Legal Issues
Responding to today’s Times of Israel interview with Fatou Bensouda, prosecutor of the International Criminal Court, legal expert Eugene Kontorovich tweeted, “you got to ask #Bensaouda questions & didnt ask about an inquiry into settlements in Cypru[s]?” But Bensouda could actually offer a reasonable response to this challenge about double standards. The people who couldn’t – and who should therefore be hounded about it at every conceivable opportunity – are senior European Union officials who insist that any facilitation of Israeli activity in the “occupied West Bank” is illegal, yet happily facilitate Turkish activity in occupied Northern Cyprus, Moroccan activity in occupied Western Sahara, Chinese activity in occupied Tibet, and much more.
Just today, Reuters revealed that an influential European think tank is urging the EU to go beyond its current drive to label Israeli settlement products and impose numerous additional sanctions, from restricting interaction between European banks and Israeli banks that do business in the settlements (i.e. all of them) to refusing to recognize degrees from Israeli educational institutions in the West Bank. The European Council of Foreign Relations is technically an independent organization, but, as Reuters correctly noted, its “proposals frequently inform EU policy-making.” In 2013, the council proposed five different measures against Israeli activity in the West Bank; two years later, three of the five have been largely adopted, either by the EU itself or by individual member states: excluding settlement produce from EU-Israel trade agreements, severing contact with Ariel University (which is barred from the EU’s Horizon 2020 research program) and advising European companies against doing business in the settlements.
But as Kontorovich has pointed out repeatedly, the EU has no qualms about facilitating activity in other territories that it deems occupied. For instance, the EU has an entire program to direct funding to Turkish-occupied Northern Cyprus; inter alia, the program finances infrastructure projects, scholarships for students and grants to businesses. And lest one think this is equivalent to EU projects to help Palestinians, think again: Turkish settlers, who constitute anywhere from 20 to 50 percent of the population (depending on whose estimates you believe), are eligible; nor is the program barred from funding projects that directly or indirectly benefit these settlers. That’s in sharp contrast to the West Bank, where European countries refuse to fund any project that might benefit Israeli settlers, even if it benefits the Palestinians far more.
Similarly, Kontorovich noted, the EU reached an agreement with Morocco in which it actually pays Morocco for access to fisheries in Moroccan-occupied Western Sahara. In short, the EU is paying the occupier for the right to deplete the occupied territory’s natural resources.
And, of course, numerous European companies and organizations do business in such territories; from French conglomerates like Total and Michelin to British universities.
Nor can the EU argue that Palestinians are unique in objecting to such activity. Indeed, the PLO’s Western Saharan counterpart, the Frente Polisario, is currently suing in the Court of Justice of the European Union over the Morocco fisheries agreement, yet the EU is vigorously defending the deal.
Moreover, Israel has a far stronger legal claim to the West Bank than do any of the “occupiers” the EU has no problem doing business with. The League of Nations awarded this land to a “Jewish national home,” and that international mandate was preserved by the UN Charter’s Article 80; the territory had no other recognized sovereign when Israel captured it from an illegal occupier (Jordan) in a defensive war; and UN Security Council Resolution 242 explicitly reaffirmed Israel’s right to keep at least part of the captured territory. Thus if the EU were going to discriminate among “occupied territories,” it should by rights discriminate in Israel’s favor rather than against it.
Bensouda could reasonably respond that a prosecutor has no business commenting on hypotheticals; she can only address actual cases that arrive on her doorstep. But the EU can’t use the excuse that the issue is hypothetical; it’s already neck-deep in discriminatory treatment.
This issue should, therefore, be raised with every EU official at every possible opportunity – by Israeli officials, journalists, and American Jewish leaders. It might not influence EU policy, but at least it would lay bare to the world what actually lies behind it. There’s a name for treating Jews differently than all other peoples. It’s called anti-Semitism.
Originally published in Commentary on July 22, 2015
Any legal case has two main components – the facts and the law. In my last post, I analyzed the International Criminal Court’s disregard of salient facts in its ruling on Thursday overturning the chief prosecutor’s decision not to investigate Israel’s botched raid on a 2010 flotilla to Gaza. But the ruling was equally contemptuous of several fundamental legal principles.
The first of these is that judicial decisions should be dictated by law, not politics. The majority judges threw this principle out the window when they asserted that whether the alleged crime was sufficiently grave to merit ICC attention should depend not on what actually happened, but on the amount of “attention and concern that these events attracted” from the international community, as reflected in “several fact-finding efforts on behalf of States and the United Nations.” In other words, the ICC’s choice of cases will depend not on their objective legal merits, but on how many resolutions the dictators who dominate the U.N. Human Rights Council decide to devote to it.
