Israel’s new nation-state law has elicited a storm of criticism since it passed on July 19. Some of this criticism is justified; a law that manages to unite virtually the entire Druze community against it, despite this community’s longstanding support for Israel as a Jewish state in principle, clearly wasn’t drafted with sufficient care, as even the heads of two parties that backed the law (Jewish Home’s Naftali Bennett and Kulanu’s Moshe Kahlon) now admit. Nevertheless, much of the criticism stems from a fundamental misunderstanding of Israel’s constitutional system.
Israel doesn’t have a constitution. What it has is a series of Basic Laws to which the Supreme Court unilaterally accorded constitutional status. Many people, myself included, disagree with that decision, inter alia because constitutional legislation should reflect a broad consensus, whereas many Basic Laws were approved by only narrow majorities or even minorities of the Knesset. Nevertheless, both sides in this dispute agree on one thing: Each Basic Law is merely one article in Israel’s constitution or constitution-to-be. They cannot be read in isolation, but only as part of a greater whole.
Consequently, it’s ridiculous to claim that the nation-state law undermines democracy, equality or minority rights merely because those terms don’t appear in it, given that several other Basic Laws already address these issues. The new law doesn’t supersede the earlier ones; it’s meant to be read in concert with them.
Several Basic Laws, including those on the Knesset, the government and the judiciary, detail the mechanisms of Israeli democracy and enshrine fundamental democratic principles like free elections and judicial independence. There are also two Basic Laws on human rights, both of which explicitly define Israel as a “Jewish and democratic state.”
Of these human rights laws, the more important is the 1992 Basic Law: Human Dignity and Liberty. It includes general protections like “There shall be no violation of the life, body or dignity of any person as such” and “All persons are entitled to protection of their life, body and dignity,” as well as specific protections for liberty, property and privacy. Though the law doesn’t mention “equality” or “minority rights,” the courts have consistently interpreted it as barring discrimination on the eminently reasonable grounds that discrimination fundamentally violates a person’s dignity (the one exception, which all legal systems make, is if discrimination has pertinent cause, like barring pedophiles from teaching).
Granted, there are things this law can’t do, such as breaking the rabbinate’s monopoly on marriage and divorce, because it explicitly grandfathers all pre-existing legislation. But it applies to all legislation passed after 1992.
Thus to argue that the nation-state law is undemocratic because it doesn’t mention equality or minority rights is like arguing that the U.S. Constitution is undemocratic because Articles I and II confer broad powers on the legislature and executive without mentioning the protections enshrined in the Bill of Rights. Everyone understands that the Constitution’s provisions on governmental power aren’t supposed to be read in isolation, but in concert with the first 10 amendments, so there’s no need to reiterate those rights in every other article. Similarly, the nation-state law isn’t meant to be read in isolation, but only in concert with other Basic Laws enshrining Israel’s democratic system and basic human rights. Thus there’s no reason for it to reiterate protections already found in those other laws.
Nor are any of the law’s specific provisions undemocratic. For instance, the provision stating that “The right to exercise national self-determination in the State of Israel is unique to the Jewish people” doesn’t deprive Arabs of individual rights within Israel, nor does it bar the possibility of Palestinian self-determination in the West Bank and Gaza, which aren’t part of the State of Israel. The only thing it prohibits is an Arab state within Israel’s borders, which is problematic only if you favor replacing Israel with another Arab state.
As for the provision making Hebrew the state’s only official language, many other democracies also have a single official language despite having large minorities with different mother tongues. For instance, 17 percent of America’s population is Hispanic, only slightly less than the 21 percent of Israel’s population that’s Arab, yet Spanish isn’t an official language in America, and few people would argue that this makes America undemocratic.
Indeed, Israel’s new law goes much farther than many other democracies in guaranteeing minority language rights, thanks to one provision according Arabic “special status” and another stating that nothing in the law “undermines the status enjoyed by the Arabic language in practice before this Basic Law came into effect.” The latter provision actually preserves Arabic’s status as an official language de facto. It may have been stupid not to preserve it de jure as well, but “stupid” isn’t the same as “undemocratic.”
All of the above explains why even the heads of the Israel Democracy Institute—a left-leaning organization usually harshly critical of the current government—said at a media briefing this week that the law “doesn’t change anything practically,” “won’t change how the country is run,” and is merely “symbolic and educational.”
The law was meant to solve a specific constitutional problem: The courts have frequently interpreted the Jewish half of “Jewish and democratic” at a “level of abstraction so high that it becomes identical to the state’s democratic nature,” as former Supreme Court President Aharon Barak famously said. Yet no definition of “Jewish” can be complete without recognizing that Judaism has particularist, as well as universal, aspects because it’s the religion of a particular people with a particular history, culture and traditions. By emphasizing some of those particularist aspects, the law is supposed to restore the intended balance between the Jewish and democratic components of Israel’s identity. But it doesn’t eliminate those democratic components, which are enshrined in numerous other Basic Laws, nor was it intended to do so.
I’m skeptical that the law will achieve its intended purpose, but I see no good reason why it shouldn’t exist in principle. Israel isn’t just a generic Western democracy; it’s also the world’s only Jewish state. And its constitution-in-the-making should reflect both halves of its complex identity.
This article was originally syndicated by JNS.org (www.jns.org) on August 1, 2018 © 2018 JNS.org
I’ve been wondering recently whether I’m simply a hypocrite. After all, I think the world was wrong to close its doors to Jewish refugees during the Nazi era, yet I sympathize with the West’s unwillingness to welcome the seemingly endless stream of desperate people beating on its doors today. So in an effort to determine whether my position has any conceivable justification, I finally read the U.N. Refugee Convention of 1951, the foundational document codifying the international obligation to help refugees.
The popular view of this convention is that it protects anyone fleeing genuine danger. Moreover, that’s how many countries seem to have interpreted it in practice. Yet its plain language is far more restrictive than that—so much so that it would arguably exclude most of today’s migrants. And there’s a very good reason for this. But before considering the reason, let’s consider what the convention does and doesn’t say.
