Legal Issues
That, it turns out, is exactly what the new, higher electoral threshold has done
In two weeks, Israel will conclude its first election campaign under a new law that significantly raised the electoral threshold. Previously, parties had to win 2.4 seats to enter the Knesset; now, they must win four. And judging by the polls, the result has been disastrous: Not only is the higher threshold keeping out parties we should want in, but it’s also letting in parties we should want out.
The salient example of the first problem relates to the Arab parties. A poll published in Haaretz last month found that Arab voters overwhelmingly want their MKs to focus on their own community’s socioeconomic problems rather than the Palestinian problem (70% to 30%). They also overwhelmingly want their MKs to join the government (61% to 36%), since coalition parties wield more influence than opposition parties do; this desire is so strong that almost half that 61% favor joining regardless of who becomes prime minister. Finally, since existing Arab MKs not only spend most of their time and energy supporting the Palestinians, but adamantly refuse to join any government (as MKs Masud Ganaim and Ahmed Tibi recently reaffirmed), almost half the respondents were, unsurprisingly, highly dissatisfied with their current MKs.
Israel has an obvious interest in facilitating the growth of new Arab parties that would reflect these respondents’ priorities. Arabs’ attitudes toward the state would presumably improve if their representatives could join the cabinet and produce concrete benefits for their community instead of being condemned by their own anti-Israel rhetoric to eternally shout empty slogans from the opposition benches. And Jewish attitudes toward the Arab minority would presumably improve if Arab MKs stopped attacking Israel night and day and instead started working for their constituents’ welfare.
Encouragingly, such parties even exist already, spurred by similar poll findings in 2012. In 2013, none of them got in, but this year, their prospects should have been better – not only because any new party needs time to earn name recognition and persuade people to change long-established voting habits, but also because of recent changes in Israeli Arab attitudes toward the state. After all, no new party could join the government without abandoning the existing parties’ pro-Palestinian, anti-Israel attitudes, and not long ago, that would have been an electoral nonstarter. But recent studies reveal a growing Arab identification with Israel: A survey taken in May, for instance, found that 65% of Israeli Arabs were proud to be Israeli, and another published last month found that despite the summer’s tensions, 55% of Israeli Arabs now identify with the Israeli flag, up from 37% last year.
All this should have made it easier for Arabs to support a new, domestically-oriented party. Instead, the higher the electoral threshold has made it impossible.
A low electoral threshold encourages people to risk voting for a new party, both because its chances of getting in are better and because fewer votes will be wasted if the gamble fails. But with a four-seat threshold, few voters will take the risk: The chances of getting in are too low, and the number of votes wasted by a failed bid is too high.
Moreover, the higher threshold has forced the three existing parties to unite lest they fail to enter the Knesset at all. Thus instead of a new party being just another entrant in what was already a three-way race, it would now be the sole focus of a united juggernaut’s attacks, and would be accused of destroying Arab unity to boot.
In short, by raising the electoral threshold, Israel has virtually eliminated any possibility of something it desperately needs: an Arab party that fosters integration rather than Jewish-Arab tensions.
The second problem caused by the higher threshold is exemplified by Baruch Marzel, a former Kahanist whose Otzma Yehudit party is running on a joint ticket with Eli Yishai’s Yahad. Otzma is a collection of far-right extremists that has repeatedly failed (under various names) to enter the Knesset. But this time, precisely because of the higher threshold, it looks set to succeed.
Why? Because though Yahad could easily have cleared the old threshold on its own, polls showed it missing the new, higher threshold by a few thousand votes. So to boost it over, Yishai was forced to ally with a party he previously wanted nothing to do with. True, he could have kept his hands clean at the price of his party’s defeat – but how many politicians would ever do that?
Clearly, Israel doesn’t benefit from having anti-Arab extremists like Marzel in the Knesset. In contrast, Yishai’s party actually serves two important functions. First, it has attracted Sephardi voters who aren’t ready to abandon identity politics, but would rather not support a convicted criminal like Shas leader Aryeh Deri. Polls currently show Shas losing about four seats, with many of those votes going to Yishai. And if Shas pays a real electoral price for reinstating the corrupt Deri, other parties may think twice about tolerating corruption within their own ranks.
Second, Yishai’s unabashedly rightist diplomatic stance is attracting significant support from religious Zionism’s hardal wing, which shares the haredi parties’ attitude toward religion but not their willingness to countenance territorial concessions. For years, hardalim have supported the religious Zionist Bayit Yehudi party or its predecessors, and in exchange, Bayit Yehudi largely toed the haredi line on religious issues. But if hardalim now leave in significant numbers, Bayit Yehudi might finally resume representing religious Zionism’s sorely missed traditional stance – a moderate Orthodoxy committed to finding halakhic solutions to national problems.
Thus the best outcome for Israel would be Yahad without Otzma. And under the old electoral threshold, that’s exactly what we would have gotten. Instead, by raising the threshold, we’ve virtually ensured that Otzma will get in on Yishai’s coattails.
I once opposed raising the threshold for fear of driving fringe elements out of the democratic game altogether and thereby increasing the risk of their resorting to violence. But it turns out the higher threshold has actually empowered Jewish extremists while disempowering Arab moderates – the worst of all possible outcomes. Thus the next Knesset’s first order of business must be reinstating the old, lower threshold.
Originally published in The Jerusalem Post on March 2, 2015
That depends on how you define democracy – which is why the ‘Jewish vs. democratic’ debate has become so fraught
In response to my column last month on the false choice between Israel’s Jewish and democratic characters, a reader asked a logical question: You yourself argued that Israel has no raison d’etre if it isn’t a Jewish state; being just another Western democracy isn’t enough. So why do you think “Jewish” and “democratic” deserve equal weight, instead of prioritizing Israel’s Jewish character?
Answering that requires defining “democracy,” because in recent years, two almost antithetical concepts have been sloppily – or perhaps maliciously – subsumed under this term. One of these concepts is frequently at odds with Israel’s Jewish character. But the other is as vital to the Jewish state’s continued existence as the body is to the soul.
