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
In 2015, following lengthy negotiations, President Barack Obama concluded an executive agreement marking the accomplishment of a cherished policy goal: the nuclear deal with Iran known as the JCPOA. Also in 2015, after similarly lengthy negotiations, Prime Minister Benjamin Netanyahu concluded an agreement realizing a long-cherished policy goal of his own: a deal enabling development of Israel’s largest natural-gas field by a private American company and its Israeli partner. Both agreements included a commitment by the respective governments to refrain from adverse legislative action over the next ten to fifteen years: in Obama’s case, action to reinstate nuclear sanctions against Iran; in Netanyahu’s case, action to alter the regulatory regime for natural gas to the disadvantage of the private energy companies.
As it happens, neither country’s executive branch has the authority to bind the legislature without the latter’s consent. But this didn’t trouble either the Iranians or the energy companies; they took it for granted that both executives would use all of the considerable power at their disposal to prevent such legislation, and that sufficed.
But what about the role of the third branch of democratic government, namely, the judiciary? That is where the two stories diverge. The Iran deal was never challenged in an American court. But in Israel, two left-wing opposition parties (Zionist Union and Meretz) and two nongovernmental organizations, alarmed by the encroaching specter of capitalist development, immediately petitioned the country’s supreme court (also known for some purposes as the High Court of Justice) over the gas deal—and won. The court struck down the agreement, saying the government either had to procure legislation enacting the prime minister’s commitment to regulatory stability or renegotiate the deal to exclude the commitment altogether.
A week later, speaking at a conference of the Israeli bar association, Justice Minister Ayelet Shaked accused the court of wielding its power “irresponsibly” by intervening in “political and macroeconomic questions” that were better left to the elected branches. She also reiterated a longstanding pledge, in her role as head of the judicial-appointments committee, to seek the appointment of justices to the court who would respect the government’s “authority to act on political matters that don’t violate human rights.” For this effrontery, opposition members of the Knesset promptly accused her of undermining democracy and demanded her dismissal. MK Shelly Yachimovich of the Zionist Union, for instance, charged Shaked with “trying to destroy the legal system’s independence, intimidate judges, and threaten them,” adding that if this sort of behavior continued, “Netanyahu would no longer be able to boast that Israel is the only democracy in the Middle East.”
This was hardly the first time in recent years that domestic critics of Israel’s government have accused it of “anti-democratic” behavior that wasn’t actually anti-democratic at all. But such accusations have served to obscure the real anti-democratic revolution that has occurred in Israel over the last few decades: the judiciary’s steady usurpation of policy-making powers that were once reserved—as they still are in other democracies—for Israel’s executive and legislative branches.
Friedmann, an Israel Prize laureate, may be uniquely qualified to address this topic. In addition to being one of the country’s top legal scholars, he has practical experience of the problems he describes, having served from 2007 to 2009 as justice minister in the government of Ehud Olmert. Moreover, contrary to the conventional wisdom that opponents of the supreme court’s overreaching tend to be right-wing religious activists, Friedmann is a secular leftist whose loathing for settlers, the ultra-Orthodox, and the center-right Likud party is made crystal-clear within the first few pages.Unfortunately, for readers not already well-versed in Israeli law and politics, the book is not an ideal introduction to its topic. It assumes a fair amount of prior knowledge, and suffers from other flaws as well. Yet given the importance of the issues, and the wealth of relevant material that Friedmann brings to bear, it is eminently worth our while to follow him along.
I. The Court Transforms Itself
Friedmann begins with a brief tour of Israel’s legal history in the days before the judicial revolution, when no one—including, as he demonstrates, supreme-court justices themselves—questioned the primacy of the elected branches of government. But in the 1980s, under Meir Shamgar and his then-deputy, Aharon Barak, who would succeed Shamgar as chief justice in 1995, the court introduced three innovations that dramatically altered the legal landscape.
First, it abolished the restriction of standing: that is, the rule that only someone directly harmed by a government action could petition the court for redress. Thereafter, anyone could petition the court over any government decision.
Second, it abolished the restriction of justiciability, which deemed certain domains—including foreign affairs (“the sword”) and budget policy (“the purse”)—to be the prerogative of the elected branches and therefore beyond the court’s purview. Thereafter, virtually every government decision became subject to judicial review.
Third, it began evaluating not just the legality but also the “reasonability” of government decisions, and asserted the right to overturn those it held “extremely unreasonable.” Since deciding the reasonability of a given action is essentially a policy judgment of the kind that governments are elected to make, the court was now asserting veto power over government policy. And since its other two innovations insured that virtually every significant government decision would end up in court, its veto power was almost unlimited.
Then, in the 1990s, the court introduced two further and no less crucial innovations. In 1993, reinventing the role of a key government position, it ruled that the opinions rendered by the state’s attorney general were no longer to be considered merely legal advice, but were binding on the government and all of its agencies; that only the attorney general was authorized to represent the administration in court; and that, should the administration disregard his “advice” on a given issue, the attorney general could refuse to defend the government’s position in court. This deprived the executive branch of fundamental legal rights accorded to every ordinary person. It could neither seek a second opinion from a different lawyer nor challenge the attorney general’s opinion in court; should it do so, it would be denied legal representation, thereby insuring its defeat. Not only that, but rules were instituted that severely circumscribed the government’s ability to choose an attorney general to its liking or fire one it disliked.
Finally, although Israel doesn’t have a written constitution, the court asserted in 1995 that two “basic laws” passed in 1992 effectively made up a constitution. Consequently, the court, which previously had asserted “only” the right to overturn executive-branch decisions, was now empowered to overturn any subsequent legislation that it deemed to contravene those two laws. As Friedmann explains, this claim had no legal basis. Most members of the Knesset (MKs) hadn’t intended to endow the 1992 laws with primacy over future legislation, and never dreamed the court would interpret them in that light; indeed, in presenting the laws to the full Knesset for approval, the chairman of the Knesset committee that prepared them explicitly assured his fellow MKs that they did not grant the court “special power to nullify laws.”
Moreover, constitutions are generally approved by supermajorities and require supermajorities to amend them. But the two “basic laws” were approved by a mere one-quarter of the 120-member Knesset, and the more consequential of the two, titled the Basic Law: Human Dignity and Liberty, could also be amended by a simple majority of those present and voting. Hence, Friedmann sums up, Israel’s supreme court “presumed to become a constitutional court in a country that lacks a constitution.”
II. The Revolution Begins Slowly
Scholars are still debating the factors that enabled this judicial revolution to occur and survive. Friedmann has his own take on the matter, which I’ll come to in due course. What’s incontestable is that opposition to it developed only slowly. This owed partly to the enormous esteem accorded both Shamgar and Barak, the latter of whom was the revolution’s theoretician, and partly to their political acumen. Generally, the court began by asserting new powers to strike down government decision-making without actually doing so; only after the assertion became “accepted precedent” did the justices begin applying it. Similarly, Shamgar and Barak initially intervened mainly in government decisions already widely viewed as outrageous; only after such intervention had become accepted practice did they expand into more controversial areas.
By this means, the revolution proceeded virtually unimpeded for decades, as Friedmann details in case study after case study showing how it played out in reality. In doing so, he illuminates the extent to which the court has, first, gutted the ability of any elected government actually to govern, and, second, ended up undermining rather than protecting both human rights and the rule of law.
On the all-important national security front, one salient example involves events that occurred after a Lebanese militia, Amal, captured the Israeli airman Ron Arad in 1986. Mustafa Dirani, the commander of Amal, later gave Arad to a senior Hizballah commander named Abd al-Karim Obeid, who apparently then gave him to Iran; thereafter, Arad disappeared. Seeking information of his whereabouts, Israel captured both Dirani and Obeid with the intention of holding them until Arad was returned. But the two men petitioned the supreme court, which ordered them freed on the pretext that since they posed no personal danger to Israel, they were being illegally held as “hostages.”