Its definition of a refugee has two clauses. The first covers specific groups defined as refugees under previous conventions—victims of the Nazis, Armenian victims of Turkey’s genocide, Russian victims of the Communist regime. The second covers anyone who has a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
That definition has several surprising omissions. Most notably, it never mentions war, though anyone in a war zone obviously faces real and life-threatening danger. This danger, however, doesn’t usually stem from persecution based on race, religion, etc.; rather, it’s inherent in the nature of war, affecting everyone in the area where bombs and bullets are flying. Thus people fleeing war zones seemingly wouldn’t be covered by the convention’s plain text, unless they’ve also been specifically targeted due to race, religion, etc.
Another glaring omission is dictatorship. Though dictatorships do oppress people on the basis of race, religion, etc., many also practice forms of repression that affect all their citizens, rather than targeting specific groups or individuals; think North Korea or Eritrea. Yet according to the convention’s plain text, simply living in an oppressive dictatorship wouldn’t entitle someone to refugee status, unless he were also specifically targeted due to race, religion, etc.
The third noteworthy omission is dysfunctional governments, which are incapable of protecting their citizens. That’s the problem for many of today’s Latin American émigrés, who are fleeing horrific gang violence that their governments can’t seem to stop. Again, the danger that they’re fleeing is real and life-threatening. But the gangs usually don’t target people due to race, religion, etc.; they tyrannize indiscriminately. Hence according to the convention’s plain text, most of their victims also wouldn’t be entitled to refugee status.
If the popular view of the convention were accurate, then it would apply to anyone fleeing war, dictatorship or dysfunctional government since all such people are genuinely endangered. But it’s no oversight that the convention doesn’t cover any of these cases; in fact, it was crafted so narrowly for a very good reason.
The reason is that international law is not a suicide pact. Indeed, it can’t be, because no country would sign an international convention whose terms, if honored, would undermine the country’s well-being. In this case, no country would have signed a convention requiring it to open its doors to a virtually unlimited number of migrants because there are limits to how many people any country can absorb without causing social upheaval.
The expansive definition of “anyone fleeing real danger” would comprise hundreds of millions or even billions of people. If anyone fleeing war were a refugee, for instance, then over the past few years alone, the entire populations of Syria, Afghanistan, South Sudan, Somalia, Central African Republic and Iraq would have been entitled to refugee status—and that’s not even an exhaustive list. If anyone fleeing a dictatorship or dysfunctional government were a refugee, the world would have to open its gates to the populations of much of Africa, central Asia and Central America. And as the current backlash to immigration in both America and Europe shows, this is simply more than most countries will ever be willing to do.
Hence the convention’s drafters were careful to choose an inherently limited definition. Groups being persecuted due to race, religion, etc. are almost always comparatively small minorities that the world could manage to absorb—Jews under the Nazis, Yazidis under the Islamic State, Rohingya in Myanmar, and so forth.
Moreover, people targeted on the basis of race, religion, etc., are often the very people most in need of refuge. And if the world can only absorb a limited number of refugees, it makes sense to give priority to those most in need.
The problem with expanding the definition of refugees beyond the convention’s narrow bounds isn’t just that it violates the convention’s plain text, although that’s a danger in itself: If conventions end up entailing obligations far beyond those to which the signatories originally consented, then countries will eventually refuse to sign any convention at all.
The other danger, however, is that if everyone is considered a refugee, then in the end, nobody will be. If refugees are a limited class of people, there’s some hope that other countries can be persuaded to take them in. If they’re an infinite class of people, then ultimately, the world will shut its gates to them all. Indeed, some countries are already doing just that.
The desire to expand the refugee definition is motivated by real concern for people in real danger. But this is a classic case in which, as Voltaire famously said: “Perfect is the enemy of good.” In the real world, only by retaining a narrow definition of refugees will we be able to preserve any protections at all, even for those who need them most.
This article was originally syndicated by JNS.org (www.jns.org) on July 18, 2018 © 2018 JNS.org
The International Committee of the Red Cross, self-appointed guardian of the laws of war, has embarked on an exciting new online project: destroying the very laws it ostensibly seeks to protect. Of course, the ICRC would put it differently; it would say it’s teaching the laws of war. The problem is that the “laws” it teaches aren’t the actual laws of war, as codified in international treaties, but a made-up version that effectively denies countries any right of self-defense against enemies that fight from positions inside civilian populations. And it is thereby teaching anyone unwilling to concede the right of self-defense that the laws of war should simply be ignored.
The website has four sections – “behavior in war,” “medical mission,” “torture” and cultural property.” But the big problem is the first one, which consists of three questions users must answer correctly to receive a “medal of integrity.”
Question number one: “You’re a military commander. The enemy is hiding in a populated village across the front line. Can you attack?” The correct answer, according to the website, is “no.”
This is simply false. The laws of war do not grant immunity to enemy soldiers simply because they choose to hide among civilians, nor do they mandate avoiding any military action that might result in civilian casualties. They merely require that civilians not be deliberately targeted (the principle of distinction), that reasonable efforts be made to minimize civilian casualties, and that any such casualties not be disproportionate to the military benefit of the operation (the principle of proportionality).
The second question was, “What if you know for a fact that many civilians would be killed? Can you attack?” Since the ICRC had already ruled in the first question that attacking populated villages is never permissible, I’m not sure what purpose this question served; it would only make sense if the answer to the first question had been “yes” and this were a follow-up meant to explore the limits of the license to attack populated villages. But let’s ignore that incongruity and examine the question on its own merits.
