The High Court of Justice took a long step last month toward making Israel one of the few countries that recognize gay marriage – in defiance of the legislature and executive.

Ostensibly, the ruling involved a marginal issue: whether a gay couple who married legally in Canada should be registered as married in Israel’s Population Registry. Since the law explicitly states that Population Registry data are not proof of personal status, the court’s decision to register the men as married seemingly brings them no closer to legal recognition of their marriage. Yet a careful examination of the verdict reveals otherwise.

The ruling relied on the 1963 Funk-Schlesinger decision, which successive courts have repeatedly upheld. Funk-Schlesinger states that the Population Registry exists merely “to amass statistical material,” which “might be correct or might be incorrect, and nobody guarantees its correctness.” Therefore, the registry has no right to try to verify its data: If someone submits a marriage (or adoption or conversion) certificate from overseas, the registry must record it, regardless of whether it would actually be recognized in Israel.

This principle, incidentally, is absurd: Whoever heard of a statistical database that is not only not obliged, but is actually forbidden, to verify its data? Were other databases to adopt this principle, they would rightly be accused of malfeasance.

Yet even Funk-Schlesinger has limits: “A public official is not obliged… to be party to an act of deceit,” it said. Therefore, clerks can refuse to register clearly false data – for instance, a bearded adult who declares himself a five-year-old child.

Thus even under Funk-Schlesinger, the Population Registry would seem justified in refusing to register a gay marriage: The couple clearly consists of two men, and Israel does not allow homosexual marriage.

But six justices, headed by former chief justice Aharon Barak, disagreed. The relevant question, Barak said, is not whether gay marriage is legal in Israel, but whether Israel recognizes gay marriages conducted overseas. And the answer, he declared, “is not at all simple.” As the lone dissenting justice, Elyakim Rubinstein, correctly noted, the answer, while indeed not simple in the original Funk-Schlesinger case, would seem straightforward in this one.

FUNK-SCHLESINGER concerned an overseas civil marriage between a Jewish man and a non-Jewish woman. Since most Western countries recognize civil marriages conducted abroad, Rubinstein argued, it was plausible that Israel might do the same.

In contrast, he noted, only six countries worldwide currently permit gay marriage, and most countries, even Western ones, also refuse to recognize gay marriages performed overseas. Thus absent a Knesset directive to the contrary, the Population Registry was far more justified in assuming that Israel would side with the vast majority of countries that do not recognize such marriages than it would have been in assuming that Israel would side with the tiny minority that do.

Barak, however, viewed things differently. The courts, he wrote, have already granted gay couples numerous other rights that the Knesset never legislated, including pension rights, inheritance rights, the right to use family courts, and more. Gay couples are thus already a recognized “social unit” with “certain legal consequences,” so how could the registry know that such couples might not also constitute a “family unit”? In other words, because the court has repeatedly circumvented the Knesset to create rights for gay couples, the registry should realize that the court might do so again – and therefore, it should have ignored both the decades-long status quo and the fact that the Knesset has not yet recognized such marriages.

But the ruling gets even worse – because this was not, as Barak implied, a case of a lowly registry clerk making legal judgments beyond his purview; the registry was backed by the government’s highest legal authority, Attorney-General Menahem Mazuz. And if the attorney-general is not qualified to make legal decisions for the government, who is?

Mazuz’s position was simple: Whether to recognize gay marriages is properly the Knesset’s decision, and unless the Knesset does so, the Population Registry should not register such marriages on its own initiative.

Barak paid lip-service agreement, saying that indeed the Knesset should decide. However, he quickly rendered this agreement meaningless: Since, he declared, the Knesset has not explicitly banned recognition of such marriages, the Population Registry cannot refuse to register them – even though Israel never decided to recognize such marriages, even though most countries do not do so, and even though the government’s highest legal authority ruled otherwise.

The court thus effectively replaced a decades-long presumption against gay marriages with a presumption in their favor: It declared that the registry must presume such marriages to be legal unless explicitly told otherwise by the Knesset.

It also effectively ruled that existing law does not bar recognition of gay marriages: Otherwise, the registry would not be justified in presuming them legal. And finally – though it denied expressing an opinion on this subject – it clearly implied that it considers such marriages valid: Otherwise, what grounds could it have for overruling the government’s highest legal authority in order to mandate their registration? From here, the distance to outright court recognition of gay marriage is small – particularly given its habit, as noted above, of viewing court-created rights as self-propagating.

Technically, the Knesset could still legislate against gay marriage. Yet by ruling that existing law does not bar recognition of such marriages, the court has set a neat trap: Absent Knesset action, it will be free to declare gay marriages valid. But if the Knesset does act, the court will be free to declare the new law unconstitutional – whereas pre-1992 laws are protected by a grandfather clause in the Basic Law: Human Dignity and Freedom. And since the court has already ruled that this Basic Law includes rights to equality and to marry whomever one pleases – neither of which actually appears in the law’s text – it presumably would declare such a law unconstitutional.

The court has thus put Israel on a fast track to joining that tiny minority of states that recognize gay marriage. And it has left the legislature and executive little room to intervene.

Virtually not a day has passed recently without some famous person declaring that resolving the Israeli-Palestinian conflict is the key to solving all the problems of the Muslim world – from Kofi Annan (“As long as the Palestinians live under occupation… so long will passions everywhere be inflamed”) through Henry Kissinger (“a restarted Palestinian peace process should play a significant role” in resolving the Iranian nuclear crisis) to Tony Blair (an Israeli-Palestinian settlement is “the core” of any effort to resolve other Middle East problems and defeat “global extremism.”)

It is astonishing that so many intelligent people could seriously espouse such an obvious falsehood. Do they really believe that Sunni Muslims and Shi’ite Muslims – whose views on Israel are identical – are slaughtering each other in Iraq because of the Israeli-Palestinian conflict? Or that anti-Syrian politicians in Lebanon – who are no less anti-Israel than the pro-Syrian sort – are being assassinated by Syria and threatened with a coup by Hizbullah because of the Israeli-Palestinian conflict?

That Arab Muslims are committing genocide against black Muslims in Sudan because of the Israeli-Palestinian conflict?

That Taliban Muslims are murdering non-Taliban Muslims in Afghanistan because of the Israeli-Palestinian conflict?