As Friedmann notes, it’s standard practice to hold enemy combatants until a prisoner exchange is arranged, even if a war is already over. In this case, fighting in Lebanon was still ongoing. Nor were Dirani and Obeid low-level grunts who might be considered innocent of blame; they were personally responsible for Arad’s disappearance. Thus, by any normal standard, the government’s action was neither illegal nor unreasonable—as two members of the five-justice bench agreed. Yet the majority, on the basis of a radically expansive interpretation of terrorists’ rights, overrode not just government policy aimed at securing knowledge of a serviceman missing in action, but also, as one of the dissenting justices wrote, “the dignity and liberty of [all of Israel’s] prisoners and missing soldiers.”
The court has even gone so far as to intervene in wartime combat decisions while fighting is still in progress. Friedmann cites several cases of petitions challenging the army’s handling of humanitarian issues in Gaza, with the surreal result that the very officers tasked with resolving such issues were instead spending their time writing affidavits or explaining the situation by phone to their lawyers in Jerusalem.
On the domestic side of the spectrum, consider the lowly municipal budget of Kfar Vradim in northern Israel. A few religious families in this small and mainly secular town had requested that the municipality provide them with a ritual bath, or mikveh. (Local governments in Israel are in general responsible for building and maintaining religious facilities.) The local committee on budgetary priorities, basing itself on such criteria as the number of people expected to use the facility and the cost of maintaining it, and noting that similar facilities were readily available in several nearby communities, ranked a mikveh last out of seventeen proposed public-construction projects. The families then asked the supreme court to intervene. Even though setting budgetary priorities is precisely what governments are elected to do, the justices ruled that, given the mikveh’s importance in Orthodox Judaism, the town’s decision was unreasonable and the mikveh must be made a top priority.
III. Personnel is Policy—And the Court Controls Personnel
Overturning government decisions on the basis of its own radically expansive interpretation of human rights is not the only tool through which the court has usurped political power. Another, to which Friedmann devotes considerable attention, is control over government appointments.
It’s a truism that in government, people are policy; to accomplish anything, a mayor or a minister needs to fill key positions with people who share his vision. But the attorney general and the court have repeatedly intervened to disallow nominees, no matter how qualified. They have also issued a blanket ban on party colleagues or friends—the very people most likely to share an elected official’s views—unless a nominee can be shown to possess some unique qualification lacking in “apolitical” candidates. Further exacerbating matters, search committees for government posts in Israel aren’t restricted to considering the government’s nominees, but are free to consider any applicant and even to propose their own candidates.
Thus, in 2011, Benjamin Netanyahu’s then-finance minister, Yuval Steinitz, wanted a particular person to head the tax authority. Steinitz, writes Friedmann, “clearly acted in good faith and genuinely believed that his candidate was the best man for the job.” But a search committee preferred a different person, and the supreme court, deeming the panel’s recommendation “almost decisive,” ordered the cabinet to consider him; bowing to the inevitable, the cabinet appointed the committee’s favorite.
In another case, Eli Zohar—a leading criminal-defense attorney—was forced in 2003 to withdraw his candidacy for the post of attorney general simply because he was a friend of the justice minister. Rejecting the minister’s second choice as well, the committee ultimately recommended only candidates whom the government hadn’t nominated.
Compounding this problem, Friedmann writes, is that prosecutors and courts have repeatedly viewed disregarding the advice of professional civil servants as grounds for suspecting a minister of criminal malfeasance, whereas ministers who accept such advice can cite this as a legal defense. The upshot is that not only are ministers barred from appointing the people they want, but for fear of being charged with criminal wrongdoing, they are virtually forced to obey the decisions of appointees they don’t want. This raises an all but insurmountable barrier to substantive policy change.
Still another tool at the court’s disposal for controlling government activity is its power to “interpret” legislation. True, any court does this, but Israel’s supreme court takes it to extremes, simply interpreting out of existence any law it happens not to like. Conversely, if it wants a law that the Knesset hasn’t been accommodating enough to pass, or that legislators have explicitly decided to omit, it “discovers” the law in existing legislation.
In 2002, in a follow-up effort to apply the law to Arab as well as Jewish parties, the Knesset amended it, among other things adding a new ground for disqualification: supporting armed struggle against Israel. The following year, the elections committee duly disqualified the Balad party, then led by the radical Arab activist Azmi Bishara, a sitting MK. Balad went to court. The court’s own ruling in the case would suffice to convince most people that Balad met the legal criteria for disqualification. Bishara’s rejection of Israel as a Jewish state and his support for armed struggle against it, the majority wrote, “stand at the center of his goals and actions . . . Furthermore, these actions are not a theoretical idea, but rather a political potential that MK Bishara has taken from theory into practice . . . with great force.”
Nevertheless, the court overturned the disqualification, declaring that the evidence wasn’t sufficiently “persuasive, clear, and unambiguous.” Effectively, Friedmann writes, it set such a high evidentiary standard that disqualifying any Arab party became all but impossible. This ruling also spurred the Knesset to pass several new versions of the disqualification law, in each case sparking accusations from Israel’s left of racist and undemocratic conduct. Yet all those subsequent bills were merely attempts to get the court to finally enforce the original law’s reasonable intent: that people who want to abolish the Jewish state or support armed struggle against it shouldn’t sit in its parliament.
The flip side of gutting legislation the Knesset actually passed is creating legislation it didn’t pass. The catchall vehicle for this purpose has been the Basic Law: Human Dignity and Liberty. As Friedmann observes, the court has “discovered” several rights in this law that the Knesset intentionally excluded under the political compromises that enabled its passage.
One example, which Friedmann mentions but doesn’t elaborate on, is the “right to family life.” This may surprise anyone familiar with Israel’s fairly restrictive marriage laws; since marriage and divorce are controlled by each faith’s religious courts, there’s no legal way to conduct a marriage—say, an interfaith marriage—that violates religious law. And indeed, when legislating the Basic Law, the Knesset deliberately made several changes to the original bill in order to ensure the preservation of that system, thereby making it clear that the law was not intended to confer a right to family life with the partner of one’s choice; had legislators imagined it did, the law wouldn’t have passed.
But in 2006, as Israel was recovering from the second intifada, the court ruled narrowly (six to five) that the Basic Law not only confers such a right but confers the most expansive imaginable version of it: whereas other Western countries restrict the immigration of enemy nationals, Israel must in principle allow all Palestinians who marry Israelis to move to Israel to be with their spouses. (Bizarrely, however, the law restricting such spousal immigration survived anyway because one of the six justices in the majority, although agreeing with his colleagues that the law was unconstitutional in principle, wasn’t yet ready to overturn it in practice.)
In a subsequent email to an overseas colleague, Aharon Barak was breathtakingly honest about how the majority reached its conclusion. Rather than examining what the law actually said, Barak decided what he wanted it to say, then inserted that view into the law in defiance of the legislature’s intent. Or as he put it, according to a Hebrew translation of the email published in Haaretz:
I determined that the right to family life is a constitutional right of the Israeli spouse and his children. . . . Since we do not have specific articles in our Bill of Rights that deal with equality and the right to family life, I decided that these rights are part of the right to human dignity.
IV. The Court Selects Its Own Members
It’s by means of such judicial tactics, Friedmann sums up, that the supreme court has created “a split between authority and accountability.” While arrogating to itself the power to mandate executive-branch action or strike it down, to abolish Knesset legislation or create laws the Knesset never enacted, it remains unaccountable to the public for its own actions. Meanwhile, the executive and the legislature, both of which must answer to voters for their actions, increasingly lack the power to decide anything for themselves; without the court’s permission, they can neither act nor refrain from acting.
All of this is further exacerbated by Israel’s uniquely undemocratic system of appointments—not only, as we have seen, in the executive branch, but also to the court itself. In most democracies, supreme-court justices are chosen by the elected branches of government; in Israel, they are chosen by a nine-member committee on which sitting justices themselves occupy three seats. Two more are held by representatives of the Israeli bar association—who must argue cases before those same justices—while four “political” seats, which change hands with every new government, are set aside for three coalition members and one opposition MK.
This arrangement gives the justices enormous influence over the choice of their own successors, which they have employed to stack the court with people who share their activist worldview. Among other egregious abuses, Friedmann cites their veto of the proposed appointment of Ruth Gavison, a preeminent legal scholar and veteran human-rights activist, solely on account of her outspoken criticisms of judicial interventionism.