Democracy’s original meaning, which today is sometimes called “thin” or “procedural” democracy, was a system of government in which governing requires the consent of the governed (though for practical reasons, such consent is usually granted via elected representatives). Consequently, its requirements are limited to those necessary to achieve this purpose, such as regular elections, checks and balances among different branches of government, and certain rights essential to enabling the democratic process to function, like freedom of expression or the right to due process.
Most democracies also grant rights that go beyond the bare essentials. But these additional rights acquire their validity only through the consent of the governed, granted via legislation or, more commonly, via democratically adopted constitutions. Procedural democracy doesn’t mandate the conferral of nonpolitical rights like, say, a “right to marry”; it mandates only those rights essential for democracy to function.
The newer version of democracy is sometimes called “thick” or “substantive” or “liberal” democracy. But despite that deceptive word “democracy,” this version is in many ways less a system of government than a religion.
Like any religion, it contains both positive and negative commandments that govern not only political, but also moral and social, life; the only difference is that these commandments are called “rights” instead. Thus, for instance, legalizing gay marriage is obligatory, because there’s a “right to marry,” but restricting abortion is forbidden, because a woman has a “right to control her own body.” These positions have nothing to do with the mechanisms of government and everything to do with dictating social and moral norms.
And like any religion, “substantive democracy” derives its commandments (aka “rights”) not from the decisions of the people’s elected representatives, but from a higher authority that trumps such decisions. In traditional religions, this higher authority is God, whose commandments are revealed in holy writ like the Bible or Koran. The origin of substantive democracy’s commandments is less clear: Sometimes, adherents simply assert that these are “fundamental human rights” known to and obligatory on everyone, however hotly contested they are. Other times, they cite the amorphous holy writ known as “international law,” which consists largely of pronouncements by unelected officials in UN agencies or organizations like the Red Cross, whose decisions were never approved by any elected government.
But whatever the source, disciples of substantive democracy clearly believe such a higher law exists. That’s why the High Court of Justice could rule in 2004, for instance, that people have a constitutional “right” to a “minimal dignified existence” guaranteed by welfare payments, with the court being authorized to decide whether existing welfare payments meet this standard. The fact that the only body in Israel actually authorized to enact constitutional legislation – the Knesset – had rejected proposed Basic Laws guaranteeing this and other “social rights” no fewer than 15 times was irrelevant.
The problem with treating democracy as a religion, however, is that no two religions are ever wholly compatible. One cannot, for instance, simultaneously be a practicing Jew and a practicing Muslim, because Jewish and Islamic law sometimes clash. So, too, do the commandments of Judaism and substantive democracy, and when that happens, many Jews will naturally prefer their own religion to the rival one. So if you believe that democracy can only mean “substantive democracy” – i.e., a rival religion – then prioritizing Israel’s Jewish character over its democratic one would make sense.
But procedural democracy isn’t a competing religion; it’s a system of government. And this particular system of government is essential to the Jewish state’s survival, for one simple reason: Any Jewish state, whatever else it is or isn’t, must be one where large numbers of Jews with often contradictory opinions and values – religious and secular, right-wing and left-wing, Sephardim and Ashkenazim, socialists and capitalists – can somehow live together. And no system of government is better at enabling people with wildly different opinions to coexist than democracy.
First, this is because democracy offers everyone the hope of ultimate victory – the possibility of persuading others to enact your ideas into law. In reality, achieving anything usually requires compromising. But the very existence of this hope is enough to keep most people working within the system instead of leaving in despair or turning to violence to impose their views.
Second, democracy excels at finding the kinds of messy compromises which, despite satisfying nobody, give each side enough that neither finds it intolerable. The current state of gay rights is a classic example. Liberal democrats consider gay marriage a fundamental right that the state must grant. Orthodox Jews consider homosexuality a serious religious offense that the state mustn’t endorse. The compromise is that Israel doesn’t permit gay marriage, but effectively grants gay couples the same rights as married couples. And since both sides get something (the de facto benefits of marriage for gays, no official sanctioning of religiously prohibited behavior for Orthodox Jews), both can live with it, even though neither is happy.
This brings us back to the body-and-soul analogy I began with. Judaism is Israel’s soul. As I argued last month, if Israel ever ceased to be a Jewish state, it would soon cease to exist at all. But democracy is Israel’s body – the framework that enables millions of contentious Jews to live together despite their disagreements, and without which the state would soon implode.
Like any living creature, the Jewish state needs both soul and body to survive. On its own, neither is enough.
Originally published in The Jerusalem Post on February 4, 2015
One of the worst things about many “human rights” organizations is the way they actually undermine some very fundamental human rights. A prime example is B’Tselem’s new report on Palestinian civilian deaths during this summer’s war in Gaza. Few people would disagree that the presumption of innocence is an important right, but when it comes to Israel, B’Tselem simply jettisons it. In fact, the group states with shocking explicitness that it considers Israel guilty until proven innocent.
Take, for instance, one incident the report discusses, an attack on the a-Dali building in Khan Yunis. B’Tselem doesn’t mention any combatants being present, but an alert Jerusalem Post reporter recalled that Amnesty International had identified one fatality as a combatant. He asked about this discrepancy, and here’s his account of B’Tselem’s response:
Without addressing the specific incident, a B’Tselem representative said there were cases where the group suspected that fighters may have been involved, but it was only reporting their involvement where the evidence was hard and clear.
In other words, if B’Tselem isn’t certain whether the victims were combatants or civilians, it lists them as civilians and then accuses Israel of war crimes. In fact, it does this even if it “suspects that fighters may have been involved.” In short, it presumes Israel’s guilt unless proven otherwise.
Moreover, the report stressed repeatedly that B’Tselem “has no way of knowing” why Israel struck any particular target, and evidently, it doesn’t care. But as NGO Monitor pointed out, the “why” is crucial: If, say, the building was used to store weapons or launch rockets at Israel, then it was a legitimate military target. Without knowing whether the building was targeted legitimately or indiscriminately, it’s impossible to accuse Israel of war crimes–unless, of course, you simply presume Israel’s guilt.