That Chechen Muslims took Russian schoolchildren hostage in Beslan because of the Israeli-Palestinian conflict?

That Muslims and Hindus are killing each other in Kashmir because of the Israeli-Palestinian conflict?

That Muslims worldwide rioted over Danish cartoons because of the Israeli-Palestinian conflict? The list could go on for pages.

But the theory of Israeli-Palestinian centrality is not only false, it is dangerous – because it prevents the world from addressing the real root cause of all these conflicts, including the Israeli-Palestinian one: a widespread culture in the Muslim world that views violence and threats of violence as legitimate means of resolving disputes.

THE CARTOON crisis is a particularly good example, because it is not obscured by entanglement with any local political conflict. After a Danish paper published satirical cartoons of the Prophet Muhammad last year, Muslims worldwide engaged in violent rioting for weeks, resulting in several deaths.

Compare this to Catholics’ reactions to recent satirical assaults on the pope and the church in Italy. Two weeks ago, for instance, an Italian television show satirized Pope Benedict XVI as being jealous of his predecessor and therefore engaging in various degrading acts – tap-dancing, juggling oranges – while demanding: “Could Pope Wojtyla [John Paul II] do this?”

On another recent show, an Italian comedian joked about the Holy Trinity debating where to go on a trip: God the Father proposes Africa, Jesus proposes Palestine and the Holy Spirit proposes the Vatican. Asked why, the Holy Spirit responds: “I’ve never been there.”

Clearly, such ridicule is no less offensive to devout Catholics than the Muhammad cartoons were to devout Muslims. But there have been no riots over these satires, nor have any Catholic clergy urged such riots, as many Muslim clerics did over the Danish cartoons. Catholics have confined themselves to oral and written protests – because in modern Western culture violence is not considered an acceptable response to offense.

DO REACTIONS to religious satire really have any bearing on political conflicts such as the Israeli-Palestinian one? Absolutely – for two reasons.

First, as long as the Muslim world considers violence an appropriate response to grievance, neither the Israeli-Palestinian conflict nor any other of the dozens of conflicts involving Muslims worldwide will be solvable. Indeed, the Israeli-Palestinian conflict amply demonstrates this point.

The Palestinians could have obtained a state in July 2000, had Yasser Arafat expressed his dissatisfaction with Israel’s proposal at Camp David in “Western” fashion – by presenting a counterproposal. Ehud Barak’s government was clearly willing to make further concessions; it did so at the subsequent Washington and Taba talks. But instead the Palestinians opted to express their dissatisfaction violently, by launching a terrorist war that killed over 1,000 Israelis (and some 4,000 Palestinians) over the next six years. As a result, Israelis kicked Barak out and began a military counteroffensive, and negotiations stopped.

The same happened last year after Israel left Gaza. Israelis subsequently elected Ehud Olmert on a platform of doing the same in most of the West Bank. But the Palestinians, instead of seizing this opening to declare a cease-fire and negotiate further concessions, opted for violence: They used evacuated Gaza as a launching pad for bombarding southern Israel with rockets, and then, for good measure, elected Hamas, which openly advocates Israel’s destruction. As a result, not only are negotiations still on hold, so is Olmert’s proposed West Bank withdrawal.

THE SECOND reason why addressing the culture of violence is crucial is that even if the Israeli-Palestinian conflict could somehow be resolved without doing so, this would do nothing to solve other problems either within the Muslim world or between the Muslim world and the West – because the number of potential grievances is endless. These include cultural differences (the Danish cartoons), economic issues (last year’s riots in France), foreign policy issues (Iraq, Afghanistan) and more.

The Blair-Annan-Kissinger idea seems to be that if Muslims were appeased over Israel they might abjure violence over other issues. But, in fact, history teaches the opposite: Just as Hitler, far from being appeased by the West’s handover of Czechoslovakia, instead concluded that he could also grab Poland with impunity, thereby igniting World War II, so has every concession to Muslim terror simply encouraged Muslims to think that violence pays.

Israel’s pullout from Gaza, which 84 percent of Palestinians attributed to terror, was a major factor in both their election of Hamas, the leading Palestinian terrorist organization, and their ongoing majority support for terrorism. Spain’s pullout from Iraq following the Madrid bombing encouraged al-Qaida to plan similar bombings in other countries. And Muslims worldwide credit Iraqi terror with America’s expected pullout from Iraq.

If the West really wants to solve its Muslim problem, it must adopt the opposite approach – making it clear that violence, far from being rewarded, will be penalized. By instead seeking to appease the Muslim world in Israeli coin, it merely proves that violence pays.

And it will thereby reap more of the same.

Whenever politicians or army officers say that there is no military solution to the problem of Kassam rockets, my reaction is: Just how stupid do you think we are? After all, more than 1,000 Kassams have been fired at Israel from Gaza over the last 12 months, yet not a single rocket has been fired at Israel from the West Bank during this period. So unless you believe that West Bank terrorists, unlike their Gaza counterparts, have no desire to launch rockets – an assumption that defies both logic and the facts (the media periodically report on Palestinian efforts to start a West Bank Kassam industry) – the obvious conclusion is that the army has succeeded in preventing Kassam fire from the West Bank.

The question, then, is why the army has been unable to do the same in Gaza. And the answer, quite simply, is that even before the disengagement, the army never controlled Gaza as fully as it did the West Bank.

Even before the disengagement, the army in Gaza operated mainly on the borders, around the settlements and along major roads, with only occasional forays into Palestinian towns and cities. There was never a Gazan equivalent of Operation Defensive Shield, the search-and-destroy mission for terrorists and arms caches that took place simultaneously in every major West Bank city in March-April 2002; nor was there ever a Gazan equivalent of the army’s post-Defensive Shield deployment in the West Bank, which maintained control over these cities through a combination of checkpoints at exits and entrances and frequent incursions.

In short, in the West Bank, military doctrine held that terror had to be stopped at the source, meaning inside the towns and cities where attacks originated. But in Gaza, there was never any attempt to control what was happening inside Palestinian cities; the army focused instead on perimeter defense, of both Israel and the settlements.

THIS WAS better than nothing, as the sharp increase in rocket launches since the disengagement demonstrates. According to the Intelligence and Terrorism Information Center, there were 309 Kassam launches at Israel and the Gaza settlements combined in 2004 (the last full year before the August 2005 pullout), compared to 932 at Israel alone during the first 10.5 months of this year – a more than threefold increase.