As legal scholar Eugene Kontorovich aptly noted, the ICC is thereby “saying ‘drop dead’ to victims U.N. not interested in,” which is a travesty in and of itself: It means the court will spend its scarce resources investigating 10 people killed while attacking soldiers intercepting a blockade-busting flotilla, but ignore – to cite just one example – the tens of thousands of Syrian civilians killed by their own government’s barrel bombs.
No less appalling, however, is that this is a standard of justice used only in the most benighted regimes: Prosecutions will be based on neither facts nor law, but solely on whether they serve the interests of the politicians in power.
The second fundamental legal principle the decision guts is that the same person shouldn’t be prosecutor, judge and jury. Since a prosecutor is obviously invested in his own case, he cannot be an impartial judge.
But the ICC judges, sitting as a “pre-trial chamber,” decided to actively force the prosecutor to pursue an investigation she considered unjustified (technically, they only ordered her to “reconsider” her decision, but in practice, that order leaves her little choice). Thus the court is no longer an impartial arbiter between prosecution and defense; it is now actively invested in the success of the case.
This blurring of boundaries is justifiable only in extraordinary circumstances. That is why, as Judge Peter Kovacs noted in his dissent, “the Pre-Trial Chamber’s role is merely to make sure that the Prosecutor has not abused her discretion” – or at least, it ought to be. Instead, the majority decided to leave her no discretion at all.
Finally, the court ignored the law itself. As Kovacs also noted in his dissent, customary international law explicitly allows countries to enforce a lawful blockade, including by force if necessary. The blockade of Gaza is legal according to one of the very U.N. fact-finding committees the majority cited in its decision. And force was necessary in this case, since the ship refused repeated orders to halt and then attacked the Israeli boarding party with “fists, knives, chains, wooden clubs, iron rods, and slingshots with metal and glass projectiles.” Thus the casualties “were apparently incidental to lawful action taken in conjunction with protection of the blockade,” and as such, it’s likely that “most if not all of those acts will not qualify as war crimes.”
Yet the majority judges’ opinion doesn’t even mention the laws of blockade much less discuss their application to this case. Evidently, they consider customary international law irrelevant to their decisions.
In my earlier post, I compared the majority ruling to something out of Alice in Wonderland. And in fact, the three elements cited above are precisely the elements that make the Queen of Hearts’ courtroom so arbitrary: The law is irrelevant; judgment depends solely on the whim of the rulers; and the same person is prosecutor, judge and jury.
But the Queen of Hearts is actually preferable, because at least she’s honest about the arbitrary nature of her decisions: “Sentence first – verdict afterwards.” The ICC maintains an expensive taxpayer-funded legal bureaucracy in an effort to disguise it.
Originally published in Commentary on July 20, 2015
If the International Criminal Court ever had any pretensions of being a serious legal institution, they were effectively demolished by yesterday’s ruling overturning Prosecutor Fatou Bensouda’s decision not to investigate Israel’s botched raid on a 2010 flotilla to Gaza. Reading the ruling feels like falling down the rabbit hole straight into the Queen of Hearts’ courtroom, for many reasons. But here’s the one I found most astonishing: In a 27-page document devoted almost entirely to discussing whether the alleged Israeli crimes were grave enough to merit the court’s attention, not once did the majority judges mention one of the most salient facts of the case: that flotilla passengers had attacked the Israeli soldiers with “fists, knives, chains, wooden clubs, iron rods, and slingshots with metal and glass projectiles,” causing nine soldiers serious injuries.
That fact appeared only in Judge Peter Kovacs’ dissent. Anyone reading the majority decision would conclude that the soldiers opened fire for no reason whatsoever.
This is not a minor detail; it was central to Bensouda’s decision to close the case. She noted that the soldiers opened fire, ultimately killing 10 passengers, aboard only one of the flotilla’s seven ships – the one where passengers attacked them. That strongly indicates there was no deliberate plan to kill civilians; rather, the soldiers intended to peacefully intercept all the vessels, and the killings were the unpremeditated result of a chaotic combat situation that unexpectedly developed aboard one ship. Or in her words, “none of the information available suggests […] the intended object of the attack was the civilian passengers on board these vessels.”
The majority judges, however, dismiss that conclusion, asserting that the lack of casualties aboard the other ships doesn’t preclude the possibility that soldiers intended from the outset to kill the Mavi Marmara’s passengers. They then offer a string of wild suppositions to explain why soldiers might have wanted to perpetrate a massacre aboard that ship but not the others. Perhaps, they suggest gravely, it’s because the Mavi Marmara carried the most passengers. Or, perhaps because it carried no humanitarian aid. In any event, the soldiers clearly used more violence against the Mavi Marmara than against other ships that also refused their orders to halt, so “It is reasonable to consider these circumstances as possibly explaining that the Mavi Marmara was treated by the IDF differently from the other vessels of the flotilla from the outset.”
