Legal Issues
The news that hundreds of Palestinians from Gaza drowned last week when the boats in which they were trying to reach Europe sank once again highlights the hypocrisy of the world’s attitude toward the Palestinians. After all, the “international community” has designated two-thirds of all Gaza residents as bona fide refugees, even though the vast majority of them were born in Gaza and have lived there all their lives. And as bona fide refugees, they shouldn’t have had to board rickety smugglers’ boats in a desperate attempt to reach Europe; they should have been able to apply to the UN for orderly resettlement right from their refugee camps, just as thousands of other refugees do every year. But they can’t, because Palestinians are the only refugees in the world who are denied the basic right of resettlement.
Granted, they are also the only “refugees” in the world for whom refugeehood is an inheritable status that can be passed down to one’s descendants in perpetuity, generation after generation. Under the definition used by the UN High Commissioner for Refugees, which deals with all the world’s refugees except Palestinians, only a few thousand elderly Gazans who were personally displaced in 1948 would be considered refugees today, rather than the 1.2 million actually on UN rolls. So if the “international community” were to argue that Gazans don’t deserve a right to resettlement because they aren’t really refugees, that would be perfectly legitimate.
But it doesn’t. In fact, not only has the world adopted the unique definition of refugeehood promulgated by the Palestinians’ personal refugee agency, UNRWA, but it actively supports this definition by funding UNRWA’s ever-expanding budget to keep pace with its ever-expanding number of “refugees.” And once having accepted the claim that these born-and-bred Gazans are actually refugees from an Israel they’ve never seen, the international community is morally obligated to ensure that they enjoy the same rights as all other refugees.
Instead, Palestinians are the only refugees in the world who are denied the right of resettlement. Whereas UNHCR resettles tens of thousands of refugees every year, UNRWA hasn’t resettled a single refugee in its 65 years of existence. On the contrary, the schools it runs for Palestinian refugees indoctrinate them from kindergarten on that there is one, and only one, way for them to end their refugee status: by “returning” to the towns or villages in Israel that their ancestors fled–which most of them have never seen, and some of which no longer even exist. In short, since Israel would never voluntarily accept all five million “refugees” on UNRWA’s rolls, it’s telling them that the only solution to their refugeehood is Israel’s destruction.
According to a poll taken in late August, a whopping 43 percent of Gazans would like to emigrate. Many of these would-be emigrants are presumably among the two-thirds of Gazans registered as refugees, meaning they ought to be entitled to resettlement aid. So here’s a modest proposal: Western countries, which are UNRWA’s main donors, should take a big chunk of the over $1 billion a year they give UNRWA and spend it instead on resettling those Gazans who want to leave. Not only would that help the Gazan refugees themselves, but it would save money in the long run by significantly reducing the number of refugees under UNRWA’s care.
Alternatively, they could tell UNRWA they’re no longer willing to go along with the fiction that its five million “refugees” are really refugees, and from now on will provide funds only for those refugees who actually meet UNHCR’s definition. The remaining money would go to the governments under which most of UNRWA’s registered refugees live–primarily Jordan, the Palestinian Authority, and Lebanon–to help them provide the services UNRWA now provides.
But to continue defining Palestinians as refugees while denying them the basic right to resettlement is unconscionable. And all those Westerners who claim to be so concerned over Palestinian rights should be the first to protest this hypocritical and discriminatory practice.
Originally published in Commentary
When courts can’t punish killers, societies lose their ability to divert revenge into legal channels
With the Gaza war finally over, attention is returning to a problem the fighting temporarily pushed aside: the worrying surge in anti-Arab violence, whose worst but by no means only manifestation was July’s horrific revenge killing of teenager Mohammed Abu Khdeir by Jews. Education Minister Shay Piron has ordered schools to devote class time to coexistence and combating racism. President Reuven Rivlin is working on his own program to combat violence. Police are cracking down on anti-Arab incitement. All these are worthy initiatives.
Yet if Israel is serious about combating anti-Arab violence, there’s something else it has to do: stop giving Arab terrorists a get-out-of-jail-free card. Clearly, wholesale releases of Arab prisoners who murdered Jews don’t justify Jewish attacks on Arabs. But they do make such violence harder to prevent.
