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One is the latest Peace Index poll, published this week, which found that for the first time in years, a majority of Israeli Jews oppose a broad West Bank withdrawal, even under an Israeli-Palestinian peace treaty. Asked whether they would quit the entire West Bank, except the settlement blocs, for such a treaty – something most Jewish Israelis previously supported – 53 percent said no; only 42 percent said yes.
The other is the latest Pew Global Attitudes poll, published two weeks ago. It found dramatic, almost across-the-board drops in Muslim countries’ support for suicide bombings. Only 34 percent of Lebanese, for instance, backed such bombings, down from 74 percent in 2002; in Jordan, the figure fell from 43 to 23 percent. Indeed, in 15 of the 16 Muslim countries surveyed, majorities deemed suicide bombings rarely or never justified. The sole exception was the Palestinian Authority – where a whopping 70 percent considered suicide bombings sometimes or often justified. Only 6 percent of Palestinians said they were never justified.
Obviously, these polls are closely connected: It is precisely because Palestinian enthusiasm for murdering Jews remains undimmed after 14 years of “peace process” that Jewish Israelis have stopped believing territorial concessions will bring peace.
This process has included five signed agreements in which Palestinians pledged to halt terror, Israeli withdrawals from all of Gaza and parts of the West Bank, the complete dismantling of 25 settlements and Israel’s offer of Palestinian statehood on about 95 percent of the territories, including east Jerusalem and the Temple Mount. Yet not only has none of this dampened Palestinian enthusiasm for killing Jews; it has stoked it.
For Israelis, every stage of the “peace process” has produced less actual peace. In the two and a half years following the 1993 Oslo Accord, Palestinians killed more Israelis than during the entire preceding decade. In the four years following Ehud Barak’s statehood offer at Camp David in 2000, Palestinians killed more Israelis than during the preceding 53 years. In 2006, the first full year following the August 2005 disengagement, the number of rockets launched from Gaza at pre-1967 Israel more than tripled compared to 2004 (the last full year pre-disengagement).
IN SHORT, the Palestinians have used every bit of territory they received as a launching pad for more attacks on Israelis. Moreover, they have sacrificed their own economic well-being to do so: In response to this escalating terror, Palestinian workers were barred from Israel, formerly their main employer; other Israeli defensive measures, such as checkpoints and border closures, have strangled internal and external Palestinian commerce. Consequently, Palestinian gross domestic product plummeted while unemployment soared. Yet as the Pew poll shows, none of this dampened Palestinian enthusiasm for suicide bombing. Economic distress is evidently a price they are willing to pay for the privilege of killing Israelis.
Thus the astonishing thing is not that Israelis have concluded the obvious: that more territorial withdrawals would merely create more launching pads for terror, no matter what the Palestinians promise, and that quitting most of the West Bank would therefore be suicidal. The astonishing thing is that it took them 14 years to do so. It is a testimony to Israelis’ desperate longing for peace that they ignored the evidence for so long.
BUT THE talk of diplomatic momentum becomes, if possible, even more surreal when another issue is considered: the refugees.
Israel’s one nonnegotiable condition for a final-status agreement is that Palestinian refugees and their descendants not relocate to Israel. Yet in 14 years of “peace process,” successive Israeli retreats on other issues (borders, Jerusalem) have yet to produce even a hint of reciprocal Palestinian concessions on this issue.
Professional peace processors blithely declare this adamancy a mere negotiating tactic, not the “real” Palestinian position. Ordinary Palestinians, unfortunately, are still not in on this secret: Polls consistently show large majorities opposing any concession on the “right of return.” But last week, for the first time, an actual test case arose: Israel agreed to allow 41 Palestinian refugees from Iraq into the PA if they turned in their UN refugee cards, thereby declaring their refugee status ended.
This was supposed to bolster the Mahmoud Abbas-Salam Fayad government: Palestinian Iraqis, whose support for Saddam Hussein made them loathed by other Iraqis, suffered greatly after Saddam’s fall; thus Abbas, Fayad and Ehud Olmert all naively concluded that the Palestinian public would applaud an asylum offer for their wretched countrymen.
Instead, Abbas and Fayad were assailed for this deal – not only by Hamas, but also by senior members of Abbas’s own Fatah party, the Fatah-controlled Palestinian press and smaller Palestinian factions. Why? Because, opponents explained, he forfeited these refugees’ “right of return” to Israel.
Against this backdrop, the recent talk by Olmert, Abbas and Condoleezza Rice about concluding a “framework document” of “agreed final-status principles” before this fall’s international peace conference cannot be defined as anything but surreal.
These principles, as all veteran peace processors agree, must include an Israeli withdrawal from most of the West Bank, which most Jewish Israelis oppose; a Palestinian halt to anti-Israel terror, which most Palestinians oppose; and a concession of the “right of return” for 4.4 million Palestinians (UNRWA’s figure), which Abbas cannot even concede for 41 wretched Iraqi refugees without a public outcry. Even in the unlikely event that Olmert and Abbas actually sign such a document, how, under these circumstances, would it be worth even as much as the paper on which it is printed?
If the world wanted actual progress rather than the mere illusion of momentum, it would have to address Palestinians’ twin addictions: to murdering Israelis (which turns Israel against territorial withdrawals) and to the “right of return.” Unlike “framework documents” and international conferences, that would actually contribute to solving the conflict. But it would produce no instant photo-ops; the fruits would be reaped only years later.
And given a choice between genuine progress and a photo-op, Olmert, Abbas and Rice evidently prefer the latter.
As Justice Minister Daniel Friedmann aptly noted, even the initial hearing was highly prejudicial: Given the justices’ harsh comments about the deal during that session, it would have been difficult for any lower court to then approve it, even had the justices ultimately rejected the petitions on procedural grounds: that deciding whether or not to accept a plea bargain is – as the law in fact states – the trial court’s job.
But by issuing a show-cause order, which indicates that they intend to decide the petitions on their merits, the justices have made the situation infinitely worse.