But of course, the only way to make that unsupported speculation remotely plausible is by ignoring the fact that the Mavi Marmara was the only ship whose passengers brutally attacked the soldiers. Once you acknowledge this fact, it’s obvious that it’s a far more likely explanation for the ship’s different treatment than any of the majority judges’ outlandish theories.
So how do they get around this problem? Very simply: by refusing to admit the fact’s existence. At no point in those 27 pages do they ever acknowledge that the passengers attacked the soldiers. And then, having obliterated the actual reason why the soldiers opened fire from the record, they can accuse Bensouda of having erred by not considering their alternate-universe theory that the soldiers opened fire out of malice aforethought.
In the Queen of Hearts’ courtroom, the rule is “Sentence first – verdict afterwards.” The ICC judges, in contrast, are perfectly willing to let the verdict precede the sentence; they merely insist that said verdict exclude any evidence which might contradict their preconceived conclusions.
And, in that case, the Queen of Hearts’ approach actually makes much more sense. If you already know what the verdict is going to be, it’s much more efficient to move straight to the sentence. At least that way you don’t waste taxpayers’ time and money on lengthy legal proceedings.
Originally published in Commentary on July 17, 2015
The hypocrisy of the claim that flotillas to Gaza are a “humanitarian” endeavor has now been fully exposed: As Jonathan Tobin noted last week, the latest proved to be carrying a mere two cardboard boxes worth of aid. But pro-Palestinian activists are also guilty of an even more egregious form of hypocrisy: They proclaim all anti-Israel U.N. decisions to be binding international law, but openly flout U.N. decisions that happen to be in Israel’s favor. The Gaza flotillas are a perfect example.
According to the flotilla activists, their goal was “to break the illegal blockade on Gaza.” But a blue-ribbon international commission appointed by U.N. Secretary General Ban Ki-moon in 2010 concluded that the blockade is in fact a “legitimate security measure” that fully complies with international law. So the same activists who lambaste Israel for noncompliance with anti-Israel U.N. resolutions – like those against the settlements, or the one ostensibly granting Palestinian refugees a “right of return” to Israel – feel it’s perfectly fine for them to ignore U.N. decisions that don’t serve their cause.
Nor is the Gaza blockade the worst example. Far more egregious is the way pro-Palestinian activists – and indeed, every country in the world except Israel – simply ignores U.N. Security Council Resolution 242, despite it being hands-down the most frequently cited resolution relating to the Palestinian-Israeli conflict.
That resolution was deliberately worded to allow Israel to retain some of the territory it captured in 1967. This isn’t mere speculation; the American and British ambassadors to the U.N. at the time, who drafted the resolution, both said explicitly that this was the purpose of its wording. And as legal expert Eugene Kontorovich noted in a terrific analysis in December, the same conclusion emerges from a comparison of 242 to 18 other U.N. resolutions demanding territorial withdrawals. He discovered that 242’s demand for a withdrawal from unspecified “territories,” rather than from “the territories” or “all the territories” or “the whole territory” or to the status quo ante, is unique. And this reinforces the conclusion that the drafters indeed intended to allow Israel to retain some of the territory rather than ceding it all.
Yet today, both America and Britain – along with the entire rest of the world – simply ignore this resolution and insist that Israel must retreat to the pre-1967 lines.
To be clear, I would have no problem with ignoring the U.N. altogether; it’s an organization dominated by dictators that no self-respecting democracy should legitimize, so a principled refusal to honor any of its decisions would be eminently understandable. I’d also have no problem with a position rooted in genuine international law, which is that U.N. decisions are binding and enforceable only when adopted by the U.N. Security Council under Chapter VII. That’s what’s actually written in the U.N. Charter, and what U.N. member states agreed to when they signed the charter, and therefore, no state ever made a legal commitment to obey any other U.N. decision.
But pro-Palestinian activists selectively treat U.N. decisions that favor their cause as “binding international law” while simply ignoring decisions that don’t favor their cause. And that position makes a travesty of the most fundamental principle of any kind of law: that it must apply equally to all parties in all cases, regardless of whether it helps or hurts a particular cause.
Thus, anyone who claims to support international law should be the first to denounce this abuse of U.N. decisions. And the fact that so many self-proclaimed advocates of international law instead lend tacit support to this travesty is precisely why no self-respecting person should accept their interpretation of anything.
Originally published in Commentary on July 5, 2015
In the four days since the UN Human Rights Council published its report on last summer’s war in Gaza, commentators have pointed out numerous ways in which it is bad for Israel, the Palestinians and the prospects of a two-state solution. But focusing solely on the local consequences obscures the fact that this report is part of a broader campaign with much more ambitious goals: depriving the entire West of any conceivable weapon – military or nonmilitary – against terrorist organizations and thereby leaving it no choice but capitulation. And though the UN report captured all the attention, the assault on nonmilitary means was also active this week.
