Analysis from Israel

As Jonathan Tobin noted yesterday, the Palestinian Authority has voiced vehement opposition to Natan Sharansky’s plan to build an egalitarian prayer section at the Western Wall. But I think it’s too soon to call this an “impassable obstacle,” as he does; there’s an important step that needs to be taken first: a thorough survey of American Jews asking whether, in light of this opposition, they favor proceeding with the plan. By this, I don’t just mean a telephone poll of 500 or 1,000 random Jews; ideally, I’d like every Reform or Conservative congregation in America to discuss this question with its membership–for two reasons.

One is that the new egalitarian section seems to matter more to American Jews than to Israelis, since Israel’s Reform and Conservative movements are so much smaller (about 7 percent of all Israeli Jews). Therefore, it’s only fair to get their input before making any decision. The more important reason, however, is that this could provide a genuine teachable moment in the kind of trade-offs Israelis face every day in dealing with the Palestinians, to which liberal American Jews–i.e. the majority of the American Jewish community–have lately grown increasingly unsympathetic.

Most liberal American Jews have two main demands of Israel: They want it to recognize the non-Orthodox denominations, and they want it to make peace with the Palestinians, right now. The latter demand isn’t confined to fringe anti-Israel activists; it’s routinely voiced by long-time Israel supporters like Rabbi Eric Yoffie or Leon Wieseltier. So I’d like all these Jews to seriously consider this question: When these two primary demands conflict, what do you do–capitulate to the PA in the interests of “peace” and give up on being able to pray at the Western Wall in your own fashion, or insist on your rights at the Wall at the cost of further antagonizing the Palestinians, for whom modifications of the Western Wall Plaza are no less objectionable than new outposts in the heart of the West Bank?

Dilemmas no less wrenching confront Israel every day in dealing with the Palestinians, but because they don’t affect American Jews directly, the latter are often too quick to accuse Israel of being intransigent over a trivial point it should just concede in the name of peace. They deplore Israel’s refusal to agree to a border roughly along the 1967 lines, not understanding the enormous security risks this creates; they deplore Israel’s refusal to release murderers to woo the Palestinians to the negotiating table, not understanding the major role freed prisoners have repeatedly played in fomenting new terrorism; they deplore Israel’s reluctance to redivide Jerusalem, not understanding how unlikely it is that the city would remain open afterward, or how devastating a repartition would therefore be.

American Jews won’t understand the details of these issues any better after confronting their own Palestinian dilemma over the Western Wall. But just maybe, they’ll understand that dealing with the Palestinians isn’t quite so simple as they seem to think it is. And if so, the Palestinians will have done a great service to Israel’s relationship with American Jewry.

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The International Criminal Court’s fundamental flaw

In my last column, I noted in passing that the International Criminal Court’s blatant anti-Israel bias is merely a symptom of a more fundamental flaw. That isn’t self-evident; court supporters would doubtless argue, just as many people do about the United Nations, that while the court’s anti-Israel bias is regrettable, it’s an isolated flaw that doesn’t outweigh the benefit of ending impunity for atrocities.

What convinced me both that the ICC is unredeemable and that the impunity problem has a better solution was actually a book by one of the court’s ardent supporters—Philippe Sands, a law professor and international lawyer who has worked on ICC cases. In East West Street, Sands traces the development of two key concepts in international law—crimes against humanity and genocide—to their respective culminations in the Nuremberg Trials of 1945 and the Genocide Convention of 1948. But for me, the real eye-opener was his description of the international wrangling that preceded the Nuremberg Trials.

Nuremberg is sometimes derided as victor’s justice. And in one sense, it obviously was: Four of the victors of World War II—America, Britain, Russia and France—decided to put senior officials of their vanquished foe on trial. But what was striking about Nuremberg was the massive degree of international concord required to hold those trials. Lawyers representing several very different legal systems and several very different systems of government nevertheless had to agree on every word and even every comma in the indictments. And since those lawyers were acting on their governments’ behalf, political approval by all four governments was also needed.

In contrast, the ICC needs no international buy-in at all to pursue a case. Granted, its prosecutors and judges come from many different countries, but they represent neither their home governments nor their home legal systems. Politically, they represent nobody but themselves. Legally, they represent one particular interpretation of international law—an interpretation popular with academics and “human rights” organizations, but less so with national governments.

At first glance, both of the above may sound like pluses. Prosecutorial and judicial independence are generally good things, whereas many governments and legal systems leave much to be desired when it comes to protecting human rights.

But the ICC’s version of prosecutorial and judicial independence is very different from the version found in most democracies because the latter is not completely unconstrained. In democracies, prosecutors and judges are constrained first of all by democratically enacted legislation, and usually by democratically enacted constitutions as well. They’re also constrained by the fact that they, too, are citizens of their country, and therefore share concerns important to most of their countrymen—for instance, national self-defense—but unimportant to judges and prosecutors from other countries (which those at the ICC almost always will be).

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