To understand why, I’d like to borrow an insight from Times of Israel blogger Gil Reich on a seemingly unrelated topic: the Torah’s prescriptions for dealing with the sotah, a woman suspected by her husband of adultery, and the eshet yefat toar, an enemy woman desired by a soldier during wartime.
The sotah’s husband is told to put her through a humiliating ritual that culminates in drinking a liquid which will supposedly kill her if she’s guilty, but help her become pregnant if she’s innocent. The soldier is told to put his female captive through a humiliating ritual that entails spending a month making herself ugly. In both cases, Reich noted, this outrages our moral sense: Instead of humiliating these women, we want the Torah to “just say no” – to tell the jealous husband he can’t abuse or kill his suspect wife and the soldier he can’t rape his captive. But in fact, the Torah already has: It clearly prohibits murder, assault and rape. So why does it also prescribe these rituals?
The answer, Reich argues, is that sometimes, in the face of a very powerful emotion – the rage and suspicion of a jealous husband, the lust of a soldier at war – just saying no isn’t enough: The emotion will overcome the legal prohibition unless it is channeled instead into some safer outlet. So the Torah prescribes detailed legal procedures into which the husband or soldier can channel his rage or lust, thereby giving the white-hot emotions time to cool. And in practice, it seems to work: In Jewish society, the product of this millennia-old tradition, “honor killings” and military rape are both relatively rare by comparison with many other societies.
Revenge is an equally powerful emotion that also needs a channel. And in most societies, this channel is the legal system, which seeks to replace revenge killings with courtroom proceedings.
That’s precisely why blood feuds are common mainly in places where the legal system is weak or distrusted. In 19th-century America, for instance, the legendary Hatfield-McCoy feud claimed dozens of lives. But feuds like that don’t happen in today’s America, except perhaps in inner-city gang wars – places where the law’s writ still doesn’t run. Elsewhere, as the justice system gradually penetrated the frontier and backwoods areas, blood feuds gave way to criminal trials.
Israelis, too, have long channeled the natural human desire for revenge into legal proceedings. I witnessed this process firsthand at a shiva call following a 2002 suicide bombing. The victim’s brother furiously announced that he wanted to avenge her by killing Arabs – a normal response for a grief-stricken teenager. But his father and the other men present insisted it was the wrong response: We have a state and an army, they said; her killers will be caught, and they’ll spend the rest of their lives behind bars. And it worked.
The problem is that it no longer works, because only the first half of that equation remains true. The security services still excel at hunting down terrorists who murder Israelis; I have no doubt, for instance, that the terrorists who kidnapped and murdered three Israeli teens this June will eventually be caught. But how could anyone still believe that these men, once caught, will actually spend their lives behind bars?
It was bad enough when Israel was only freeing terrorists in exchange for kidnapped soldiers. Since abductions are mercifully rare, this at least allowed hope – however delusional it often proved – that killers would remain in jail.
But in July 2013, Prime Minister Benjamin Netanyahu destroyed even that faint hope by agreeing to free 104 murderers (in four batches) not in exchange for kidnapped Israelis, but merely for the privilege of holding negotiations with the Palestinian Authority. Unlike kidnappings, talks with the PA or efforts to restart them aren’t rare occurrences; one or the other is almost always happening. So by agreeing to pay for them in the currency of freed terrorists, Netanyahu raised the specter of prisoner releases becoming chronic. True, he swore never to do it again, but he’s broken too many previous promises not to release terrorists for this one to be believable.
Thus today, the legal process is no longer a credible substitute for revenge; it’s too obvious that any arrested terrorist will eventually be freed in some deal or another. And once this realization sunk in, all it took was the spark provided by the three teens’ abduction: Absent a credible legal outlet for the grief and anger all Israelis shared, a minority of hotheads, mostly teenagers, channeled it instead into random, vicious attacks on Arabs.
In short, it’s no accident that the worst anti-Arab violence in decades erupted this summer: Three prisoner releases in nine months, solely to keep the PA at the negotiating table, were the straw that broke the legal system’s back. And without a credible legal system capable of channeling the desire for revenge, the primitive rule of the blood feud has returned.