The ICRC’s answer, of course, was “no.” But the correct answer is “insufficient information.” As noted, the laws of war don’t prohibit civilian casualties as collateral damage of a legitimate military operation. They do, however, require that such casualties not be disproportionate to the military benefit, and the question doesn’t supply the information necessary to determine whether this attack would be proportionate. For instance, how many civilian casualties does “many” actually mean – 10? 100? 1,000? Even more important, what price will your own side pay if it doesn’t attack? For instance, how many of your own civilians might be killed if you don’t stop the enemy’s rocket and mortar fire?
The laws of war were never meant to be a suicide pact; they do not require countries to let their own civilians be slaughtered in order to avoid harming enemy civilians. But in the ICRC’s version, they do. Its website teaches users that military action which harms enemy civilians is never permissible, so all an enemy has to do to slaughter the other side’s civilians with impunity is set up shop among its own civilian population. By that logic, no action should have been taken to stop, say, the Islamic State’s genocide against the Yazidis, because it operated out of populated villages and couldn’t be dislodged without civilian casualties. Is that truly what the ICRC wants?
Incidentally, using civilians as human shields is a war crime in itself, but you’d never guess that from the website. The implication of the ICRC’s questions is that the laws of war actually encourage using civilians as human shields, because doing so buys you immunity from attack under those very same laws.
Before moving to the third question, the website provides the average scores of respondents from 16 countries on the first two. Unsurprisingly, Israel had the lowest percentage of respondents who gave the “right” answers (followed by America). That’s because Israelis, who are regularly attacked by enemies operating from populated villages, understand better than most that the “right” answers would require them to sit with folded hands while their enemies kill them.
This is highly relevant to the website’s third and final question: “The Geneva Conventions, the core of the international humanitarian law, are now 70 years old. Warfare today is very different; does it still make sense to impose limits in war?” The ICRC’s answer, which I agree with, is “yes.” But limits on warfare will gain wide acceptance only if they still allow for the possibility of effective self-defense. If obeying the laws of war requires letting your own civilians be slaughtered with impunity, no country under attack would agree to do so.
That is precisely the danger of the ICRC’s position. The real laws of war set a challenging but achievable goal: reducing civilian casualties to the minimum consistent with effective military action. But the ICRC’s made-up laws set an impossible goal: avoiding any civilian casualties whatsoever, even if this precludes effective military action. Thus any country that engages in military action would end up violating the ICRC’s laws no matter what steps it takes to minimize civilian casualties. And if so, why even bother to take those steps?
Indeed, this very argument has raged in Israel for years now. Despite Israel’s great efforts to comply with the real laws of war – it “met and in some respects exceeded the highest standards we set for our own nations’ militaries,” a group of high-ranking Western military experts wrote in a report on the 2014 Gaza war – it is repeatedly accused by the UN, “human rights” organizations, and world leaders of grossly violating those laws. Hence many Israelis wonder why they should keep making those efforts, which often increase the risk to their own soldiers and civilians, if they get no international credit for doing so.
The ICRC is not only encouraging terrorists to operate from among civilian populations by granting them immunity; it is also discouraging efforts to comply with the civilian protection measures mandated by the real laws of war. In other words, it’s actually making civilian casualties more likely on two counts – and thereby betraying its own humanitarian mission.
Originally published in Commentary on November 14, 2017
In 2006, three Palestinian residents of East Jerusalem were elected to the Palestinian parliament on behalf of the Hamas-affiliated Change and Reform party, while a fourth was appointed to the Palestinian cabinet on behalf of that party. Israel responded by revoking their Israeli residency rights.
To most people, this would sound like a no-brainer. Many democracies view serving in a foreign government as grounds for revocation of citizenship because holding a policy-level position in one country’s government is considered to require a level of commitment to that country, which conflicts with one’s loyalty to the other country. Indeed, both America and Israel have such rules for their own citizens in policy-level positions; that’s why, for instance, when Michael Oren became ambassador to the U.S., he had to forfeit his American citizenship, despite the fact that America and Israel are close allies.
But these four Palestinians weren’t just serving in a foreign government; they were doing so on behalf of Hamas – a terrorist organization sworn to Israel’s destruction. This, as the Israeli government correctly argued in court, constituted a massive “breach of trust” toward Israel.
Yet the court, in a 6-3 ruling, decided otherwise. Although the Entry into Israel Law allows the government to revoke anyone’s residency rights “at its discretion,” it said the law shouldn’t be used to revoke their residency for “breach of trust.” Why? Because most East Jerusalem Palestinians were born in Israel and had lived there all their lives, so they deserve greater protection than migrants, who have previously lived elsewhere and whose roots in Israel are therefore shallower.
That East Jerusalem Palestinians merit greater protection than, say, labor migrants, is obviously true. Israel formally annexed East Jerusalem back in 1967 so, logically, most of them should be citizens rather than permanent residents. That they aren’t is due to a unique catch-22: Israel cannot unilaterally grant them citizenship without outraging the international community, which wants them to be citizens of a future Palestinian state.
Most East Jerusalem Palestinians are reluctant to exercise their right to apply for citizenship because doing so is viewed by other Palestinians as treason against the Palestinian cause. The result is an entire class of permanent residents who, as the court rightly said, deserve to be treated more like citizens than permanent residents in many respects.
But in this particular case, the court’s otherwise valid distinction is completely irrelevant. After all, the case wasn’t about ordinary East Jerusalem residents, who, in the absence of evidence to the contrary, could reasonably be assumed by the court to view Israel as their primary home. It was specifically about people who chose to serve in a foreign government on behalf of a terrorist organization, and who thereby declared that their allegiance to this foreign entity supersedes their allegiance to Israel.
If you can forfeit citizenship for serving in a foreign government, you can certainly forfeit permanent residency. After all, Hamas officials surely don’t deserve more rights than Israeli ones. Yet that’s exactly what the court gave them: Hamas officials can now retain dual nationality even though their other nationality is Israel’s bitter enemy, while Israeli officials cannot, even when their other nationality is Israel’s close ally.