Should they ultimately reject the petitions on the grounds that the deal is not so unreasonable as to justify their intervention, this would prejudice the ability of the petitioners, who include two of Katsav’s alleged victims, to obtain a fair hearing in the trial court. In theory, a trial court is free to reject any plea bargain, whereas the High Court of Justice may overturn an attorney-general’s decision only if it is extremely unreasonable. Yet in practice, no lower court would overturn a bargain that the High Court has approved.
Given the justices’ comments to date, however, it seems far more likely that they will ultimately accept the petitions. If so, Attorney-General Menachem Mazuz would essentially be forced to charge Katsav with raping one former employee and committing lesser sexual offenses against another, as these are the two aspects of the plea bargain that the court has castigated during the hearing: the absence of rape charges and the lack of any charges at all relating to the second employee.
Yet once the nation’s highest court has ordered Katsav’s indictment, it would be very hard for any trial court to hear the evidence fairly and acquit him if warranted. After all, Mazuz’s main reason for not indicting Katsav on these counts was his belief that the evidence failed to provide a reasonable chance of conviction, which is the standard test of whether to indict. Thus no matter how strongly the court stresses in its ruling that the evidence is only prima facie, and does not necessarily prove Katsav’s guilt, the fact remains that by overturning Mazuz’s decision, it is essentially declaring that it considers the evidence strong enough to provide a reasonable chance of conviction. And after that, how could any lower court presume to disagree?
JUST HOW strongly High Court intervention can affect a trial court is evident from the rare precedents in this area.
In 1990, for instance, the High Court overturned then attorney-general Yosef Harish’s decision not to indict a group of senior bankers whose share manipulations caused a severe stock market crash in 1983. The case therefore went to trial, and after what was then one of the longest and most expensive trials in Israel’s history (two and a half years and an estimated $30 million), the trial court duly convicted the bankers and sentenced them to prison. But the bankers appealed – whereupon that same Supreme Court that had ordered their indictment overturned a key element of the conviction and threw out their jail sentences.
Similarly, in 1989, the court overturned the attorney-general’s decision not to indict Yediot Aharonot‘s editor-in-chief and one of its reporters for violating the sub judice laws. A trial court duly convicted them. Yet they, too, were acquitted on appeal.
What is clear from both cases is that when the High Court orders an indictment, it is very hard for the trial court not to feel an obligation to convict – even though the High Court, unlike the trial court, has not examined the evidence in depth or heard witnesses. This clearly undermines the defendant’s right to a fair trial. And even if, as in both these examples, the defendant is fully or partially acquitted on appeal, it will have taken him additional years in court, and additional thousands, or millions, of shekels in legal fees, in order to obtain a verdict that he might have been able to obtain the first time around with an unprejudiced trial court.
MOREOVER, IT is far from clear that such court-ordered indictments serve the public interest. Any trial consumes court time and public funds, both of which are in short supply. That is precisely why prosecutors try not to waste either commodity on cases that they do not deem to have a reasonable chance of conviction. And a Katsav trial would assuredly be both lengthy and expensive. Thus if Mazuz – who, unlike the justices, has examined the evidence in depth – truly considers it insufficient to convict Katsav on serious charges, he is right to save the time and money by signing a plea bargain on minor charges.
Clearly, the complainants have as much right to a fair hearing as Katsav does. Yet their right would in no way have been compromised had the High Court refused to hear their petitions: They could have raised the same arguments in the trial court that considered the plea bargain, and had that court rejected the deal, Mazuz would still have been forced to either go to trial or reopen negotiations on a bargain less favorable to Katsav.
The right to a fair hearing is a fundamental component of any justice system worthy of the name. But by choosing to rule on the plea bargain themselves rather than leaving the decision to the trial court – where by law it belongs – the justices have irremediably undermined one or the other of the parties’ right to due process, regardless of how it ultimately rules.
Somehow, one would expect better from our self-proclaimed guardians of the rule of law.
In reality, of course, not only has Olmert done nothing to “help the residents” during 18 months in office; he has actively obstructed others’ efforts to do so. His unwillingness to launch a serious military offensive to stop the shooting left reinforcement as the only option. Yet he has not even enacted legislation to ease legal and bureaucratic restrictions on apartment owners reinforcing their homes at their own expense.
Over half of Sderot’s public bomb shelters are still unfit for even short stays, and the rest are unfit for long stays; yet when, after years of waiting in vain for state funding, the city obtained a NIS 6 million private donation to fund the renovations this May, Olmert demanded that the mayor return it, saying this should be a government project. Few classrooms in rocket range are reinforced, but the government has yet to allocate a cent toward reinforcing the others; it has also allocated only NIS 10 million of the NIS 300 million Olmert promised in February to reinforce the most vulnerable private homes.
When businessman Arkadi Gaydamak temporarily evacuated residents during a particularly bad period, Olmert urged the Tel Aviv and Jerusalem municipalities to bar Gaydamak’s tent cities from their jurisdictions. And the few legislative efforts to provide financial assistance to the south have been the initiative of individual MKs.
THUS THE “everything” Olmert is doing essentially boils down to expressing sympathy: The situation “hurts us.” It is not his job to solve problems; he is merely the country’s chief therapist, there to serve as a sympathetic echo for the citizenry’s anguish.
Given Olmert’s attitude, it is hardly surprising that the IDF – which, like the premier, is entrusted with the nation’s defense – is also uninterested in doing anything about the rocket fire. Last Friday, a senior IDF officer was quoted as saying that the army, while concerned about Hamas’s military build-up in Gaza, is not seeking permission for a large-scale operation there because Hamas is not yet anywhere near Hizbullah’s capabilities and is therefore not a strategic threat.
One has to wonder why waiting until Hamas does acquire Hizbullah’s capabilities is preferable. But even more remarkably, the officer did not even mention the daily rocket fire on Sderot as a consideration. He cited fear of military casualties as a reason for avoiding a large-scale operation. But preventing civilian casualties? That, evidently, is not the army’s problem.
This attitude was underscored by another newspaper report on Sunday, which noted that much of the Katyusha fire on northern Israel during last summer’s Lebanon war came from a few heavily fortified Hizbullah areas. Nevertheless, the General Staff and the Northern Command ordered troops to avoid these areas after two soldiers were killed during an initial assault on one of them. The Katyushas were far more deadly than the Kassams fired at Sderot, killing 43 civilians in a single month; and the toll would have been far higher if 200,000 to 300,000 northern residents (according to last week’s state comptroller’s report) had not fled the area.
