Legal Issues
Distorting the meaning of language is a seductive but dangerous game. It’s seductive because it provides enormous short-term benefits. It’s dangerous because, as two recent examples show, it can ultimately eviscerate fundamental values.
One example comes from this week’s Israeli election, in which Prime Minister Benjamin Netanyahu’s Likud Party actually gained seats despite multiple corruption cases against him. A survey published in February by a Haifa University political scientist explains why: Most voters for Likud and allied parties don’t believe the allegations because they don’t trust the legal system. Fully 65 percent of Likud voters and 75 percent of haredi voters think law-enforcement agencies are simply trying to oust Netanyahu.
On one level, this is shocking. But on another, it’s not shocking at all because the Israeli left has spent decades successfully subverting the concept of “the rule of law” for its own political benefit.
For instance, Israel’s Supreme Court repeatedly overturns government policies not because they violate any law, but because the justices deem them “unreasonable.” Whether or not a policy is reasonable is a question other democracies leave to the voters. But the left has successfully branded all efforts to curb such judicial policy interventions as “contrary to the rule of law,” and thereby managed to stymie proposed reforms: Most legislators don’t want to “sabotage the rule of law.”
Moreover, in almost every Western democracy, the executive and legislative branches choose Supreme Court justices; only in Israel do sitting justices have veto power over the choice of their successors. Yet the left has branded every attempt to align Israel’s judicial appointments system with this Western norm as “contrary to the rule of law,” and thereby successfully staved off change.
Israel is also unique among democracies in treating the attorney general’s views as binding on the government. Thanks to a 1993 Supreme Court ruling, whenever the attorney general opposes a policy, he’s entitled to represent his own position in court rather than the government’s, thereby leaving the government’s position unrepresented and ensuring that it loses cases by default. Letting an unelected attorney general dictate to an elected government is patently undemocratic and preventing any group, even the government, from defending itself in court violates a fundamental democratic right. Yet leftists have successfully branded this, too, as “the rule of law”; consequently, attempted reforms have repeatedly failed.
Finally, there’s the unequal application of laws, as epitomized by a pre-election ruling that disqualified a Jewish Knesset candidate but nixed the disqualification of an Arab party, Balad. The law lists three grounds for disqualification: inciting to racism, rejecting Israel’s character as a Jewish and democratic state, and supporting armed struggle against Israel. Balad, as the court itself has acknowledged, openly rejects Israel’s Jewish character. Several of its MKs have also faced criminal proceedings for abetting anti-Israel terror. Yet the Supreme Court chose to ignore all this, thereby effectively declaring the law a dead letter except when used against Jews.
So here’s how your average rightist voter understands the rule of law today: It means that unelected legal officials—justices and attorneys general—can veto any government decision, thereby making a mockery of democratic elections. It means that laws meant to apply to Jews and Arabs alike are only enforceable against Jews. It means letting justices select their own successors, keeping the court ideologically monochromatic. In short, it’s just a trick for ensuring that the left can continue imposing its views no matter how many elections it loses.
That trick has successfully thwarted all legislative efforts at reform. But the price is that many rightists now distrust and despise “the rule of law” to such an extent that they dismiss pending indictments against a prime minister as just another attempt by the legal establishment to subvert democracy.
This is a tragedy because the rule of law, in its original meaning, is an essential foundation for democracy. Inter alia, it means that the bounds of legitimate action are defined not by the ruler’s whims but by laws whose content is public knowledge; that those laws apply equally to all; and that disputes are settled in court according to those laws rather than by force. In short, it’s a shared framework that protects the individual and enables diverse groups to live together.
The second example is last week’s National Council of Young Israel gala. When a speaker mentioned “the leftist progressive tikkun olam ideology,” the American Modern Orthodox audience booed.
On one level, this is shocking since tikkun olam just means “repairing the world,” and Jews have always believed that Judaism is supposed to make the world better in some fashion. Indeed, the Bible itself says so repeatedly, from God’s promise to Abraham that “through thy seed shall all the nations of the earth be blessed” to Isaiah’s dictum that Israel should be “a light unto the nations.”
Haredi Jews may believe that doing so requires scrupulously obeying Jewish law, while Reform Jews may believe it requires adopting progressive policies. But Jews across the spectrum should be able to say, “Fine, we agree on the goal of improving the world; now let’s argue about the means.”
Yet those boos weren’t actually shocking because Jewish leftists have spent decades trying to conflate tikkun olam with a particular set of progressive policies, such that anyone opposing those policies ipso facto opposes tikkun olam. And as evidenced by that speaker’s choice of words, they’ve succeeded: Even their Jewish opponents now view tikkun olam as a “leftist progressive ideology.”
But by appropriating tikkun olam as their own exclusive property, leftists have discredited the entire concept; many Jews now see it as a stand-in for ideas that they (and many other reasonable people of goodwill) consider destructive. That’s a massive own goal. But it’s also a tragedy for the Jewish people, which has lost a shared moral language that could have been a unifying factor.
The left’s subversion of language has thus wreaked long-lasting harm on both Israel and the Jewish people. And all of us will be paying the price for many years to come.
This article was originally syndicated by JNS.org (www.jns.org) on April 10, 2019 © 2019 JNS.org
Note: This piece is a response to an essay by Haviv Rettig Gur
Like Haviv Rettig Gur in “How and Why Israelis Vote,” I, too, think the advantages of Israel’s parliamentary system outweigh its disadvantages, and for essentially the same reason: because it keeps a great many people in the political system who would otherwise remain outside it.
Critics of the system’s plethora of small parties—as Gur notes, no fewer than 43 parties have been vying for Knesset seats in this year’s election—maintain that it should be streamlined and redesigned so that only big parties would be able to enter the Knesset. In that case, the critics argue, people who currently vote for small parties would simply switch their votes to large ones.