Numerous bills have been submitted to curb this interventionism by changing the system for appointments to the court—for instance, by allowing the Knesset Constitution Committee to vet nominees. That none has ever passed is largely because opponents, usually but not exclusively from the political left, have tarred these bills, too, as anti-democratic attempts to politicize the court or destroy its independence. Aharon Barak, the former chief justice, famously decreed that such legislation would turn Israel into a “third-world country.” Yet the appointment of justices by elected officials hasn’t impaired judicial independence in other democracies, nor has anyone ever questioned the independence of Israel’s first justices, who, as Friedmann points out, were appointed by the cabinet and approved by the Knesset.
On the contrary, enabling the appointment of justices who pay greater deference to the separation of powers would enhance democracy by restoring policy-making power to the elected government, where it belongs. Far from seeking to undermine democracy, the Knesset is merely seeking some way to get the court to respect a fundamental democratic right: the right to have policy set by elected officials rather than unelected justices.
V. Subverting the Rule of Law
The executive and legislative branches of government are far from the only victims of judicial activism. In some of the strongest parts of his book, Friedmann shows how this activism, ostensibly intended to protect individual rights and the rule of law, often ends up subverting both.
Examples abound. Some of them arise from the conferral of sweeping authority to the attorney general. Legal questions are rarely black-and-white, and no human being is infallible; thus, by giving dictatorial powers to a single legal official, the court has effectively eliminated the legal checks and balances that can help prevent irreparable mistakes. Indeed, Friedmann cites several cases prior to the judicial revolution in which the court actually sided with the government against the attorney general. But under the court’s current approach, he writes sardonically, “the rule of law is to be preserved by means of requiring the government to act in accordance with the opinions of the attorney general even if, in doing so, the government violates the law.”
One major casualty of this approach has been the rights of criminal suspects and defendants. Friedmann illustrates this point with a notorious 1984 case in which an army officer was suspected of killing two captured terrorists. The attorney general wanted the officer court-martialed and suspended from active duty, but the military advocate general (MAG), deeming the evidence fishy, refused. Eighteen months later, three senior Shin Bet security officers proved the MAG right when they admitted that their agency had framed the officer. Had the rule granting binding authority to the attorney general’s decisions been in force back then, an innocent man’s career would have been destroyed.
Moreover, the supreme court has repeatedly ordered attorneys general to file indictments that they themselves have regarded as unwarranted, thereby subverting the defendants’ right to a fair trial since it is difficult, in Friedmann’s words, “for a lower court to acquit (or even impose a light sentence) after the highest court has ordered an indictment.” Similarly, the justices have “discarded the traditional rule that, in case of doubt, the law should be interpreted in favor of the defendant.” The result has been a stunning rise in conviction rates, from 77.8 percent in 1961 to 92.3 percent in 1981 to an incredible 99.9 percent in 2005.
If this raises serious questions about due process, no less serious is that justice is routinely delayed in both civil and criminal cases. Thanks to the court’s preoccupation with policy issues that aren’t its business, it has little time for its core job of hearing civil and criminal appeals. Consequently, even after it does finally hear a case, litigants often wait “four or five years, and sometimes longer,” for a ruling.
Equally disturbing is the court’s impact on Jewish-Arab relations in Israel. For instance, its persistent refusal to disqualify Azmi Bishara’s Balad party was presumably intended to benefit Israeli Arabs, but Friedmann argues convincingly that it backfired. Over the past three decades, he writes, the presence in parliament of provocative extremists like Bishara has been accompanied by a rise in violence by Israeli Arabs, has in general “soured Jewish-Arab relations,” and has “probably also strengthened the Israeli right-wing parties.”
Another case from the mid-1980s is instructive in this regard. In 1984, Meir Kahane’s Kach party (subsequently disqualified from the Knesset, as we’ve seen) won a single seat and promptly submitted bills to deny citizenship to non-Jews, to mandate separate beaches for Jews and Arabs, and to bar Jews from marrying or engaging in sexual relations with non-Jews. Under Knesset bylaws at that time, legislative proposals couldn’t be brought to a vote without the authorization of the Knesset speaker; deeming the bills racist and anti-democratic, Speaker Shlomo Hillel refused to let them through. Kahane then petitioned the court, which ordered Hillel to allow the votes. Later he also petitioned the court over the refusal of the public broadcasting authority to air stories about his bills and speeches, and won again.
As Friedmann notes, it’s virtually unprecedented for a court in a democracy to dictate the legislature’s internal work procedures, much less force it to vote on bills it deems unworthy of consideration; this grossly violates the separation of powers. It’s also unprecedented for a court to order journalists to cover news they deem unworthy of coverage; this grossly violates freedom of the press.
But while Friedmann doesn’t say so explicitly, the implications for Jewish-Arab relations were also significant. Although the Knesset swiftly amended its bylaws to bar explicitly racist bills, the supreme court had just effectively decreed that racist legislation and speech, once ostracized by the Knesset and Israeli media alike, deserved and even required consideration. It thereby eroded institutional and social barriers against manifestations of racism. Three decades later, bills or statements by the radical fringe, however minuscule their chances of enactment, routinely garner outsized attention from journalists and legislators rather than being quietly sidelined as they might have been in the past. The result is that although anti-Arab prejudice in Israeli society has actually been declining, expressions of prejudice enjoy more public exposure than ever before—to the obvious detriment of Jewish-Arab relations, as well as of Israel’s public image.
And this brings us to a final victim of the judicial revolution: public respect for the court itself and the entire legal establishment, and hence for the very “rule of law” the court claims to champion. By 2007, Friedmann observes, confidence in the supreme court among the Jewish public had plummeted to 56 percent, from 85 percent in 1996, while confidence in the court system as a whole had plunged to 36 percent. By turning itself into just another political player, and “the rule of law” into a mere euphemism for its own policy preferences, the court has inevitably led the public to view it accordingly.
VI. Eviscerating Israel’s Dual Character
As I remarked early on, Friedmann’s book isn’t without its weaknesses. Some of these are major. Aside from the frequent lack of critical background information, his account lacks any treatment of a principal source of friction between the court and elected officials: namely, the long list of court rulings that legislators rightly view as eviscerating the Jewish component of Israel’s self-definition as a Jewish and democratic state.
In ruling after ruling, the court accomplished this feat by adhering to Aharon Barak’s dictum that it should interpret “Jewish” at a “level of abstraction . . . so high that it becomes identical to the democratic nature of the state.” Without being aware of these rulings, it’s impossible for an outsider to grasp that many controversial recent bills, like those seeking to define Israel as the nation-state of the Jewish people, aren’t aimed at giving the country’s Jewish character more weight than its democratic character—as critics recklessly charge—but are merely trying to restore a parity enshrined in law yet systematically ignored by the court.
It’s important to stress here that viewing Israel’s dual character as an inevitable source of conflict between Judaism and democracy is a misapprehension. In most cases, a conflict would exist only if democracy were regarded not as a system of government—that is, a procedural mechanism for decision-making—but as synonymous with the all-encompassing set of social and moral values known today as liberalism. Unfortunately, that happens to be exactly how Israel’s supreme court, along with most of the Israeli left, does view democracy. By definition, therefore, the court sets its own sweeping universalism at odds with particular and often perfectly defensible Jewish concerns.
Perhaps no issue in recent years has highlighted this conflict more than the court’s decision, no fewer than three times, to overturn legislation aimed at stemming illegal migration, before finally upholding a fourth version whose terms were essentially dictated to the government by the court. All four versions of the legislation restricted migrants’ freedom in some fashion while their asylum applications were being processed, or in cases where applications were rejected but migrants couldn’t be deported (if, for instance, their country lacked diplomatic relations with Israel); the argument was over the nature and duration of those restrictions.
As the only Western country that shares a land border with Africa, Israel is uniquely vulnerable to an influx of illegal migrants; the first version of the law was passed in 2012 after years of sharp annual increases in the number of such migrants. Having reason to believe that most were labor migrants rather than bona-fide refugees, the government sought to discourage further waves by making it clear that, for a non-trivial period of time, illegal migrants would be unable to earn a wage. Illegal migration in fact dropped sharply after 2012, though whether that was due to the law, to a new border fence, or to both is disputed.