Nevertheless, the fact that most of Gaza remained outside the army’s control meant that terrorist cells could manufacture rockets largely undisturbed. It also meant, as officers acknowledged in media interviews, that the army’s intelligence network in Gaza was patchy compared to its network in the West Bank.

THE BOTTOM line is that a military solution not only exists; it is already being successfully employed in the West Bank: a Defensive Shield-type operation followed by a long-term deployment aimed at achieving comprehensive territorial control. Such a strategy would not end the Kassams instantly, any more than Defensive Shield ended the suicide bombings instantly. But in the years since Defensive Shield, successful terror attacks from the West Bank have fallen steadily and dramatically, by about 50 percent every year. And there is no reason to believe that a similar approach in Gaza would not produce similar results.

Does this mean that the government should launch Defensive Shield II in Gaza tomorrow? In fact, no: Israel is neither diplomatically nor militarily ready for such an operation. Moreover, the diplomatic and domestic consequences of reoccupying Gaza are sufficiently grave that it makes sense to explore other options first – assuming, of course, that the government actually does so, instead of pretending that the problem does not exist, as it has for most of the past year.

Nevertheless, Israel must prepare for a military operation should other ideas fail, because allowing Sderot to continue being bombarded by 1,000-plus rockets a year is not a tenable option. And that means doing two things.

First, the government must begin preparing the diplomatic case for such an operation. Currently, most of the world views the rocket attacks as a mere annoyance, and one does not launch a major invasion in response to a minor annoyance. Yet this view exists in large part because the Israeli government has promoted it: Given the sharp increase in Kassam launches since the disengagement, treating the rocket fire as anything worse than a minor nuisance would imply that disengagement had been less than perfectly successful, and that is something that Ehud Olmert’s government, being so closely affiliated with the pullout, has been unwilling to do.

Now, however, even Olmert understands that the Kassams can no longer be ignored. Thus he must launch a major diplomatic campaign to explain the obvious: that no other country in the world would tolerate daily rocket fire on one of its cities, and Israel cannot do so either. This would not eliminate the diplomatic fallout from a military operation, but it might mitigate it.

The other essential step is replacing Chief of General Staff Lt.-Gen. Dan Halutz. There is clearly no point in exercising the military option only to fail, and given Halutz’s incompetent handling of ground operations during the Lebanon war, there is no reason to believe that he is capable of successfully managing a similar operation in Gaza. But beyond that, Halutz’s continued tenure might well make it impossible to mobilize the manpower needed for such an operation.

Defensive Shield required a massive call-up of the reserves, and so would any similar operation in Gaza. Yet it is among reservists that bitterness at Halutz’s conduct of the Lebanon war has been deepest and most pervasive, and there is a real danger that many might refuse to answer a call-up from him a second time. That would stymie the operation even before it began.

The military option should be a last resort. But the claim that it does not exist is no more than a self-serving lie designed to absolve the government of responsibility for taking action. And by perpetuating this lie rather than preparing for military action should it prove necessary, the government is betraying its most basic responsibility: protecting its citizens.

Many Israelis were undoubtedly relieved by the compromise that resolved last week’s Gay Pride controversy and resulted in a demonstration unmarred by violence. And from a short-term perspective, it was indeed a success. But from a long-term perspective, the handling of this affair was a disaster – because it tangibly demonstrated that our legal system discriminates based on religious and political affiliation.

To understand this, it helps to realize that the haredim who threatened violence should the Jerusalem Gay Pride parade proceed as planned, and who rioted almost daily last week in order to drive home their point, intentionally modeled their response on a long-standing and highly successful paradigm for how to prevail in such culture clashes. That paradigm is the Temple Mount.

For four decades, successive Israeli governments have denied Jews the right to pray on the Mount for fear that this would offend Muslim sensibilities, and therefore provoke Muslim riots. This policy has been backed by every attorney-general and every Supreme Court; the latter has repeatedly ruled that while freedom of worship is a fundamental right, the state’s interest in preventing bloodshed trumps that freedom, and therefore the government is entitled to bar Jews from worshiping at Judaism’s holiest site.

For the same reason, every attorney-general and every Supreme Court has upheld a ban on demonstrative ascensions of the Mount by Jewish organizations. Every few months, groups such as the Temple Mount Faithful request permission to ascend the Mount on particular Jewish holidays, but the police consistently refuse, for fear of sparking Muslim riots. And every time, the attorney-general and the court have backed the police’s decision.

Some of those opposed to the Gay Pride parade in Jerusalem thus logically concluded that what worked for Muslims on the Mount would also work for them. This is not mere speculation; even haredim, who firmly believe that Jews are religiously forbidden to ascend the Mount, cited the Temple Mount precedent. In a media interview last week, for instance, MK Moshe Gafni (United Torah Judaism) argued that Attorney-General Menahem Mazuz should have banned the parade, because “there has never been a case in which the police said that public safety would be endangered, or that a certain act would seriously hurt large sectors of the population, and the attorney-general interfered…. Why don’t Jews have the right to pray at the Temple Mount, contrary to Halacha? The police do not allow it because they believe it would cause riots and grave injury to Muslim feelings.”

AND IN fact, the police were perfectly consistent: They wanted to cancel the parade. But Mazuz and the courts refused.

In a strongly worded statement to the court last Wednesday, attorney Eran Ettinger, representing Mazuz, argued that the court should not give “prizes for violence by forcing police to cancel the parade.… The police’s activities must be directed not against participants in the event, but rather against those threatening acts of violence against them.… The price Israeli society would pay for a surrender to violence would be difficult to bear.”

And on Thursday, the court upheld this position in its rejection of several petitions against the parade. The compromise that replaced the parade with a stadium rally was due not to any concern over religious sensibilities, but to fear of a Palestinian terror attack after IDF artillery shells killed 19 civilians in Gaza the day before.

And thus, in the clearest possible fashion, the legal system sent the following ugly messages:

Muslim religious sensibilities matter enough to trump fundamental freedoms, such as freedom of worship and freedom to demonstrate, but Jewish religious sensibilities do not.