Teaching children that anti-Arab violence is unacceptable is obviously important. So is arresting people who engage in such violence. But against a powerful emotion like revenge, education and enforcement alone will never suffice. Israel also needs a credible legal process into which this emotion can be channeled – one in which murderers, once put behind bars, actually stay there.
Originally published in The Jerusalem Post
Corrupt officials who avoid jail pay no public price at all; until that changes, corruption won’t end.
The six-year jail sentence received by former Prime Minister Ehud Olmert last week has been hailed as a great victory in the war on corruption, a sentence sure to deter other officials. Former Tel Aviv District Court Judge Amnon Straschnov begs to differ.
In other words, as long as a white-collar criminal avoids jail, he has nothing to fear from his crime being discovered: Investigation, indictment and conviction will affect neither his social life nor his job prospects. And even if he goes to jail, once he’s out, he’ll be welcomed back into society, the media, the job market and public life. As proof, Straschnov cited two jailed former MKs, Aryeh Deri and Shmuel Flatto-Sharon. Deri subsequently returned to the Knesset as Shas party chairman and will likely be a minister next time Shas enters the government, while Flatto-Sharon acquired his own radio show, broadcast on several different stations.
Straschnov’s analysis is a bit too pessimistic. But it contains enough truth to be deeply worrying.
Regarding the likelihood of conviction, the trend isn’t necessarily unpromising: There have been several high-profile corruption convictions in recent years, including Olmert’s bribery conviction, Bat Yam Mayor Shlomo Lahiani’s plea bargain earlier this month, former minister Shlomo Benizri’s bribery conviction in 2008 and former minister Abraham Hirchson’s embezzlement conviction in 2009. Granted, Olmert’s 2012 acquittal in another bribery case – despite the court’s finding that he received hundreds of thousands of unreported dollars in cash-filled envelopes – was a severe blow. But that verdict may well be overturned on appeal: Aside from its inherent legal absurdity, prosecutors now have new evidence from Olmert’s former bureau chief, Shula Zaken, who agreed to sing last week in exchange for leniency in the current bribery case.
Moreover, Straschnov underestimates the deterrent effect of jail time. Granted, the threat of prison is irrelevant as long as criminals believe they either won’t get caught or can beat the rap. But if convictions become common enough that white-collar criminals are forced to consider getting caught, jail is a serious deterrent: It’s a major comedown from their previous luxurious lifestyles.
The problem, however, is that any sentence short of prison results in white-collar criminals essentially suffering no consequences at all. And that’s not a problem the legal system can fix.
First, as Straschnov noted, corrupt politicians keep being reelected. He blames the voters and the media, but the true culprit, as I’ve written before, is the electoral system: Since voters elect party slates rather than individuals, they can’t oust a corrupt politico without dumping his entire party, which most voters won’t do. Granted, voters sometimes reelect corrupt politicians even when candidates are elected directly, as in mayoral races. But in national elections, they don’t even have the option of ousting individual politicians – a problem only electoral reform can solve.
Even worse, however, is that corrupt officials suffer no other public consequences either. And nothing illustrates this better than Olmert himself.
Back in July 2012, the same court that acquitted him of bribery actually convicted him of using his position as industry minister to funnel government grants to companies represented by a friend, attorney Uri Messer – aka Olmert’s “banker,” who stored the cash-stuffed envelopes until Olmert needed the money. In short, the court found unequivocally that Olmert received huge under-the-table donations (from another businessman), then doled out government funds to clients of the attorney who managed this illicit cash. True, it didn’t sentence him to jail. But its findings alone should have put Olmert beyond the pale.
Instead, he continued to be lionized both at home and abroad as a preeminent statesman. He received nonstop invitations to address prominent forums: an Institute for National Security Studies conference (December 2013), The Jerusalem Post’s annual conference in New York (April 2013), Dartmouth University students (November 2013), a Kinneret College conference (January 2013), a Tel Aviv University conference (October 2012), etc. Needless to say, such engagements generally pay hefty speaker’s fees.
Moreover, his every pronouncement at these forums won media headlines, and media outlets interviewed him regularly. Prominent journalists like former Haaretz editor-in-chief David Landau even published columns begging him to run for reelection.