But aside from the general problem that mass migration poses to every Western country, Israel faces a unique problem related to its Jewish identity. Clearly, unless Israel preserves a substantial Jewish majority, it cannot remain a democratic Jewish state. Already its non-Jewish, primarily Muslim, minority totals 25 percent of the population (excluding the territories), and many of the migrants, especially those who can’t be deported, are also Muslim. Thus a massive influx could affect the country’s delicate demographic balance; to the cabinet and to the Knesset, this was additional justification for stringent policies to discourage migration.
In my view, the court was justified in concluding that the initial legislation, which allowed migrants to be jailed for up to three years, violated the Basic Law: Human Dignity and Liberty. But by the third version, the law stipulated only twenty months at an open detention facility that migrants could leave during the day, but whose isolated locale would make it difficult to find work. Several other Western countries have instituted significantly more draconian policies to discourage migrants. Yet the court subordinated both the general Western concern and the particular Jewish concern to its own expansive conception of the migrants’ universal human rights.
Another area where Friedmann’s book falls short is in his recounting of the process by which the judiciary was able to amass such power. He points, reasonably, to the widespread distrust in government generated by the near-disaster of the 1973 Yom Kippur War, a distrust exploited by the strategists of the judicial revolution. He also rightly highlights both the weakness of coalition governments, in which a single partner can veto proposed reforms, and the legal establishment’s successful intimidation of reform-minded politicians; his case studies of politicians barred from or forced out of key ministries by utterly baseless criminal proceedings are downright frightening, especially since many of the targeted politicians were outspoken critics of the court. During his own term as justice minister, he writes, “many of my colleagues were terrified of voicing any disagreement” with the attorney general lest he launch criminal proceedings against them.
But Friedmann barely touches on what may be the most critical factor of all in this saga of judicial usurpation: the existence of a sizable minority of Israelis who wield great influence in the media, academia, and other opinion-shaping institutions and who see judicial activism as an essential tool for molding Israel toward ends they can’t achieve through democratic means. The perseverance of the court’s overreaching activism despite decades of legislative opposition is incomprehensible without recognizing that it enjoys a powerful support base.
To understand this point, Menachem Mautner’s 2011 book, Law and the Culture of Israel, is indispensable. (I reviewed it here.) A professor of law at Tel Aviv University, Mautner argues persuasively that the left, which controlled Israel for the state’s first three decades, was terrified by its loss of power to the center-right Likud party in 1977. He quotes leading cultural icons of the time predicting, among other evils, civil war, the abolition of democracy, and the spectacle of state organs hunting down dissenters and/or secular Jews. In despair at its loss of hegemony, the left turned to the judiciary, the one branch of government still in its grasp, as a means of retaining control over the country’s political culture. And the judiciary, whose roots were in this same leftist elite, willingly complied.
Aside from these substantive issues, Friedmann’s book also suffers from various other defects, among them an often confusing and digressive narrative and a lack of well-developed characters or intriguing anecdotes that might ease the slog through legal intricacies. At the same time, however, The Purse and the Sword offers vital insight into a powerful institution that has been disfiguring Israeli politics and society for the last three decades and is still at it today. If you want to understand one of the most egregious and deeply embedded threats to Israel as a Jewish and democratic state, Friedmann’s book is a good place to start.
Originally published in Mosaic on December 5, 2016
If there’s one thing that infuriates me about Israeli leftists, it’s that they spend so much time howling about nonexistent threats to Israeli democracy that they have no credibility left when they actually warn about real ones. Two controversial legislative initiatives of the past week–one a genuine problem and one a manufactured one–exemplify the problem.
The manufactured crisis, which has the entire left in an uproar, begins with the fact that the Judicial Appointments Committee is reportedly deadlocked over the choice of new justices to fill the four Supreme Court vacancies that will open next year. Justice Minister Ayelet Shaked has strongly implied that, if this impasse isn’t resolved, she will back another legislator’s bill to change the appointments system. The current system requires Supreme Court appointments to be approved by at least seven of the appointments committee’s nine members, while the bill would allow such appointments to be approved by a simple majority of 5-4.
According to liberals, this proposal is massively undemocratic. Leftist MK Shelly Yacimovich, for instance, accused Shaked of “unruly and destructive behavior … toward the justice system.” Opposition leader Isaac Herzog accused the bill’s proponents of seeking to purge “the judiciary, the media, all criticism and fair democratic processes.” A Haaretz editorial termed the proposal “another step in the trampling of the proper balance among the branches of government” and an effort to undermine the court’s ability to protect “human rights and fundamental democratic principles.” And Supreme Court President Miriam Naor, who accused Shaked of putting “a gun on the table,” announced that she and her two judicial colleagues on the appointments committee will henceforth boycott negotiations aimed at trying to end the impasse.
But here’s the incredible thing: The simple-majority system that the bill proposes was, in fact, the one in place for more than five decades. The law was amended eight years ago to require a majority of at least 7-2 for Supreme Court appointments. In other words, what the left considered a perfectly appropriate and democratic system for all the years until 2008 is suddenly a major threat to democracy.
If you actually believe the simple-majority system is undemocratic, it would mean that every Supreme Court until 2008 was appointed via an undemocratic and illegitimate process, and therefore, none of its rulings should be considered valid. In addition, since many current justices–including Naor and both her colleagues on the appointments committee–were appointed prior to 2008, they too would be illegitimate, undemocratic appointees, so all current Supreme Court rulings would also be illegitimate and invalid. Is that what the left, the court’s self-proclaimed champion, actually wants?
Moreover, legislation gets repealed all the time when it turns out that what seemed like a good idea in theory doesn’t work in practice. In this case, Shaked’s argument is that the new system has created a deadlock that’s preventing the vitally needed appointment of four new justices–more than a quarter of the 15-justice court. That’s at least arguably a serious enough problem to justify a legislative remedy. Or is the left suggesting that legislation, once passed, must remain on the books in perpetuity, even if it proves detrimental?
As it happens, I think Shaked is wrong on the merits. The amendment was sponsored in 2008 by her fellow conservative, Gideon Sa’ar, for two reasons. First, it’s simply more appropriate for Supreme Court justices to be appointed with wide support than by a narrow majority. Second, the bill’s main purpose was actually to protect conservative interests: Given the composition of the appointments committee, which consists of four politicians, two Bar Association representatives and three sitting justices, conservatives are in the minority on the panel far more often than they’re in the majority. That’s because the three justices are almost always liberals (in the sense of favoring judicial activism), while the other six seats float. Requiring a seven-vote majority thus made it much harder to appoint ultraliberal candidates during times when liberals were in the majority. And neither of these reasons has lost its validity just because conservatives now hold a temporary majority on the panel.
But the fact that I disagree with something doesn’t make it undemocratic–a basic truth that most Israeli leftists unfortunately have yet to grasp. They have a nasty habit of deeming any proposal they dislike “anti-democratic.” And in this case, as with the vast majority of what they deem “anti-democratic,” nothing could be further from reality.
The problem is that once in a great while, they’re actually right–as is the case with another bill that hit the headlines over the past week. That bill, sponsored by the government, would expand the defense minister’s powers to impose movement restrictions and other restrictions on Israeli citizens whom he deems a threat to national security or the public welfare. It’s an appalling idea (though I suspect it ultimately won’t pass), and leftists are fully justified in raising a storm about it. I only wish conservatives were doing the same.
But after years of ranting about nonexistent threats to democracy like the Shaked proposal, leftists have destroyed their credibility, with the result that most Israelis simply tune them out. It’s the old problem of the boy who cried wolf: Raise false alarms often enough and no one will believe you when a real one comes.
Israel thereby loses out twice over: Leftists tarnish its image overseas by repeatedly making false claims of anti-democratic legislation, while also destroying their ability to raise justified alarms about the occasional real problems. It’s the worst of all possible worlds. And it’s precisely why Israel desperately needs a sane, responsible left rather than the one it has.
