of the migrants, especially those who can’t be deported, are also Muslim. Thus a massive influx could affect the country’s delicate demographic balance; to the cabinet and to the Knesset, this was additional justification for stringent policies to discourage migration.
In my view, the court was justified in concluding that the initial legislation, which allowed migrants to be jailed for up to three years, violated the Basic Law: Human Dignity and Liberty. But by the third version, the law stipulated only twenty months at an open detention facility that migrants could leave during the day, but whose isolated locale would make it difficult to find work. Several other Western countries have instituted significantly more draconian policies to discourage migrants. Yet the court subordinated both the general Western concern and the particular Jewish concern to its own expansive conception of the migrants’ universal human rights.
Another area where Friedmann’s book falls short is in his recounting of the process by which the judiciary was able to amass such power. He points, reasonably, to the widespread distrust in government generated by the near-disaster of the 1973 Yom Kippur War, a distrust exploited by the strategists of the judicial revolution. He also rightly highlights both the weakness of coalition governments, in which a single partner can veto proposed reforms, and the legal establishment’s successful intimidation of reform-minded politicians; his case studies of politicians barred from or forced out of key ministries by utterly baseless criminal proceedings are downright frightening, especially since many of the targeted politicians were outspoken critics of the court. During his own term as justice minister, he writes, “many of my colleagues were terrified of voicing any disagreement” with the attorney general lest he launch criminal proceedings against them.
But Friedmann barely touches on what may be the most critical factor of all in this saga of judicial usurpation: the existence of a sizable minority of Israelis who wield great influence in the media, academia, and other opinion-shaping institutions and who see judicial activism as an essential tool for molding Israel toward ends they can’t achieve through democratic means. The perseverance of the court’s overreaching activism despite decades of legislative opposition is incomprehensible without recognizing that it enjoys a powerful support base.
To understand this point, Menachem Mautner’s 2011 book, Law and the Culture of Israel, is indispensable. (I reviewed it here.) A professor of law at Tel Aviv University, Mautner argues persuasively that the left, which controlled Israel for the state’s first three decades, was terrified by its loss of power to the center-right Likud party in 1977. He quotes leading cultural icons of the time predicting, among other evils, civil war, the abolition of democracy, and the spectacle of state organs hunting down dissenters and/or secular Jews. In despair at its loss of hegemony, the left turned to the judiciary, the one branch of government still in its grasp, as a means of retaining control over the country’s political culture. And the judiciary, whose roots were in this same leftist elite, willingly complied.
Aside from these substantive issues, Friedmann’s book also suffers from various other defects, among them an often confusing and digressive narrative and a lack of well-developed characters or intriguing anecdotes that might ease the slog through legal intricacies. At the same time, however, The Purse and the Sword offers vital insight into a powerful institution that has been disfiguring Israeli politics and society for the last three decades and is still at it today. If you want to understand one of the most egregious and deeply embedded threats to Israel as a Jewish and democratic state, Friedmann’s book is a good place to start.
Originally published in Mosaic on December 5, 2016
Watching the Israeli government convulse itself over 40 homes in the illegal settlement outpost of Amona, an outsider could be forgiven for wondering whether it had gone mad. If you don’t understand the underlying politics, there’s no rational explanation for why top government officials have devoted more hours to finding a way to avoid razing those 40 houses than they have to numerous weightier issues. The politics of it all makes more sense than the policy, and it also shows why Barack Obama’s approach to the settlements issue is ultimately destructive to the very two-state solution he claims to favor.
As Israeli commentator Yossi Verter noted last week, Prime Minister Benjamin Netanyahu hasn’t previously had problems taking steps that upset his base. In 2009, he instituted an unprecedented 10-month freeze on settlement construction, and he’s removed other illegal outposts with relatively large populations. Settlement construction has been slower on his watch than under any previous prime minister, as even the far-left Haaretz admits. He even imposed an undeclared–and unprecedented–building freeze in large Jewish neighborhoods of East Jerusalem. So what suddenly changed?