No doubt, some voters would do so—but many others would not. There are at least three groups among whom turnout would plummet if niche parties became by definition unelectable: Arabs, Ḥaredim (including some ḥaredi Zionists), and the protest voters who, in every election, propel a new “fad” party into the Knesset. (In 2015, as Gur writes, the fad party was Kulanu. This year, it’s been Moshe Feiglin’s pro-marijuana, libertarian, right-wing Zehut party, which Gur doesn’t discuss although polls have consistently showed it gaining five to seven seats.)
Together, these three groups constitute roughly a third of the country, and all three are to some extent alienated from the mainstream. If they were no longer even participating in elections, that alienation would grow.
Why does this matter? In answering that question, I’ll focus mainly on Ḥaredim and Arabs, the most significant and also the most stable of the three groups (protest voters being by nature amorphous and changeable).
It matters primarily because people who cease to see politics as a means of furthering their goals are more likely to resort to violence. Indeed, it’s no accident that most political violence in Israel has issued from quarters outside the electoral system.
Among Ḥaredim, violent anti-government demonstrations take place in neighborhoods whose residents don’t vote, not in neighborhoods that vote en masse for United Torah Judaism. As for the violent fringe of the settler movement, it doesn’t vote for pro-settlement parties like Jewish Home or even the extremist Otzmah Yehudit; it doesn’t vote at all. Instead, as revealed in documents made public by the Shin Bet security service in 2015, it seeks to replace democracy in Israel with a religious monarchy.
Among Israeli Arabs, those in eastern Jerusalem—most of whom cannot vote since they are permanent residents rather than citizens—commit a proportionately much greater amount of violent acts than do other Israeli Arabs. Similarly, the northern branch of Israel’s Islamic Movement, which boycotts elections, foments far more violence than the southern branch, which regularly runs as part of the United Arab List.
True, there is one striking counterexample: the Balad party, whose past members of Knesset (MKs) have included one who fled the country to avoid charges of spying for Hizballah, one convicted of smuggling cellphones to jailed terrorists, and one convicted of threatening fellow Arabs serving in the police. But I can’t think of any other significant exceptions.
By contrast,niche parties not only reduce the incidence of extremist violence but actually help move alienated communities closer to the mainstream.
As Gur observes, the main reason Yisrael Beytenu has risked falling below the electoral threshold in this election is that, as its Russian-immigrant voters have come to feel more at home in Israel, they’ve increasingly switched to more mainstream parties. Another good example is Jewish Home: the principal reason it was polling below the threshold before it hooked up with Otzmah Yehudit is that religious Zionists, too, have migrated to mainstream parties as they have become more integrated.
The same trend is now emerging, albeit slowly, among Ḥaredim. According to Gilad Malach of the Israel Democracy Institute, the proportion of Ḥaredim voting for non-ḥaredi parties rose from 10 percent in 2006 to 17 percent in 2015; this year, Malach expects it to reach 20 percent. One noteworthy sign of the change: in 2018, the ḥaredi city of Bnei Brak elected a city councilman from a non-ḥaredi party; the last time this happened was more than three decades ago, when Bnei Brak still had a sizable non-ḥaredi population.
This shift is propelled primarily by broader changes within ḥaredi society itself, where more and more people are working, attending college, and serving in the army. But it has been facilitated by the presence of ḥaredi parties in the Knesset.
As a Knesset reporter in the 1990s, I watched those parties evolve from caring only about religious issues to speaking out on broader societal ones as well. Their presence in the Knesset—where ḥaredi members advanced to chair powerful committees and became ministers and deputy ministers—meant they couldn’t avoid taking stands on economic, diplomatic, and security issues. This in turn sent a moderating message to their constituents: that Ḥaredim can and should care about Israel’s broader concerns, The logical corollary is that voting on the basis of those broader concerns—that is, voting for mainstream parties—isn’t illegitimate.
Unfortunately,the dynamic is different in the Arab community, where Arab parties routinely win a sweeping majority of the vote. Even as, by many measures, Arab voters have become more integrated in Israeli society, Arab MKs have remained militantly separatist.
Polls over the past few years have repeatedly shown that Israeli Arabs’ main concerns are not the Israel-Palestinian conflict but bread-and-butter issues like crime, housing, and jobs, and that roughly two-thirds of Arab voters want their MKs to join the governing coalition, where they would have more power to address these issues. But the Arab parties have different priorities.
When it comes those priorities, contrary to the picture drawn by Gur, there’s little that distinguishes one Arab party from another. All of them, even the “moderate” Ḥadash-Ta’al, vocally accuse Israel of being an apartheid, criminal state that indiscriminately murders Palestinians; all defend Palestinian terror; and all stridently support maximalist Palestinian demands (including the “right of return,” a euphemism for destroying the Jewish state demographically).
Ayman Odeh, for instance, the chairman of Ḥadash, has refused to condemn Palestinian terror, saying, “I cannot tell the nation how to struggle. . . . I do not put red lines on the Arab Palestinian nation.” In 2015, Odeh went so far as to cancel a meeting with American Jewish leaders because he refused to set foot in a “Zionist” office. (Evidently he makes an exception for the Zionist Knesset.) Ahmad Tibi, the chairman of Ta’al, has written op-eds in American newspapers accusing Israel of running a Jim Crow regime, ignoring the irony of signing these pieces as deputy speaker of Israel’s parliament.
These parties often preemptively declare themselves unwilling to join any government. But they needn’t bother: their embrace of outspokenly anti-Israel positions puts them beyond the pale as coalition partners. It also nourishes feelings on both sides that Israeli Arabs and Israeli Jews are enemies rather than partners who, despite differences of opinion, share common concerns.
Given all this, it’s unsurprising that a 2015 poll found almost half of Arab respondents voicing dissatisfaction with their MKs, or that voting rates among Arabs, unlike among Ḥaredim, are consistently and significantly lower than the national rate. What is surprising, and encouraging, is that according to one recent poll, over 75 percent of Israeli Arabs still consider Knesset representation important. But most would still not consider voting for non-Arab parties. Like many Ḥaredim, they still feel themselves to be a separate community, and want to vote for people with lived experience of their unique circumstances.