But risk soldiers’ lives to protect mere civilians? Not our army.
YET DISGRACEFUL though their attitudes are, it is hard to blame either Olmert or the IDF top brass – because on this issue, they are merely honoring the Israeli majority’s wishes. Like Olmert, that majority has no desire to actually do anything for Sderot; it views its obligations as beginning and ending with feeling the southerners’ pain.
This was evident in a remarkable Peace Index poll published last December, which asked what the government should do about the daily rocket fire on southern Israel. The poll found that 57 percent of Jewish Israelis opposed a military invasion of Gaza even if this were the only way to stop the fire; only 36 percent supported it. Some 72 percent opposed evacuating Sderot residents; and a majority even opposed evacuating children.
However, 70 percent favored negotiating with the Palestinian Authority (this was before Hamas took over Gaza) – even though only a third believed that talks would produce a full peace treaty, and 71 percent believed that a mere cease-fire would not halt the rockets.
In other words, most Israelis are unwilling to fight for Sderot; emergency reserve duty would at best disrupt their comfortable lives, and would also probably result in casualties, whereas today, only southerners suffer casualties and disrupted lives.
Nor is the majority willing to evacuate Sderot: That would be expensive, and would again disrupt their comfortable lives by requiring higher taxes. The only thing they are willing to do is negotiate with the PA, which they think will not work – because that costs them nothing.
These sentiments surfaced again at a July 9 “solidarity concert” for Sderot. The rally, held in Tel Aviv and attended by some 30,000 people, was not called to demand any concrete action; as its title, “We Are All Sderot,” indicated, it was merely meant to express sympathy. The Israeli majority gathered to declare that it feels Sderot’s pain – from the safety and comfort of Tel Aviv. They would certainly not risk doing so in Sderot.
TWO YEARS ago, following the disengagement, I wrote that the adage about people in a democracy getting the leaders they deserve did not fit Israel, as “nothing could be more alien to the cynicism, cowardice and callousness displayed by our ministers than the courage, compassion and decency displayed by tens of thousands of ordinary citizens.”
But in Olmert, we appear to have gotten exactly the leadership we deserve. His cynical willingness to sacrifice the country’s welfare to his own continuance in power is a perfect reflection of ordinary Israelis’ willingness to sacrifice Sderot’s welfare to their own convenience.
The surge, as even opponents admit, has succeeded in the former insurgent heartland of Anbar province (though not yet in Baghdad). It has proven what war supporters critical of Bush’s mismanagement always claimed: If the US sent enough troops to provide ongoing security, rather than clearing an area and then moving elsewhere while the terrorists returned, reconstruction would follow.
Unfortunately, it is almost certainly too late. The American people, Congress and even many soldiers have lost patience with the war; they want out. The Shi’ites, who exercised remarkable restraint under horrific terrorist assaults for over two years, eventually lost patience with American security efforts and unleashed private militias, which will not only prove difficult to dismantle, but have made Shi’ite-Sunni relations even worse by slaughtering innocent Sunnis to retaliate for the Sunni slaughter of innocent Shi’ites. Moderate, educated Iraqis, the ones Iraq needs to rebuild, also lost patience and fled the country in droves. Thus a strategy that could have salvaged Iraq two years ago now seems unlikely to prevent a hasty American exit and full-scale civil war.
FAYAD’S program also contains good ideas. First, he wants the Palestinian Authority more involved in welfare – an area hitherto dominated by Hamas, which accounts for much of the Islamic group’s popularity.
Second, he is proposing massive construction projects, including new residential neighborhoods and roads, to provide jobs for thousands of Palestinians. (Were these neighborhoods then used to resettle refugees now living in shantytowns, that would both improve their lives and ease Israelis fears over the refugee issue. However, Fayad has announced no such plans.)
Third, he wants to eliminate the PA’s numerous armed militias, and has even persuaded PA Chairman Mahmoud Abbas to take baby steps toward implementation, which Abbas never did before. For the first time, militias have been formally outlawed, though the decision remains unenforced; an amnesty program was worked out with Israel under which Fatah-linked gunmen who turn in their weapons and accept temporary movement restrictions will be taken off Israel’s wanted list; and a few armed men have even been arrested.
Unlike the surge, Fayad’s plan may never ultimately be implemented. Indeed, given the PA’s record, any rational person would bet against it. Yet even if Fayad genuinely tries, 14 years in which the PA used Israeli territorial concessions and international aid not to improve Palestinian lives but to finance anti-Israel terror and feather the nests of senior PA officials, have eroded both Israeli and Palestinian confidence so severely that rebuilding it will be slow at best, and perhaps impossible.
A RECENT poll by the Palestinian Center for Policy and Survey Research found that 58 percent of Palestinians under 30 – the population that comprises the armed gangs – expect escalated conflict with Israel in the coming years; only 22 percent foresee peace. Thus persuading them to disband and turn in their weapons, or to refrain from buying new weapons with the cash the PA will reportedly give them under its amnesty, presents an almost insurmountable challenge.
And since Fayad, like Abbas, has already declared that he will never use force against the militias, the chances of the armed gangs disappearing look slim.
In contrast, eliminating the militias would have been easy during the PA’s early years, when optimism was high; but then PA chairman Yasser Arafat preferred to let them proliferate. And Abbas missed his own opportunity after the August 2005 disengagement, when he could have argued that with Israel gone, it was time to disband the militias and give the PA a monopoly on force in Gaza. Instead, he spent five months refusing to lift a finger against the armed gangs while security in Gaza steadily deteriorated, until disgusted Palestinians swept Hamas to power in the January 2006 elections.
THE SAME goes for economic development. In the PA’s early years, with no Israeli troops in Palestinian areas, few checkpoints, no fence and tens of thousands of Palestinians employed in Israel, investment in development could have produced quick returns. But Arafat preferred to invest in terrorism and his own bank account. Thus following the PA’s establishment Palestinians’ per-capita income plummeted and unemployment soared.