Secular homosexuals who wish to demonstrate in Jerusalem are entitled to have the police uphold their rights against threats of violence, but religious Jews who wish to pray at Judaism’s holiest site are not.

Demonstrations in support of a left-wing cause – gay rights – are important enough to outweigh both religious sensibilities and threats of bloodshed, but demonstrations in support of a right-wing cause – Jewish rights on the Temple Mount – are not important enough to outweigh either.

THE PROBLEM is not that Mazuz’s response to the court was wrong in principle. Violence should indeed not be rewarded; the police should indeed direct their energies against those who threaten violence instead of against those who are threatened; and Israeli society would indeed pay a steep price for surrendering to violence. Allowing violence to decide a dispute simply invites more violence. And this is especially true in a society as fractured as Israel’s, where almost everything offends some group or another.

But the price that Israeli society will pay for a legal system that openly discriminates between Jew and Muslim, religious and secular, and Right and Left may well be even steeper. Faith in the legal system, by enabling disputes to be resolved peaceably, is the glue that holds society together – and again, this is especially vital in a fractured society such as Israel’s, where sectoral disputes are frequent. If instead, large segments of society become convinced that Israeli law does not grant them a fair hearing, many of their members are liable to conclude that they have no recourse except the law of the jungle: brute force.

Both Mazuz and the court could still prove that what occurred was not discrimination, but a genuine change in policy. Last Wednesday, the Public Council for the Temple Mount submitted a new request for permission to pray on the Mount, basing it explicitly on Mazuz’s stance in the Gay Pride controversy. The organization thus effectively threw down a gauntlet to the legal system: Prove that you do not discriminate on the basis of religious and political affiliation – or prove that you do.

The danger of Muslim violence on the Mount is undeniably real. But in the long run, the dangers posed by a blatantly discriminatory legal system are worse. One can only hope that both Mazuz and the court will be wise enough to understand this.

If there is one thing at which the Palestinians excel, it is public relations. With their elected government ostracized by the West, their task would seem daunting. Yet despite this handicap, they have successfully diverted Western attention for months from two embarrassing questions.

The first relates to money. In recent months, the media have been filled with dire reports about the growing humanitarian crisis in the Palestinian Authority. And at first glance, this seems logical: The West cut off aid to the Palestinian government after Hamas took power, and since Western aid comprised most of the PA’s budget, a crisis would seem inevitable.

Yet as recent news reports have made clear, the PA appears to have plenty of money. It has simply chosen to use its funds for purposes other than its people’s welfare.

For instance, Israeli intelligence has detected more than 20 tons of explosives being smuggled into Gaza this year, along with sophisticated antitank and antiaircraft missiles. Most of this weaponry goes to Hamas, the ruling terrorist organization cum party, but significant quantities also go to terrorist groups associated with Fatah, PA Chairman Mahmoud Abbas’s party. The purchase price for this materiel, including the cost of smuggling it into the Gaza, could have been used to cover the unpaid salaries of thousands of PA employees – but Hamas and Fatah would both rather buy arms than feed their people. And as long as this is true, giving either group more money would be futile.

Or consider the fact, noted in an IMF report published last week, that in June, while the Hamas government was already pleading inability to pay existing PA employees, it decided to increase the PA’s payroll by hiring an additional 5,400 employees, mainly security personnel – read gunmen – affiliated with Hamas. In other words, it had the money to hire 5,400 Hamas-affiliated gunmen: It was only when it came to teachers and doctors that its pockets were empty.

OR CONSIDER the incredible fact that despite the boycott, the European Union – for years the PA’s principal donor – has actually given more money to the Palestinians this year than it did in previous years. According to John Vinocur of the International Herald Tribune, the EU claims to have given $814 million to the Palestinians between January and October, “more than it would in a normal year.”

Granted, the money has not gone to the Hamas government. Some has gone to Abbas’s office, some to nongovernmental organizations and some directly to PA employees, through a “Hamas bypass” mechanism set up earlier this year. But the fact remains that the EU, the PA’s major donor, has increased rather than decreased its contributions – which means that if this money were being used for its intended purpose, a humanitarian crisis would seem unlikely. So is the humanitarian crisis a propaganda lie, or has this money, too, been diverted by its recipients to purposes other than the Palestinians’ welfare?

BUT IF the PA’s finances ought to prompt hard questions from the West, this is no less true of its counterterror efforts – or rather, the lack thereof. For years, the West has maintained that Abbas, unlike Hamas, wants to fight terror, but is incapable of doing so. Yet in fact, Abbas’s forces have demonstrated exceptional proficiency in handling certain types of attacks – namely, those directed at Western journalists and aid workers.

Over the past year, there have been numerous kidnappings of foreigners. Just last week, for instance, a Spanish aid worker was kidnapped in Gaza; the week before, an AP photographer was kidnapped there; two weeks before that, an American aid worker was kidnapped in Nablus. In every such kidnapping, however, the victims have been released unharmed, usually within 24 hours. And in every single case, this has been due to PA intervention – usually by Abbas’s office.

This begs an obvious question: How is it that Abbas’s security forces are so quickly able to locate and free kidnapped Westerners, but are completely incapable of dealing with any other type of terrorist activity?

Even during Abbas’s 14 months in sole control of the PA, from January 2005 to March 2006, his forces failed to arrest so much as a single one of the terrorists who have launched Kassam rockets into Israel from Gaza every day since disengagement. Nor were anti-Israel terrorists of any other stripe – bomb-makers, gunmen, kidnappers – ever arrested, even when Israeli intelligence gave him information on which to act.

The conclusion is obvious: Abbas’s forces are quite capable of taking action when he wishes them to do so, and in the case of Western journalists and aid workers, he does. He knows that these journalists and aid workers are largely responsible for generating Western sympathy for the Palestinian cause, and it is therefore important to him that they keep coming. And since this would be less likely if they risked torture or death at the hands of kidnappers, he makes sure that kidnapped Westerners are rescued quickly and unharmed.

But Abbas has no interest whatsoever in fighting anti-Israel terror, because that would be unpopular with his own public: As one September poll found, 63 percent of Palestinians support bombarding Israeli cities with rockets, 57 percent support suicide bombings against Israeli civilians and 75 percent favor kidnapping Israeli soldiers. Yet neither can he openly advocate such attacks, since that could lead to the West boycotting him like it does Hamas. The obvious solution is to plead helplessness and rely on a gullible West to swallow this plea.