On the military side, the goal was already clear last week, thanks to an interview by Israel’s Channel 2 television with international law expert William Schabas, who headed the HRC’s Gaza inquiry until being forced out in February over a conflict of interests. “It would be a very unusual war if only one side had committed violations of laws of war and the other had engaged perfectly,” he declared. “That would be an unusual situation and an unusual conclusion.”
In other words, it’s virtually impossible for any country fighting terrorists to avoid committing war crimes, however hard it tries, because as currently interpreted by experts like Schabas, the laws of war are impossible for any real-life army to comply with. Thus, a country that wants to avoid international prosecution for war crimes has no choice but to avoid all wars; its only option is capitulation to the terrorists attacking it.
The report ultimately issued by Mary McGowan Davis, who took over the inquiry after Schabas resigned, achieved his goal through a neat trick: replacing the presumption of innocence – the gold standard for ordinary criminal proceedings – with a presumption of guilt. As Benjamin Wittes and Yishai Schwartz noted in their scathing analysis for the Lawfare blog, despite admitting that Hamas routinely used civilian buildings for military purposes, the report nevertheless concluded that any attack on a civilian building is prima facie illegal absent solid proof that the building served military purposes.
But as the report itself admits in paragraph 215, in a quote attributed to “official Israeli sources,” such proof is virtually impossible to produce, because “forensic evidence that a particular site was used for military purposes is rarely available after an attack. Such evidence is usually destroyed in the attack or, if time allows, removed by the terrorist organisations who exploited the site in the first place.”
In short, it’s impossible for any country to comply with the laws of war when fighting terrorists, because it will be presumed guilty unless proven innocent, and the only evidence acceptable to prove its innocence is by definition unobtainable. And lest anyone miss the point – or labor under the delusion that this precedent won’t be applied to other countries as well – Davis underscored it in a subsequent interview with Haaretz. Asked what solution international law does offer “to a situation in which regular armies of democratic countries fight against terror organizations in the heart of populated areas,” she replied scornfully, “My job is not to tell them how to wage a war.” The claim that “international law needs to develop standards that more accurately deal with military operations” is unacceptable, she asserted; the only acceptable changes are “to make protection of civilians stronger” and thereby make waging war even more impossible.
But the self-appointed interpreters of international law are targeting nonmilitary tools against terrorism no less vigorously, as another development this week made clear. Responding to a bill approved by Israel’s cabinet last week to allow jailed terrorists on hunger strike to be force-fed, the UN’s under-secretary-general for political affairs declared that such legislation would be “a contravention of international standards.” The Israel Medical Association’s ethics chairman similarly declared the bill a violation of international law, saying force-feeding has been defined as a form of torture.
Yet letting hunger-striking prisoners die in detention is equally unacceptable to the self-appointed experts. So what solution does that leave? MK Michal Rozin of the left-wing Meretz party put it perfectly: “Instead of force-feeding them, which humiliates them and puts their lives at risk, we must address their demands.” After all, if you can neither force-feed them nor let them die, capitulation is the only option left.
Thus the bottom line is the same as that emerging from the UN’s Gaza inquiry: International law leaves democracies no options in the face of determined terrorists except capitulation. You can’t fight them, because then you’re guilty of war crimes. But you also can’t arrest and jail them, because they can simply start a hunger strike, which entitles them to a get-out-of-jail-free card.
The result, as Prof. Amichai Cohen perceptively noted in a report submitted to Davis’ commission, is that these self-appointed experts are destroying the very idea of international law with their own two hands. Because why should Israel – or any other country – make an effort to comply with international law “if the international system itself does not recognize [the effort’s] efficiency?”
Originally published in Commentary on June 26, 2015
Israel’s abortion policy is an all-too-rare example of a compromise that gives both sides something important
I don’t think something should be news just because the New York Times tries to make it so by publishing an accusatory op-ed. But if you want to write about a topic that almost never makes headlines in Israel, you have to seize any opportunity. And Israel’s abortion policy is worth writing about, because it’s an all-too-rare example of a compromise that gives something important to both sides in a case where Jewish and liberal values clearly conflict.
I admit I once thought otherwise. Raised on America’s abortion wars, in which both sides take absolutist positions, I initially scorned Israel’s policy as institutionalized hypocrisy. And in some ways, it is: Whereas the letter of the law declares abortion legal only in exceptional cases, its application in practice makes abortions available to virtually anyone who wants one. But that tension between theory and practice – or hypocrisy, if you will – is precisely what makes the policy one both sides can live with.
By law, abortions require the approval of a committee comprised of two doctors and a social worker. These committees (which all hospitals have) can approve abortions only in the first 24 weeks of pregnancy; after that, a special exceptions committee must authorize the procedure. And at any stage, approval is possible only if one of the following criteria applies: the woman is under 18 or over 40; the pregnancy stems from rape, incest or an extramarital affair; the baby is liable to be physically or mentally impaired; or the pregnancy endangers the woman’s physical or mental health.