Originally published in Commentary on November 6, 2016
The ban on wearing burkinis at the beach, which was recently enacted by some 30 French municipalities and even won support from French Prime Minister Manual Valls, was rightly deemed an unconstitutional infringement on several fundamental liberties by France’s highest court this weekend. Yet the French controversy highlights something about Israel that is too often overlooked: the degree to which being a Jewish state, far from undermining Israel’s democracy, actually reinforces it.
The burkini ban was enacted in explicit reaction to Islamist terror attacks in France and the concerns they have raised about the integration of the country’s Muslim minority. As Christian Estrosi, the deputy mayor of Nice, told the New York Times, these full-body swimsuits, worn mainly by religious Muslims, constitute “unacceptable provocations in the very particular context that our city is familiar with,” referring to a July 14 terror attack that killed 86 people.
Yet Israel has suffered far worse Islamist terror and over a far longer period of time. Terror attacks in France have killed 234 people over the last 18 months, according to one British newspaper’s tally. That is just over half the 452 Israelis killed by terror during the single worst year of the second intifada (2002). And since France’s population is 7.6 times the size of Israel’s, that means that as a proportion of the population, Israel’s losses during that one year–without even mentioning all its losses to terrorism in other years–were almost 15 times as large as France’s have been over the past 18 months.
Moreover, as a proportion of the total population, Israel’s Muslim community is much larger than that of France. Muslims comprise an estimated 7.5 percent of France’s population, but almost 20 percent of Israel’s population–and that’s counting only Israeli citizens and legal residents, i.e. the Muslims who would still be there even if Israel quit the West Bank tomorrow.
Finally, though Israel’s Muslim population has largely shunned terror, its leadership is actually far more radical than France’s Muslim leadership seems to be. Israeli Arab Knesset members openly back anti-Israel terror organizations, actively incite to anti-Israel terror, and tirelessly libel Israel overseas. The head of one of the country’s largest nongovernmental Muslim groups–Raed Salah, leader of the Islamic Movement’s northern branch, which has tens of thousands of supporters–routinely spews anti-Semitic blood libels such as accusing Jews of baking matzo with Christian blood. And all that is without even mentioning the Palestinian leadership in the territories, where both the main political parties, Fatah and Hamas, routinely deem killing Israelis to be their main accomplishment.
In other words, if any country were going to lash out in response to Islamist terror by restricting Muslims’ freedom to observe their religion in public, one would expect it to be Israel, not France. But in Israel, no one has ever even suggested banning burkinis. Nor has anyone ever suggested forbidding civil students or schoolgirls to wear headscarves, as stipulated by other French laws that the courts have upheld. Nor has anyone ever suggested barring mosques from building minarets–a law approved by popular referendum in Switzerland, even though that country has so far had no Islamic terror problem at all.
Clearly, Israel’s religious tolerance can’t be attributed solely to its democratic norms. After all, France and Switzerland have impeccable democratic credentials, but that hasn’t stopped either from passing anti-Muslim laws. Nor is it because Israeli Arabs are a powerful enough minority to prevent such legislation: Arab Knesset members’ anti-Israel positions make them unacceptable as coalition partners in any government, and they would actually have no power to block anything the coalition majority wanted to pass. And it certainly isn’t because Israelis are saints who remain serenely forgiving of Arab terror and anti-Israel incitement; there’s plenty of anti-Arab sentiment in Israel.
Rather, the main reason why Israel never has and never would consider legislation like France’s bans on burkinis and headscarves is precisely because it is a Jewish state. In other words, it was created to take Jewish interests into account, and those interests include the freedom to observe traditional Jewish praxis. But the moment a democratic country starts making allowances for one religion’s traditions, those allowances inevitably spill over to other religions as well.
For instance, Israel could never ban headscarves in the civil service, because religious Jewish women also wear head coverings. It could never ban modest swimwear because religious Jews also insist on modest clothing. It could never ban minarets because the analogy to banning synagogues would be all too apparent. In contrast, France and Switzerland can do all those things, because they have no interest in accommodating any religion in the public square.
In short, Israel’s identity as both a Jewish and a democratic state is the main reason why Islamist terror has never prompted the kind of anti-Muslim legislation that it has in secular democratic France. So the next time someone tells you Israel’s Jewish identity is inherently at odds with its democratic identity, remember the burkini. And remember that sometimes, Israel’s Jewish identity is precisely what protects its democratic one.
Originally published in Commentary on August 29, 2016
In the three days since Israel passed a law mandating new reporting requirements for NGOs that are primarily funded by foreign governments, there’s one question I have yet to hear any of its critics answer. If, as they stridently claim, there’s absolutely nothing wrong with NGOs getting most of their funding from a foreign government, then why would simply being required to state this fact in all their publications exercise a “chilling effect” (the U.S. State Department) or “stigmatize” them (the New Israel Fund) or result in “constraining their activities” (the European Union)?
The obvious answer is that the critics know perfectly well it isn’t alright: An organization that gets most of its funding from a foreign government isn’t a “nongovernmental” organization at all, but an instrument of that government’s foreign policy. In fact, with regard to the EU, that’s explicit in its funding guidelines: For an Israeli organization that conducts activities in the territories to be eligible for EU funding, it must comply with EU foreign policy on the Israeli-Palestinian conflict. This, incidentally, also explains why 25 of the 27 organizations affected by the law are left-wing: The far-left is the only part of Israel’s political spectrum that shares Europe’s opinions on the conflict, and hence, that Europe is willing to fund.
Yet if an organization is an instrument of a foreign country’s foreign policy, it’s very hard to argue that it’s an objective “human rights organization,” as the organizations in question bill themselves. Rather, it’s an overtly political organization that seeks to pressure Israel into adopting the foreign government’s preferred policies. And making this known definitely could be “stigmatizing,” in the sense that Israelis might be less willing to trust an organization’s assertions once they realize it has a not-so-hidden policy agenda that could be influencing its reports.
That, however, is precisely why Israelis have a need and a right to know where these organizations’ funding is coming from–especially given this funding’s sheer scale. And it’s also why there’s nothing remotely undemocratic about the law, as explained in depth by legal scholar Eugene Kontorovich here.
Nevertheless, if this is really what the law’s critics fear, then they’re behind the times. In the years since the idea of legislating this law first arose, most of the organizations in question have made themselves so toxic that it’s hard to see how information about their foreign funding could make Israelis view them any more negatively. Thus the more likely impact of publicizing their funding sources won’t be to delegitimize the organizations, but to delegitimize their donors–which is precisely why Europe, which provides most of this funding, is so worried.
Currently, a nontrivial portion of Europe’s influence in Israel comes from the fact that Israelis still admire it and, therefore, want it to like their country, not merely to trade with it. The fact that Europe is Israel’s biggest trading partner obviously also matters greatly, but the emotional angle, which stems mainly from Europe’s role as part of the democratic West, shouldn’t be underrated.
Now consider how that admiration might be affected by the discovery of how much money Europe gives, say, Breaking the Silence. This organization, which compiles “testimony” by Israeli soldiers about alleged abuses, is unpopular in Israel for many reasons–because Israelis don’t think its reports accurately reflect their army’s actions (see here for one egregious example); because its “testimony” is strictly anonymous, making it impossible to investigate its allegations; and because it spends most of its time and effort marketing its reports abroad, convincing many Israelis that it’s more interested in tarnishing Israel’s image than in getting the army to improve its behavior. But last month, two incidents brought its reputation to a new low.
The first was Mahmoud Abbas’ infamous address to the European Parliament, in which he repeated a medieval blood libel by claiming rabbis were ordering their followers to poison Palestinian wells. This accusation originated in a report by a Turkish news agency that cited Breaking the Silence as its source, which sounded highly unlikely. Except then the Israeli website NRG published a video showing one of the organization’s founders claiming that settlers had engineered the evacuation of a Palestinian village by poisoning its well. And a respected left-wing journalist, Ben-Dror Yemini, published a column with further documentation of both the organization’s claim and its falsity. So it turned out BtS actually was spreading a medieval blood libel.