What, then,might be done to further the mainstreaming of both haredi and Arab voters? Perhaps counterintuitively, one solution might be to allow even more niche parties into the Knesset.
For a party to gain entry into the Knesset today, as Gur notes, it must win 3.25 percent of the total vote, which in the 120-seat Knesset works out to four seats. If that electoral threshold were lowered to its pre-2015 level of 2 percent (2.4 seats), or even lower, it would become easier for new Arab and ḥaredi parties favoring integration to get elected, join a government, and be in a position to deliver what their constituents want, and thereby to serve as gateways to further integration (just as Yisrael Beytenu and Jewish Home did for their voters).
As it happens, Arab and ḥaredi parties along those lines tried running both in 2015 and again this year, but the four-seat threshold has proved insurmountable.
A lower threshold might also reduce the extortionate power exercised by small parties, vividly described by Gur in his essay. In a government coalition that included several two- or three-seat parties, no single one of them would wield enough electoral clout to mount a challenge to the government’s survival. When, however, every party in a coalition holds at least four seats, it’s easier for one to topple, or to threaten to topple, the government on its own.
But the foremost reason to reduce the threshold is that making it easier for niche parties to enter the Knesset would give more non-voters an incentive to make their concerns heard through voting. People inside the political system are more likely to feel they have a stake in the country and less likely to resort to violence. In a country as diverse and as contentious as Israel, everyone would benefit from the presence of greater numbers of such people.
Originally published in Mosaic on April 8, 2019
International law used to distinguish between offensive and defensive wars. But modern interpretations have eliminated this distinction, and thereby ended up rewarding aggression.
When U.S. President Donald Trump recognized Israeli sovereignty over the Golan Heights, foreign-policy experts keened in chorus that he was destroying a fundamental principle of the world order: that territory can’t be acquired through force. Let’s hope they’re right—because that principle, far from deterring aggression, actually rewards it.
The problem is that, as currently interpreted, the principle doesn’t distinguish between offensive and defensive wars. Thus for an aggressor, starting a war becomes almost cost-free (assuming he doesn’t care about getting his own people killed). If he wins, he achieves whatever goal he sought to achieve. And if he loses, the international community will pressure his victim to return any captured lands, thereby ensuring that he pays no territorial price.
This warped interpretation is the diametric opposite of the principle’s original purpose, which was to deter aggression. But it’s also of fairly recently vintage. After World War II, the Allies had no qualms about forcing Germany, the aggressor, to cede territory to its victims. And Western nations still recognized the distinction between offensive and defensive war as recently as 1967.
The proof is Security Council Resolution 242, which is famously interpreted today as requiring Israel to cede all territory captured in the Six-Day War of 1967. But in reality, it was explicitly worded to let Israel keep some of that territory, by demanding a withdrawal only from “territories occupied in the recent conflict,” rather than “the territories” or “all the territories.”
As America’s then U.N. ambassador, Arthur Goldberg, later said, the omitted words “were not accidental … the resolution speaks of withdrawal … without defining the extent of withdrawal.” Lord Caradon, the British U.N. ambassador who drafted the resolution, was even more explicit. “It would have been wrong to demand that Israel return to its positions of June 4, 1967,” he said.
What’s noteworthy, however, is that the clause allowing Israel to retain some captured territory was preceded by a preamble clause, “Emphasizing the inadmissibility of the acquisition of territory by war.” In other words, nobody back then saw any contradiction between emphasizing the inadmissibility of acquiring territory through war and authorizing the victim to keep some of the aggressor’s territory because the ban on gaining territory through war was understood as applying to offensive wars, not defensive ones.
And the Six-Day War—in which Israel acquired the Golan Heights from Syria, the Sinai from Egypt and the West Bank, Gaza and eastern Jerusalem from their illegal Jordanian occupier—was a classic defensive war. It began when Egypt closed the Straits of Tiran to Israeli shipping (a recognized act of war), kicked U.N. peacekeepers out of Sinai, massed troops on Israel’s border and publicly threatened to annihilate it.
Moreover, even after Israel opened the war’s hot phase by attacking and destroying Egypt’s air force, it had no interest in opening additional fronts with Syria or Jordan (famously begging the latter to stay out of the war). Nevertheless, both countries promptly launched their own attacks. In Syria’s case, these included shelling civilian communities from the Golan and conducting airstrikes on them.
In other words, Syria could have sat the war out. Instead, it chose to join the anti-Israel aggression, and in the ensuing fighting, it lost the Golan.
Damascus then spent the next 52 years rejecting repeated offers to trade the Golan for peace while also launching one hot war (in 1973) and providing material support for decades of attacks on Israel from neighboring Lebanon (first by the PLO and later by Hezbollah). In contrast, Egypt made peace with Israel in 1979 (thereby recovering every inch of Sinai), while Jordan signed a formal peace treaty in 1994 after having maintained a de facto peace for the preceding 27 years.
Yet despite Syria’s half-century record of aggression and peace rejectionism, the international community never stopped insisting that Israel must return the Golan to Syria. Damascus believed that it would never have to pay any price for its bad behavior—until Trump came along.
Theories about international law presumably didn’t play a major role in Trump’s decision. Yet by insisting that aggression and peace rejectionism shouldn’t be cost-free, he is being more faithful to this law’s original goal of deterring aggression than its professed devotees, who insist that aggressors should never suffer territorial consequences.
That’s why all the foreign-policy experts claiming that Trump has just legitimized acts of aggression like Russia’s seizure of Crimea are wrong. This claim is possible only under the warped interpretation of international law that makes no distinction between offensive and defensive wars. If all territorial acquisitions through force are equally inadmissible, then legitimizing one would legitimize them all. But under the far more plausible interpretation that prevailed as recently as 50 years ago, the Golan and Crimea are completely different cases because the former was acquired in a defensive war and the latter in an offensive one.