Moreover, it’s eminently reasonable to expect people who choose to serve in a foreign government to move to that government’s jurisdiction, unless some unusual obstacle prevents them. In this case, no such obstacle existed, as evidenced by the fact that two of them did relocate to Ramallah after losing their Israeli residency (the other two were arrested by Israel on unrelated grounds).
Even the majority justices appeared to realize how irrelevant their argument actually was. In a truly stunning statement, Justice Uzi Vogelman, who wrote the main opinion, said, “Our interpretative decision didn’t focus on the petitioners’ case specifically, but on an interpretive question of general applicability to residents of East Jerusalem.” Quite how any court can decide a case without focusing on that case specifically is beyond me.
Ostensibly, the case at least has limited application. After all, how many East Jerusalem Palestinians are going to become Hamas legislators of cabinet members? But in reality, the implications are broad, because if even swearing allegiance to a foreign government on behalf of a terrorist organization committed to Israel’s destruction isn’t enough to make a Palestinian lose his Israeli residency and its attendant benefits, what on earth would be? Nothing I can think of. Thus, Hamas supporters in Jerusalem will now be emboldened to step up all kinds of activity on the organization’s behalf, secure in the knowledge that they need not fear expulsion from the country as a consequence.
The court’s judicial activism impedes the government’s ability to set policy in almost every walk of life, as I detailed in Mosaic last year, and several rulings over the past few months rightly outraged many members of Israel’s ruling parties. But last week’s ruling may have been a tipping point: In response, Justice Minister Ayelet Shaked and her Jewish Home party submitted legislation to curb the court’s excesses. Whether it will pass remains to be seen. But this outrageous ruling in defense of Hamas legislators amply shows why it should.
Originally published in Commentary on September 18, 2017
Regardless of whether you support or oppose a new law allowing Israel to bar entry to prominent supporters of anti-Israeli boycotts, one outcome was eminently predictable: Israel would lack the guts to enforce it even when doing so was most justified. That was amply proven by Wednesday’s decision to grant a one-year work visa to Human Rights Watch researcher Omar Shakir. By this decision, Israel eviscerated the one crucial point the law got right, despite the many it got wrong: You cannot wage an effective war on the BDS movement while giving the people behind it a pass. As the old truism goes, people are policy.
There’s been a lot of talk lately about the Trump Administration’s plan to slash funding for the State Department, so I’d like to offer my own modest proposal in that direction: Kill the department’s human rights bureau.
This isn’t because I think America shouldn’t care about human rights. On the contrary, I think it ought to shine a spotlight on the world’s worst abusers, given that the UN Human Rights Council and so-called human rights organizations fail to do so. But since the bureau, judging by its latest annual human rights report, does nothing but channel those institutions’ Israel obsession, I see no reason to waste taxpayer dollars on it.
Haaretz reporter Amir Tibon did a numerical analysis of the report earlier this month and discovered two astounding facts. First, the document “devotes 141 pages to the human rights situation in Israel and the occupied Palestinian territories, more than to any other country in the world except China,” which gets the same number. Second, “Even when viewed as two separate reports, the number of pages devoted to each of the areas–Israel and the occupied territories–surpasses that of any other country in the Middle East region.” For instance, Israel alone, excluding the territories, gets 69 pages; by comparison, Iran gets 48 and Syria 58.
Since a normal reader would assume the amount of space devoted to a country bears some relationship to the magnitude of its human rights offenses, any such reader would have to conclude that Israel is a far worse human rights violator than, say, Syria, where the government has slaughtered hundreds of thousands of its own citizens. It must certainly be worse than Iran, which has abetted that slaughter with both money and troops.
But the report becomes even more surreal when you start examining the “crimes” to which the State Department devoted all that ink. Take, for instance, the demolition of illegal construction in the Israeli Bedouin town of Umm al-Hiran.
We’ll leave aside the question of why demolishing illegal construction–with the approval of several courts, including the Supreme Court, and while offering the residents alternative land plus cash compensation–constitutes a human rights violation at all. It’s enough to consider a single sentence, which is based on a report by an Israeli NGO, the Negev Coexistence Forum: “The NCF reported that construction work on [the planned new town of] Hiran progressed and expanded during the year, reaching to within a few yards of Bedouin houses in Umm al-Hiran, and residents suffered from the dust raised by construction.”
Is this a joke? Or do State’s human rights gurus seriously think people suffering from the dust of nearby construction constitutes a human rights violation? By that logic, the only place anyone could build without violating human rights would be in wilderness areas. In other words, we’d essentially have to shut down all construction worldwide.
Or take its section on press freedom, which quotes another NGO, the Association for Civil Rights in Israel. It begins as follows: “The independent media were active and expressed a wide variety of views without restriction. In December, however, ACRI published a report detailing a variety of legislative and rhetorical attacks on media throughout the year by elected officials, especially Prime Minister Netanyahu, and expressed concern about the chilling effect of these attacks on press freedom.”
In other words, State thinks it’s reasonable to fear a “chilling effect” on Israel’s media even though its own first sentence admits there’s no evidence of any such thing (“The independent media were active and expressed a wide variety of views”). Even worse, however, the nonexistent human rights problem it alleges would be solvable only by creating a real one. How could Israel possibly prevent elected officials’ “rhetorical attacks on media” without suppressing their own freedom of speech?
But far worse than such inanities is the way the report traffics in unsupported libel. Take, for instance, this gem: “There were reports some children worked in forced labor in the West Bank, including in settlements. NGOs reported employers subjected Palestinian men to forced labor in Israeli settlements … The PA was unable to monitor and investigate abuses in these areas.”
In other words, the State Department accused Israel of subjecting Palestinians–including children–to forced labor, without citing a single example to substantiate this accusation. It did so despite admitting that it doesn’t actually have any evidence aside from unspecified “reports” by unspecified “NGOs,” which even the Palestinian Authority wasn’t prepared to back (it “was unable to monitor and investigate” the allegations). Nor is this lack of evidence surprising, since the accusation is groundless (shockingly, Israel isn’t running forced labor camps in the settlements). So why was such a vile, unsubstantiated allegation even included in the report?