Nor is Olmert unique. For another example, consider MK Tzachi Hanegbi. Aside from setting a record for political appointments – as a minister, he gave taxpayer-funded jobs to dozens of party hacks, for which he narrowly escaped criminal conviction – he was actually convicted of perjury in 2010. Nor could his perjury be considered an aberration: Earlier, as justice minister in 1997, he lied to the cabinet to secure Roni Bar-On’s appointment as attorney general (part of a larger scandal that never went to court, but resulted in Bar-On resigning after just one day). Yet not only is Hanegbi’s political career still going strong (he currently chairs the prestigious Knesset House Committee and will soon become deputy foreign minister), he is even regularly lauded in the media as a “responsible adult.”
Thus on this issue, Straschnov is absolutely right: We will never succeed in stamping out corruption until corrupt officials are shunned rather than lionized by their own social milieu – the journalists, academics, businessmen, defense officials, jurists, politicians and senior civil servants who constitute Israel’s elite. For as long as officials know corruption entails no social, professional or financial costs, they will have very little incentive to avoid it.
John Kerry’s infamous apartheid comment continues to make waves in Israel, eliciting pushback from some surprising places–like yesterday’s Haaretz column by Zvi Bar’el. Bar’el, whom nobody could accuse of being an Israel apologist (his column asserts Israeli control over the West Bank is even worse than the apartheid), points out that under apartheid, the legal regime discriminates between citizens of the same country. That’s fundamentally different from an occupation, under which the legal regime discriminates between the occupying power’s citizens and the occupied noncitizens. All occupying powers have given their own citizens more rights than the occupied noncitizens, from the British in India through the French in Algeria to the Americans in Iraq, he noted; yet none of these were ever labeled apartheid. Why should Israel be any different?
But Bar’el neglects to mention one important point: The legal distinction all occupations make between citizens and noncitizens isn’t just a whim of “racist” occupiers; it’s mandated by the Fourth Geneva Convention.
This convention largely bars occupiers from applying their own laws to the occupied population, requiring them instead to maintain the preexisting legal system except where alterations are necessary to ensure the occupier’s security. For instance, Article 64 states “The penal laws of the occupied territory shall remain in force”; Article 51 requires the occupier to uphold the “legislation in force in the occupied country concerning working conditions”; and so forth. One of the most discriminatory practices of all is explicitly mandated by Article 66, which states that if the occupier promulgates laws for its own security in the occupied territory, violators from among the occupied population shall be tried in “properly constituted, non-political military courts.”
Israel has never officially deemed the West Bank occupied territory; it considers it disputed territory to which Israel has a valid claim. But under pressure from the rest of the world, which insists the West Bank is occupied territory, Israel long ago agreed to voluntarily uphold most of the Geneva Convention’s provisions. The ironic result is that in many cases, West Bank Palestinians have fewer rights than Israelis.
For instance, Israeli labor law provides more protections than the patchwork of Jordanian and Ottoman law in place when Israel captured the West Bank in 1967. But the world views any application of Israeli law to “occupied territory” as a sign of annexation (see, for instance, the international outcry when Israel applied Israeli law to the Golan Heights in 1981). Thus for fear of sparking international protests, Israel has refrained from applying its own labor laws to the West Bank.
Similarly, human-rights organizations repeatedly slam trials in military courts as inherently inferior to those in civilian courts, and not without reason: Most democratic countries, Israel included, have laws requiring civilians to be tried in civil rather than military courts. That’s why Israeli civilians who commit crimes in the West Bank are tried in Israel’s civil courts rather than military ones–just as American civilians who committed crimes in Iraq were tried in American civil courts rather than military ones. But the Geneva Convention requires Palestinian civilians to be tried in military courts instead.
In short, it’s precisely all those people who insist the West Bank is “occupied territory” who have no grounds to complain about the discriminatory legal system in place there–because occupied territories are supposed to be governed by the Geneva Convention, which mandates this discriminatory regime. That such people are now accusing Israel of “apartheid” for having bowed to their demand to apply the convention is hypocrisy on a truly epic scale.