Then, the following week, a group of reservists went public with their experiences of how BtS collects its testimony – which turns out to entail both harassment and deception. After their discharge from the army, the organization called them repeatedly to urge them to talk about their experiences in the 2014 Gaza war; one man said he was called eight or nine times. But when they finally acquiesced, they discovered that the organization had cherry-picked from their accounts to present the army in the worst possible light.
To grasp just how toxic BtS has become, consider the fact that the president of Ben-Gurion University–who has scrupulously defended its right to speak at university seminars–nevertheless overturned a departmental decision to grant it a monetary prize last month. What Professor Rivka Carmi essentially said is that while she will defend its right to speak, she isn’t willing to have her university finance the organization. And when you’ve lost the universities, which are among the most left-wing organizations in Israel, you’ve really lost the whole country.
Originally published in Commentary on July 14, 2016
That Israelis are still arguing over the soldier who shot a wounded terrorist in Hebron three weeks ago isn’t surprising; the very rarity of the case naturally makes it the talk of the country. What is surprising, however, is how many left-wing pundits have used comparisons to the famous Bus 300 affair of 1984 to accuse today’s Israel of moral degeneration (two examples here and here). For by any reasonable standard, what this comparison actually shows is how much higher Israel’s moral standards have become over the last 32 years.
The Bus 300 affair began when Palestinian terrorists hijacked a civilian bus, Bus 300, and threatened to kill all the passengers. Israeli troops eventually stormed the bus, killing two terrorists and capturing two others. The Shin Bet security service then took the bound, captured terrorists to an isolated spot and killed them. It subsequently claimed all the terrorists were killed when the bus was stormed, but that claim was disproven a few days later when an Israeli daily published a front-page picture of one captured terrorist being taken off the bus, clearly very much alive. Thus ended Act I; we’ll get to Act II later.
Last month’s incident in Hebron, in which the soldier killed a terrorist who was already lying on the ground wounded, has some obvious similarities. But consider the differences:
First, in the Bus 300 affair, the extrajudicial execution was perpetrated by the highest ranks of the defense establishment: It was ordered by then-Shin Bet chief Avshalom Shalom – who would later be lionized by leftists for denouncing Israel’s presence in the West Bank in the documentary film “The Gatekeepers”– and carried out by the agency’s then-chief of operations, Ehud Yatom. In contrast, the Hebron shooting was the private initiative of a single, relatively low-ranking conscript, a sergeant.
Second, the defense establishment did its best to cover up the Bus 300 killings, and they would probably have succeeded absent that newspaper photo. In contrast, according to every media account of the Hebron incident thus far, the ranking officer on the scene reported the shooting up the chain of command less than 10 minutes after it happened, and his superiors promptly decided to open a Military Police investigation. That decision was made even before B’Tselem published its famous video of the incident.
Third, after the Bus 300 photo was published, the Shin Bet tried to frame an innocent man for the killing. That man, army officer Yitzhak Mordechai, stood trial but was ultimately acquitted. As far as we know, nothing remotely comparable happened in the Hebron case.
But the contrast becomes even starker when we consider Act II of the Bus 300 affair. It opened two years later when three senior Shin Bet officers told then-Prime Minister Shimon Peres that Shalom had ordered the killings. Peres – who also later became a leftist icon (and Nobel Peace Prize laureate) for his role in the Oslo Accords – not only refused to order an investigation but kicked the three out of the Shin Bet. They subsequently took their information to then-Attorney General Yitzhak Zamir, who did order a criminal investigation. But the government told him to drop it, and when he refused, he, too, was kicked out of office.
In the Hebron shooting, by contrast, not only has no one been fired for pursuing a criminal investigation but Prime Minister Benjamin Netanyahu and Defense Minister Moshe Ya’alon, both from the center-right Likud party, publicly demanded a full and thorough probe. That probe is currently underway, and an indictment is expected shortly.
But the crowning glory of the Bus 300 affair occurred soon after Zamir’s dismissal, when then-President Chaim Herzog – like Peres, a member of the left-leaning Labor Party (which his son, Isaac Herzog, currently heads) – forestalled any further attempts at investigation by issuing a preemptive pardon to Shalom and four other Shin Bet officers. This is the only preemptive pardon in Israel’s history; usually, pardons are granted only after someone has been indicted and convicted. Nevertheless, the Supreme Court upheld it, so nobody ever stood trial for the killings except the innocent man who was framed.
In contrast, barring some unexpected development, the Hebron shooter almost certainly will stand trial, most likely for manslaughter.
So how can anyone comparing these two incidents possibly see evidence of moral deterioration? It boils down to one claim: The Israeli public was “shocked” by the Bus 300 affair, whereas the Hebron shooter enjoys strong public support. That claim, however, ignores two important facts.
First is the fact that social media didn’t exist in 1984; if it had, it would have shown plenty of anti-Arab racism then, too. This isn’t mere speculation; 1984 is the year Meir Kahane’s subsequently banned Kach Party first entered the Knesset, and his supporters used to chant racist slogans in the streets.
The more important fact, however, is that most of the Hebron shooter’s support stems not from anti-Arab racism, but from three elements that didn’t exist in the Bus 300 case.
First, whereas the Bus 300 terrorists were already bound and harmless, the Hebron terrorist was still unbound and free to move his hands. Since wounded terrorists in similar situations have used that freedom to kill – for instance, by detonating explosive vests – many Israelis felt the soldier might well have been justified in opening fire if, as he claims, he saw a suspicious hand movement.
Second, the initial evidence against the soldier – before testimony had been taken from his comrades – consisted mainly of Palestinian video footage disseminated by B’Tselem. Since it’s hardly unknown for Palestinian videos to be edited in ways that distort the truth (for instance, by showing a soldier’s response to some Palestinian action but not the action itself, thereby making the response seem unprovoked), many Israelis were unwilling to condemn the soldier based solely on the video.
Third, many Israelis felt the soldier was badly wronged when Defense Minister Ya’alon and IDF Chief of Staff Gadi Eisenkot did immediately condemn him, without awaiting an investigation of the facts. And frankly, any self-respecting liberal ought to agree. Since Ya’alon and Eisenkot are the people who must approve every senior officer’s promotion, this constituted gross interference in the course of justice. Military prosecutors have already decided they can’t win a murder conviction, but with their bosses having publicly declared the incident a crime, they might well feel compelled to charge the soldier with something even if they would otherwise deem an indictment unwarranted.
In short, the different public reactions stemmed from serious substantive differences in the cases rather than from any major change in Israelis’ moral values. In contrast, the establishment’s behavior reflected a real change in moral values – and that change was entirely positive.
Three decades ago, an extrajudicial murder was ordered by the highest levels of the defense establishment, covered up by the highest levels of government and ultimately never investigated or prosecuted. Last month, a manslaughter (at most) was committed by a low-level soldier acting alone and immediately investigated by the military itself, with full support from the highest levels of government.
How any sane person can call that evidence of moral degeneration is beyond me. But then, as I’ve shown before, claims of Israel’s moral deterioration rarely hold up well under scrutiny.
Originally published in Commentary on April 13, 2016
Israel and its supporters have argued for years that many “human rights” organizations are far less concerned with human rights than with pushing a political agenda. But as long as that political agenda consisted mainly of attacking Israel, most Westerners remained convinced that these groups still deserved their credibility and moral haloes. Even initial forays into political issues unconnected with Israel – like Amnesty International’s controversial assertion last year that upholding human rights requires decriminalizing prostitution – didn’t destroy the halo. But by demanding that the European Union accept millions of Middle Eastern migrants rather than returning them to Turkey, these organizations have picked a political fight that millions of Europeans actually care about. And in so doing, they may be dealing their own credibility a long-deserved death blow.
The “human rights community” is outraged by the EU’s recent deal with Ankara, under which all migrants entering Europe via Turkey will be promptly returned there. The Council of Europe’s commissioner for human rights, Nils Muiznieks, declared that such “automatic forced return” is “illegal,” and the only acceptable solution is for EU countries to “ramp up the relocation of asylum seekers” into their own borders. Human rights groups similarly asserted that the deal violates international humanitarian law, inter alia, because they claim Turkey is unsafe for refugees. Amnesty, for instance, termed the deal “abhorrent.”