But B’Tselem goes beyond merely presuming Israel’s guilt; it also deliberately omits exculpatory evidence. Take, for instance, the attack on the Kaware home in Khan Yunis. As the report accurately says, the family left after receiving an IDF warning, but other civilians subsequently entered, and the IDF realized this too late to abort its strike. What B’Tselem left out, however, was that those civilians came deliberately to serve as human shields for the building, which the IDF claimed was a Hamas command center. The surviving Kawares said this explicitly, and several prominent media outlets reported it at the time. “Our neighbors came in to form a human shield,” Salah Kaware told the New York Times. Yet this all-important fact–that civilians had deliberately returned to serve as human shields, a development the IDF couldn’t have predicted–was simply omitted from the report.
The same goes for the bombing of Beit Lahiya. As the report correctly notes, the IDF warned residents to evacuate, and many did. But others stayed, and some were killed. B’Tselem blames the IDF for this, saying, “Many had nowhere to go, as the military was conducting strikes throughout the Gaza Strip.”
But Palestinian human-rights activist Bassem Eid offered a very different explanation in a lecture at last month’s Limmud conference in England. According to his sources in Gaza, armed Hamas gunmen arrived and warned that anyone who left town would be considered a collaborator. And Hamas, as is well known, executes collaborators. So faced with a choice of certain death at Hamas’s hands or possible death at the IDF’s hands, residents who encountered those gunmen returned home.
Perhaps B’Tselem truly didn’t know this–in which case either its research is shoddy or its sources in Gaza are unreliable. Or perhaps, as in the Kaware case, it deliberately omitted this information. But either way, the result is the same: B’Tselem blamed Israel for a crime actually committed by Hamas. Had Hamas not prevented the evacuation, those civilians wouldn’t have died.
The report did acknowledge that Hamas stored arms in civilian buildings, launched rockets from civilian areas, and otherwise violated international law; it even admitted that this made it “extremely challenging … to avoid harming civilians.” So how was Israel supposed to have surmounted this challenge? That’s not B’Tselem’s problem; it “does not purport to offer the Israeli government or the military any operative plans for conducting armed conflict in Gaza.”
In other words, it admits that preventing civilian casualties under these circumstances is nearly impossible, but declares that unless Israel can accomplish the impossible, it effectively has no right to defend its citizens against a terrorist organization. And self-defense may be an even more fundamental human right than the presumption of innocence.
But in B’Tselem’s view, evidently, Israelis have no rights. They are only and always guilty.
Originally published in Commentary on January 28, 2015
Between Friday’s announcement that the International Criminal Court has opened a “preliminary examination into the situation in Palestine” and Sunday’s airstrike that killed six Hezbollah operatives and an Iranian general, a seemingly minor Israel-related item at the United Nations Security Council last Thursday has been largely ignored. But it shouldn’t be, because it goes to the heart of what’s wrong with the world’s handling of the Palestinian-Israeli conflict: According to both the UN and the European Union, signed Israeli-Palestinian agreements are binding on one party only – Israel.
At Thursday’s Security Council briefing, Assistant Secretary-General Jens Anders Toyberg-Frandzen slammed Israel for freezing tax transfers to the Palestinian Authority, declaring that this was “contrary to Israel’s obligations under the Paris Protocol of the Oslo Accords.” The EU’s high representative for foreign affairs, Federica Mogherini, made an identical claim 10 days earlier.
Though the claim is probably false, let’s assume for a moment that it’s true. The fact remains that Israel’s alleged violation of its “obligations under … the Oslo Accords” was in response to far greater violations of the Palestinians’ obligations under those same accords. Yet far from meriting any equivalent condemnation by the UN or the EU, the Palestinian violations were actively supported by both parties.
According to Article 31(7) of the 1995 Oslo II agreement (formally titled the Interim Agreement on the West Bank and the Gaza Strip), “Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations.” This isn’t some trivial technicality; it constitutes the very heart of the Oslo Accords: that Israel and the Palestinians will resolve their differences through negotiations, not unilaterally.
Nevertheless, the Palestinians have grossly and repeatedly violated this clause, including by obtaining UN recognition as a nonmember observer state in 2012, applying to the Security Council for full UN membership last month and joining the ICC as a state party earlier this month. All these moves are aiming at unilaterally changing the status of the West Bank and Gaza from territories whose future will be determined through negotiations to territories belonging to a Palestinian state. Yet no UN or EU official has ever criticized these moves for violating Palestinian obligations under the Oslo Accords, and in fact, both the UN and the EU actively supported them.
It was the UN General Assembly that accepted “Palestine” as a nonmember observer state, with half the EU’s 28 members voting in favor and only one voting against. In last month’s Security Council bid, two of the council’s four EU members voted in favor and none voted against. And when “Palestine” applied to the ICC this month, UN Secretary-General Ban Ki-moon immediately announced that it qualified for membership and would join on April 1, although technically, the court itself should make this decision, as it did when the Palestinians first tried to join in 2009.
In other words, both the UN and the EU think it’s fine for the Palestinians to ride roughshod over their core obligations under the Oslo Accords, but it’s unacceptable for Israel to violate even the most minor element of those accords. And Israel’s violation, if it existed at all, was indeed minor, since the Paris Protocol stipulates the existence of “procedures for the set-off of financial obligations between the two sides, including legal entities under their control or management.” In short, Israel has the legal right to withhold some of the billions of shekels the PA owes to state-owned Israeli entities like the Israel Electric Corporation, and it has always formally justified freezes of tax transfers under this clause. At most, it was guilty of violating the proper procedures for doing so.
All of the above leads to one obvious question: If the UN and EU are going to deem Israeli-Palestinian agreements binding on Israel in every particular but not binding on the Palestinians at all, why on earth would Israel ever sign another?