And Abbas, again, wasted a second chance, post-disengagement. A rapid push to develop Gaza would have won massive international and Israeli support. But he made no move to, for instance, build housing for refugees in the former settlements; he did not even stop armed gangs from looting the settlement greenhouses that international donors purchased for the PA.
Nor did he stop the daily attacks on Israel from Gaza, which further hampered Gaza’s development by prompting frequent closures of the border crossings and draconian Israeli restrictions on traffic between Gaza and the West Bank. Thus Gaza’s economy kept deteriorating, facilitating Hamas’s election.
Now, with Israeli soldiers and checkpoints riddling the West Bank, economic development is much harder. And neither soldiers nor checkpoints are likely to disappear anytime soon, because Israelis, battered by 14 years in which every withdrawal produced only more terrorism, are suffering severe “concession fatigue.”
THAT WAS evident in last month’s Peace Index poll, which found that most Israelis oppose any security-related concessions to the Abbas-Fayad government. For instance, 79 percent opposed arming the PA, 71 percent opposed removing checkpoints and 54 percent opposed prisoner releases. Thus no Israeli government will be able to make major concessions on these issues – and any that are made will be revoked after the first attack.
Moreover, fed up with 14 years of broken PA promises to fight terror, fully 67 percent said that even nonsecurity assistance, like tax transfers, should be conditioned on PA action against terror. Only 22.5 percent favored such assistance without preconditions.
Thus, overall, PA development efforts will now receive far less Israeli support than they would have earlier.
Maybe Fayad will nevertheless work a miracle. But even if he makes a sincere effort – which is far from certain – it may well, like the surge, prove too late.
What none of these learned experts appear to have grasped is that Israel cannot seriously negotiate final-status issues without knowing whether a Palestinian state will be serious about fighting terror, because that will determine how much Israel can safely concede.
Given the PA’s current record, for instance, no Israeli government would allow a Palestinian state within rocket range of Ben-Gurion Airport or major cities such as Tel Aviv, meaning that Israel would have to keep territory even beyond the current route of the security fence. If the Palestinians were serious about fighting terror, however, withdrawing to on or near the Green Line would be much less problematic.
Similarly, no government could allow its capital city, the seat of government, to be under constant fire, as Sderot is from Gaza. Thus absent solid evidence that the Palestinians will crack down on terror – which no Palestinian government over the past 14 years has provided – major concessions in Jerusalem are also impossible.
Nor could any responsible government allow the West Bank to become the armed fortress that Gaza has since the disengagement, when the PA took over the border with Egypt, under EU supervision. Absent evidence that a Palestinian state would take counterterrorism seriously, Israel would therefore have to retain control of the Palestinian-Jordanian border. A PA crackdown on terror, in contrast, would enable this border to be transferred to Palestinian control.
WHAT RICE and Solana are effectively proposing is “negotiate a final-status agreement as if a Palestinian state could be trusted to fight terror, but condition implementation on PA performance.” This approach, however, has two problems.
First, until Israelis are convinced of Palestinian willingness and ability to fight terror, any prime minister who acceded to Palestinian demands on these issues would be committing political suicide. That is precisely why Ehud Olmert, a politician par excellence, rejected Rice’s idea.
The bigger problem, however, is the international community’s track record on Palestinian compliance. To understand why, a brief review of the Oslo process is in order.
In September 1993, Yitzhak Rabin and Yasser Arafat signed the Declaration of Principles; Arafat promised to eschew violence. In May 1994 came the Gaza-Jericho Agreement, under which Israel withdrew from Jericho and most of Gaza; Arafat again promised to eschew violence. September 1995 brought the Interim Agreement (Oslo-2), under which Israel left six West Bank cities; Arafat pledged yet again to eschew violence.
Thus by spring of 1996, Israel had carried out its major treaty obligation: territorial withdrawals. Rabin also froze settlement construction (the only Israeli premier ever to do so) as a goodwill gesture, even though no agreement required this.
During those same two and a half years, however, Palestinian terror killed more Israelis than during the entire preceding decade. Thus Arafat had blatantly violated his major treaty obligation.
ONE WOULD therefore have expected the world to pressure Arafat to honor his commitments, while exempting Israel from further concessions until he did so. Instead, it pressured Israel into additional concessions: first the Hebron Agreement in January 1997, under which Israel withdrew from most of Hebron; then the Wye Agreement in October 1998 (never implemented), which required Israel to quit another 13 percent of the territories. In exchange, Israel received nothing but more empty promises on terror.
Then came the Camp David summit and the subsequent outbreak of the second intifada in September 2000. Over the next four years, Palestinian terror killed more Israelis than during the previous 53 years. Yet once again (with the occasional exception of George Bush), the world did not respond by pressuring the Palestinians to uphold their five signed pledges to eschew violence; instead, it demanded more Israeli concessions, arguing – as Rice, Solana and the Times do – that the PA cannot be expected to honor its commitments unless Israel first “strengthens” it through such concessions.
Moreover, no Israeli concessions are ever deemed enough. Israel’s offers at the Camp David, Washington and Taba talks in 2000-2001, for instance – a Palestinian state on some 97 percent of the territories, including most of east Jerusalem and the Temple Mount – were not considered a sufficient “political horizon” to justify demanding Palestinian action on terror. The disengagement, in which Israel demonstrated its willingness to uproot settlements for peace by destroying 21 communities in Gaza and four in the West Bank, was also not considered sufficient to mandate Palestinian action on terror.
What this track record proves is that if Israel signed a final-status agreement and the Palestinians still failed to deliver on terror, it would nevertheless come under tremendous international pressure to keep its side of the bargain, just as has happened with every previous agreement since 1993. Either the international community would whitewash PA behavior and declare the Palestinians in compliance when they were not, as it did from 1993 to 2000, or it would argue, as it has since, that Israel must “strengthen” the PA by starting to implement the agreement – i.e. making concrete territorial and security concessions – before the PA can be expected to do its part.