But in practice, as Yair Rosenberg wrote in Tablet last week, 98 percent of all abortion requests are approved; these criteria – especially the one about the woman’s mental health – are flexible enough that some committee can always be found to say yes. Moreover, he noted, since abortions that meet the criteria can be approved anytime, they end up being easier to obtain here than in many liberal European countries, where limits on later-term abortions are much stricter.
The result is that while neither the liberal nor the Jewish side gets everything it wants, both get something important. Liberals get the fact that almost anyone who wants an abortion can get one, even in cases where Jewish law wouldn’t permit it; but they don’t get a legal “right” to an abortion, nor is the fetus deemed merely part of a woman’s body, subject to her full control. Religious Jews get a law which sends a clear message that destroying a potential life is justified only in exceptional circumstances; but in practice, they must accept many abortions that don’t meet that standard.
What Mairav Zonszein decried in her New York Times op-ed was the Jewish side of this compromise. Her own abortion was approved instantly. But because she sees abortion as “pertaining strictly to my own body,” she finds the very idea of needing approval objectionable. And that view is precisely what the law is meant to counter. By requiring women to obtain approval, it effectively says: “You may have an abortion if you want it, but you may not pretend that destroying a potential life is no different than removing a wart from your finger – something ‘pertaining strictly to your own body,’ to be done solely at your own discretion.”
And for most Israelis, the compromise clearly works; that’s why abortion is such a non-issue in Israel. It works for those who want abortions because they can get them. And it works for those who oppose abortions because its message about the value of life seems to be effective. At 117 abortions per 1,000 live births, Israel’s abortion rate in 2013 was lower than in any European country except Croatia. And its fertility rate, even excluding the Haredim, is the highest in the developed world; it’s the only Western country with a birthrate above replacement rate.
The compromise is possible because Jewish law doesn’t believe life begins at conception, and therefore doesn’t consider abortion murder. It’s hard to compromise over murder. But in Jewish law, a fetus is only a potential life – one that shouldn’t be destroyed without cause, but lacks the status of an actual life. Thus Jewish law actually mandates abortion if the mother’s life is endangered; an existing life takes precedence over a potential one. And some rabbis permit abortion if pregnancy endangers the mother’s mental or emotional health.
But similar compromises are possible in other areas where liberal and Jewish values clash, and we should be striving to find them. One possible example is the recent Shabus project to provide bus service on Shabbat in Jerusalem.
As an Orthodox Jew, I’d prefer no buses on Shabbat. Nevertheless, the Shabus project is as respectful of Orthodox sensitivities as any service that violates Shabbat could possibly be. It’s a private organization, so the state isn’t lending its imprimatur to violating Shabbat. It’s a co-op in which people purchase membership and then ride for free, so no money changes hands on Shabbat. And it employs non-Jewish drivers, so Jews aren’t working on Shabbat.
Granted, the organizers spoiled the picture by declaring that they hope to eventually eliminate all these restrictions. But as it stands, it’s precisely the kind of compromise that, like the abortion law, concedes something important to both liberal and Jewish values. For the liberal side, there’s transportation on Shabbat for those who want it, albeit not state-sponsored and more limited than the weekday bus service. For the Jewish side, there’s the effort to minimize Shabbat violations, and more importantly, the fact that Shabbat legally remains a day of rest rather than just another workday.
Both religious and liberal Jews would rather Israel conform fully to their very different visions. But since we have to live together in the same state, finding practical compromises that both sides can tolerate is infinitely preferable to fighting endless culture wars that never resolve anything. The abortion law is a model of what such a compromise should be, and shows just how much tension such compromises can alleviate. Our legislators should strive to imitate it on other issues.
Originally published in The Jerusalem Post on June 22, 2015
Over the past two months, Amnesty International has quietly confirmed nearly all of Israel’s main claims about Hamas’s conduct during last summer’s war in Gaza. Yet the organization still lacks the intellectual honesty to admit that its findings about Hamas completely undercut its main allegations against Israel – made vociferously both at the time and in a series of reports last fall and winter.
Amnesty turned its attention to Hamas only after months of reporting on alleged Israeli crimes. First came a March report on Hamas’s rocket fire, then one this week on its extrajudicial killings of alleged collaborators. Each undercuts a key claim against Israel.
The most interesting finding in the March report was that Hamas’s rockets killed more civilians in Gaza than they did in Israel. Altogether, Amnesty said, the rockets killed six Israeli civilians and “at least” 13 Palestinian civilians. Where did the latter figure come from? From a single misfired rocket that killed 13 civilians in the Al-Shati refugee camp. In other words, Amnesty didn’t bother checking to see whether other Hamas rockets also killed civilians; it simply cited the one case it couldn’t possibly ignore, because it was reported in real time by a foreign journalist at the scene.