A human rights report worthy of the name would prioritize, devoting most of its attention to the world’s worst abusers. It would reflect enough basic good judgment to excise inanities like “suffering from construction dust.” It would either try to confirm unsubstantiated allegations or omit them because they were unsubstantiated. And it might even include some original investigating about human rights abuses in the many oppressive dictatorships that “human rights” organizations find less enthralling than democratic Israel.
Instead, the State Department apparently just copy-pasted anything it could find from such organizations, no matter how ludicrous or unsubstantiated. That inevitably resulted in paying absurdly excessive attention to Israel, because that’s what most “human rights” organizations do. If you doubt that, just consider this stunning graph from the Elder of Ziyon blog analyzing Amnesty International’s tweets during one month in summer 2015: Amnesty spared only four tweets for Syria’s ongoing civil war, but devoted over 60 to Israel and Gaza, most of them rehashing a war that had ended a year earlier with less than half a percent of Syria’s death toll.
In short, the human rights bureau simply generated a U.S.-sponsored version of the same anti-Israel bias Ambassador Nikki Haley so rightly condemns at the UN. And if so, then really, who needs it?
Originally published in Commentary on March 20, 2017
I’m not naïve enough to think that better PR would solve all of Israel’s international relations problems. But there’s no question that incompetent PR makes its situation much worse. As one example, consider Tuesday’s shocking revelation: Within about 24 hours of the most high-profile civilian casualty incident of the 2009 Gaza war, Israel had obtained evidence casting doubt on its responsibility for that death. But it sat on this evidence for more than eight years, finally releasing it only as part of a defense brief in a civil suit by the victims’ father.
The incident in question took place on January 16, 2009, when Israeli troops fighting in Gaza came under sniper fire. The troops fired two shells at an observation post that seemed to be directing the snipers. The observation post was located on the third floor of a building which, unbeknownst to the soldiers, was also the home of a well-known doctor, Izzeldin Abuelaish. Three of Abuelaish’s daughters were killed, along with one of his nieces; several other family members were wounded. Abuelaish, who worked in Israel, maintained good relations with Israelis and advocated for Israeli-Palestinian peace, later became famous worldwide when he published a book about this incident and his response to it, called I Shall Not Hate. Israel was blamed worldwide for the Abuelaish casualties and never publicly challenged the assumption of its guilt. Yet it now turns out that within a day after the incident, it had evidence indicating that its shells may not have caused the carnage.
The evidence came in the form of laboratory tests conducted on six pieces of shrapnel extracted from the two casualties treated in Israel (the other wounded weren’t brought to Israel, nor were any of the dead, so no shrapnel from the other victims was available). The tests showed that alongside traces of various explosives used by both the Israel Defense Forces and Hamas, at least one fragment contained an explosive called R-Salt, which isn’t used by the IDF but is commonly used in improvised explosive devices in Gaza. Moreover, all six fragments contained potassium nitrate, another substance not used in IDF weaponry that is used in Hamas’s homemade Qassam rockets.
A follow-up report a month later, which compared the shrapnel to the specific type of Israeli shells fired, concluded that four of the six fragments could not possibly have come from those shells; a fifth “may have come” from an IDF shell, and apparently, no conclusions were possible about the sixth.
All of the above indicates that Hamas or a smaller Palestinian organization was using the house as a weapons cache. According to the IDF, there is no other way to account for the presence of non-IDF explosives in the shrapnel.
This in no way implies culpability on Abuelaish’s part; Palestinian terrorists routinely store weaponry in civilian houses without the owners’ consent or even knowledge. But it does raise the possibility that the Israeli shells, which were intended to take out the observation post without significant damage to the house, would not have caused such extensive casualties had the house not contained a concealed weapons cache–something the soldiers couldn’t have known–which exploded when the shells hit. And if so, then Israel clearly isn’t responsible for the deaths: It used a reasonable amount of force to respond to a legitimate military threat and could not have foreseen the deadly consequences.
One of the most common accusations leveled at Israel by its critics is that because it possesses precision weaponry capable of feats like destroying a single room without damaging the rest of the building, any civilian casualties it causes must be the result of criminal negligence at best and deliberate murderousness at worst. That conclusion is obviously possible only if you ignore various salient facts, such as that mistakes are inevitable in wartime when soldiers must often make split-second decisions based on imperfect information.
But one of those salient facts is Hamas’s habit of storing arms and ammunition in civilian houses–without, obviously, informing Israel of the caches’ locations. This means that no matter how carefully Israeli troops choose their munitions, they have no way to protect against the possibility that an arms cache they didn’t know about will set off secondary explosions, resulting in far more extensive damage than they intended.
This fact is essential to understanding why the blame for most civilian casualties actually rests not with Israel, which does try hard to use proportionate military force, but with Hamas, which deliberately endangers its own civilian population by hiding weapons in their houses. Yet since it is frequently not well understood overseas, Israel has every interest in publicizing high-profile examples as heavily as possible.
Instead, it sat on its information about the Abuelaish case for eight years. The lab report was kept so secret that even Abuelaish’s lawyers didn’t know of its existence until last week, although the suit was filed back in 2010. And then, having finally been forced to disclose the report to defend against the lawsuit, the government nevertheless made no attempt to publicize it; it came to light only because a reporter took the trouble to read the defense brief and realized that the information was newsworthy.
Obviously, information like this won’t change a single Israel hater’s mind. But there are many people of goodwill, especially overseas Jews, who sincerely want to believe that the IDF strives to avoid civilian casualties, but can’t understand why, if so, they nevertheless keep occurring.