Any agreement signed without prior proof of Palestinian willingness and ability to fight terror would thus almost certainly end up forcing Israeli withdrawals that would leave Jerusalem, Tel Aviv and Ben-Gurion Airport as vulnerable to terrorist fire as Sderot is. No responsible prime minister would risk putting Israel into such a situation. And Livni’s eagerness to do so merely proves how unfit she is for that post.
Yet no political hack could have disgraced the justice system more thoroughly than Mazuz did with this plea bargain. There are only two possible ways to interpret it: Either the attorney-general spent a year unjustly besmirching the president as a rapist, or he is allowing a presidential rapist to walk free.
Mazuz’s press conference last Thursday permits either conclusion. His astounding assertion, for instance, that “there were grounds for an indictment on rape charges” begs the second interpretation: If so, how can he justify a deal under which Katsav confesses merely to hugging one woman and kissing another, and will not even do community service, much less jail time?
KATSAV HAS claimed throughout that he never had sex with any of the complainants, and that his hugs and kisses expressed platonic affection rather than sexual interest. Not only does nothing in the plea bargain refute this claim (for instance, he will not confess to sleeping with either woman), but the punishment – a suspended sentence plus compensation to both complainants – is unusually light for the relevant offenses (indecent assault and sexual harassment), thereby supporting his contention that he did nothing seriously wrong.
He can even plausibly claim that he confessed to crimes of which he considers himself innocent solely to spare himself and his family the hell of a trial, which would devour years of his life even if he were ultimately acquitted.
Thus for all Mazuz’s insistence that Katsav’s confession to these charges is a significant prosecutorial achievement, the president is essentially getting off scot-free – an unconscionable result if there were indeed grounds for rape charges.
MAZUZ THEN added insult to injury by claiming that he sought, inter alia, to spare Israel the “image price” entailed in a trial that would “garner media headlines worldwide.” Since Katsav, thanks to Mazuz, has already been branded a serial rapist in the world press, that “image price” has already been paid. But now, in addition, Israel is being portrayed as a country that lets high-ranking rapists walk for the sake of protecting its image. No trial could be half so damaging.
The alternative interpretation stems from an equally astounding Mazuz statement: that including rape in the draft indictment was “the lever for reaching the plea bargain.” Since serious evidence of rape is not usually bargained away for a confession to lesser crimes, that implies Mazuz never had such evidence, and merely threatened rape charges to blackmail Katsav.
Even worse, it implies that he never deemed any of the evidence, even on the lesser charges, sufficient for a trial: His only hope of securing a conviction, even on minor counts, was with a confession, and therefore he deliberately extorted one by threatening Katsav with rape charges. Otherwise, why make a deal at all? He could simply have gone to court with the lesser indictment – and probably secured a stiffer sentence, to boot.
PUBLICLY branding someone a rapist merely as a “lever for reaching a plea bargain” on lesser offenses is a gross abuse of prosecutorial power even if the lesser charges were warranted. And the abuse is magnified sevenfold if they were not.
We may never know which Mazuz is guilty of: whitewashing rape, or character assassination. What is incontrovertible, however, is the enormous damage he has done to Israel’s legal system. Mazuz and his colleagues frequently complain that criticizing the justice system undermines public faith in it. But no criticism could possibly undermine the public’s faith as badly as he did through this plea bargain.
How could anyone trust a system that allows high-ranking rapists to walk free? Alternatively, how could anyone trust a system that tars a man as a rapist without sufficient evidence?
In any normal country, such a debacle would result in Mazuz either resigning or being fired. But in Israel, precisely because our attorney-general is “independent and apolitical,” that is impossible.
ONLY THE cabinet can legally fire an attorney-general. And had it appointed Mazuz, it would do so, since it would be stained by his behavior. But Mazuz was selected by an “apolitical” panel whose three “independent” members (a chairman appointed by the Supreme Court president and two others chosen respectively by the Bar Association and the country’s law school deans) outnumbered the two government representatives.
Former justice minister Yosef Lapid actually tried twice to nominate someone else, but after one candidate withdrew due to committee intimations that it would reject him, a second was rejected and the panel “advised” Lapid not to try again, the minister gave in and accepted Mazuz. Thus the cabinet can truthfully eschew any responsibility for Mazuz’s behavior.
Moreover, in this particular case, it is far from clear that even the cabinet could fire Mazuz: While it can fire an attorney-general over policy differences, since he is also the government’s legal adviser, the High Court of Justice might well rule that firing him over a prosecutorial decision contradicts the law’s aim of ensuring prosecutorial independence. And even absent court intervention, prominent individuals would certainly assail the cabinet for “undermining” this independence.
Why would any government risk either outcome in order to fire an attorney-general whose malfeasance in no way tarnishes its own standing, since it bears no responsibility for him?
In short, not only did our “apolitical” selection mechanism produce an attorney-general who has damaged the legal system more profoundly than any political hack ever could, it also provides no way of ousting an incumbent in whom the entire public has now lost confidence.
If proof were needed of the dangers of making a senior legal official accountable to nobody, last week amply provided it. One can only hope that the Knesset will draw the necessary conclusions.
Between 2005 and 2007, according to the Haifa University poll, the proportion of people who said they had personally suffered violence doubled, from 3.2 to 7 percent of respondents. Some 17 percent said that use of firearms in their neighborhood had increased, while 30 percent feared becoming a victim of violence.
To some extent, the rising violence is a predictable result of Palestinian terror: Numerous studies show that anger and violence increase when a society is under attack, as Israeli society undoubtedly has been since 2000.
Much of it, however, is homegrown. And the biggest culprits are the law enforcement agencies themselves – because instead of sending the message that violence is unacceptable, they have consistently sent the message that violence is rewarded.
NOTHING BETTER illustrates this pernicious message than the police’s decision, confirmed by Public Security Minister Avi Dichter two weeks ago, to promote Brigadier General Niso Shoham to deputy commander of the Jerusalem District.
Shoham made headlines as commander of the Negev District in 2005, when a television camera caught him ordering a subordinate to assault anti-disengagement protesters at Kfar Maimon. “Beat them with truncheons, low down … Let them burn, shit on them,” he said.
In any normal society, a senior police officer caught ordering his troops to beat peaceful demonstrators – and the Kfar Maimon protesters’ exemplary behavior was acknowledged even by their fiercest opponents – would have been dismissed. Then police commissioner Moshe Karadi, however, made do with reprimanding him.