Incidentally, the claim that the decision undermines prospects for Israeli-Palestinian peace is also wrong; as Dr. Martin Kramer of Shalem College pointed out, the opposite is true. Until now, the Palestinians have always found peace rejectionism a profitable business; every time they rejected an Israeli peace offer, the international community rewarded them by demanding additional Israeli concessions. But now, Trump has shown that rejectionism carries a price.
By so doing, a president who scoffs at international law may ironically be saving it. International law was never meant to be a suicide pact, but in its modern interpretation, it has increasingly become one. Under this interpretation, terrorists who operate from amid civilian populations enjoy immunity from military action; countries must accept unlimited numbers of migrants fleeing danger; and aggressors can start wars with impunity. Since all this is detrimental to the well-being of ordinary law-abiding countries, if it continues, more and more countries will simply ditch international law in favor of self-preservation.
By recognizing Israeli sovereignty over the Golan, Trump is restoring the distinction that used to exist between offensive and defensive wars, and thereby restoring international law to sanity. Anyone who actually cares about international law ought to thank him.
This article was originally syndicated by JNS.org (www.jns.org) on March 27, 2019. © 2019 JNS.org
Many Israelis are willing to tolerate a racist party in the Knesset because they fear that the alternative is a government that will make life-threatening territorial concessions. And when voters think human life is at stake, telling them to “just say no” won’t work.
Israeli Prime Minister Benjamin Netanyahu’s midwifing of a joint ticket that will bring a far-right extremist party into the Knesset was quickly superseded by new scandals. Yet the fundamental problem that prompted his move remains, and contrary to popular belief, that problem isn’t growing racism. Rather, it’s Israel’s electoral system.
The party in question, Otzma Yehudit, has run for Knesset several times under various names and never gotten in. On its own, it wouldn’t make it into the next Knesset either. In other words, its positions are no more popular than they ever were.
What has changed is Israel’s electoral threshold—the minimum number of votes a party must receive to enter the Knesset. In 2014, it was raised to 3.25 percent of the total vote, equivalent to 3.9 Knesset seats. That sounds like a minor increase from the previous threshold of 2 percent (2.4 seats), but it’s enough that in both the last election and this one, a small mainstream party which could easily have passed the old threshold found itself hovering just below the new one, and consequently hooked up with Otzma in an effort to boost itself over.
The higher threshold also threatens the entire bloc to which an at-risk party belongs since the main electoral blocs are fairly evenly balanced. Either bloc might be able to afford two seats’ worth of wasted votes. But neither can afford almost four seats.
That’s why Netanyahu used a combination of arm-twisting and sweeteners to persuade a veteran religious Zionist party, Jewish Home, to partner with Otzma this election (last election, Otzma’s partner was Yachad, a breakaway from the ultra-Orthodox Shas party led by former Shas leader and six-time minister Eli Yishai; their joint ticket still failed to clear the threshold). Jewish Home was in danger of falling below the threshold because its former leaders, Naftali Bennett and Ayelet Shaked, jumped ship in December to form their own party.
With a lower threshold, Netanyahu would have no interest in promoting a merger between Jewish Home and Otzma: By definition, any party that couldn’t get elected on its own would win few enough votes that the bloc could probably spare them. Today, however, Jewish Home could easily fail to pass the threshold while still wasting enough votes to cost the right its majority. So for anyone who considers a continuation of rightist policy essential, as Netanyahu and Jewish Home both do, shoring up the latter through a joint ticket suddenly looks essential as well.
Many people would obviously argue that partisan interests can never justify mainstreaming an extremist party like Otzma. Others might dismiss the policy justification as a pretext, given that Netanyahu and his main rival, former general Benny Gantz, largely seem to agree on key issues like security and the peace process.
The problem is that a critical mass of Israelis patently disagrees. When Netanyahu staked his prestige on the Otzma merger, he was betting that the number of votes his bloc would gain by boosting Jewish Home over the threshold would outweigh the number he’d lose from people disgusted by Otzma. And so far, the polls have proved him right.
To understand why, some history is needed. In the 17 years preceding Netanyahu’s 2009 victory, Israelis thrice elected former generals who campaigned against diplomatic concessions, which they promptly turned around and implemented once in office. Yitzhak Rabin promised no negotiations with the PLO in 1992, then signed the Oslo Accords in 1993. Ehud Barak promised not to divide Jerusalem in 1999, then offered the Palestinians half the city at the Camp David summit in 2000. Ariel Sharon campaigned against a unilateral withdrawal from Gaza in 2003, then implemented one in 2005.
These U-turns reflect a fundamental fact of Israeli life: All prime ministers are under massive, continuous international pressure to make concessions to the Palestinians. Premiers with leftist coalition partners—which Rabin, Barak and Sharon all had, and Gantz almost certainly would as well—are also under pressure from their own coalitions to make such concessions. And most people simply can’t withstand such immense pressure.
But Netanyahu has proven for 10 years now that he can. Thus anyone fearful of further territorial concessions has good reason to stick with him rather than gambling on Gantz.
And given what previous withdrawals have cost, such fear is unquestionably justified. Rabin’s Oslo Accords and Barak’s failed summit both sparked upsurges of terror that together killed some 1,500 Israelis. Sharon’s disengagement led to 20,000 rockets being launched on Israel’s south.
In short, voters who worry that Gantz will be unable to withstand pressure for concessions see Otzma as the lesser evil because they believe that the alternative entails against a significant risk of many dead Israelis. And when voters think human lives are at stake, expecting them to “just say no to racism” won’t work. The only way to return Otzma to the political fringes where it belongs is by lowering the electoral threshold.
I’ve long favored a lower threshold for other reasons as well. First, as researcher Shany Mor persuasively argued in 2013, a low threshold provides a safety valve for fractured societies like Israel’s. By offering the possibility that even small groups can win representation in parliament, it encourages them to pursue their goals through politics as opposed to violence.
Second, as I’ve explained in more detail elsewhere, a lower threshold would facilitate the entry of new parties that Israel actually needs, like a moderate Arab party and a moderate haredi one. Demand exists for such parties in both communities. But a higher threshold discourages voters from taking a flyer on a new party, since it means the party will have less chance of getting in and will waste more votes if it fails.