Israel has many valid answers to that question, including the fact that its civilian-to-military casualty ratio is actually lower than that of other Western armies. But these answers are useless if it doesn’t take the trouble to publicize them. Sitting on exculpatory information about a high-profile case for eight years is hardly the way to assuage its supporters’ concerns.
Originally published in Commentary on March 15, 2017
It’s hard to imagine a former justice in any other democracy trying to orchestrate a mass judicial resignation
Note: After Mosaic published my essay “Disorder in the Court” in early December, the magazine invited two people to respond to it, Haviv Rettig Gur and Jeremy Rabkin. The piece below is my response to their responses.
Many thanks to Haviv Rettig Gur and Jeremy Rabkin for their thoughtful responses to my essay, “Disorder in the Court.” Both make valuable points. If I begin with and focus the major part of my comments on Gur, it is because he rightly highlights a major contributor to the problem of judicial activism: namely, the Knesset.
My essay touched on some of the reasons for the Knesset’s passive acquiescence in the activism of Israel’s supreme court, and I’ll expand on those reasons later. But the fact remains that judicial imperialism could not persist had parliament not consistently declined to use its legislative powers to restore some checks and balances, thereby abdicating its own responsibilities as a coequal branch of government. Nevertheless, I take issue with Gur’s contention that the court expanded its reach largely to fill a vacuum left by parliament’s refusal to decide crucial issues. There are indeed cases in which the court has been forced to fill legal lacunae left by the Knesset, but they’re rare. Mostly, such lacunae exist only if you accept, as Gur seems to do, the court’s own contention that the Knesset must decide all major issues itself rather than delegating such decisions to the executive branch.
In reality, that isn’t how legislation works in any democracy. It’s standard practice for legislatures to pass bills that lay down general principles while leaving the executive to fill in the details through regulation. Letting a few experts sort through the details is simply more efficient than having dozens of non-expert legislators wrangle over every possible question that might arise. And sometimes there are also good substantive reasons for keeping those details out of primary legislation.
A salient example is a case cited by Gur himself: the law making converts to Judaism eligible for citizenship under the Law of Return without defining exactly who qualifies as a convert. It’s simply untrue that legislators dodged this issue; in reality, they made a very calculated decision to delegate it to the executive as the best way out of an impossible situation. The Knesset couldn’t formally recognize non-Orthodox conversions, because the Orthodox parties, who in those years were part of every governing coalition, would have brought down the government before any such law could pass. But neither could it formally recognize Orthodox conversions only, because that would have outraged overseas Jewry.
Delegating the decision to the executive was thus a sensible way to moderate the fallout of a political hot potato. The Interior Ministry, which was responsible for implementing the law, declared that a convert for the purposes of the Law of Return was any convert accepted by the state’s chief rabbinate, which, by law, had (and has) full control over local conversions. While that still didn’t satisfy overseas Jews, a ministerial regulation was at least less offensive than formal legislation denying recognition to non-Orthodox conversions.
Nor was the ministry’s definition itself unreasonable: however much one may dislike the rabbinate (and I do), it’s clearly the state agency most knowledgeable about conversion. Hence, the supreme court could and should have upheld the Knesset’s decision. Instead, it declared that unless the Knesset explicitly defined “who is a convert” in legislation, the justices would define it themselves.
Another salient example is the court’s ruling on draft deferrals for ḥaredi yeshiva students. The original law, requiring military service of all Jewish men, gave the defense minister discretion to grant deferrals, and successive defense ministers, exercising this discretion, granted sweeping deferrals to Ḥaredim. But in 1998 the court suddenly declared that this delegation of authority was insufficient, and if the Knesset didn’t pass legislation on the matter, the court would decide for itself.
Virtually all Israelis understand that forcibly drafting tens of thousands of unwilling Ḥaredim overnight is impossible; so is throwing all of them in jail for draft-dodging. Thus, when the court insisted on legislation, the Knesset had no choice but to enact the existing deferral policy into law, with a few cosmetic changes aimed at furthering efforts to encourage voluntary enlistment.
By delegating this matter to the defense minister, the Knesset had been able to keep the formal demand for equal treatment on the books, even if everyone knew it couldn’t yet be implemented. In forcing the legislature to decide, the court pushed the state from a condition of de-jure equality but de-facto inequality into one of inequality both de facto and de jure. I fail to see how that constitutes an improvement
Nothing in Israel’s legal code bars the Knesset from delegating policy issues to the executive. Indeed, since the executive is democratically elected, it has a far greater right to decide such issues than does an unelected court. The court’s claim that Knesset inaction requires the justices to act in its stead is therefore just another excuse for justices to overturn policies they dislike.
Similarly unwarranted, though for different reasons, is Gur’s defense of judicial intervention in the contract unilaterally struck by the prime minister with the private companies involved in developing Israel’s offshore gas fields. I agree with Gur that the prime minister can’t bind the Knesset without its consent, and while the Knesset did pass a nonbinding resolution approving the overall deal, this isn’t the same as formal consent.
Nevertheless, courts don’t usually rule on a contract’s legality in advance; generally, they do so only in case of a dispute between the parties, at which point they may deem one or more provisions of the contract legally unenforceable. And that’s precisely what the justices could have done in this case by declaring that since the Knesset hadn’t yet tried to pass any legislation that might violate the contract’s regulatory-stability clause, and might well never do so, there wasn’t yet any concrete dispute. Thus here, too, the court’s intervention, in which it ruled the deal itself invalid, was a choice, not a necessity.
All of this leads to a second reason why I think assigning primary blame to the Knesset is unfair: it’s the court itself, by its overreach, that has placed lawmakers in the position where they must either wage open war against another branch of government or tacitly acquiesce in the usurpation of their power. And open war against the judiciary isn’t something to be undertaken lightly.