Originally published in Commentary on January 19, 2015
Courts seeking to expand their jurisdiction always start with ‘easy’ targets, then use that precedent against others
“If Israel falls victim” to the International Criminal Court, “any democracy around the world may find itself in the same danger,” Prime Minister Benjamin Netanyahu warned this weekend after the court announced a “preliminary examination into the situation in Palestine.” Netanyahu is entirely correct. Not only has Israel has done nothing in Gaza that America, Britain, France and others haven’t done in places like Afghanistan and Iraq (as I explained when issuing the same warning in 2012), but there’s strong evidence that Israel took greater care to prevent civilian casualties than any of these countries do. Consequently, they have a major interest in ensuring that this “preliminary examination” goes no further.
Given how frequently international institutions apply double standards to Israel, cynics might retort that other countries have no reason to worry. But activist courts desirous of expanding their jurisdiction always begin with “easy” cases that they know will arouse minimal opposition. Then, once the precedent set in the “easy” case has been accepted, they can apply it to more controversial cases.
That’s precisely how Israel’s Supreme Court gained the power to overturn Knesset legislation, which no law actually authorizes it to do. First, it asserted this power in principle while in practice upholding the law at issue, knowing that a purely theoretical claim would generate much less opposition than actually overturning a law. Next, it used this precedent to overturn one small section of a law regulating investment managers, which nobody outside the field cared about; that bolstered the precedent while still not generating much opposition. Only once the precedent was firmly established did it start making truly controversial rulings, like overturning the law enabling the detention of illegal migrants.
Thus for the ICC, a case against Israel represents a golden opportunity. The court has always aspired to worldwide jurisdiction, but until now, all its cases have involved African countries with weak legal systems. Extending its reach to countries with well-developed legal systems requires an “easy” case that will generate little opposition, and Israel fits the bill: Much of the world would be happy to see it in the dock. Then, once the precedent is established, it can be used to indict other Western countries.
The court’s eagerness to seize this opportunity was evident from the unseemly haste with which prosecutor Fatou Bensouda announced her preliminary examination – almost four months before the Palestinians’ ICC membership even takes effect. That bolsters the likelihood that she intends to proceed to a full investigation and then actual charges.
America, France and Britain – the three Western countries most engaged in overseas military operations – thus had a clear interest in keeping the Palestinian Authority from joining the court and starting this process. Instead, France, Britain and the EU as a whole tacitly encouraged it by making it clear that no economic or diplomatic consequences would ensue: The EU will continue funding the PA and supporting it diplomatically. And though Congress may not allow it, the Obama Administration would clearly like to follow suit: It has threatened the PA with no consequences beyond an unspecified “review” of the “implications,” while defending US aid to the PA as benefiting Israel and lambasting Israel for freezing tax transfers to the PA.
Consequently, all three countries will now find themselves in the dock alongside Israel as an essential element of Israel’s defense. After all, the ICC’s jurisdiction is limited to “the most serious crimes of concern to the international community as a whole,” and it’s hard to argue that Israel qualifies if Israel is actually more scrupulous about protecting civilians than other Western countries. And military professionals – as opposed to politicians, journalists, human rights groups and others with no military expertise – generally agree that it is.
That’s why the US army, for instance, sent a “lessons learned” team to Israel after this summer’s Gaza war, inter alia to study Israeli techniques for minimizing civilian casualties. As Martin Dempsey, chairman of the U.S. Joint Chiefs of Staff, said in November, “Israel went to extraordinary lengths to limit collateral damage and civilian casualties … In this kind of conflict, where you are held to a standard that your enemy is not held to, you’re going to be criticized … But they did some extraordinary things to try and limit civilian casualties.”
Similarly, Col. Richard Kemp, the former commander of British forces in Afghanistan, told the Knesset in September that “No army in the world acts with as much discretion and great care as the IDF in order to minimize damage. The US and the UK are careful, but not as much as Israel.” In fact, he said, the global average when fighting in densely populated urban areas is roughly four civilian fatalities for every combatant killed. In Gaza, the ratio of civilian-to-combatant deaths was almost 1:1 – four times better than the global average.
A study published in the New England Journal of Medicine in 2009 also supports this conclusion. The study analyzed victims of U.S. airstrikes in Iraq from 2003-2008 and concluded that of those whose age and gender could be determined, 46% were women and 39% were children. In short, at least 85% were civilians, which roughly matches Kemp’s 4:1 ratio.
By contrast, according to UN data on Palestinian fatalities during the Gaza war, 13% were women and 24% were children. So even if the UN data is credible – which, as I explain here, it almost certainly isn’t – only 37% of Palestinian fatalities were women and children, compared to 85% in Iraq. And that’s despite the fact that the NEJM study deliberately excluded the heaviest battles, when troops are most at risk and fire is likely to be most indiscriminate, whereas the Gaza figures include all the most intense fighting. Had NEJM included the heaviest fighting in Iraq, the comparison would have been even more lopsided in Israel’s favor.
In short, if the ICC prosecutes Israel, other Western democracies won’t be far behind – which means they should be taking the lead in trying to get the case against Israel quashed. Threatening the court’s funding, as Foreign Minister Avigdor Lieberman suggested on Sunday, might be one way to start.
Originally published in The Jerusalem Post on January 19, 2015
We need a law reinstating the constitutional ground rules previous Basic Laws broke, not one that breaks them again
The past few weeks have witnessed seemingly endless debate over a proposed Basic Law defining Israel as the Jewish nation-state. But this debate has focused almost exclusively on the bill’s rather anodyne content, thereby ignoring a far more serious problem: Quasi-constitutional legislation is supposed to reflect a broad societal consensus. It shouldn’t be rammed through with a razor-thin coalition majority.
This might seem like an unreasonable quibble, given that the principle at stake has already been thoroughly gutted by the nation-state bill’s opponents. After all, many of these opponents vociferously defend the constitutional status of the Basic Law: Human Dignity and Liberty, which was approved by a mere quarter of the 120-member Knesset (the vote was 32-21); the nation-state bill will certainly be approved by a far larger majority – at least 61 MKs.
Human Dignity and Liberty also violated another fundamental rule: that constitutional legislation can only be adopted by people who actually know they’re voting on a constitution. As I explained last month, most of the MKs who voted on Human Dignity and Liberty never dreamed the Supreme Court would assign it constitutional status and then use it to invalidate subsequent legislation enacted by much larger majorities; if they had, the law probably wouldn’t have passed.