Yet as the last two elections have counterintuitively proven, a lower threshold also reduces the likelihood of extremists entering the Knesset by eliminating a powerful incentive to merge with them. Thus anyone who wants to see Otzma relegated back to the sidelines should lobby for lowering the threshold. That would be far more effective than expecting voters to nobly shun extremists, even if they think doing so risks Israeli lives.
This article was originally syndicated by JNS.org (www.jns.org) on March 13, 2019. © 2019 JNS.org
Three weeks ago, attention in Israel was riveted on two dramatic events that ultimately changed nothing—a rocket barrage from Gaza that didn’t lead to war and a cabinet resignation that didn’t bring down the government. These dramas overshadowed a truly significant event that occurred that same week: The government stopped being the only entity in Israel deprived of the basic right to defend its positions in court.
To anyone unfamiliar with Israel’s legal system, that probably sounds ridiculous. But it has been reality for the past quarter-century. And the fact that three Supreme Court justices finally rebelled against it indicates that Justice Minister Ayelet Shaked’s efforts to foment a judicial counterrevolution are bearing fruit.
The root of the evil was a 1993 Supreme Court ruling on a petition against Prime Minister Yitzhak Rabin’s refusal to fire a deputy minister, Raphael Pinchasi, whom the attorney general had tentatively decided to indict for corruption. Rabin wanted to wait for Attorney General Yosef Harish’s final decision. But Harish sided with the petitioner (a nongovernmental organization) and refused to represent Rabin’s position in court.
Pinchasi’s attorneys therefore argued that the government’s position hadn’t been properly represented. But the court, astoundingly, asserted that the attorney general’s position is the government’s position, even if the government disagrees. “The attorney general is the authorized interpreter of the law for the executive branch,” it said, and therefore, his opinion is binding on the government.
The result of this ruling was that the government effectively lost its right to defend its policies against legal challenges. If the attorney general happens to support a policy, then he’ll obviously defend it in court. But if he opposes it, he can choose not to defend it, and then the government’s position won’t be heard at all. The government can’t even hire an outside lawyer to defend it without the attorney general’s consent, and needless to say, such consent is rarely given.
This has two obviously pernicious consequences. The first is that in any disagreement between the elected government and the unelected attorney general, the latter’s view automatically prevails. Thus instead of being the government’s lawyer, the attorney general became its ruler.
The second is that the government has been deprived of a fundamental legal right—the right to defend itself in court. Individuals, corporations and NGOs are all entitled to defend themselves against legal challenges. Only the elected government is not.
But after 25 years of upholding this blatant injustice, the court has finally started to question it. The case itself was minor. Science Minister Ofir Akunis had refused to approve a scientist’s appointment to the board of a German-Israeli foundation because she once signed a letter supporting soldiers who refuse to serve in the West Bank. When the scientist and the council of university presidents challenged this decision in court, Attorney General Avichai Mendelblit refused to defend it.
Under the old norms, that should have ended the story: The government would automatically have lost. Instead, the three justices devoted much of the first hearing to criticizing the fact that Akunis’s views weren’t being heard. They then took the unprecedented step of allowing Akunis to represent himself at the next hearing.
Clearly, this isn’t the same as having a trained lawyer represent the government. Akunis, having no legal background, couldn’t advance any legal arguments in his defense. But he could at least explain his policy considerations, which is better than the court receiving no explanation whatsoever. And it’s an important step in the direction of recognizing the government’s right to full legal representation.
One justice also used the hearing to challenge another shibboleth long mandated by the court—that political considerations may not play any role in most government appointments. In other words, aside from a handful of senior office-holders, ministers have no right to appoint people who will support their own policies. This view that political considerations are illegitimate figured largely in Mendelblit’s refusal to defend Akunis’s decision.
But Justice Alex Stein disagreed. “Akunis does have the authority to weigh political considerations,” he said, because “the legislator chose to give the appointment power to the minister, and the legislator presumably knows that the minister is a political figure.”
The justices haven’t yet issued their final ruling, so they may still end up upholding the old order. Moreover, in any normal legal system, nothing about this case would even be an issue. In most democracies, it’s a given that ministers have the right to make political judgments when making appointments; it’s a given that the government is entitled to representation in court; and it’s a given that the attorney general isn’t the government’s master. Like any other lawyer, he’s expected to either represent his client or resign.
But for 25 years, none of the above has been true in Israel’s legal system. Thus the fact that newly appointed justices are starting to rebel against the status quo is a major change. And judicial rebellion is the only remedy currently available because there’s still no parliamentary majority for codifying the necessary reforms in legislation: The legal establishment has been too successful in convincing centrists that a legal system like that of all other democracies would somehow destroy judicial independence and democracy itself.
This sea change is a victory, above all, for Shaked, who has demonstrated unrelenting determination and political savvy in pushing through game-changing appointments. It’s no coincidence that two of the three justices in this case are people she successfully pushed through the Judicial Appointments Committee despite fierce opposition, especially from the three sitting justices who comprise a third of the committee’s members.
Credit also goes to her party leader, Naftali Bennett, who could have chosen the justice portfolio for himself instead of the less prestigious education portfolio, but gave it to Shaked because he had the sense and the generosity to recognize that she had a passion for judicial reform, which he lacked.
But the biggest winner is Israeli democracy. After 25 years in which unelected legal officials have had near-dictatorial powers over the elected government, the ship of state is finally starting to turn.
This article was originally syndicated by JNS.org (www.jns.org) on December 5, 2018. © 2018 JNS.org
Note: This article was published on October 10 but posted to my site only on December 3
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).
Moreover, in democracies, courts ultimately derive their power from the consent of the governed since they were established pursuant to democratically elected laws or constitutions. The ICC, in contrast, asserts jurisdiction even over countries that never consented to it. See, for instance, the cases it’s pursuing against Israel and America, neither of which ever joined the court.