But according to Israel Defense Forces figures, roughly 550 rockets and mortars fired at Israel fell short and landed in Gaza, including 119 that hit urban areas. And it defies belief to think those other 549 rockets and mortars produced no casualties.
After all, unlike Israel, Gaza has no civil defense system whatsoever. A 2014 study found that Israel’s civil defense measures reduced casualties from the rocket fire on sparsely populated southern Israel by a whopping 86%. But Gaza has no Iron Dome to intercept missiles, no warning sirens to alert civilians to incoming rockets, and no bomb shelters for civilians to run to even if they were warned. Thus in densely populated Gaza, with no civil defense measures, those misfired rockets would almost certainly have killed at least dozens, and quite possibly hundreds, of civilians.
One of the main claims against Israel made by Amnesty and other human rights groups is that it caused excessive civilian casualties. Most such groups simply parrot the UN claim (which came straight from Gaza’s Hamas-run Health Ministry) that 67% of the 2,200 casualties were civilians; Israel has consistently said the civilian-to-combatant kill ratio was roughly 1:1. While there are many reasons to think the Israeli figure is closer to the truth, even the UN/Palestinian ratio of 2:1 would be drastically lower than the international norm of 3:1.
But once you acknowledge that some portion of those civilian casualties was actually caused by misfired Hamas rockets rather than Israeli strikes, then the claim of excessive civilian casualties becomes even more untenable. Indeed, it means the civilian-to-combatant fatality ratio from Israeli strikes was likely even below 1:1.
Then there’s Amnesty’s report this week on Hamas’s extrajudicial executions. Its most interesting finding, as Elhanan Miller reported in the Times of Israel, is that “Hamas used abandoned sections of Gaza’s main hospital, Shifa, ‘to detain, interrogate, torture and otherwise ill-treat suspects, even as other parts of the hospital continued to function as a medical center.’”
That goes to the heart of the other main allegation against Israel made by Amnesty and its fellows: that Israel repeatedly targeted civilian buildings rather than sticking to military targets. Israel countered that these “civilian” buildings doubled as military facilities – weapons storehouses, command and control centers, etc. – and were, therefore, legitimate military targets, but human rights groups pooh-poohed that claim.
Now, however, Amnesty has admitted that Hamas used Gaza’s main hospital as a detention, interrogation and torture center. And if Hamas was misusing a hospital in this way, it defies belief to think it wasn’t similarly misusing other civilian buildings for military purposes. Once you admit that Hamas did so once, there’s no reason to think it wouldn’t do so again. And, in that case, the allegation that Israel wantonly attacked civilian structures also collapses.
Thus in its reports on Hamas, Amnesty has effectively demolished its two main allegations against Israel. And if it had a shred of honor and decency left, it would admit it. But, needless to say, I’m not holding my breath.
Originally published in Commentary on May 28, 2015
It’s not hard to find examples of double standards against Israel; COMMENTARY has published two examples, from academia and sport, just in the last two days. But it’s worth reiterating that such incidents are made possible not by the rabid Israel-haters, who remain a small minority, but by all the “good” people who know better yet are too intimidated to speak out. Nowhere is this more evident than in the so-called human rights community. And Exhibit A is the exception that proves the rule: Jacques de Maio, who heads the International Committee of the Red Cross delegation in “Israel and the Occupied Territories.”
The ICRC has produced its share of Israel-haters, but De Maio certainly isn’t one of them. Not only does he realize that Israel isn’t the Great Satan it’s generally portrayed as by “human rights” activists, but he’s even willing to say so occasionally – which makes him far braver than many of his colleagues. Yet even this braver-than-average member of the human rights community feels so intimidated that whenever he does say something positive about Israel, he feels the need to apologize. So you get astounding statements like this tweet from last November: “It may seem provocative, but I would contend that humanitarian access in Israel & OT is, comparatively, outstandingly good.”
The mind simply boggles. It’s “provocative” to state the simple fact that Israel, like any Western democracy, allows humanitarian aid groups relatively unfettered access? In his next tweet, De Maio added, “I can think of no other context where we operate worldwide where access for humanitarian organizations is as good as it is here.” Yet if that’s the truth, why should it be “provocative” to say so? Shouldn’t it be as natural for human rights organizations to praise countries for enabling their access as it is to criticize them for not doing so?
But of course, when it comes to Israel, it isn’t. After all, in the “human rights” community to which De Maio belongs, the loudest voices are people like Human Rights Watch director Ken Roth, who famously criticized Israel last month for sending the world’s largest medical team, 30 percent of all foreign medical personnel, to help victims of Nepal’s earthquake. In a world where “human rights activists” slam Israel even for providing humanitarian relief – though Roth has yet to explain how he thinks the world would be a better place had Israel failed to do so – it’s clearly not a given to praise it for enabling humanitarian access. So De Maio apologizes for telling the truth. And untold numbers of his less courageous colleagues choose the easier route of not telling it at all.