Unfortunately, relying on Western gullibility has so far been a safe bet with regard to both money and terrorism. But if the West is serious about wanting an Israeli-Palestinian peace, it will have to stop turning a blind eye to both the PA’s misuse of funds earmarked for its people’s welfare and its refusal – not inability – to combat anti-Israel terror. Because if the PA can enjoy Western diplomatic and material support even without amending its behavior, it will have no incentive to change. And without change, neither the conflict nor Palestinian misery will end.

Who runs this country, anyway? The question was prompted by a report in Monday’s Haaretz claiming that “several” MKs had lambasted Attorney-General Menahem Mazuz for not issuing a clear ruling on whether President Moshe Katsav should step down because of the investigation against him. “Mazuz wants us to pull the chestnuts out of the fire for him instead of making a courageous move,” said one, in what Haaretz‘s reporter claimed was a typical response.

This reaction is astonishing first of all because by law, the attorney-general has no authority whatsoever over the president – whereas the Knesset does: It can oust him. This, according to Justice Ministry officials, is precisely why Mazuz was reluctant to weigh in on this question: He (correctly) considers it improper to issue opinions on issues outside his jurisdiction. He therefore refused to do so until ordered by the High Court of Justice, and even then, he tried to word his opinion cautiously: Katsav should “consider” suspending himself; the Knesset should “consider” ousting the president if Katsav declines to leave voluntarily.

But the MKs’ reaction is particularly astonishing because the Knesset – not the attorney-general – is supposedly the country’s sovereign authority. That is the nature of a parliamentary regime: Sovereignty resides in the parliament. In other words, ultimate responsibility for decision-making is supposed to rest with our MKs, not the attorney-general.

Yet the MKs interviewed by Haaretz evidently do not want this responsibility. They would rather delegate it to the attorney-general: Let him make a clear decision on whether Katsav should be ousted, and the MKs can then obediently do his will, free of the unpleasant need to decide for themselves.

THIS SAME desire to abdicate responsibility was evident in another Haaretz report a day earlier, about a bill to create a disciplinary court for elected officials. Under the bill, a disciplinary court consisting of a judge, a former MK and a professor would be set up to try cases involving ethical violations by ministers and MKs that do not warrant criminal prosecution. The court would be entitled to impose punishments such as reprimands, fines, suspensions or even dismissals of MKs and ministers, including the premier.

The bill, submitted by Meretz, has garnered co-sponsors from across the political spectrum: Kadima, Labor, Likud, National Union-National Religious Party and Hadash. The Justice Ministry also supports it. Since the Ministerial Legislation Committee rejected it on Sunday, it will not receive government support, and is therefore unlikely to become law anytime soon. But the very fact that it has attracted such broad backing is noteworthy – because in fact, a mechanism for punishing elected officials’ ethics violations already exists: the Knesset Ethics Committee.

Granted, the penalties at the committee’s disposal are considerably less severe than those envisioned for the proposed disciplinary court. But legislation expanding its powers could easily be passed. And since most ministers are MKs, they, too, are within the committee’s jurisdiction.

MKs also have another tool for addressing ethics violations by ministers: parliamentary pressure. Supervising the executive is, after all, theoretically one of the legislature’s chief functions, and the house has many ways of pressuring the government into dismissing or downgrading a minister. Just consider Shas’s success in pressuring Yitzhak Rabin’s government to dismiss Shulamit Aloni as education minister – and that was pressure from a single party, rather than a broad-based demand. Moreover, since MKs must approve ministerial appointments, they could easily refuse to approve the appointment of anyone who committed ethics violations in the past. They even have the power, via a no-confidence motion, to replace the prime minister with someone else, from the same or a different party.

However, either of these mechanisms – the Ethics Committee or parliamentary pressure – would require MKs to actually make a decision and then take real action to implement it. Apparently, many consider it easier to abdicate this responsibility to a disciplinary court.

MKs have been abdicating their substantive decision-making authorities for years: It is the High Court, rather than our elected representatives, that is determining the route of the separation fence, which may well delineate Israel’s future borders; dictating immigration and citizenship policy (both by defining who is a Jew, and thereby entitled to automatic citizenship, and via cases dealing with naturalization); setting budgetary priorities (it has, for instance, asserted the right to set a minimum level for government welfare payments and to expand the list of drugs covered by the national health insurance plan); governing sensitive family matters (from recognizing gay couples to criminalizing spanking); and even dictating military tactics in wartime (with regard to both specific operations and general policies, such as targeted killings of terrorists).

In some cases, such as the “who is a Jew” issue, the court stepped in after the Knesset refused for years to resolve a genuine ambiguity in the law. In others, it unabashedly overturned Knesset policy. But the Knesset’s reaction has been the same either way: It has meekly accepted the court’s dictates, evidently content to allow someone else to assume responsibility for making hard decisions.

Until recently, however, it ferociously protected its authority over its own members. Now, many MKs appear willing to abandon even that: Let the attorney-general decide whether to oust the president; let a disciplinary court decide whether and how to punish MKs’ ethical violations.

ALL OF which begs an obvious question: If our MKs have abdicated all decision-making responsibilities, what do we need a Knesset for? We might just as well save the money we spend on it (NIS 435 million this year alone) and turn the building into a museum – a memorial of the time when Israel had a functioning democratic government.

But for anyone who dislikes this idea, only one alternative seems feasible: mobilizing massive public pressure for changing the electoral system to make MKs directly elected, and therefore directly accountable to voters instead of to party institutions. That would enable us to throw out MKs who refuse to do the job we pay them for – making decisions – and to keep doing so until they finally get the message.

In an interview in last Thursday’s Haaretz, Justice Minister Meir Sheetrit provided a textbook example of what is wrong with Israel’s foreign policy.

“The prime minister’s main job is presenting us with a timetable for achieving peace,” Sheetrit declared, referring specifically to the Israeli-Palestinian conflict. “That is the state’s guarantee for future generations… I believe the other side is also tired of wars. There is no such thing as a government without a diplomatic agenda… I hope [Prime Minister Ehud Olmert] will work toward achieving a permanent peace. It is our foremost obligation.”