What all this means is that a few unelected individuals have been given the power—or even worse, in the case of countries that didn’t join the court, have seized it—to criminalize decisions made by democratically elected national governments. They can do so based on a legal system different from those of many democracies, and whose provisions they can interpret however they please, unburdened by the doctrine of precedent (stare decisis) that democratic legal systems generally employ. They can ignore considerations that citizens of most countries consider important, like national self-defense. They are even free to pursue personal vendettas, as evidenced by their biased treatment of Israel. In short, they have no constraints on their power at all.
All these problems are compounded, as legal scholar Jeremy Rabkin noted last month, when people from countries blessed with peaceful neighbors sit in judgment on the decisions made by countries not so blessed. At the ICC, people with no clue about, say, the difficulty of avoiding civilian casualties when combating attacks launched from crowded urban areas, or the devastating impact of living under constant rocket fire even when the death toll is low, presume to judge countries for whom such problems are daily realities.
In short, the ICC has none of the safeguards that national courts in democracies have. And no international tribunal ever could.
Nevertheless, letting atrocities like genocide go unpunished clearly isn’t an acceptable option. So how do we strike a proper balance between the need to prosecute atrocities and the need to maintain the safeguards that the ICC signally lacks?
The answer lies in the feature that distinguished not only the Nuremberg Trials, but also subsequent ad hoc international criminal tribunals like those on the Rwandan genocide and the Balkan wars of the 1990s—massive international consensus. Cases will be pursued only against acts so outrageous that many different governments and many different legal systems can all concur that they far exceed the realm of reasonable governmental or military action.
Granted, that means many crimes will go unpunished. But it turns out that’s equally true for the ICC. For instance, the court indicted Sudanese President Omar al-Bashir for the Darfur genocide almost a decade ago, but hasn’t been able to pursue the case because none of the many countries he has since visited has been willing to arrest him. Similarly, the ICC’s case against Kenya’s president collapsed because the Kenyan government refused to cooperate. In other words, successful prosecution is unlikely in any event absent either massive international consensus or the target country’s consent.
Thus replacing the ICC with ad hoc tribunals, which could be created only when the requisite international consensus exists, wouldn’t significantly reduce the amount of justice dispensed. But it would significantly alleviate the ICC’s main flaws: political bias, the undermining of national self-defense and interference with democratic national decision-making. That would be a win for both justice and democracy.
This article was originally syndicated by JNS.org (www.jns.org) on October 10, 2018. © 2018 JNS.org
The International Criminal Court’s blatant anti-Israel bias is no secret. Just two months ago, I wrote about its decision to launch an unprecedented fishing expedition against Israel. Nevertheless, its latest decision raises bias to an art form—the art in question being farce. It also completely destroys any pretensions the court has left of serving its original purpose: Ensuring that the world’s worst crimes don’t go unpunished.
On November 15, the pretrial chamber of judges ordered the court’s prosecutor—for the second time—to reconsider her refusal to investigate Israel’s 2010 raid on a flotilla to Gaza. Demanding one reconsideration is rare. Demanding two is unheard of. No such option even exists in the ICC’s rulebook.
Prosecutor Fatou Bensouda appealed this ruling last week. But regardless of what the Appeals Chamber decides, it’s already too late to salvage the pretense that the court is an unbiased judicial institution and not a cesspool of anti-Israel prejudice.
To understand why, a review of the case is in order. In May 2010, a flotilla tried to break Israel’s legal blockade of Gaza. Israel intercepted most of the ships peacefully. But on one, according to the same UN inquiry that upheld the blockade’s legality, passengers attacked the soldiers with “fists, knives, chains, wooden clubs, iron rods, and slingshots,” seriously wounding nine. To protect themselves, the soldiers opened fire, killing ten people.
Comoros, whose flag that ship flew, filed a complaint against Israel over the incident in May 2013. In November 2014, Bensouda dismissed it. Despite concluding (wrongly) that the soldiers used excessive force, she said the fact that they opened fire only after being attacked and the low number of deaths made the incident insufficiently grave to warrant attention from a court created to prosecute major atrocities. But in July 2015, the pretrial chamber ordered her to reconsider—the first time it had ever overturned a prosecutor’s decision.
I dissected the judges’ egregious errors of both fact and law at the time, including their failure even to mention the passengers’ attack on the soldiers, which was central to Bensouda’s decision, and their astounding argument that the gravity of the case should be determined not by what happened, but by how much international “attention and concern” it attracted. Bensouda evidently found their ruling equally unpersuasive, since she appealed it. But after losing that appeal, she duly reconsidered.
In November 2017, she announced, unsurprisingly, that her opinion remained unchanged. That should have ended the story. After all, the same appellate judges who upheld the pretrial chamber’s demand for reconsideration also unequivocally authorized her to stick with her original conclusion if she still deemed it correct. Moreover, section 108(3) of the ICC’s own rules explicitly defines the prosecutor’s decision after reconsideration as a “final decision.”
But Comoros appealed again, and astoundingly, the pretrial judges once again ordered her to reconsider, saying her initial reconsideration hadn’t satisfied their requirements. The clear implication was that they would keep demanding reconsiderations until Bensouda produced the decision they wanted.
There are several glaring problems with this. First, of course, it ignores the plain meaning of section 108(3). Instead, the majority essentially argued that a “final decision” only becomes final once they approve the outcome.
Second, as Judge Peter Kovacs noted in his dissent, it “would mean that the Prosecutor’s decision would be subject to an indefinite number of reviews, which is an absurd conclusion”—one that could “open the door for endless reconsideration requests, even in relation to different situations before the Court.” In other words, no case would ever actually be closed, since any such decision could be reconsidered ad infinitum. And if cases can’t be closed, justice can’t be done.
Third, the ruling destroys prosecutorial independence, which is why Bensouda had to appeal. If she’s required to keep reconsidering until her decision meets the pretrial chamber’s approval, then she has no independent judgment; she’s merely a stenographer typing up whatever decision the chamber dictates.