By nominating Shoham for the Jerusalem post, current commissioner David Cohen proved that Karadi’s attitude was no aberration. Though technically a lateral move, involving no rise in rank, it will boost Shoham’s chances of future advancement, and is therefore effectively a promotion. And Dichter, by approving the nomination, reinforced the message that violence, far from being censurable, merits promotion.
PERHAPS EVEN worse, however, was the lack of public outcry. One would have expected vociferous protests from both Shoham’s victims and civil rights advocates. Instead, there has been an eerie silence – indicating that society at large has internalized the Cohen/Dichter message that violence is perfectly acceptable. If so, is it any wonder that violence is surging?
And lest anyone doubt that Shoham’s case reflects the law enforcement agencies’ true attitude, last week’s Gay Pride parade in Jerusalem proved it again. Due to fear of haredi violence, police imposed various restrictions on the marchers, including requiring them to hire 160 security guards at their own expense to bolster police forces. The Supreme Court upheld these conditions.
Given Jerusalem’s unique status as a city holy to three religions, one could argue that the parade should not have been held there at all. But once it received police approval, it also deserved full police protection. By instead requiring the demonstrators to help finance their own security, the police and the court proved that violence pays: Merely by threatening it, you can increase the financial cost of expressing opposing views, thereby deterring people from doing so.
The 40-year-old ban on Jews praying on the Temple Mount is an even clearer example of rewarding violence. In numerous Supreme Court cases on this issue, both the government and the police have stated repeatedly that the reason for the ban is fear of Arab riots. And the court has repeatedly upheld this as a valid reason for forbidding Jewish worship at Judaism’s holiest site. Often, it has even deemed this valid reason for barring Jews from the mount altogether. The message is unequivocal: Violence will not only get you what you want; it will do so with the approval of the police, government and courts.
THAT THE rising tide of violence is not inevitable is clear from one city’s success in combating it. Three years ago, Eilat introduced a program called “A City without Violence,” and last month, it presented the results: Incidents of domestic violence dropped 50 percent last year, juvenile violence fell 35 percent and property crime plunged 60 percent. Similarly impressive declines occurred in the previous two years.
As Dichter aptly noted in response, “a city without violence is the practical translation of a city without apathy.” Eilat achieved its success precisely by sending the message, in every way possible, that violence is unacceptable.
At school, for instance, disruptive students are “named and shamed” by posting their names on a bulletin board. Teachers also send regular letters to parents telling them whether their child’s behavior “excels,” “meets 85 percent of requirements” or “needs improvement.” Two “needs improvement” letters trigger a parent-teacher conference.
On the streets, police adopted a “zero-tolerance” policy toward violence. The city also established volunteer patrols involving both parents and students, further reinforcing the message that society as a whole had declared war on violence.
But if Eilat’s success showed what ending apathy can achieve, the government’s response proved that apathy remains the norm. Upon taking office last spring, Dichter vowed to make combating violence his top priority. But instead of putting his money where his mouth is and implementing Eilat’s program nationwide, he announced that it would be expanded only to 10 other cities – if the government finds the money. Thus far, the state has allocated only NIS 10 million. If the expansion in fact occurs, it will be only thanks to the International Fellowship of Christians and Jews, which generously pledged an additional $2 million (NIS 8.4 million).
Like the Shoham appointment, this refusal to properly finance the Eilat program sends an unequivocal message: Violence is no big deal. And until this message is reversed, violence will continue to rise.
Gordon’s regular weekly column appears in the Thursday Post. Caroline B. Glick will be back next week.
The June 2006 poll found that 34 percent of Gaza residents thought the new Hamas government was better than its Fatah predecessor, compared to 22 percent of West Bank residents; that 56 percent of Gazans opposed the Oslo Accords, compared to 45 percent of West Bankers; and that 58.2 percent of Gazans supported suicide bombings against Israel, compared to 37.1 percent of West Bankers.
These results had two noteworthy elements. First, as JMCC director Ghassan al-Khatib told Haaretz, “this was the first time we found a significant disparity in positions between the West Bank and Gaza. Until now, the differences were two or three percent on questions such as support for Hamas and attacks.”
Second, this disparity defied the accepted dogma that “the occupation” radicalizes the Palestinians. In every category – support for Hamas, support for Oslo and support for suicide bombings – residents of the “occupied” West Bank proved significantly more moderate than residents of unoccupied Gaza, whence Israel had evacuated every last settler and soldier only a year before.
Yet for anyone not blinded by dogma, this result was predictable, for two reasons.
THE FIRST is that while Israel controlled Gaza, it waged war on radical organizations: arresting or killing terrorists, raiding weapon caches and combating arms smuggling. This made it difficult for radical groups to operate openly and amass strength. And in the West Bank, Israel’s counterterrorism activities still prevent radical groups from acquiring too much power.
Following Israel’s withdrawal from Gaza, however, Palestinian Authority Chairman Mahmoud Abbas made virtually no effort to combat terrorism and arms smuggling (whether due to unwillingness or inability is irrelevant). Egypt did equally little to stop the smuggling from its side of the border, while the international community declined to press either Abbas or Cairo on these issues. Radical groups could thus operate freely, including recruiting and training new troops and accumulating arms at a ferocious rate. These processes merely accelerated after Hamas won the January 2006 parliamentary elections.
The result is that radical groups acquired far more power in Gaza than they could in the Israeli-controlled West Bank, turning them into Gaza’s “strong horse” – the one worth backing. In the West Bank, in contrast, they remained the weak horse.
THE SECOND reason is the pullout itself, which Palestinians overwhelmingly interpreted as an Israeli flight from Palestinian terror. That is an oversimplification, but hardly a baseless one: The plan’s public support stemmed largely from Israelis’ desire to “stop having their sons killed in Gaza.” Gaza residents thus had concrete proof that violence worked: It expelled the hated Israeli occupier. The logical conclusion was increased support for Hamas and suicide bombings and decreased support for negotiated deals such as Oslo.