Nor is it Israel alone that pays the price for their silence – something else De Maio understands quite well. “Why is there so much more focus on Israel than on Syria [and] other places where many more civilians are dying?” he demanded in December. “In other ongoing wars, more civilians die in one week than in Israeli wars in a full year.” Yet even the braver-than-average De Maio made that statement at a conference in Israel, the one place it’s relatively “safe” to say such things. And untold numbers of his less courageous colleagues will never say it at all.
So all the people worldwide who truly need humanitarian assistance – in Syria and “other places where many more civilians are dying” – will continue having their pleas for help go unheard, because the only “human rights” activists raising their voices are the ones obsessed with Israel. The others are too busy proving, yet again, that all that’s needed for evil to triumph is for good men to do nothing.
Originally published in Commentary on May 11, 2015
Likud’s proposed bills wouldn’t harm judicial independence, only the court’s excess powers
Prime Minister Benjamin Netanyahu has said his new government aspires to enact legislation to restrain the Supreme Court. But this weekend, his spokesman said Netanyahu “consistently championed the independence of Israel’s judiciary” for three terms and will “do so vigorously during his fourth term as well.”
So one of those two statements is clearly a lie – at least according to former Supreme Court President Aharon Barak, current Supreme Court President Miriam Naor, Attorney General Yehuda Weinstein and President Reuven Rivlin, all of whom last week assailed the Likud party’s proposals as undermining the court’s independence and even democracy itself.
Yet in reality, both of Netanyahu’s statements are true. The only lie is his critics’ claim that the bills would undermine either judicial independence or democracy.
The first bill would alter the way Supreme Court justices are chosen. Currently, Israel’s system is unique in the Western world. Justices are chosen by a nine-member committee on which the legal establishment, rather than elected officials, constitutes the majority. It consists of two ministers, two MKs, two Bar Association representatives and three sitting justices.
Moreover, sitting justices have veto power over the choice of their successors. Supreme Court appointments need at least seven votes, so anyone the three sitting justices oppose has no chance.
No other Western democracy gives sitting justices any role in choosing their own successors, much less veto power. Indeed, most entrust Supreme Court appointments solely to the people’s elected representatives. In America, the president appoints justices and the Senate confirms them; in Germany, parliament’s upper and lower houses each select half the justices; in France, the president appoints nine of 15 justices while the head of each parliamentary house appoints three; in Switzerland, parliament selects the justices; in Sweden, the cabinet does; in Australia, Canada, Belgium and Norway, justices are appointed by the monarch but either nominated or approved by the cabinet.
Yet nobody accuses those countries of being undemocratic, or their courts of lacking independence. And for good reason: Once chosen, justices serve for life or until mandatory retirement; they can neither be dismissed nor reappointed. Hence they’re free to rule as they see fit without fear of consequences.
In Israel, justices similarly serve until age 70 and can’t be dismissed, making them completely independent. And the proposed reform wouldn’t change this.
What it would do is reduce the justices’ power to choose their own successors, by boosting the appointment committee to 11 members, with six politicians instead of four. The legal establishment would retain five seats, so it would still have more influence over Supreme Court appointments than other democracies allow. But politicians would constitute a narrow majority of the panel rather than a minority, and the justices would lose their veto, since seven votes would be obtainable without them.
This would not only bring Israel’s system more into line with Western norms, but would also reduce the court’s stultifying lack of ideological diversity. Currently, because justices essentially select their own successors, candidates who don’t share the majority’s views are rarely appointed. This has generated growing distrust of the court among Israelis who don’t share its dominant worldview: Only 56 percent of Israeli Jews voiced confidence in the court in 2013, down from 80% in 2000. And since few things are more corrosive to democracy than lack of trust in the judicial system, increasing the court’s ideological diversity would actually bolster democracy.
The second bill would let the Knesset override Supreme Court rulings declaring laws unconstitutional – something Canada also permits. This wouldn’t reduce the court’s independence to rule as it pleases, but clearly would reduce its power to impose its views on parliament. I’ve explained in a previous column why, given Israel’s unique constitutional situation, this isn’t anti-democratic, although I’m not convinced it’s good policy.
But the bill would also bar the court from overturning laws to begin with unless at least nine justices – a mere 60% of the court’s complement of 15 – deem the law unconstitutional. And that’s excellent policy.
Today, laws can be overturned by one-vote majorities of three-member benches. But if the court itself is almost evenly split over a law’s constitutionality, there’s clearly more than one plausible legal interpretation. And if there’s more than one plausible interpretation, it makes sense to prefer the one chosen by the Knesset, the body that actually wrote the Basic Laws that the court (wrongly) treats as Israel’s constitution. When serious doubt exists about the “correct” interpretation – which it clearly does if less than 60% of the court concurs – the lawmaker should get the benefit of this doubt.