Fourth, it disqualifies the pretrial chamber from doing its actual job: providing an unbiased initial review should Bensouda in fact file charges. Having arrogated to itself the role of prosecutor as well as judge, it would effectively be reviewing its own decision in violation of one of the most fundamental principles of justice.
Finally, it’s a colossal waste of the court’s time. The ICC has already spent more than five years on a case the prosecutor considers unworthy of its attention, and may yet spend much more, depending on the Appeals Chamber’s decision. But every moment the court devotes to this case is time it can’t devote to truly serious crimes.
Thus, in the interests of pursuing their anti-Israel vendetta, the pretrial judges have forced the court to squander years on a triviality, even as mass murderers around the globe go unpunished. They have thereby betrayed both the court’s stated mission and a fundamental principle of justice: that the magnitude of the ostensible crime should matter more than how much the judges dislike the perpetrator.
This is an evil the appellate judges can’t undo. Overturning the pretrial chamber’s latest ruling would reassert the principle of prosecutorial independence and the finality of decisions. But it wouldn’t erase the pretrial chamber’s blatant demonstration of bias, in defiance of the fundamental legal tenet that laws must apply equally to everyone. It wouldn’t dispel the suspicion, should Bensouda ever file charges against Israel in this or any other case, that it may be less because they are warranted than to spare herself endless hassles with the pre-trial chamber. Nor would it make the pretrial judges capable of giving Israel a fair hearing should it ever be indicted.
Above all, it wouldn’t undo the court’s fundamental betrayal of its own mission. Instead of prosecuting the world’s worst atrocities, it has wasted five years on a minor incident simply to satisfy its judges’ anti-Israel prejudice. In so doing, it has destroyed the primary justification for its existence. The only question left is why taxpayers worldwide should continue funding this travesty.
Originally published in Commentary on November 28, 2018
National Security Advisor John Bolton’s verbal assault on the International Criminal Court earlier this month raised a predictable outcry. But anyone who cares about justice should be cheering him on. There are many reasons for this, but here’s one: In its treatment of one country in particular, the court has already violated fundamental principles of justice and demonstrated blatant bias.
The ICC has considered or is considering several complaints against Israel. Though none has yet resulted in charges, judges from the pretrial chamber—who normally become involved only after charges are filed—have already intervened twice. In both cases, they violated standard rules of procedure in an effort to tip the scales against Israel.
The first intervention followed Israel’s botched interception of a flotilla to Gaza in 2010. A subsequent U.N. investigation concluded that Israel’s naval blockade of Gaza was legal, and Israel was justified in enforcing it. It also concluded that Israeli soldiers shot and killed 10 passengers only after passengers attacked them with “iron bars, staves, chains, and slingshots.” The soldiers “faced significant, organized and violent resistance,” the U.N. report said. “Three soldiers were captured, mistreated, and placed at risk by those passengers. Several others were wounded.” Passengers even seized some of the soldiers’ guns, and “there is some reason to believe” they used those guns to shoot two soldiers.
ICC Prosecutor Fatou Bensouda, despite asserting (wrongly) that the soldiers used excessive force, correctly deemed this incident of insufficient gravity to merit attention by a court created to deal with major atrocities, given the passengers’ violent behavior and the low number of deaths. She therefore closed the case.
But the pretrial chamber—the very chamber tasked with deciding whether there’s enough evidence to proceed should Bensouda file charges—overturned this decision in 2015, ordering her to reconsider. To her credit, she didn’t change her mind. But that doesn’t lessen the gravity of the chamber’s conduct.
First, never before had a pretrial chamber rejected a prosecutor’s decision not to prosecute, so this decision raised obvious suspicions of bias. Far worse, however, it eviscerated a crucial safeguard of every fair legal system—that the person bringing the charges shouldn’t be the one to rule on their validity. In this case, by seeking to usurp the prosecutor’s discretion, the pretrial chamber destroyed its ability to serve as an impartial judge. How could it possibly provide a fair hearing if charges were filed at its explicit behest, against the prosecutor’s best judgment?
Then, lest anyone think this was a one-time aberration, the pretrial chamber took another exceptional step against Israel in July. Without waiting for Bensouda to conclude any of her other Israel-related probes (the Palestinian Authority inundates her with complaints), the pretrial chamber ordered the court’s registry to establish “a system of public information and outreach activities for the benefit of the victims and affected communities in the situation in Palestine,” open an “informative page” on the court’s website exclusively for Palestinians, and report to the chamber on these operations every three months with the goal of creating a “continuous system of interaction between the Court and victims, residing within or outside of Palestine.”
All the probes in question are still in the preliminary stage, meaning Bensouda hasn’t even decided whether they merit a full-fledged investigation. And it’s unprecedented for the court to engage in this kind of outreach at such an early stage, for good reason—it destroys the judges’ ability to serve as impartial arbiters.
After all, Bensouda has yet to conclude that any crime even occurred, much less that the court has jurisdiction over it (which is far from self-evident). Moreover, the judges have yet to see any evidence in the cases at issue. Yet by declaring the Palestinians victims to whom the court must reach out, they have effectively announced that they’re already convinced both that crimes have occurred and that they’re within the court’s jurisdiction. And if the judges have decided all this without even bothering to review any evidence, how could they possibly be trusted to evaluate the evidence fairly should Bensouda actually file charges?
Moreover, by twice sending Bensouda clear signals that they want her to indict Israel, the judges have undermined her credibility as an independent prosecutor. If she ever does file such charges, will it be because she truly considers them justified or only because it’s easier to placate the judges above her than to keep defying them?
Thus the court’s track record on Israel alone provides ample justification for Bolton’s broadside against it. Indeed, it ought to concern many countries since a court that’s biased against one country can’t be trusted to eschew bias against others. But it should especially concern America because America’s worldwide military operations make it a far more likely target for war-crimes complaints than other Western democracies.
Moreover, there’s little Israel has done in its wars that the United States hasn’t also done, often on a larger scale—targeted killings of terrorists, demolishing civilian houses suspected of being booby-trapped, accidentally killing civilians, etc. So any ICC indictment against Israel would set a precedent for similar charges against America. Washington should therefore be very worried by the fact that ICC judges are willing to violate crucial tenets of judicial fairness to secure such an indictment.
