Analysis from Israel

Even as President Barack Obama was arguing that Iranian anti-Semitism would never trump the country’s interests (as he defines them), an interesting case study in that theory was playing out in a very different venue: Europe. True, the European version doesn’t involve the classic anti-Semite’s obsession with individual Jews, but only the “new” anti-Semitism’s obsession with the Jewish state. Nevertheless, the results aren’t encouraging. In the past week alone, in the name of that obsession, one European country has gutted its own constitution and a second has endangered several of its leading commercial companies.

The first case involved a report by the Swedish parliament’s Committee on the Constitution, which concluded that Prime Minister Stefan Loefvan’s government violated proper legal procedure in its recognition of “Palestine” last year. The report said the government announced the decision and even instructed Swedish embassies worldwide to put it into practice without consulting parliament’s Advisory Council on Foreign Affairs, as required, and without taking other necessary preparatory steps, such as consulting with the European Union. The report was issued unanimously; even members of Loefvan’s own party signed it.

And then, having unequivocally declared the decision to be in procedural violation of Swedish constitutional law, the committee said the recognition of “Palestine” should nevertheless stand, because that’s a “political” issue on which the panel can’t intervene. In other words, it declared that not only can Loefvan violate Swedish law with impunity, but the illegal decision he made won’t be overturned.

Thus for the sake of catering to Sweden’s pervasive anti-Israel sentiment, Swedish parliamentarians have created a precedent that future premiers will be able to use to justify violating constitutional procedure in other cases. After all, if this unconstitutional move was allowed to stand, why shouldn’t others be? And letting a constitution to be violated with impunity is the surest way to destroy it.

That’s a very high price to pay for indulging anti-Israel animus, but Sweden is evidently willing to pay it.

Case number two involved the statement by a French cellphone company’s CEO that he would like to stop doing business in Israel in order to appease anti-Israel boycotters. Some French government officials promptly leapt to his defense: French Ambassador to the U.S. Gerard Araud, for instance, argued that Orange’s Israeli franchisee operates in the settlements and, under the Fourth Geneva Convention, “settlement policy in occupied territories is illegal. It is illegal to contribute to it in any way.” In other words, Orange’s Israeli operations violate international law.

Nor is Araud exceptional: Many European officials are increasingly pushing this view. In 2013, for instance, the Dutch water company Vitens canceled a deal with Israeli company Mekorot after the Dutch government warned of potential legal problems stemming from Mekorot’s operations in the settlements.

As law professor Eugene Kontorovich pointed out, this happens to be false: Even if you consider the West Bank occupied territory, neither international law nor European law bans private companies from doing business in occupied territory.

But Kontorovich also noted that many leading European companies do business in other occupied territories, including French oil company Total in Moroccan-occupied Western Sahara and French tire giant Michelin in Turkish-occupied northern Cyprus. So if any European country actually succeeds in declaring private business in “Israeli-occupied territory” illegal, activists in places like Western Sahara and Northern Cyprus will pounce on that precedent to sue European businesses operating in their territories.

Araud, for one, clearly doesn’t get this. When Kontorovich pointed it out to him on Twitter, he offered the following astonishing response: “I speak of one occupied territory. I am answered on other territories.”

But if something is the law for one occupied territory, then it’s the law for all occupied territories; as Kontorovich noted, law by definition is “a rule that applies to similar situations.” Thus by pushing the line that business activity in “Israeli-occupied territory” is illegal, European officials are making their own companies vulnerable to lawsuits from occupied territories ’round the world.

Again, that seems like a high price to pay for indulging anti-Israel animus, but many European officials are evidently willing to pay it.

I’ve written before about cases of European officials undermining cherished values and interests for the sake of indulging anti-Israel animus, but such cases used to be exceptional. Now, if the past week is any indication, they are rapidly becoming the norm. A growing number of Europeans are evidently willing to sacrifice both their democracies and their economies on the altar of their obsession with Israel.

But not to worry – Obama says anti-Semites are rational. And why let the facts interfere with a good story?

Originally published in Commentary on June 5, 2015

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Why Israel Needs a Better Political Class

Note: This piece is a response to an essay by Haviv Rettig Gur, which can be found here

Israel’s current political crisis exemplifies the maxim that hard cases make bad law. This case is desperate. Six months after the coronavirus erupted and nine months after the fiscal year began, Israel still lacks both a functioning contact-tracing system and an approved 2020 budget, mainly because Prime Minister Benjamin Netanyahu is more worried about politics than the domestic problems that Israel now confronts. The government’s failure to perform these basic tasks obviously invites the conclusion that civil servants’ far-reaching powers must not only be preserved, but perhaps even increased.

This would be the wrong conclusion. Bureaucrats, especially when they have great power, are vulnerable to the same ills as elected politicians. But unlike politicians, they are completely unaccountable to the public.

That doesn’t mean Haviv Rettig Gur is wrong to deem them indispensable. They provide institutional memory, flesh out elected officials’ policies, and supply information the politicians may not know and options they may not have considered. Yet the current crisis shows in several ways why they neither can nor should substitute for elected politicians.

First, bureaucrats are no less prone to poor judgment than politicians. As evidence, consider Siegal Sadetzki, part of the Netanyahu-led triumvirate that ran Israel’s initial response to the coronavirus. It’s unsurprising that Gur never mentioned Sadetzki even as he lauded the triumvirate’s third member, former Health Ministry Director General Moshe Bar Siman-Tov; she and her fellow Health Ministry staffers are a major reason why Israel still lacks a functional test-and-trace system.

Sadetzki, an epidemiologist, was the ministry’s director of public-health services and the only member of the triumvirate with professional expertise in epidemics (Bar Siman-Tov is an economist). As such, her input was crucial. Yet she adamantly opposed expanding virus testing, even publicly asserting that “Too much testing will increase complacence.” She opposed letting organizations outside the public-health system do lab work for coronavirus tests, even though the system was overwhelmed. She opposed sewage monitoring to track the spread of the virus. And on, and on.

Moreover, even after acknowledging that test-and-trace was necessary, ministry bureaucrats insisted for months that their ministry do the tracing despite its glaringly inadequate manpower. Only in August was the job finally given to the army, which does have the requisite personnel. And the system still isn’t fully operational.

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