Analysis from Israel

Last week, the German Interior Ministry released a report on anti-Semitism which stated that during the first eight months of this year, a whopping 92 percent of anti-Semitic incidents were committed by right-wing extremists. That sounded suspicious for two reasons, which I’ll get to later, but since I don’t speak German, I couldn’t scrutinize the report for myself. Fortunately, the German daily Die Welt found the results equally suspicious, and this week, Benjamin Weinthal of the Jerusalem Post reported on some of the problems it flagged.

Weinthal explained that in a federal report on anti-Semitism issued by the German government earlier this year, “the crime of ‘Jew-hatred’ is classified in the category of ‘politically motivated right-wing extremist crime.’” But once Jew-hatred has been declared a right-wing crime by definition, most of its perpetrators will inevitably be classified as far-right extremists, even if they shouldn’t be.

Die Welt cited one particularly blatant example from summer 2014 when Israel was at war with Hamas in Gaza. The war sparked numerous anti-Israel protests, and during one, 20 Hezbollah supporters shouted the Nazi slogan “Sieg Heil” at pro-Israel demonstrators in Berlin. Hezbollah supporters are Islamic extremists, not neo-Nazis, even if they chose to taunt German Jews by hurling Nazi slogans at them. Nevertheless, the incident was classified as a far-right extremist crime, thereby neatly removing a case of Islamic anti-Semitism from the statistics.

There are two good reasons for thinking the linguistic acrobatics, in this case, represents the rule rather than the exception. First, a 2014 study of 14,000 pieces of hate mail sent over a 10-year period to the Central Council of Jews in Germany and the Israeli embassy in Berlin found that only three percent came from far-right extremists. Over 60 percent came from the educated mainstream–professors, PhDs, lawyers, priests, university and high-school students. And these letters were definitely anti-Semitic rather than merely anti-Israel; they included comments such as “It is possible that the murder of innocent children suits your long tradition?” and “For the last 2,000 years, you’ve been stealing land and committing genocide.”

Sending hate mail is an anti-Semitic incident in its own right, even if it’s not reported to the police (as most of these letters undoubtedly weren’t). Thus unless you want to make the dubious claim that Germany’s educated mainstream–unlike that of other Western countries–consists largely of far-right extremists, it’s clear that far-right extremists aren’t the only people actively committing anti-Semitic acts.

Second, in other Western European countries, Islamic extremists are a major source of anti-Semitic crime. Thus it’s hard to believe that Germany–which, as several terror attacks over the last two years have shown, is hardly devoid of such extremists–would be the one exception to this rule. In contrast, it’s easy to believe the German government would manipulate its definitions to downplay Islamic anti-Semitism because German courts have already done the same.

In perhaps the most notorious case, a German court ruled in 2015 that three Palestinians who firebombed a synagogue in July 2014 didn’t commit an anti-Semitic crime, but were merely trying to draw “attention to the Gaza conflict.” That ruling was upheld by an appeals court earlier this year. I can’t imagine a German court ruling that firebombing a church to draw attention to, say, the U.S. war in Iraq was a mere political expression rather than a hate crime. But neither the lower court nor the appellate one saw anything anti-Semitic about bombing a Jewish house of worship to protest Israel’s actions (the men were convicted of vandalizing the synagogue, but given only suspended sentences). So presto, Islamic anti-Semitism has been eliminated from the picture.

Far-right anti-Semitism is, of course, real. But so are left-wing and Islamic anti-Semitism. And by pretending the latter two don’t exist, the German government has made it impossible to combat those types of anti-Semitism effectively, since you can’t fight something whose very existence you refuse to acknowledge.

This might not matter to Berlin; the German government clearly cares more about fighting the far right than fighting anti-Semitism, and evidently considers redefining all Jew-hatred as right-wing extremism a legitimate means to that end. But it ought to matter to Jews of every political stripe.

Thus both sides of the American Jewish community need to call out Germany on its whitewash. They should also avoid replicating its despicable practice of redefining anti-Semitism to suit its own political purposes since doing so will only allow the strains of anti-Semitism they deny to metastasize. And in the end, as history has proven time and again, neither right-wing nor left-wing anti-Semites offer immunity to any Jew, even when they’re on the same political side.

Originally published in Commentary on September 12, 2017

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The International Criminal Court’s fundamental flaw

In my last column, I noted in passing that the International Criminal Court’s blatant anti-Israel bias is merely a symptom of a more fundamental flaw. That isn’t self-evident; court supporters would doubtless argue, just as many people do about the United Nations, that while the court’s anti-Israel bias is regrettable, it’s an isolated flaw that doesn’t outweigh the benefit of ending impunity for atrocities.

What convinced me both that the ICC is unredeemable and that the impunity problem has a better solution was actually a book by one of the court’s ardent supporters—Philippe Sands, a law professor and international lawyer who has worked on ICC cases. In East West Street, Sands traces the development of two key concepts in international law—crimes against humanity and genocide—to their respective culminations in the Nuremberg Trials of 1945 and the Genocide Convention of 1948. But for me, the real eye-opener was his description of the international wrangling that preceded the Nuremberg Trials.

Nuremberg is sometimes derided as victor’s justice. And in one sense, it obviously was: Four of the victors of World War II—America, Britain, Russia and France—decided to put senior officials of their vanquished foe on trial. But what was striking about Nuremberg was the massive degree of international concord required to hold those trials. Lawyers representing several very different legal systems and several very different systems of government nevertheless had to agree on every word and even every comma in the indictments. And since those lawyers were acting on their governments’ behalf, political approval by all four governments was also needed.

In contrast, the ICC needs no international buy-in at all to pursue a case. Granted, its prosecutors and judges come from many different countries, but they represent neither their home governments nor their home legal systems. Politically, they represent nobody but themselves. Legally, they represent one particular interpretation of international law—an interpretation popular with academics and “human rights” organizations, but less so with national governments.

At first glance, both of the above may sound like pluses. Prosecutorial and judicial independence are generally good things, whereas many governments and legal systems leave much to be desired when it comes to protecting human rights.

But the ICC’s version of prosecutorial and judicial independence is very different from the version found in most democracies because the latter is not completely unconstrained. In democracies, prosecutors and judges are constrained first of all by democratically enacted legislation, and usually by democratically enacted constitutions as well. They’re also constrained by the fact that they, too, are citizens of their country, and therefore share concerns important to most of their countrymen—for instance, national self-defense—but unimportant to judges and prosecutors from other countries (which those at the ICC almost always will be).

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