West Bankers, in contrast, had a very different experience of violence: Years of suicide bombings inside Israel brought only a far more devastating occupation.
Before the intifada started in 2000, Palestinians enjoyed self-rule in large parts of the West Bank; tens of thousands of them worked in Israel; and there was substantial freedom of movement both within the West Bank and between the West Bank and Gaza. But Israel’s efforts to protect its citizens from suicide bombers erased these gains: The army reoccupied all the areas it had vacated under Oslo; Palestinians were largely barred from working in Israel; and freedom of movement, both within the West Bank and between the West Bank and Gaza, was sharply curtailed as Israel erected checkpoints and, later, the fence in an effort to catch terrorists before they reached Israel.
Thus by June 2006, West Bankers had seen six years of violence make their lives steadily worse. And here, too, the conclusion was logical: decreased support for Hamas and suicide bombings and increased support for negotiated deals such as Oslo.
THUS THE disengagement’s effect was twofold. First, though Hamas technically won the 2006 elections in both territories, in Gaza, it had the power to openly recruit, arm and train the troops that carried out last week’s takeover, whereas in the West Bank, due to Israel’s military presence, it did not. And second, it could reasonably conclude that it had public support for a takeover in Gaza; in the West Bank, it does not, and knows it.
Given that the world’s goal now is to keep Hamas from seizing the West Bank as well, this analysis has obvious policy implications – and they are the opposite of the current diplomatic consensus.
That consensus, just as after every eruption of Palestinian violence for the past 14 years, is that Israel must “strengthen” the PA (now confined to the West Bank) through more concessions – even though its leader has just proven himself unwilling (or unable) to fight Hamas in Gaza despite his forces’ substantial numerical advantage. The proposed concessions range from releasing convicted terrorists through removing West Bank checkpoints to negotiating on final-status issues.
Yet aside from undermining Israel’s ability to fight Hamas in the West Bank, such measures would once again prove, just as they have for the past 14 years, that the “good cop, bad cop” routine – in which “bad” Palestinians commit violence that the “good” ones denounce, but make no move to prevent – pays: It creates international pressure for more Israeli concessions. And that is the opposite of the message the world should be sending, which is that failure to halt violence is counterproductive.
Reversing 14 years of failed policy is hard. But if the world ever wants to see a Palestinian state, it must make the effort. And that means making it clear to Abbas, and to all Palestinians, that there will be no “diplomatic horizon,” and also no Israeli security concessions, unless and until a government willing and able to fight terror emerges. Only if such a message is consistently enforced are Palestinians ever likely to conclude that refusing to fight their extremists does not pay.
The Intifada Law largely barred Palestinians from suing for damages caused by Israeli troops since the intifada erupted in 2000. The High Court of Justice overturned it last December, on the grounds that excluding even damages from noncombat operations disproportionately violated Palestinians’ rights. Friedmann’s proposed reinstatement thus outraged rights groups.
“Amending a Basic Law to allow the reenactment of a law overturned by the High Court of Justice because it violates human rights is a dangerous and unprecedented step,” charged the Association for Civil Rights in Israel in a typical response.
Reasonable people can disagree over whether the Intifada Law ought to exist. What should be indisputable, however, is that the Knesset, which enacted the Basic Laws, also has the right to amend them if the court has misinterpreted its intentions.
No country on earth gives its Supreme Court unchecked power over its constitution; constitutional law is always a dialogue between the judiciary and the legislature. Some countries enable legislative overrides of specific court decisions, but usually, this dialogue occurs through the process of constitutional amendment: The court interprets the constitution, but the legislature can amend it if it dislikes the court’s interpretation.
IN ISRAEL, such dialogue is especially necessary, for two reasons. First, unlike other Western democracies, Israel’s “constitution” underwent no formal ratification process. Indeed, the two Basic Laws on human rights were enacted by a minority of the 120-member Knesset (the votes were 23-0 and 32-21). This makes their constitutional status highly dubious: A constitution enacted by minority vote has no precedent in democratic theory or practice. Thus amendments, far from disrupting a carefully crafted constitutional consensus, could actually help to forge one.
Second, Israel’s Supreme Court is exceptionally activist, and has interpreted the Basic Laws as granting many rights found nowhere in their text – including some that the Knesset explicitly rejected during its debate on the laws. When a court arbitrarily expands the constitution to include rights that the legislature never intended, it is assuredly the legislature’s right and duty to correct this via amendments.
Thus by declaring it improper to amend a Basic Law in order to overturn a court ruling, Friedmann’s critics are effectively seeking to replace the democratic norm of constitutional dialogue with a judicial dictatorship.
WITH REGARD to the attorney-general, Friedmann proposed the following: The search committee should be chaired by a former justice minister or attorney-general, rather than a retired Supreme Court justice; the retired judge on the panel should be allowed to come from any court, instead of the Supreme Court only, and should be appointed by the justice minister instead of the Supreme Court president; and the committee should propose two or three candidates to the cabinet instead of only one.
Friedmann’s critics, including current Attorney-General Menachem Mazuz, former Supreme Court justice Mishael Cheshin and Bar Association Chair Shlomo Cohen, charged that this proposal would politicize the selection process and thereby “undermine the rule of law.”
But this charge ignores the attorney-general’s dual role: head of the prosecution and the government’s legal adviser. The latter is a clearly political function, which is why the attorney-general is formally a cabinet appointment: The government is entitled to appoint a legal advisor who supports its policies and will facilitate their implementation.
This is especially vital given the Supreme Court’s outrageous ruling that the government’s “legal adviser” is in fact its boss, whose “advice” the government may not reject: That enables an uncooperative attorney-general to stymie the government’s legislative program.
CURRENTLY, however, the cabinet cannot actually choose its own legal adviser: Effectively, this is done by a search committee over whom the cabinet has little control. The five-member committee is chaired by a former Supreme Court justice, appointed by the court president, while two other members are chosen by the Bar Association and the country’s law school deans; thus government representatives are in the minority. Moreover, it traditionally recommends only one candidate, whom the cabinet must accept or reject; this further erodes the cabinet’s choices.