There, in a nutshell, are the three deadly fallacies. First, peace is essential to Israel’s survival: It is “the state’s guarantee for future generations.” Second, it must therefore be pursued regardless of the other side’s behavior: “The prime minister’s main job is presenting us with a timetable [i.e., a fixed schedule] for achieving peace.” And third, because it is essential, it must be deemed achievable, even if this requires misreading the enemy’s intentions: “I believe the other side is also tired of wars.”

TODAY, AFTER the Palestinians responded to Israel’s “gesture” of evacuating the Gaza Strip by electing Hamas, which openly aspires to Israel’s destruction, the third pillar of this tripod seems particularly far-fetched – especially since repeated polls have refuted the theory that this vote represented a protest against Fatah’s corruption rather than support for Hamas’s political platform. One poll last month, for instance, found that even after six months of crippling economic sanctions stemming from Hamas’s refusal to recognize Israel, 67 percent of Palestinians support this decision, while only 30% think that Hamas should recognize Israel. Another poll last month found that 63% of Palestinians support bombarding Israeli cities with rockets (only 35% disagree); 57% support suicide bombings against Israeli civilians; and 75% favor kidnapping Israeli soldiers.

These are hardly the responses of people who are “tired of wars.” And Palestinian actions back this poll data: Since the pullout, southern Israel has suffered daily rocket fire, and a soldier was kidnapped in a cross-border raid. But this willful misreading of reality would be unlikely were it not for the first fallacy, which makes it psychologically necessary: the idea that peace is essential for Israel’s survival.

No would argue that peace is not desirable. But Israel’s own history ought to suffice to disprove its necessity: Despite being at war since its founding, Israel has not only survived, but thrived. Its population has quintupled, from 1.4 million to 7.1 million, with the Jewish population growing almost sevenfold, from 800,000 to 5.4 million. An economy once so poor that food was rationed now has a Western per capita income. Israel is a world leader in patent grants and hi-tech startups. In short, despite many serious problems, it is a success story.

And if more proof were needed, world history amply provides it. India and Pakistan, for instance, have been at war since their creation in 1947, including three hot wars interspersed with low-intensity terrorist warfare. Yet neither country is in danger of disappearing, and one, India, is a rising economic power.

Or take England and France, which fought each other for centuries – from the Hundred Years War in the Middle Ages through serial conflicts in the 18th century to the 19th century’s Napoleonic Wars. Yet both countries are alive and well today. And similar examples abound.

IN FACT, many countries throughout history have survived just fine without peace. However, there is one caveat: This is possible only if the conflict is intelligently managed and contained. And that is why the second fallacy – that the government’s “main job” is achieving peace, regardless of its feasibility – is so deadly.

Moves that might be sensible if both sides genuinely want peace are often counterproductive if the other side is bent on war.

The disengagement from Gaza was a perfect example. In the context of a serious peace process, it might have made sense. It demonstrated Israel’s willingness to evacuate settlements – something presumably necessary for any agreement – while retaining most of Israel’s negotiating assets. But in reality, the disengagement occurred during a bloody terrorist war that the other side evinced no interest in halting. And the results were predictable: Palestinian support for violence soared. Repeated polls found that most Palestinians – 84%, to cite one – interpreted the pullout as a victory for terrorism. And they therefore unsurprisingly concluded, as demonstrated in the other polls cited above, that more terror would be even better.

The Oslo Accords were another example. Had Yasser Arafat truly wanted to make peace, they might have been constructive. Since he did not, they resulted in increased violence. The years 2000-2004 alone produced more Israeli casualties from terrorism than the entire preceding 53 years.

In short, if the other side is not ready for peace, bold initiatives – “there is no such thing as a government without a diplomatic agenda” – are often more dangerous than simply trying to manage the conflict until conditions do become ripe for real peace. Not only do such initiatives encourage the other side to believe that violence works, they also encourage it to believe that the peace-seeker is so desperate to end the war that maintaining the pressure could produce complete capitulation.

In Israeli-Palestinian terms, such capitulation would mean accepting a “right of return” for some 4 million Palestinian refugees and their descendants, who could then democratically vote the Jewish state out of existence. In 13 years of negotiations, during which Israel has repeatedly abandoned “red lines” (such as Jerusalem), the Palestinians have yet to budge on this demand. And with good reason: Israel’s willingness to abandon successive red lines for “peace” has – rightly or wrongly – convinced them that continued violence will eventually lead Israel to abandon this one as well.

In short, what is truly essential for Israel’s survival is not peace, but abandoning the three fallacies espoused by Sheetrit. Ironically, it is only by being prepared to live with war until the other side is ready for peace that genuine peace can ever be achieved.

Avigdor Lieberman has focused media attention on Israel’s system of government by conditioning his entry into the coalition on radical changes. Yet Lieberman is far from the only person advocating governmental reform. Various citizen lobby groups are pushing this issue, and a few organizations have even prepared draft constitutions. The Knesset Constitution Committee was working on a constitution before the March elections, and planned in this context to consider changing the system of government. And President Moshe Katsav appointed a blue-ribbon commission to examine this issue; its recommendations will be submitted soon.

The various proposals offer a wide variety of ideas. But many of them share a common flaw: a failure to create checks and balances among the three branches of government, in order to prevent any one branch from accumulating excessive power.

Lieberman’s proposal is an excellent example. Though he claims to have modeled his system after that of America, it contains none of the checks and balances included in the US Constitution. For instance:

• In America, while the president appoints the cabinet, the Senate must confirm his choices. Lieberman would give the president sole authority over cabinet appointments.

• In America, while the president is responsible for foreign policy, treaties require approval by a two-thirds majority of the Senate. In Israel, by law, no Knesset approval at all is needed; cabinet approval is sufficient. And while most prime ministers have submitted major treaties to the Knesset as a courtesy, a special majority has never been required; simple majority approval has always been enough. Since Lieberman’s bill leaves this situation unchanged, it would in fact enable the president to sign binding treaties virtually singlehandedly, needing only the consent of a hand-picked cabinet formed with no Knesset input.