Clearly, these two reforms dovetail: If the revised judicial appointment system creates greater ideological diversity on the court, it would be harder to muster nine justices to overturn legislation. And that’s precisely as it should be: In a democracy, where the people are supposedly sovereign, unelected justices should overturn decisions by the people’s elected representatives only in exceptional cases.
This brings us back to the straw man of the court’s independence. Judicial independence is indisputably essential; a country where courts merely obey government dictates is a dictatorship, not a democracy. Hence by claiming that Netanyahu’s proposals would undermine judicial independence, his critics seek to tar them as something no democracy could countenance.
But what these critics are really trying to protect isn’t the court’s independence, but its excessive power – a power without parallel in any other democracy, in which justices first choose their own successors to create an ideologically-uniform court, then seek to impose this ideology on the country by asserting a right to overturn government decisions and/or legislation on virtually every important policy issue: immigration and citizenship (for instance, whether Israel can deny entry to enemy nationals), budgetary priorities (such as whether welfare payments can be cut), family matters (from recognizing gay couples to criminalizing spanking), and military tactics during wartime (i.e. targeted killings of terrorists). In short, what Israel has now in many respects isn’t democracy, but rule by unelected justices.
All the proposed reforms would do is return a tiny fraction of this power to the people’s elected representatives. And Israel’s democracy would be the greatest beneficiary.
Originally published in The Jerusalem Post on May 5, 2015
I know it’s been a busy two weeks, but I’m still waiting for that apology. I’ve been waiting for it ever since the U.S. admitted on April 23 to accidentally killing two Western hostages in Pakistan, and doubly so after a U.S. airstrike allegedly killed 52 civilians in Syria last Friday. Clearly, I don’t expect an apology for the fact that American forces are composed of men rather than angels, and therefore sometimes makes mistakes. But I certainly do expect an apology for the Obama Administration’s refusal to acknowledge that so are Israel’s forces. In the administration’s view, Israel never makes honest mistakes. If Israel inadvertently kills civilians in wartime, then it wasn’t trying hard enough not to do so.
We don’t yet know what happened in Syria, but the drone strike on an al-Qaeda compound in Pakistan is instructive. Administration officials told the New York Times that the CIA had “no idea that the hostages were being held there despite hundreds of hours of surveillance.” Yet they apparently can’t conceive of Israel — in the midst of a shooting war where decisions on whether to return fire must be made instantly, rather than with the benefit of hundreds of hours of surveillance — being similarly unaware that civilians were present at various sites it targeted during last summer’s war with Hamas in Gaza.
Needless to say, American military professionals don’t share the administration’s view. The day after the White House announced the hostages’ deaths; Michael Schmitt and John Merriam published a summary of their detailed investigation into Israel’s targeting practices during that war. Schmitt, a professor of international law, heads the Stockton Center for the Study of International Law at the U.S. Naval War College and is considered a leading expert on the laws of armed conflict (LOAC). Merriam is a U.S. Army Judge Advocate and associate director of the Stockton Center. They were given unusual access to information, like targeting procedures that the Israel Defense Forces usually keeps secret; they were also allowed to observe IDF targeting cells at work and examine combat footage that hasn’t been publicly released. And here’s their conclusion:
Broadly speaking, we concluded that IDF positions on targeting law largely track those of the United States military. Moreover, even when they differ, the Israeli approach remains within the ambit of generally acceptable State practice … we found that their approach to targeting is consistent with the law and, in many cases, worthy of emulation.
They also pointed out that “the nuances of the Israeli approach … can only be understood in the context of the specific operational and strategic environment in which the IDF must fight.” And the complexities of that environment, which Israel’s critics largely ignore, go beyond such simple facts as Hamas’s penchant for launching rockets from civilian homes.
For instance, one key principle of LOAC is proportionality, meaning that an attack is illegal if the anticipated harm to civilians is disproportionate to the anticipated military benefit. But for a country that routinely trades hundreds of terrorists – who then resume killing Israelis – for a single captured soldier, the anticipated military benefit of preventing a soldier from being captured may be much higher than it would be for countries that don’t routinely make such trades, Schmitt and Merriam noted.
Yet the professionals’ view – also voiced by Chairman of the Joint Chiefs of Staff Martin Dempsey last November – never mattered to their civilian superiors. Even a Pentagon spokesman joined the administration pile-on accusing Israel of callous disregard for civilian life, declaring in a news briefing last July that “the Israelis need to do more to live up to their very high standards … for protecting civilian life.”
I don’t expect anything of people who think U.S. drone strikes are no less evil than Israel’s actions in Gaza. But the Obama Administration routinely defends its own civilian casualties as honest mistakes that occurred despite the strictest precautions. And to do that while simultaneously insisting that Israel’s can’t possibly be the same is the height of hypocrisy.
Originally published in Commentary on May 6, 2015