Then, angry over the EU’s refusal to accept their view, the organizations halted assistance to tens of thousands of migrants already in Greece. The UN High Commissioner for Refugees, Medecins Sans Frontieres, the International Rescue Committee, the Norwegian Refugee Council and Save the Children all suspended operations in Greek refugee centers to protest the deal.
There are numerous problems with the “human rights community’s” response to this deal, but let’s start with the biggest: the claim that it somehow violates international law, in the form of the 1951 Refugee Convention.
This convention was intended to ensure that anyone with a “well-founded fear” of persecution could find refuge somewhere, so as to prevent a repeat of the situation in which six million Jews were slaughtered by the Nazis because no country would let them in. But it never guaranteed anyone, much less tens of millions of people, access to the country of their choice.
Turkey, understandably, isn’t most refugees’ first choice. It’s an authoritarian country where basic rights like freedom of the press are ruthlessly suppressed; it has suffered numerous terror attacks in recent years; and it’s less wealthy than Europe. But all this makes it no worse than much of the rest of the world.
The one thing Turkey isn’t is unsafe for most refugees. It has hosted millions of Syrian refugees for years; the current tally exceeds 2.7 million. And unlike Syrians in Syria – where a brutal civil war has killed some 470,000 people since 2011 – the refugees in Turkey have survived. Turkey also grants full access to UN officials, so UNHCR could process refugee applications just as well in Turkey as it could in Greece.
Thus, if Turkey is willing to continue hosting these refugees in exchange for benefits like billions of euros and visa-free access to Europe, there’s no earthly reason why those refugees should be entitled to relocate to the EU instead. Indeed, if Turkey’s drawbacks suffice to entitle refugees to resettle in Europe, at least half the world’s population would be similarly entitled.
On this issue, the usually inapt analogy between Syrian refugees and Jews during the Holocaust is instructive. Jewish refugees from Nazi-occupied Europe certainly preferred to go to America, but they willingly fled to any country that would take them – not only impoverished, authoritarian countries in South America and Africa, but even China — then under brutal Japanese occupation. And while they didn’t have it easy, their flight accomplished its purpose: Most of those refugees, even in Japanese-occupied China, survived and could later rebuild their lives.
Similarly, refugees in Turkey don’t have it easy, but they’re surviving. Thus, relocating them to Europe isn’t necessary to fulfill the refugee convention’s goals; it’s necessary only to achieve a political purpose: remaking Europe by flooding it with millions of migrants.
But if rewriting international law to serve their political agenda weren’t bad enough, “human rights” groups then compounded the offense by hurting real human beings in order to push this agenda. Suspending aid to refugee centers in Greece won’t kill the deal; it will only make the refugees more miserable. So these groups are sabotaging refugees’ right to humanitarian assistance – a right they themselves claim the refugees have – just to make a political point.
Finally, there’s the fact that this political activism is aimed exclusively at the West. The UN and international aid organizations did not, for instance, suspend operations in government-controlled parts of Syria to protest the Assad regime’s refusal to grant them access to besieged rebel-held towns where people were literally starving to death – a far graver violation of international humanitarian law than returning asylum seekers to safe haven in Turkey. On the contrary, the UN’s Office for the Coordination of Humanitarian Affairs actively collaborated with the Assad regime to conceal the deadly impact of these sieges. In short, protesting Western “misbehavior” is so important that it even justifies withholding aid to people who need it, but far worse behavior by non-Western regimes doesn’t even merit verbal protests.
The response to the EU-Turkey deal once again proves the truism that what starts with the Jews never ends with them. With regard to Israel, the “human rights community’s” political agenda has long trumped concern with actual human rights. That’s why Amnesty, for instance, issued more than five times as many tweets one month last summer about the previous year’s Gaza war, which killed some 2,200 people, as it did about the ongoing Syrian war, which has killed 470,000: If Israel can’t be blamed, Amnesty isn’t much interested.
That’s also why Israeli organizations helping Syrian refugees in Greece discovered that while no Syrian ever refused their help, members of international “human rights” organizations did, even though the Israelis were among the few volunteers who spoke Arabic: These international “humanitarians” viewed boycotting Israel as more important than communicating with the refugees they ostensibly came to help.
Such politicization of human rights never bothered most Westerners as long as Israel was the only victim. But now that it’s being turned against Europe, perhaps the West will finally recognize the travesty that the “human rights community” has become.
Originally published in Commentary on April 4, 2016
The global firestorm that has erupted over Israel’s “NGO transparency bill” can’t be understood without knowing one crucial fact: Israel’s leading left-wing “nongovernmental” organizations are actually wholly-owned subsidiaries of the European Union and its member states. This fact, which was incontrovertibly demonstrated by a new NGO Monitor study, explains both why the bill is so important and why it is so fiercely opposed by the organizations themselves and their European funders.
As I noted in Tuesday’s post, the study examined the financial reports filed with Israel’s registrar of nonprofit organizations by 27 prominent organizations from 2010-2014. The groups include B’Tselem, Breaking the Silence, Adalah, the Association for Civil Rights in Israel, Physicians for Human Rights-Israel and many others actively engaged in trying to tarnish Israel’s name overseas. Overall, these groups raised more than 261 million shekels during those years; at current exchange rates, that comes to $66 million.
Of this total, fully 65 percent – some $43 million – came either directly or indirectly from foreign governments, primarily European ones. Foreign governments provided 20 of the 27 groups with over 50 percent of their funding, and three groups (Yesh Din, Terrestrial Jerusalem and Emek Shaveh) received over 90 percent of their funding from foreign governments. The largest donor was the EU, followed by Norway and Germany.
Moreover, this high level of European funding is absolutely unique, as demonstrated by a previous NGO Monitor report analyzing the years 2007-2010. That report found that the EU’s European Instrument for Democracy and Human Rights spends more on promoting “democracy and human rights” in “Israel and the occupied Palestinian territories” than in every other country of the Mideast combined. Indeed, the EIDHR spends more in Israel alone – excluding all the grants given jointly to “Israel and the OPT” – than it does in every other Mideast country, every Asian and Pacific country, all but one African country and all but one American and Caribbean country; grants to “Israel and the OPT” together exceed those to every other country worldwide, by a very large margin.
The “transparency bill” would require any NGO that gets more than 50 percent of its funding from foreign governments to state this clearly on any report or publication it issues, and also in any written or oral contacts with public officials. The government-sponsored version would not require representatives of these groups to wear special nametags in the Knesset; that idea was raised in a private member’s bill, but Prime Minister Benjamin Netanyahu has said it won’t be in the final legislation.
The bill’s supporters say it is similar to America’s Foreign Agents Registration Act. The U.S. Embassy in Israel disputes this, insisting that FARA applies only when groups engage in activities “at the order, request, or under the direction or control, of a foreign principal – not simply by receiving contributions from such an entity.” That claim, however, is patently false.
FARA’s actual text says a foreign agent need not be directly controlled by a foreign principal; he can also be acting “under the direction or control” of a third party “whose activities are … financed, or subsidized in whole or in major part by a foreign principal.” In other words, he could be employed by a local NGO financed “in whole or in major part” by a foreign government. Moreover, FARA says explicitly that no formal contractual relationship between the agent and the foreign principal is necessary.
Thus receiving substantial contributions from a foreign entity actually could be enough in itself to make someone a foreign agent, as long as he also engages in one of four actions specified by the law, of which the relevant one in Israel’s case is the first: engaging “within the United States in political activities for or in the interests of such foreign principal.”
The EU and its member states make no secret of the fact that getting Israel out of the West Bank is one of their top foreign policy goals. That contradicts the Israeli government’s position, which opposes further territorial withdrawals under the current circumstances.
The 20 NGOs in question similarly make no secret of the fact that getting Israel out of the West Bank is a top policy goal. B’Tselem, for instance, unambiguously titled one of its fundraising appeals “Help End the Occupation: Support B’Tselem.” Yehuda Shaul, the foreign relations director for Breaking the Silence, explicitly defined the organization in a 2014 article as “Israeli veterans who work toward ending the Israeli occupation.” And so forth.