• In America, since congressmen are elected by district rather than by party slate, Congress can be controlled by the opposition. Presidents also sometimes face opposition from members of their own party, as congressmen ultimately answer to their constituents rather than the president. Lieberman’s bill, however, retains Israel’s current electoral system, in which MKs are chosen by, and therefore answerable to, party institutions rather than the voters. And to make doubly sure that parliament never challenges the president, it would also allow the president to dissolve the Knesset any time he considers it too dominated by the opposition to enable “proper governmental functioning.”

Yet Lieberman is hardly unique in his desire to concentrate power in one particular branch of government: Many “apolitical experts” are equally dismissive of the need for checks and balances.

Consider, for instance, the proposal outlined by Aharon Nathan – a member of Katsav’s commission and former senior government official who is also on the board of a citizen lobby group, Citizens Empowerment Center in Israel – in Monday’s Haaretz. It began promisingly, by proposing that our current electoral system be replaced by “total representation,” in which 90 of the 120 Knesset seats would be elected by constituencies. The remaining 30 seats would be distributed according to each party’s share of all the votes cast for unsuccessful candidates, thereby ensuring that no vote is “wasted.” This system, Nathan argued, would increase accountability by making most MKs directly answerable to constituencies.

Then, however, he proceeded to eviscerate this accountability: To promote governmental stability, he proposed, any coalition MK who votes against the government would be “deemed to have resigned,” unless the government authorized MKs to vote their conscience. Constituency MKs would be replaced by the winner of a snap by-election; occupants of the 30 party seats would be replaced by the next MK on their party’s list.

In other words, far from being accountable to their constituencies, MKs would become the virtual slaves of party leaders: Any MK who violated party discipline would instantly lose his job, even if his constituents backed him – which is far from unlikely, since most parties encompass a range of opinions. And since, in a parliamentary system, the government by definition commands a parliamentary majority, this means that the Knesset would have no power whatsoever to check the executive: MKs would have to either approve every government initiative or forfeit their seats to others who would be more obedient.

The draft constitution proposed by the Israel Democracy Institute, a leading think tank, offers yet another version of the same flaw: It would leave the current system of government, with its glaring absence of checks and balances, virtually intact. The electoral system, for instance, would remain the same, so MKs would still answer to party institutions rather than the voters. Cabinet members would still be able to double as MKs, so close to one-third of every Knesset would still consist of ministers and deputy ministers, which makes a mockery of the idea of parliamentary supervision over the executive: Effectively, members of the executive are “supervising” themselves.

Worst of all, the proposal not only retains but even strengthens the Supreme Court’s dominance of the system: It explicitly authorizes the court to overturn Knesset legislation or government decisions that violate constitutional rights, greatly expands the list of such rights, and maintains the existing judicial appointment system, whereby sitting justices essentially select their own successors, with elected politicians having only a minority vote in the process.

Even its one attempt to introduce a procedural safeguard is pathetic: On certain sensitive issues, the document states, the court is “not obliged” to give the constitution precedence over ordinary laws. However, neither is it forbidden – so even on these issues, the court could continue overruling the government at will based on its own expansive interpretations of constitutional rights. Thus an unelected Supreme Court, over whose composition our elected representatives have no real say, could continue overruling the two elected branches of government on virtually any issue, just as it does today.

Our current system of government is undeniably problematic, and in principle, changing it would be a good idea. But any reform must include a functional system of checks and balances among the three branches of government. Otherwise, the new system is liable to wind up being even worse than the current one.

Regardless of how the High Court of Justice ultimately rules, its issuance of a show-cause order last week against the government’s refusal to establish a state commission of inquiry into the Lebanon war – thereby effectively asserting the power to overturn this decision – represents a major new encroachment on the powers of the other two branches of government.

The problem that bothered the court is undeniably real: By instead establishing a governmental inquiry committee, the government retained the power to appoint the committee’s members, meaning that it essentially hand-picked the very people who will be investigating its actions. And that, despite the unquestionably high character of the committee members actually chosen, obviously makes it harder for the investigation to earn public credibility.

Nevertheless, quite aside from the fact that the law explicitly gives the government, and not the court, the right to make this decision, this is a rare case in which the law also explicitly assigned a watchdog to the government. And the watchdog chosen by the law was not the court, but the Knesset State Control Committee.

According to the Commissions of Inquiry Law, there are two, and only two, bodies authorized to establish a state commission of inquiry. One is the government, and the other is the State Control Committee. Nor was the latter’s inclusion accidental: The State Control Committee’s explicit function is to serve as a government watchdog, and therefore, unlike most Knesset committees, the opposition both chairs the panel and comprises a majority on it.

In other words, this is one issue on which there is no possibility of the government running wild if unchecked by the court: A Knesset committee with no interest whatsoever in the government’s survival has been given the power to establish a state commission of inquiry any time that it deems the government delinquent in failing to do so.

Granted, there is one restriction: The State Control Committee can establish a state commission of inquiry only if the state comptroller (who is equally independent of the government) publishes a report on that issue. However, State Comptroller Micha Lindenstrauss has already announced that he plans a comprehensive report on the war, assigned some 50 investigators (a huge number) to the task and promised to publish the results as soon as possible. Thus there is no fear that the committee will be deprived of the opportunity to establish a state commission of inquiry should it so desire.

BY ASSERTING its power to overrule the government on this issue, therefore, the court not only usurped the decision-making power that the law grants to the government, it also usurped the watchdog function that the law explicitly grants to the State Control Committee. In short, it encroached on the powers of both other branches of government simultaneously. And a show-cause order is unquestionably an assertion of the justices’ right to intervene: Cases that the court considers nonjusticiable are dismissed immediately, before such an order is issued.

But the judicial power grab represented by this order is even worse than that – because by law, if a state commission of inquiry is appointed, the Supreme Court president will choose the commission’s members. In other words, the court has set itself up as judge, jury and executioner: It will decide whether or not a state commission of inquiry should be established; it will hand-pick the members of this commission; and then, should the commission (as such commissions often do) recommend the ouster of any senior officials, the court, judging by its track record in other cases, will assert the right to declare the government’s behavior “unreasonable, and therefore illegal” should it decline to implement these recommendations – although by law, the government is not required to do so; that is why they are termed “recommendations.”

It was precisely to prevent such an accumulation of power in the hands of a single branch of government that the law gave both the executive and the legislature the right to establish state commissions of inquiry, but denied this right to the court. Such commissions enjoy enormous prestige, and hence considerable power – and the law was deliberately crafted to divvy up this power, along the time-honored principle of “Peter cuts the cake but Paul chooses his piece first”: Only the executive or legislature can establish such a commission, but it is the judiciary that picks its members.