In my essay I mentioned some of the factors contributing to this situation: the stridency of left-leaning journalists, academics, and, yes, legislators who believe they benefit from the court’s activism; the tactic of libeling every attempt to rein in the court as “anti-democratic,” which frightens even opponents of the court’s agenda into silence; and the disturbing pattern by which politicians who promote judicial reform suddenly find themselves under criminal investigation, thereby undoubtedly scaring off others so inclined. All this is compounded by the fact that Israeli justices, both sitting and retired, engage in overt political lobbying of a kind inconceivable in other democracies.
In an article in Mida earlier this month, Michael Deborin detailed the latest such lobbying effort by Aharon Barak, the former president of the supreme court. Assailing a proposed reform of the judicial appointments process, Barak declared that “the supreme court is one family” and “we cannot bring in [as a justice] someone who is not part of the family”—i.e., anyone Barak and his judicial colleagues don’t like. As if that weren’t appalling enough, he added that if the proposed reform weren’t dropped, he’d urge all of his colleagues on the supreme court to resign.
It’s hard to imagine a former justice in any other democracy trying to orchestrate a mass judicial resignation, especially over a reform of minor impact. (The proposal would merely reinstate the appointments procedure in place prior to 2008, which not only differs very little from the current one but is one the justices themselves had strongly supported for decades.) Nor can one imagine politicians and the media in other democracies treating such a threat as unexceptionable. Worse, by portraying the proposal as a direct attack on the court, Barak converted a modest reform into a constitutional crisis, making it seem, wrongly, like a direct threat to Israeli democracy. Through repeated use of this tactic, the justices have made legal reform impossible without a major battle that could have serious fallout both at home and overseas.
“Level-headed” politicians, as Gur characterizes Prime Minister Benjamin Netanyahu and Justice Minister Ayelet Shaked, understand that they can’t fight on every front simultaneously, and also don’t waste precious time on fights they can’t win. In the current government, due to the opposition of one key coalition party, significant legal reforms are a lost cause. But it’s a big stretch to infer, as Gur does, that such political pragmatism conceals a secret opposition to judicial reform among leading conservative politicians.
I do agree with Gur that many Knesset members have shamefully “come to rely on the court . . . to rein in their more feckless impulses and proposals.” But far from justifying judicial activism, I see this as another pernicious consequence of that activism. Judicial imperialism doesn’t absolve legislators of responsibility for their own bad behavior. But it does incentivize such behavior, because on issues where legislators believe the court is likely to veto any substantive change, neither side of the aisle has any incentive to invest time in careful drafting, to reach workable compromises, or thoroughly to consider the consequences of a proposed bill. On the contrary, if a bill won’t ever be implemented, there’s an incentive to make it maximally outrageous so as at least to garner media attention. Thus, it’s no accident that the volume of irresponsible legislation emerging from the Knesset has increased markedly over the decades since the judicial revolution began.
It’s also no accident that, as Gur correctly notes, public trust in both the cabinet and Knesset has plummeted over these decades. This isn’t due merely, or even primarily, to “irresponsible” legislation, but to the fact that these bodies have repeatedly proved unable to fulfill the basic task for which they are elected: implementing policy. In some cases, that’s obviously the government’s own fault; but in too many other cases, it’s because cabinet and Knesset decisions have been overturned by either the attorney general or the court, or died aborning for fear of them.
A final observation in this regard. Gur concedes that public support for the court has dropped as well, though nowhere near so low as trust in either the cabinet or the Knesset. But a supreme court is supposed to be above the inherently volatile partisan fray; how else can it effectively play its role as arbiter of last resort? Hence, trust in a properly functioning court should be on a par with nonpartisan institutions like the Israel Defense Forces—and two decades ago, at 85 percent, it was. The fact that the supreme court now enjoys the trust of just over half the population ought to worry anyone who cares about Israel’s democracy.
It should also worry anyone who cares about democracy worldwide. As Jeremy Rabkin points out, judicial activism is increasingly common in other democracies as well, and though its effects differ from country to country, they are no less pernicious. As an example, consider the abortion wars that have raged unabated in America for over four decades, ever since the U.S. Supreme Court declared abortion a constitutional right. By contrast, abortion is a nonissue in Israel, thanks to a decades-old legislative compromise. Nor is this mere happenstance: by definition, supreme-court rulings on deeply divisive cultural issues turn them into zero-sum games. Unlike legislatures, courts cannot compromise; they must come down on one side or the other.
But neither abortion nor another hot-button cultural issue, gay marriage, is evidence of the Israeli court’s restraint, as Rabkin argues with regard to the latter. The main statute on which the court bases its claim to constitutional authority—the Basic Law: Human Dignity and Liberty—explicitly denies it the power to overturn preexisting legislation, and that includes both the abortion law and the law giving the Orthodox rabbinate exclusive control over marriage inside Israel. Nevertheless, though it can’t violate the Basic Law without destroying the basis of its own power, the court has done everything it can to promote gay marriage within that limit, including by ordering the state to give unmarried gay couples the same benefits as married couples and ordering it to recognize gay marriages performed overseas. (The latter ruling, incidentally, dates from 2006, when only six countries worldwide authorized gay marriage and most Western countries didn’t recognize such marriages performed abroad.)
Nor can I accept Rabkin’s objection to my argument in favor of letting the elected branches choose supreme-court justices. Because, he writes, Israel has a parliamentary system, in which the government by definition enjoys a majority, such a change might yield overly partisan appointments. Yet most of the world’s democracies have parliamentary rather than presidential systems, and in almost all of them, justices are chosen by the elected branches. Moreover, absent such a change, Rabkin’s preferred alternative—simply appointing more conservative justices—would be very difficult to implement, given the outsized role sitting justices play in the existing appointments system.
Rabkin is correct that the court’s activism gains Israel some credit in certain circles overseas. But it seems to me the court could maintain what he calls its “confident independence,” and its ensuing international regard, even without intervening in policy issues that are none of its business. Indeed, it was no less respected prior to the judicial revolution that I described in my essay, when it did exercise such restraint.