Thus the moment the Supreme Court decided to treat Human Dignity and Liberty as a constitution, it threw the rules of the constitutional game out the window. And by enthusiastically supporting this decision rather than protesting the imposition of a constitution by judicial fiat, many of the same people now protesting the nation-state bill actively collaborated in trashing these constitutional ground rules. So one could reasonably ask why the bill’s proponents should care about these rules now.
Moreover, ever since Human Dignity and Liberty was enacted in 1992, the court has used it to shred the former delicate balance between Israel’s universalist democratic character and its particularistic Jewish one, giving far more weight to the former than the latter. The nation-state bill, at bottom, is nothing but an effort to restore this balance. Thus one could argue that it’s merely a correction to the previous breach of the constitutional ground rules rather than a new breach.
I’m sympathetic to both these arguments. Nevertheless, I think there’s a better solution than creating a kind of constitutional war of attrition, in which each new government exploits its narrow majority to ram through Basic Laws of its choosing in an effort to counteract those rammed through by previous governments. Such a war would be deeply detrimental to Israel’s long-term interests, for two reasons.
First, a constitution is supposed to unify a country by reflecting broad common denominators. But Basic Laws enacted by narrow majorities would have the opposite effect: They would intensify existing divisions on fundamental issues by codifying them into legislation. Since use of the coalition majority would enable the opposition’s views to be ignored, each Basic Law would end up being loathed by a particular sector of society. And seeing laws they hate elevated to constitutional status would increase each group’s alienation from both other social groups and the state as a whole. For proof, just look at how many different groups have been alienated by the court’s abuse of Human Dignity and Liberty.
Second, a welter of conflicting Basic Laws would merely increase the court’s power to effectively run the country, since it would be responsible for resolving these contradictions. There would be endless court cases in which, say, someone claimed that a given law or cabinet decision violates Human Dignity and Liberty, and the government countered by citing the nation-state law, or vice versa. In all such cases, the ultimate arbiter would be the court.
And in exchange for these evils, the nation-state bill probably wouldn’t even achieve its goal of restoring the universalist-particularistic balance, since it would ultimately be interpreted by the same Supreme Court that twisted Human Dignity and Liberty into something it was never meant to be. Does anyone seriously think the court couldn’t “creatively interpret” the nation-state law in a way that similarly distorts its intention?
Thus it would be far more productive to address the root of the problem: the subversion of the constitutional ground rules that enabled a law passed by a quarter of the Knesset to obtain constitutional status to begin with. And this can’t be done by ramming through more “constitutional” legislation via narrow majorities; that would merely further undermine proper constitutional principles.
Instead, what’s needed is a law dictating the rules for passing constitutional legislation, one that would mandate a suitably broad majority. Such a law must also include a sunset provision stating that any preexisting Basic Law not initially enacted by the requisite majority would automatically expire after a given time period unless reenacted by the proper majority.
A law of this type could generate much broader support than the nation-state bill has. For instance, it would almost certainly be backed by the haredi (ultra-Orthodox) parties, which oppose the nation-state bill, and perhaps even the Arab parties, which have an interest in precluding the passage of Basic Laws like the nation-state bill.
Moreover, it would be virtually impossible for anyone to malign such a law as anti-democratic. I don’t actually think the nation-state bill is anti-democratic, but the fact that it’s something not every democracy has, makes it vulnerable to being misinterpreted as such. In contrast, every democracy requires constitutional legislation to be approved by super-majorities; what could possibly be undemocratic about Israel finally doing the same?
If such a law were passed, I suspect neither Human Dignity and Freedom nor the nation-state bill would survive as Basic Laws. Rightly or wrongly, both have become controversial enough that they could obtain the requisite super-majority only as part of a grand constitutional bargain, and I don’t think Israel is ready for a grand constitutional bargain; it’s still too divided over too many issues.
But since Israel muddled along without a constitution for decades until 1992, there’s no reason to think it couldn’t do so again. And no constitution at all would be much better than a pseudo-constitution rammed through by unacceptably narrow majorities.
Originally published in The Jerusalem Post
The new policy won’t solve all the city’s problems, but if maintained, it might reduce the violence
Amid all the bad news from Jerusalem last week, one report offered a glimmer of hope: According to Haaretz, police have begun enforcing the law against misdemeanors like urinating in public or littering the streets with sunflower-seed shells in Arab neighborhoods of the city. Unsurprisingly, some people are crying “racist harassment.” But this tactic draws on a theory of policing that has been spectacularly successful elsewhere.
The “broken windows” theory holds that when minor offenses are allowed to proliferate, respect for the law breaks down, thereby encouraging more serious crime. When then-Mayor Rudy Giuliani famously tested it in New York two decades ago, crimes rates plummeted a whopping 39% in three years.
Could a crackdown on petty crime bring similar benefits to Jerusalem, which has many problems New York doesn’t face? Quite possibly yes – because one major cause of the city’s violence is the fact that police have long treated Arab neighborhoods as no-go areas for almost anything short of a murder probe. And when the police aren’t present, there’s nobody to stop the thugs from taking over.
Nothing better illustrates this dynamic than the Shuafat refugee camp. Last week, security officials fingered this neighborhood as the source of many of the recent terror attacks in Jerusalem. And what makes Shuafat an ideal terrorist staging ground is that it’s effectively no man’s land. Being inside Jerusalem’s municipal borders, the army doesn’t operate there. But being outside the security fence, police don’t operate there either. The result, as Nadav Shragai reported in Israel Hayom in September, is that “armed gangs wielding handguns, AK-47 semi-automatic rifles, and M-16 rifles roam the streets.”
A “broken windows” policy, in contrast, requires police to be present in force. They can’t fine people for spitting sunflower seeds or urinating in public without being around to see them do it. And once police are present, it becomes much harder for armed gangs and terrorists to operate freely.
Moreover, according to that same Haaretz report, the new policing policy has been accompanied by stepped-up civil enforcement against suspected criminals. Granted, it would be better if government agencies simply enforced the law year-round against everyone. But since they don’t and never have, it makes sense to prioritize enforcement against people suspected of violence, as this bolsters deterrence.
