Analysis from Israel

When an acclaimed historian says he sees a terrifying historical pattern repeating itself, he deserves to be taken seriously. And Benny Morris is assuredly one of Israel’s most famous historians. Unfortunately, his warning is unlikely to be seen by many, since it’s buried at the end of a somewhat tedious book review. And it’s liable to be ignored by those who need to hear it most.

Morris reviewed Patrick Tyler’s Fortress Israel: The Inside Story of the Military Elite Who Run the Country–and Why They Can’t Make Peace for the summer issue of the Jewish Review of Books. Most of the almost 5,000-word review was devoted to detailing Tyler’s numerous egregious errors and showing how they undermine his conclusions. But by itself, Morris wrote, Tyler’s spurious history would be insignificant. What makes it noteworthy is that it’s part of a much larger trend:

Fortress Israel is just the latest in a spate of venomous perversions of the record that have appeared in the past few years in the United States and Britain, all clearly designed to subvert Israel’s standing in the world. Deliberately or not, such books and articles are paving the way for a future abandonment of the Jewish state.

I am reminded of the spate of books and articles that appeared in Western Europe in 1936 through 1938 repudiating the legitimacy of the newly formed Czechoslovakia before its sacrifice to the Nazi wolves. In 1934, the Conservative weekly Truth hailed Czechoslovakia as “the sole successful experiment in liberal democracy that has emerged from the post-War settlement.” By the end of 1936, The Observer was writing it off as “a diplomatic creation with no sufficient national basis either in geography or race.” By March 1938 The New Statesman, in the past a great friend to central Europe’s only democracy, was writing: “We should urge the Czechs to cede the German-speaking part of their territory to Hitler without more ado.” Of course, as all understood, this meant leaving Czechoslovakia defenseless. Hitler conquered the rump of the country a few months later without a shot. The appeasement of the Arab-Islamist world at Israel’s expense is in the air and Tyler is one of its (very, very) minor harbingers.

Reasonable people can disagree about how we should deal with this dangerous trend. But the first step is to recognize that it exists: that we’ve seen this historical pattern before, and it has deadly real-world consequences.

Unfortunately, Morris today is persona non grata with many of the people who most need to hear this warning. For years, he was a hero of the self-described “peace camp,” due both to his role as a leading “new historian” who challenged accepted Israeli historiography (he catapulted to fame in 1988 when he published The Birth of the Palestinian Refugee Problem, 1947-1949) and to his outspoken left-wing politics: He favored a Palestinian state before it was fashionable and was jailed for refusing to do military service in the territories.

But after the second intifada broke out, he became convinced that what the Palestinians wanted wasn’t peace, but “to extinguish the Jewish national project and to inherit all of Palestine.” That made him anathema to many well-meaning and genuinely pro-Israel people who can’t abide that conclusion–and they are also the people who find it hardest to accepting the delegitimizers as enemies who must be fought at all costs. Instead, they often favor “dialogue” and “an inclusive big tent.”

But Morris is a historian, not a politician, and his politics shouldn’t be allowed to obscure the validity of his historical analysis. The Czechoslovakian analogy he sees is frightening–and we ignore it at Israel’s peril.

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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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