But even if the court’s bias were confined to Israel alone, that would still be unacceptable. The most fundamental tenet of any fair legal system is that laws must apply equally to all. If even one country is subject to unfair treatment at the ICC, that’s a sign that something is deeply wrong with the court.
Indeed, I believe the court’s treatment of Israel is merely a symptom of a fundamental flaw in its model of justice, an issue I’ll discuss in a separate column. But one needn’t accept that contention to realize that its anti-Israel bias alone is sufficient to undermine the court’s pretense of serving justice. And by refusing to overlook that uncomfortable fact—by refusing to grant a travesty of justice the honor due the real thing—America is upholding its highest ideals.
This article was originally syndicated by JNS.org (www.jns.org) on September 26, 2018. © 2018 JNS.org
Ever since Israel’s nation-state law was enacted in July, one constant refrain has sounded: The law should have included a provision guaranteeing equality to all Israelis. It’s not only the law’s opponents who say this; so do many of its supporters, liberals and conservatives alike. But they are wrong.
Adding a provision about equality to the nation-state law sounds innocuous because civic and political equality is already implicitly guaranteed through the 1992 Basic Law: Human Dignity and Liberty. Basic Laws are Israel’s closest approximation to constitutional legislation, and the 1992 law, which protects the “dignity of any person as such,” has been consistently interpreted by the courts as enshrining equality on the grounds that discrimination violates a person’s dignity. So what harm could it do to offer an explicit guarantee in the Basic Law: Israel as the Nation-State of the Jewish People?
The answer is that doing so would elevate Israel’s democratic character above its Jewish one. And that would negate the entire purpose of the nation-state law, which was to restore Israel’s Jewish character to parity with its democratic one—not superiority, but merely parity.
To understand why this is so, it’s first necessary to understand why adding an equality provision would violate basic constitutional logic. This argument was cogently made from the liberal side of the political spectrum by Haim Ramon, a former senior Labor Party Knesset member and former justice minister. Writing in Haaretz’s Hebrew edition last month, Ramon argued that if anyone thinks equality isn’t sufficiently protected by the Basic Law: Human Dignity and Liberty, they should work to amend that law rather than the nation-state law, as the former is where any provision on equality belongs.
This isn’t mere semantic quibbling. A constitution, being a country’s supreme instrument of governance, isn’t supposed to be a jumble of random provisions thrown together with no more thought than a monkey sitting at a keyboard might provide; it’s supposed to be a carefully crafted document. That’s why constitutions typically group all provisions relating to a given topic into a single article or chapter. Each article has equal status; none is more or less important than the others. And together, they create a comprehensive document that addresses all the basic questions of governance.
Israel has largely followed this logic to date. It doesn’t have a finished constitution, but every Basic Law is considered to be one article of a future constitution. So Israel has, inter alia, a Basic Law on the legislature, one on the executive, one on the judiciary, one on basic human rights, and now, one on Israel’s Jewish character: the nation-state law. And just as details of how to choose the prime minister belong in the article on the executive rather than the article on the judiciary, so, too, provisions on universal human rights, like equality, belong in the article on human rights, not the one on Israel’s particularistic Jewish character.
But precisely because this is the normal constitutional procedure, any glaring deviation from this norm would have moral and legal significance. So what would it tell us if, contrary to all constitutional logic, a provision on equality—something already implicitly guaranteed in an earlier article of Israel’s constitution-to-be—were to be explicitly restated in a subsequent article dealing with Israel’s Jewish character?
It would tell us that Israel’s universalist democratic character trumps its Jewish character. That would be the natural implication of equality being the only principle deemed worthy of being stated not once, but twice—not just in the article where it naturally belongs, but also in an article dealing with a completely unrelated topic. That would also be the natural implication of Israel’s Jewish character being the only constitutional issue deemed unworthy of a Basic Law entirely to itself, the only one forced to share its Basic Law with material that properly belongs, and in fact already exists, in a different one. Indeed, the implication would be that Israel’s Jewish character is so illegitimate that it can be allowed in the constitution at all only if its legal significance is diluted by adding a restatement of Israel’s universalist character.
In short, the clear message of adding “equality” to the nation-state law would be that Israel’s Jewish and democratic identities aren’t equal; rather, its democratic identity has primacy and its Jewish identity is subordinate. That’s exactly the situation that existed prior to the nation-state law’s enactment, when Israel had several Basic Laws setting out its democratic character but none at all setting out its Jewish character. And that’s the very situation the nation-state law was meant to correct.
Nothing in the nation-state law gives Israel’s Jewish identity priority over its democratic one; the law was intended merely to put these dual identities back on an equal footing. Adding “equality” to it would thus be antithetical to its purpose.
In one sense, this entire discussion is moot. As Ramon noted, an explicit mention of equality was omitted from the Human Dignity and Liberty law due to haredi opposition, and almost certainly couldn’t be enacted today for the same reason, regardless of whether it were proposed for that law or the nation-state law.
But the broader issue of parity between Israel’s Jewish and democratic identities isn’t moot at all. It’s an ongoing battle, and a crucial one.
The vast majority of Israelis wants Israel to be both Jewish and democratic, and a plurality believes that these two elements should be equally balanced. But being a democracy isn’t Israel’s raison d’être; there are plenty of other democracies around. There would be no reason to have made the effort of establishing and sustaining Israel in the teeth of regional and, often, international hostility in order to have just one more democracy, indistinguishable from all the others.
Israel’s raison d’être is that it’s the world’s only Jewish state—the only place in the world where the Jewish people can determine their own fate. That’s what makes it worth having. Thus a Basic Law that contradicts this raison d’être by subordinating its Jewish character to its democratic one is something no one who values Israel should want in its constitution.
This article was originally syndicated by JNS.org (www.jns.org) on September 12, 2018. © 2018 JNS.org
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