For instance, Haaretz reported, the families of several Jerusalem residents suspected or convicted of involvement in terror recently had property confiscated to cover outstanding debts to the National Insurance Institute. Similarly, police have started giving the names of suspected stone-throwers to the Jerusalem municipality so it can check and see if their families have open files for building violations or unpaid taxes. This might well be even more of a deterrent than prosecution, since stone throwers, for instance, rarely face serious criminal penalties.
Granted, the new policies risk generating resentment. But if they enable police to significantly reduce the violence, Jerusalem’s Arab residents will be the prime beneficiaries, because they’re the ones who suffer most when daily battles with police take over their neighborhoods: People get hurt in the cross-fire; police roadblocks disrupt traffic; noisy riots prevent sleep; businesses suffer from lack of customers; infrastructure repairs are delayed; and so forth. That’s why postings on Palestinian social media, as social media analyst Orit Perlov wrote last week, show that “Most of the Palestinian public has no interest in violence, and calls are being heard to restrain the young people who are harming the entire population’s quality of life.”
Broken-windows policing does face one major challenge in Jerusalem that didn’t exist in New York: the presence of two influential parties – Hamas in Gaza and the Fatah-run Palestinian Authority in the West Bank – with a major interest in inflaming tensions.
A fascinating study by the Molad think tank found that over the past 15 years, there has been an inverse relationship between terror in Jerusalem and terror in the West Bank: When the West Bank is aflame, Jerusalem gets quieter; when Jerusalem is aflame, the West Bank gets quieter. Being doctrinaire leftists, the Molad researchers ignored the obvious explanation, but the past few weeks have been a textbook example of it: When Palestinian organizations are fighting Israel on their own turf, they can’t spare resources for Jerusalem. But when they want to fight Israel without embroiling their own turf, they target Jerusalem.
Thus PA President Mahmoud Abbas has worked hard recently to suppress violence in the West Bank, fearing that an eruption there would threaten his own rule. But at the same time, he has vociferously incited to violence in Jerusalem. Last month, for instance, he accused Jews of “desecrating” the Temple Mount and said they must be prevented from ascending it “in any way,” adding, “We must confront them and defend our holy sites.” Similarly, he implicitly praised last month’s attempted murder of Rabbi Yehuda Glick in Jerusalem, saying the would-be killer “will go to heaven as a martyr.”
As for Hamas, it fought a 50-day war with Israel this summer and isn’t interested in another. Yet it desperately needs to distract Gaza residents from a grim reality in which the promised reconstruction has stalled, Egypt has closed its border and talks on a long-term cease-fire have been suspended. So instead, it’s inflaming Jerusalem. As Shragai reported last month, the northern branch of Israel’s Islamic Movement, a Hamas affiliate, is paying hundreds of Hamas and Farah members to stay on the Temple Mount and provoke trouble if Jews visit. In addition, most of the city’s recent terror attacks have reportedly been perpetrated by people affiliated with Hamas, which has actively encouraged both the terror and the rioting.
The obvious conclusion is that Israel could facilitate the task of ending the violence in Jerusalem by making it clear to both Hamas and Fatah that continued efforts to inflame the city will have consequences in Gaza and the West Bank.
But whether or not this ever happens, there’s no way to end the violence without the police reclaiming Arab neighborhoods from control of the thugs. Thus even if it’s not a complete solution, a broken-windows policing policy is an excellent place to start.
Originally published in The Jerusalem Post
There’s been a lot written recently about how Israel’s “right-wing” government is “silencing” the leftist opposition. So it’s worth noting that for all the talk of the silenced left, the only media outlet Israel’s parliament has actually tried to silence–repeatedly–just happens to be the only major Hebrew-language media organ representing the center-right, as well as the only one that enthusiastically supports Prime Minister Benjamin Netanyahu. And the votes that allowed the latest version of this undemocratic legislation to pass its preliminary Knesset reading today came not from the “anti-democratic” right, but primarily from Israel’s self-proclaimed champions of democracy on the left.
To be clear, the bill won’t become law. Like other undemocratic bills proposed by irresponsible Knesset members in recent years, it will be quietly killed in committee by wiser heads after having gotten its sponsors the media attention they craved. But nobody on the “anti-democratic” right has ever tried to pass legislation shutting down left-wing papers like Haaretz or Yedioth Ahronoth; only on the “democratic” left is silencing newspapers you don’t like considered acceptable behavior.
The bill to shutter Sheldon Adelson’s Israel Hayom is just a particularly crude example of a broader problem: The Israeli left is all too fond of trying to silence others. And the false claim that it is really the one being silenced is one of its favorite tactics for doing so: After all, an “anti-democratic” government doesn’t deserve to have its views heard by the international community.
Noah Efron, himself a self-proclaimed leftist, dissected the absurdity of the left’s silencing claim in a thoughtful Haaretz piece in September. Left-wing newspapers and websites still publish, left-wing academics still lecture, left-wing NGOs still disseminate material, left-wing activists still demonstrate, and the specific individuals who were allegedly silenced actually “received hours of airtime and hundreds of column inches,” he wrote.
“We haven’t been silenced. We’ve just failed to make our case,” Efron concluded. “The answer is not to convince readers of the New York Times that Israel is no longer a democracy. The answer is to accept that Israel is a democracy, and that democracy demands that we speak to our fellow citizens … that we persuade them rather than dismiss them.”
But the claim of silencing isn’t just an excuse for left-wing failures; it’s also an effective tactic for ensuring that the non-left won’t be heard. The Israel Hayom bill is instructive because it exposes this desire to silence others, something the left usually tries to conceal.
The first attempt to shutter the paper was an unsubtle bill making it illegal for non-Israelis to own Israeli newspapers–a restriction chosen because it applied to one paper only. Its hypocrisy was underscored by the fact that the left evinced no objection whatsoever when another American tycoon rescued the left-wing Channel 10 television by becoming its majority shareholder.