More importantly, however, I fear the price Israel pays for this credit is excessive. Since “Israelis have learned to cope with any number of challenges and frustrations that don’t get resolved,” Rabkin asserts, judicial activism can safely be left as one more. I agree that demanding instant solutions is often unwise. But, historically, Israel’s ability to cope with its many challenges has depended on the government’s ability to take decisive action when necessary. Unfortunately, that ability is increasingly constrained by the court in fields ranging from military operations (as Rabkin himself takes pains to document) to economic policy to issues of religion and state. Meanwhile, and not coincidentally, public trust in all three branches of government is eroding rapidly. And contrary to the fake threat posed by judicial reform, such erosion of trust in key democratic institutions, if it continues, could someday pose a real threat to Israeli democracy.
Perhaps Israel will muddle through as it has so often done before. But its odds of doing so would be significantly improved if its governments were able actually to implement policy and its supreme court commanded respect as a nonpartisan arbiter of the law. Neither of those conditions will be present so long as the scourge of judicial activism remains untamed.
Originally published in Mosaic on December 26, 2016
The massive support in Israel for soldier Elor Azaria, who was convicted of manslaughter on Wednesday for killing a wounded Palestinian terrorist, has confounded some of its friends and supplied ammunition for its enemies. So it’s important to understand why that support is so widespread. Jonathan Tobin correctly explained some of the reasons yesterday, including the fact that most Israelis have limited sympathy for terrorists. But to a large extent, this is also a self-inflicted wound by the two people at the top of the military chain of command, who forgot the most basic principle of justice: Not only must it be done, but it must be seen to be done. By their own actions, they managed to create an appearance of injustice in a case where I believe none actually occurred.
The shooting occurred at about 8:30 A.M. on March 24. Five hours later, B’Tselem released videotaped footage of it. By that evening–at a time when the Military Police investigation had barely begun, and long before the video could have been examined to ensure it hadn’t been doctored–both then-Defense Minister Moshe Ya’alon and Israel Defense Forces Chief of Staff Gadi Eisenkot had already unequivocally condemned Azaria’s behavior. Ya’alon said it “completely contradicts” IDF values, while an IDF spokesman termed it a “grave breach” of IDF standards. Such condemnations continued in the coming days. On March 28, for instance, three weeks before the military prosecution decided to file charges, Ya’alon told the Knesset that Azaria was “a soldier who has transgressed, and not a hero.” In other words, both Ya’alon and the army had declared Azaria guilty even before he was charged.
In conversations with friends shortly after the incident, it was this that most infuriated them and aroused their sympathy for Azaria: They felt that the men in charge of the army, whose job was to ensure that any soldier suspected of wrongdoing receives a fair hearing, had instead rushed to judgment against him in order to appease a hostile world after B’Tselem made its video public. Moreover, they wondered whether Azaria could even receive a fair trial when the two men who must sign off on promotions for every senior military police officer, prosecutor and judge had already made it clear that they expected a conviction. Under those circumstances, would military justice officials risk their careers by exonerating Azaria if the evidence justified it?
To be clear, based on the evidence that later emerged in court, I think Eisenkot and Ya’alon had good reason to believe Azaria had “transgressed” even when they first spoke out. The officer at the scene had reported the incident to his superiors as a possible crime within minutes of its occurrence, and this report, including damning testimony from other soldiers at the scene, had moved swiftly up the chain of command, leading army officials to decide a criminal investigation was warranted even before B’Tselem published its video.
But by immediately and publicly condemning Azaria – instead of saying, as the army usually does, that his conduct must be deemed unacceptable if proven, but meanwhile, the case is under investigation and the military justice system should be allowed to work without interference–they created an appearance that the deck had been stacked against the soldier. And since most Israelis weren’t following the minutia of the court hearings, that initial impression is what remained: In response to a video released by an irredeemably hostile organization, and whose authenticity had yet to be proven, the two men who headed the army had declared Azaria guilty even before the investigation began.
This impression was reinforced over the ensuing months by the fact that Eisenkot, in particular, refused to stop talking about the case, while demonstrating shocking insensitivity to the way his comments would sound to most Israelis. The very day before the verdict was issued, for instance, he said, “An 18-year-old man serving in the army is not ‘everyone’s child’ … He is a fighter, a soldier, who must dedicate his life to carry out the tasks we give him.”
Obviously, the second part of that statement is true; the army can’t function if its 18-year-old draftees aren’t treated as soldiers and fighters. But to parents, their child is always “their child,” even after he turns 18 and dons a uniform. And because in Israel, most young men do army service, most parents can imagine their own son in any other soldier’s place. In that sense, Azaria is “everyone’s child,” just as kidnapped soldier Gilad Shalit was “everyone’s child.” Israelis therefore overwhelmingly supported freeing 1,027 terrorists to secure his freedom. Israeli parents entrust the army with their most precious possession–their children–and in return, they expect the army to take the best possible care of them that’s consistent with carrying out its military functions.
Thus, when Eisenkot dismissively declared that a soldier isn’t “everyone’s child,” what Israeli parents heard was a refusal to acknowledge that his soldiers are indeed also their children, whose protection must be high on his priority list. And that merely reinforced the impression left by his initial hasty condemnations: In responding to the case, he had given insufficient weight to his responsibility toward his soldiers.
Based on the evidence, I see no reason to think Azaria was in fact convicted unjustly. But from the start, Eisenkot and Ya’alon created the appearance of injustice by routinely speaking out against Azaria when they should simply have kept silent and let the military justice system do its work. The result is that now, many Israelis still aren’t certain Azaria was convicted fairly, and that has translated into overwhelming support for an early pardon.
This case has sowed devastating distrust of both the army’s leadership and its justice system among a large section of the Israeli public. Yet much of that distrust could have been avoided had Ya’alon and Eisenkot simply kept their mouths shut. That neither man proved capable of doing so is a damning indictment of them, and a tragedy for Israel.
Originally published in Commentary on January 5, 2017