Friedmann’s proposal sought to shift the balance by making a cabinet appointee (the former justice minister or attorney general) the chairman, giving cabinet appointees three seats on the panel rather than two, and requiring the committee to give the cabinet a choice of candidates rather than a single “take it or leave it” nominee. This would have restored the cabinet’s ability to appoint a legal adviser who would help it advance its policies – a crucial component of any government’s ability to govern.
Yet the proposal also retained existing safeguards on the attorney-general’s prosecutorial independence, such as his appointment for a fixed term – even at the cost of undercutting the government’s freedom of choice: Under this system, should the government change during the attorney-general’s term, the new government could be saddled with a legal adviser committed to its predecessor’s policies rather than its own. Properly, each government should be allowed to replace its predecessor’s attorney-general.
UNFORTUNATELY, the cabinet diluted Friedmann’s proposal shamefully on Sunday: The committee’s chair will still be a retired judge (but not necessarily justice) appointed by the Supreme Court president, though the justice minister will now be able to veto the president’s choice; and while the committee will now have to forward more than one candidate to the cabinet, government representatives will still comprise a minority on it.
The original proposal, however, would have assured a crucial component of democratic governance, the elected government’s ability to enact its legislative program, without sacrificing prosecutorial independence. That hardly undermines “the rule of law” – unless this concept is understood to mean the replacement of democracy with rule by unelected legal officials.
That, unfortunately, is how Friedmann’s opponents do seem to understand it. But this is not an interpretation that ordinary Israelis should countenance.
Nor are such initiatives anything new. The Church of England decided last year to divest from companies “profiting from (Israel’s) illegal occupation” of the territories. The two lecturers unions that merged to form UCU in 2006 had each previously voted to impose an academic boycott on Israel (one decision was later overturned in a revote; the other was subsequently invalidated by the merger). A British architects association has repeatedly urged a boycott of Israeli architects.
And private organizations have imposed their own boycotts. A British journal of translation studies, for instance, fired a board member in 2002 solely and declaredly because she was Israeli (and, ironically, a longtime activist against the very “occupation” she was fired to protest). Last month, the Tate Modern museum not only refused to include works by Jewish Israeli artists in its exhibition on contemporary Middle Eastern art, but billed works by Arab Israeli artists as being from “Palestine.”
CLEARLY, SUCH actions raise many questions. Why, for instance, is Israel the only country singled out for such attention? None of these groups has proposed boycotting Sudan, where government-backed militias have slaughtered some 400,000 people in recent years (compared to about 4,000 Palestinians killed in Israeli-Palestinian fighting during those same years), and are now raiding neighboring Chad and Central African Republic as well.
Or Zimbabwe, where Robert Mugabe is deliberately starving his own people; Myanmar, where a military junta overthrew the elected government in 1990 and has brutalized the population ever since; Russia, whose war in Chechnya is thought to have killed tens or even hundreds of thousands of civilians (no exact statistics exist); China, which has occupied Tibet since 1950; or even the US and Britain itself, whose botched invasion of Iraq sparked a civil war that is killing hundreds of thousands of people a year.
By any objective standard, these are worthier targets for sanctions than a country that has repeatedly sought to end its “occupation of Palestine” (through the Oslo Accords, the Camp David talks in 2000 and the unilateral withdrawal from Gaza in 2005), but has been met each time only with increased terrorism; and whose military operations are aimed at defending its own people from terrorist attacks.
Moreover, why protest the occupation by targeting the medical profession, which treats Jews and Arabs alike, including Palestinians seeking care unavailable in their own hospitals? Or academia, which probably contains more “anti-occupation” activists than any other profession in Israel?
And why would a professional union like the NUJ deliberately sacrifice its greatest professional asset – a reputation for objectivity – by openly taking sides in a conflict it covers, thereby destroying the credibility of its members’ reporting?
THE MOST puzzling question of all, however, is “why Britain”? There have been boycott initiatives elsewhere, but no other country outside the Arab world comes close to Britain for the sheer number of such initiatives and the range of professions they encompass. Why is Britain alone seemingly consumed with this anti-Israel obsession?
Psychologists could undoubtedly have a field day exploring the possibilities. Perhaps this obsession is a reversion to Britain’s historic role as a pioneer of new forms of anti-Semitism? Britain, after all, gave the world the first known Christian blood libel against Jews (the case of William of Norwich in 1144); it was also the first country to expel its Jews, in 1290 – two centuries before the more famous Spanish expulsion of 1492.
Or perhaps it reflects guilt over Britain’s failure, as the country that controlled the area in 1948, to prevent a Jewish state from arising at all? Certainly, it made a good-faith effort – for instance, by giving Jordan and Egypt free access to its arsenals when they invaded the nascent Israel in an effort to strangle it at birth. Nevertheless, it undeniably failed.
Whatever the reason, this British obsession has serious policy implications for Israel, which has long regarded that country as one of its closest friends. Britain, for instance, consistently places second only to the US in polls asking which country Israelis would trust to mediate Arab-Israeli talks, or as part of a peacekeeping force under any future deal.
THERE ARE two obvious reasons for this belief in British friendship. One is Britain’s longtime status as America’s closest ally. America is unquestionably Israel’s best friend, and Israeli affection for the US has thus been extended to Britain by association. The other is Tony Blair’s 10 years at Britain’s helm, during which he has been the European leader most supportive of Israel’s right to defend itself. This misled Israelis into thinking that most Britons share his views.
In reality, however, Blair’s support of Israel on this issue has been immensely unpopular with his countrymen, and with British opinion leaders so fixated on Israel-bashing, the situation can only get worse.
After all, the NUJ controls what Britons read in their papers, hear on their radios and see on their televisions; the Anglican Church controls what they hear from the pulpit; the UCU controls what college students hear in class; UNISON plays a major role in setting and carrying out policy. What else is left?
This does not, obviously, mean that Israel should abandon the public relations battlefield, or cease trying to find common ground with both the British government and individual companies and organizations. But it does mean that it will not be able to rely on Britain much longer as one of its comparative advocates within Europe. Israel must therefore immediately start investing effort, at both the governmental and public opinion levels, in cultivating other European countries to replace Britain in this role.
Britain, unfortunately, is already a lost cause.