The current bill, which aims to destroy Israel Hayom’s business model, is equally unsubtle. It would outlaw freebie papers–but only if they’re successful. Freebies that don’t compete with the mainstream media are fine, but any freebie that becomes one of the four highest-circulation papers would have to start charging at least 70 percent of what the cheapest of the other three charges. Needless to say, only one Israeli freebie makes the top four.
Leftists justify this undemocratic bill by claiming Israel Hayom isn’t a real paper, but a Netanyahu mouthpiece. Personally, I agree that the paper’s coverage of Netanyahu is excessively fawning–but not more so than, say, Haaretz’s coverage of Palestinian leader Mahmoud Abbas or the New York Times’s coverage of Barack Obama. So should the Knesset ban Haaretz, too? Indeed, Haaretz and Yedioth unabashedly use their editorial freedom to support left-wing politicians; somehow, only editorial support for a center-right politician is illegitimate.
It’s also worth noting that on issues other than Netanyahu, Israel Hayom’s veteran journalists–most of whom previously reported for left-wing media outlets–actually provide interesting coverage of issues the other major media outlets prefer to ignore, like Palestinian groups’ deliberate instigation of the recent rioting in Jerusalem or the growing integrationist trend among Israel’s Christian Arabs.
This, I suspect, is the real reason why leftists loathe it. But admitting that they’d rather deprive the public of information that calls their political program into question wouldn’t sound any better than admitting they’ve failed to convince a majority of Israelis of this program’s wisdom. Much better to dismiss Israel Hayom as a mere propaganda organ and try to shut it down–all while loudly proclaiming that they are really the ones being silenced.
Originally published in Commentary
No other democracy worldwide has ever treated legislation passed by a minority of parliament as a binding constitution
The heated debate over a bill to let the Knesset override Supreme Court decisions that overturn laws drove home a shocking fact: An entire generation has now grown up believing a law approved by a mere quarter of the Knesset actually constitutes binding constitutional legislation.
Back in 1992, when the Basic Law: Human Dignity and Freedom passed by a vote of 32-21, the idea that a law enacted with less than half the 120-member parliament even present and just a quarter voting in favor could be used by the court to overturn subsequent legislation passed by much larger majorities would have flabbergasted most Israelis. That’s precisely why so few MKs showed up to vote. On consequential votes, the entire house turns out. But few MKs in 1992 considered this bill terribly consequential.
Why? Because normal democracies – which Israel was until 1992 – understand that binding constitutions require approval by super-majorities, not minorities. No other democracy worldwide has ever treated legislation passed by a minority of parliament as a binding constitution.
Nor has any other democracy ever adopted a constitution “almost secretly,” as then-Supreme Court President Aharon Barak famously described Israel’s process. Normal democracies understand that constitutions must be adopted intentionally – meaning by people who know they’re voting on a constitution. In contrast, most people in 1992 viewed Basic Laws not as a binding constitution, but merely as candidates for inclusion in a future constitution. That’s why courts had consistently ruled that previous Basic Laws didn’t authorize them to overturn subsequent legislation. Thus few MKs imagined this law would be treated differently. If they had, they might well have voted it down.
This brings us to the oft-heard claim – repeated in a Jerusalem Post editorial last week – that the bill enabling the Knesset to override the Basic Law is “anti-democratic.” This would be questionable even if Israel had a valid constitution: Canada lets its parliament override the constitution, and nobody challenges Canada’s democratic credentials.
But it’s downright ridiculous when the “constitution” at issue doesn’t meet the two most basic standards for constitutional legislation: approval by a large majority, and approval by people who knew they were actually enacting a constitution. The Basic Law was enacted as just another ordinary law – and ordinary legislation can be superseded by any subsequent law, even without a special override provision.
What really is anti-democratic, however, is that an unelected Supreme Court has taken a law never intended as a binding constitution and turned it into one. Granted, the Knesset has cravenly acquiesced in this judicial power grab for 22 years, due to fears of being deemed “anti-democratic” by the legal and academic elites who cheered the court’s bloodless coup. But that doesn’t change the fundamental, anti-democratic fact that Israel is the world’s only “democracy” whose constitution was imposed by judicial fiat rather than knowingly adopted by the public’s elected representatives.
Moreover, as the Post’s editorialist correctly noted, few things endanger democracy more than undermining democratic institutions. Yet nothing has undermined Israel’s democratic institutions more than the court’s decision to impose this Basic Law as a constitution.
Over the past two decades, the court has repeatedly overturned government policies on issues that most democracies leave to their elected representatives – ranging from welfare policy to defense – by claiming that these policies violate the Basic Law. But controversial policy issues usually involve competing values, any of which could theoretically be subsumed under the Basic Law’s vague wording. Thus in many cases, the court has simply substituted its own value judgments for those of the public’s elected representatives. It has thereby made itself just another political player, no more worthy of respect than ministers or MKs, while also alienating sizable sectors of the public that disagree with its hierarchy of values.
This has had three pernicious consequences. First, public trust in the court has plummeted: Only 56% of Israeli Jews expressed confidence in the court in 2013, down from 80% in 2000. This undermines its ability to play the vital role courts normally play in democratic societies – as a trusted venue for resolving disputes peacefully, thereby reducing the likelihood of violence.
Second, the court’s behavior has damaged Israelis’ faith in democracy. Democracy rests on the premise that change can be effected peacefully by persuasion: Convince enough people that you’re right, and they’ll elect a government that will make the desired change. But that premise no longer holds if an unelected court routinely overrules government decisions by claiming they violate a “constitution” of the court’s own making.
Finally, it has undermined the very respect for human rights that elevating the Basic Law to constitutional status was supposed to reinforce. Nothing illustrates this better than the law the override bill is aimed at reinstating, which allows illegal migrants to be held indefinitely at the open detention center in Holot. I actually agree with the court that this law is problematic. But as I noted last year, after it overturned an earlier version of the law, the court forfeited its authority when it chose to become just another political player. Among large parts of the public, its views on human rights now carry no more weight – and sometimes less – than those of any politician.
