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