Now, the court has thrown this careful division of power out the window and declared that it has the right to both cut the cake and choose its piece first.

It is quite possible that the court will ultimately decide not to overturn the government’s decision in this particular case, but that will in no way diminish the scope of its power grab – because this is the modus operandi that the court has been using to expand its power for years. First, the court asserts a new power without actually using it. Since most of our politicians have scant interest in long-term precedents as long as the court upholds the concrete case at issue, this ensures muted reactions from the cabinet and Knesset. Then, at a later date, the justices begin exercising this new power, relying on the precedent that they themselves set in the earlier ruling.

In this case, the cabinet can do little to protest the court’s encroachment; its own initial decision was too suspect in the eyes of too many Israelis to make such a protest credible. The State Control Committee, however, can and must protest vigorously against this usurpation of its authority.

Otherwise, the court will be able to notch another success in its thus far unimpeded campaign to slowly but surely gather the powers of all three branches of government into its own hands.

In an editorial published on September 11, this paper wrote that we are at a “dangerous point” in the war against Islamic extremism, with much of the West still unconvinced, five years after the Twin Towers were destroyed, that such a war even exists. And indeed, a glance at what has befallen the leaders of this war in recent years gives grounds for deep pessimism.

In March 2004, Spanish premier Jose Maria Aznar was voted out of power in direct response to a terror attack in Madrid three days earlier. This was a double victory for Islamic terror: Not only was Aznar, a leading member of the Western alliance against such terror, replaced by a man who prefers currying favor with the likes of Hugo Chavez, but it proved that terror could decide an election. Prior to the attack, polls had shown Aznar winning handily.

This summer, Silvio Berlusconi, another leading member of the alliance (and one of Israel’s best friends in Europe), narrowly lost to a candidate who shares the French view of Europe as a counterweight to America rather than its main ally.

In Britain, Tony Blair’s staunch pro-Americanism, eloquent defense of the war on terror and relatively (or, by European standards, extremely) pro-Israel stance have made him wildly unpopular at home. He was recently forced to promise to leave within a year, and whichever party wins the next election is certain to adopt a less pro-American, more anti-Israel and more anti-war line: Both the leader of the opposition Conservatives and the main contenders to succeed Blair within Labor have promised as much explicitly.

Finally, George Bush appears set to lose control of one or both houses of Congress this November to the Democrats, whose leadership remains largely unconvinced that the West is at war.

Indeed, with the sole exception of Angela Merkel’s narrow defeat of Gerhard Schroeder in Germany, the political scoreboard appears to be one long string of victories for those who deny the war’s existence.

YET IN recent months, there have been signs of a countercurrent emerging in Europe.

In Spain, for instance, the bombing that brought Jose Zapatero to power also appears to have revolutionized Aznar’s Popular Party. While in power, despite Aznar’s alliance with Bush, this party adhered to the view that Israeli policy, rather than Islamic extremism, was the real Middle East problem. Indeed, under Aznar’s leadership, Spain was one of the most anti-Israel countries in Europe.

But Aznar, who has retired from politics and now heads a research institute, has since devoted himself to persuading the West that not only is Islamic “jihadism” a threat comparable to communism in its day, which must be confronted with equal resolve, but that Israel is part of the solution rather than the problem.

As he put it in a speech in Jerusalem in March, Israel “is on the same side as Europe, the US, Japan and Australia. We defend the same values against the same enemies. It’s that simple.”

Indeed, Aznar not only advocates redefining NATO’s mission as fighting jihadism; he thinks Israel should join the organization.

Moreover, he appears to have convinced his former party, which is still a major player in Spain.

Thus when Zapatero not only publicly accused Israel in July of using “abusive force” in Lebanon, but agreed to be photographed afterward in a keffiyeh, the Popular Party’s spokesman accused him of “anti-Semitism, anti-Zionism and Israelophobia.” This is probably the first time in Spanish history that a mainstream faction has considered “anti-Semitism, anti-Zionism and Israelophobia” terms of opprobrium, and it represents a major shift in consciousness.

Yet another encouraging development was the publication in Denmark last month of Islamists and Naivists, a book that equates Islamic fundamentalists with Nazis and communists and warns against Europe’s complacency in the face of this threat. While Bush has made this analogy for years, in Europe, comparisons of Islamism to Nazism or communism were until recently confined to the fringes. This book’s authors, however, are unassailably mainstream: Ralf Pittelkow, once an adviser to former Social Democratic premier Poul Rasmussen, is now a columnist for the paper Jyllands-Posten, while Karen Jespersen is a former interior minister and social affairs minister. The fact that the Nazi-communist analogy is going mainstream is critical to galvanizing support for the war.

Also promising was last month’s election of Fredrik Reinfeldt as Sweden’s new premier. In an interview a week before the elections, Reinfeldt bluntly described Sweden under his predecessor as characterized by “very strong anti-Americanism and feeling against Israel,” due to a leadership that “has been on the side of the Palestinians.”

Those views did not get him elected; the campaign revolved around economics. But precisely because Sweden has long been a bastion of the opposite views, Reinfeldt could, if he uses his new bully pulpit to speak out against these trends, encourage a shift in the European Union’s positions.

Finally, a survey conducted last month by the Washington-based Israel Project, which polled both the elites and the general public in Germany, Britain and France, found that a growing proportion, particularly in Germany, now views Islamic extremism, rather than Israel’s policies, as the cause of the Middle East’s problems. The figures show that the consciousness battle is far from won: Both the French and British elites, for instance, split roughly evenly between those who blamed Islamic extremism and those who blamed Israel. Yet the fact that all three countries registered rises in those who view Islamic extremism as the key shows that the tide is turning in the right direction.

All of the above are mere straws in the wind, and they do not answer the big question: whether the West will awake to the danger facing it in time.

The defeat of both Nazism and communism has created a myth of Western invincibility, but in World War II, the West’s awakening came within a hairsbreadth of being too late. And this time, the West could yet oversleep entirely.

Nevertheless, slowly, the wind appears to be shifting. And that, at least, offers grounds for hope.