In other words, these organizations are conducting political activity in Israel aimed at pressuring the elected government to adopt a key European policy goal, all while being financed “in major part” by European governments. That’s precisely the situation FARA’s provisions are meant to cover, and for good reason: When certain donors provide more than half an NGO’s funding, no explicit contract is needed to ensure the NGO’s compliance with its donors’ wishes; the threat of losing funding is sufficient.
But lest there be any doubt, even the explicit contractual relationship sometimes exists. Just this month, for instance, an EU-sponsored organization gave B’Tselem €30,000 to lobby the Knesset against the NGO transparency bill, which the EU openly opposes. In other words, it paid B’Tselem to lobby the Knesset to enact the EU’s preferred policies.
There’s also no doubt that these European donors are hostile to Israel. Norway – the largest individual government donor – is remarkably honest about this; its Foreign Ministry says explicitly, for instance, that it funds UNRWA, the UN agency responsible for Palestinian refugees, because it is “a guarantor that the rights of Palestine refugees, including the right to return, are not forgotten.” The “right of return,” needless to say, is Palestinian code for eliminating the Jewish state demographically by flooding it with millions of descendants of Palestinian refugees.
But the rest of Europe isn’t much more subtle. For instance, the EU recently adopted discriminatory labeling requirements that apply only to “Israeli-occupied” territory, but not to territory occupied by any other country. It gives higher priority to the Israeli-Palestinian conflict than it does to other conflicts that are not only far bloodier, but have swamped it with an unprecedented refugee crisis. And the funding it pours into Israeli NGOs – more, as noted, than it gives the rest of the Mideast combined – isn’t because it thinks a 67-year-old democracy actually needs more help with democracy promotion than the world’s dozens of dictatorships; it’s because this money isn’t aimed at promoting “democracy and human rights” at all, but at subverting the policies of Israel’s democratically elected government.
By now, I doubt there’s anyone in Israel who doesn’t know these NGOs are wholly-owned subsidiaries of European governments; indeed, the main reason they conduct so much of their activity overseas these days is that they have little credibility left in Israel. But abroad, these groups are still viewed as Israeli organizations representing an authentic Israeli perspective, and they also benefit from the NGO “halo effect.”
That is why the transparency bill is so critical, and also why both the organizations and European governments are fighting so hard to kill it: Once these groups are required to state openly, on everything they do, that they’re primarily funded by European governments, it will be possible to expose them for what they really are – not independent Israeli NGOs with Israel’s best interests at heart, but agents of a hostile foreign power that is obsessed by Israel, discriminates against it and wishes it nothing but ill.
Originally published in Commentary on January 22, 2016
During the Hamas-Israel war of 2014, both Obama Administration officials and their European counterparts repeatedly accused Israel of excessive force over the “massive” destruction of civilian property in Gaza. But if those officials retain even a shred of intellectual integrity, the recent devastation of Ramadi during a joint Western/Iraqi effort to retake the city leaves them only two options: either hand themselves over to the International Criminal Court as suspected war criminals, or publicly apologize to Israel for all the slurs they hurled at it over far less extensive damage.
As the New York Times reported last week, the successful recapture of Ramadi from the Islamic State left the city “in ruins.” Reporter Ben Hubbard described one neighborhood as “a panorama of wreckage so vast that it was unclear where the original buildings had stood.” The city has no electricity or running water, and “Many streets had been erased or remained covered in rubble or blocked by trenches used in the fighting.” When Hubbard asked an Iraqi officer how residents would return to their homes, the officer replied, “Homes? There are no homes.”
Indeed, a different Iraqi officer told the Associated Press “that more than half of the city’s buildings have been destroyed, including government offices, markets, and houses.”
This is devastation orders of magnitude greater than what Gaza suffered. According to UN figures, 9,465 homes in Gaza were completely destroyed and another 9,644 badly damaged, out of a total of roughly 319,000 (the latter figure is my own calculation based on official Palestinian statistics: Dividing Gaza’s total population of 1.82 million by its average household size of 5.7 people gives you 319,000 households). Thus even according to the UN – which traditionally exaggerates Palestinian casualties and damage – only about 6 percent of Gaza’s homes were destroyed or badly damaged. That’s a far cry from “more than half of the city” in Ramadi.
But the reasons for the destruction, in both places, are no less significant than its scope. One, as Hubbard noted, is the inherent difficulty “of dislodging a group that stitches itself into the urban fabric of communities it seizes by occupying homes, digging tunnels, and laying extensive explosives.” In Ramadi, he reported, Islamic State built tunnels under the streets and planted explosives in roads and buildings. Indeed, “Entire areas are considered no-go zones because they have yet to be searched for booby traps left by the jihadists.”
These are the same tactics Hamas used in Gaza: Tunnels, booby traps, and weapons stockpiles were placed in and under civilian buildings on a massive scale. On July 30, 2014, for instance, three Israeli soldiers were killed by “an explosion at a booby-trapped UNRWA health clinic that housed a tunnel entry shaft,” the Times of Israel reported. At the same press briefing where those deaths were announced, an Israeli officer said Hamas had thus far detonated more than 1,000 bombs, destroying “thousands of buildings” in Gaza. As an example, he cited a street the army searched the previous night in which 19 out of 28 buildings were booby-trapped.
But in Gaza, both the Obama administration and European officials blamed Israel for the ensuing destruction. In Ramadi, in contrast, both American and Iraqi officials quite sensibly “placed blame for the city’s destruction on the jihadists, who mined roads and buildings.”
The other factor in Ramadi’s devastation was airstrikes by the U.S.-led coalition. As AP reported, these strikes “smashed large parts of the city into rubble.” Nor is that surprising: When a target area is extensively booby-trapped, even precision airstrikes often cause greater-than-expected damage, because the attacking force can’t know which buildings are wired with explosives, and hitting a wired building will set off massive secondary explosions. Yet airstrikes are unavoidable when fighting militants entrenched in a sea of tunnels and booby-trapped buildings, because using ground troops alone would result in unacceptably high losses for the attacking force.
Consequently, a Pentagon spokesman correctly blamed Islamic State (also known as ISIS or ISIL) for the damage to Ramadi: “One hundred percent of this is on ISIL because no one would be dropping any bombs if ISIL hadn’t gone in there,” Colonel Steven H. Warren told Hubbard.
Yet in Gaza, both the Obama Administration and European officials largely blamed the damage on Israel rather than Hamas, even though Israeli airstrikes were employed for the exact same reason, sometimes caused greater-than-expected damage for the exact same reason, and obviously wouldn’t have been launched at all had Hamas not attacked Israel to begin with. Indeed, Israel’s airstrikes were arguably far more justified than America’s were: Islamic State wasn’t firing missiles at America from Ramadi or digging attack tunnels into American territory from Ramadi. In contrast, Hamas had fired thousands of rockets at Israel from Gaza over the previous decade and dug dozens of cross-border attack tunnels, including one that notoriously emerged right next to a kindergarten.
Ramadi, incidentally, is far from the only example of the way the Obama Administration and Europe hold Israel to a double standard. On Monday, the Elder of Ziyon blog highlighted another one: According to the Herald Scotland, “The British government is refusing to accept evidence of civilian fatalities in UK air strikes from human rights groups monitoring the results of bombing raids” in Syria and Iraq; instead, it relies exclusively on “evidence from its own internal surveillance.” But that same government uncritically accepted NGO reports saying that almost 70 percent of Palestinian casualties in Gaza were civilian, even though Israel scrupulously investigated those reports and found that in reality, about half the casualties were documented members of either Hamas’ military wing or smaller terrorist organizations like Islamic Jihad.
I don’t really expect any Obama Administration or European official to admit to having unjustly criticized Israel during the Gaza war. But any fair-minded person comparing the devastation of Ramadi to that in Gaza should reach the same conclusion a group of high-ranking Western military experts did in a comprehensive report issued last month: that during the Gaza war, Israel “met and in some respects exceeded the highest standards we set for our own nations’ militaries.”
Originally published in Commentary on January 13, 2016