The answer, which became clear to me during a discussion over Shabbat lunch, stems from a generational divide. My generation’s most searing political memories are the 1993 Oslo Accords and the ensuing upsurge in terror; the failed Israeli-Palestinian summit in 2000 and the ensuing bloodshed of the second intifada; and the 2005 disengagement from Gaza and the ensuing rocket fire on Israel, which has so far led to three wars. So, from our perspective, Netanyahu is basically doing great. Unlike all his predecessors, he has resisted massive international pressure to make further territorial concessions that would be similarly disastrous for Israel’s security. Consequently, we’re willing to cut him slack on other issues, even when we disagree with him.
But people who were children during most or all of the above events have a very different view of Netanyahu. Lacking the memory of how quickly other prime ministers reversed themselves under pressure–Yitzhak Rabin on his promise of no negotiations with the PLO, Ariel Sharon on his promise of no unilateral pullout from Gaza–they don’t see Netanyahu as courageously holding the line against disastrous territorial withdrawals. They take this for granted.
What they see instead is the way he has ceded control of the land de facto by giving the international community veto power over when and where Israel builds. To take the most glaring example, what other country refrains from building desperately needed housing in its own capital because of fear of international pressure? Doesn’t that make a mockery of Israel’s claim to sovereignty in Jerusalem?
So after almost eight years of declared and undeclared construction freezes, younger activists are boiling over with frustration. They want to see Israel acting like a normal, sovereign country and building where it sees fit–which, for many of them, means all over the West Bank. That Amona has become the vehicle for their frustration is a simple accident of fate. Because the Supreme Court mandated its demolition by December 25, the government’s usual trick of postponing any decision won’t work anymore; it has to either raze the outpost or legalize it within the next three weeks.
But what does any of this have to do with Obama’s settlement policy? The answer is simple. Previous U.S. governments distinguished between areas Israel would almost certainly keep under any deal with the Palestinians–like large Jewish neighborhoods in East Jerusalem or the major settlement blocs–and isolated settlements that would have to be evacuated under any such deal. Since building in the former areas didn’t actually impede prospects for a two-state solution, previous administrations didn’t raise much fuss about it.
The Obama Administration, in contrast, objects to new houses in large Jewish neighborhoods of Jerusalem just as vociferously as it does to new houses in the most isolated West Bank outpost. Nor has it given Netanyahu any credit for his unprecedented restraint on settlement construction; instead, it has consistently and falsely accused him of “aggressive” construction and then used this false accusation to blame him for the impasse in the peace process.
Had Obama quietly acquiesced in building in Jerusalem and the settlement blocs and given Netanyahu public credit for his restraint, Netanyahu would have had a solid case to make to his party’s angry young activists. It’s true we aren’t building everywhere, he could have said, but at least we’re building in some places that are important to us. Restraint in other areas is worth it for the sake of good relations with Washington.
But in the face of Obama’s actual policy, Netanyahu has no case at all. You aren’t building anywhere, the young activists justly retort, and if you’re going to generate just as much international outrage by building in Jerusalem as by building in Amona, why not build everywhere?
Netanyahu has striven desperately to find some sort of compromise over Amona, and he may succeed. But the young activists’ anger isn’t going to go away, so at some point, he’ll have to choose: start building and risk the international community’s displeasure, or continue his restraint and risk losing his own base. And when politicians in democratic countries are forced to choose between their voters and foreign leaders, the latter usually lose.
Thus, if the international community wants to ensure that settlement building won’t undermine a two-state solution, it needs to stop opposing construction in areas where construction does no such thing, like Jerusalem and the settlement blocs, and start giving Netanyahu credit for his restraint. Otherwise, he’ll have no ammunition with which to fight his base’s angry young activists. And if he can’t beat them, he’ll almost certainly join them.
Originally published in Commentary on December 5, 2106