Even worse, the court’s abuse of the Basic Law to impose its own value judgments on the government has gutted the very idea of “human rights”: Many Israelis – particularly younger ones, who have grown up in this world the court created – now see human rights not as a positive good, but as a term devoid of any real content whose sole purpose is to justify any policy the justices want to impose.
Thus the real problem with the override bill isn’t that it’s “anti-democratic” – which it isn’t. It’s that it does nothing to ameliorate any of these very real evils.
Undoing two decades of judicial overreach won’t be easy. But there’s only one logical place to start: Stop treating a Basic Law passed by a mere quarter of the Knesset as a binding “constitution.” If Israel is ever to have a constitution, it must be adopted the same way other democracies adopt theirs: openly, in full knowledge, and by a super-majority.
Originally published in The Jerusalem Post
The cabinet must make decisions while knowing only what prime and defense ministers choose to tell it
The frenetic pace of events in Israel often means that one day’s headlines are quickly eclipsed by the next. Yet it’s disturbing that one of last week’s biggest stories already seems to have vanished from the radar, because it’s one with long-term implications: During the recent war in Gaza, both the diplomatic-security cabinet and the full cabinet were repeatedly asked to make decisions while the prime and defense ministers were concealing potentially pertinent information from them.
The main antagonists in this story, Defense Minister Moshe Ya’alon and Economy Minister Naftali Bennett, disagree about many aspects of what happened. But they agree on three crucial facts. First, throughout the war, Bennett was supplying the cabinet with information unknown to any other minister except Ya’alon and Prime Minister Benjamin Netanyahu. Second, Bennett’s information – obtained from his own sources in the army – was accurate. And third, this information was unknown to the other ministers because Ya’alon and Netanyahu intentionally kept it from them.
This inevitably raises ugly suspicions that Netanyahu and Ya’alon withheld certain information because it might have undercut the conclusions they wanted the cabinet to reach. But even assuming no such sinister intent, their behavior is unacceptable, because under Israel’s legal system, the entire cabinet bears collective responsibility for major decisions.
Granted, this responsibility is often delegated to a smaller forum, the diplomatic-security cabinet, which in turn often authorizes the prime and defense ministers to make certain decisions on their own. But even when decisions are delegated, the other ministers formally remain collectively responsible for what is decided in their names. And their responsibility is all the more obvious when they actually vote on these decisions, as they frequently did during the war on crucial questions ranging from whether to accept a cease-fire to whether to launch a ground operation.
Yet ministers can’t make intelligent decisions without receiving full information, which it now turns out Ya’alon and Netanyahu weren’t giving them. True, Ya’alon insists the withheld information was irrelevant. But at least one minister – Bennett – clearly disagrees.
Ya’alon also claims the information was withheld mainly for fear it would leak. That’s an understandable concern; some ministers are deplorably irresponsible about keeping secrets. But it still doesn’t justify withholding information ministers actually need to make a decision.
Such behavior would be particularly indefensible if the missing information related to the tunnel threat, as Bennett claims but Ya’alon vehemently denies. On this point, the available evidence is inconclusive. The diplomatic-security cabinet did vote overwhelmingly to accept a cease-fire on July 15, before a single tunnel had been destroyed; only Bennett and Foreign Minister Avigdor Lieberman dissented. Two days later, after Hamas attacked Israel via one of these tunnels, a ground operation was suddenly launched with the explicit goal of destroying them. So it’s possible the ministers truly didn’t grasp the tunnel threat’s severity until that attack. But it’s equally possible that they simply felt Israel couldn’t afford to reject a cease-fire backed by both Washington and Cairo.
The most disturbing fact, however, is that this incident doesn’t seem to be a one-time lapse, or even unique to Netanyahu and Ya’alon, but standard governmental practice.
Former Shin Bet security service chief Yuval Diskin, who served under three prime ministers, wrote on Facebook last week that prime and defense ministers “have total control over the topics discussed, the agenda and the level of intelligence and information that cabinet members receive on different topics.” He consequently advocated creating some mechanism to ensure that all ministers have full access to relevant intelligence, but face stiff sanctions if they divulge it. Diskin, incidentally, loathes Netanyahu and misses no opportunity to smear him. So when even he defines this as a systemic problem rather than one specific to Netanyahu, it deserves to be taken seriously.
Nor is the problem confined to the cabinet: The Knesset, too, lacks independent access to information, making it virtually impossible for MKs to fulfill their duty to supervise the government. As Likud MK Yariv Levin noted earlier this month, “As opposed to other parliaments, we cannot impose significant sanctions on officials who do not appear. We cannot make them bring materials and information.”
Indeed, the Knesset even lacks the power to summon a specific government official to testify: By law, a minister can choose to testify in place of any of his subordinates, which effectively allows him to decide what information MKs do or don’t receive. The U.S. Congress, in contrast, can summon almost any government official to testify and demand to see almost any government document, with stiff penalties for noncompliance, including fines and/or prison terms.
Over the years, various efforts have been made to alleviate the information access problem. The National Security Council, for instance, was created to give the prime minister independent access to security information so he wouldn’t be totally dependent on whatever the army chooses to tell him. But even when the NSC actually does its job (which it hasn’t always), it still reports only to the premier. Thus the rest of the cabinet remains dependent on whatever the prime and defense ministers choose to divulge.
Similarly, the Knesset research center was created to give MKs an independent source of information. And it indeed supplies valuable independent research on many topics. But as Levin noted, it has neither the resources nor the power to monitor government ministries on an ongoing basis. And it’s particularly handicapped in dealing with security issues, where much relevant information is classified rather than open-source.
Levin, one of the Knesset’s most serious and effective legislators, is currently working on legislation to give the Knesset greater power to demand information from the government, similar to what other parliaments have. In light of last week’s developments, he ought to expand this bill to give the cabinet similar powers, along with appropriate sanctions for leaking.
Otherwise, we’ll continue to face a situation in which cabinets are essentially just rubber stamps for decisions made by the prime and defense ministers, because they are deprived of any information that might call the prime and defense ministers’ wisdom into question.
Originally published in The Jerusalem Post