Analysis from Israel

Any legal case has two main components – the facts and the law. In my last post, I analyzed the International Criminal Court’s disregard of salient facts in its ruling on Thursday overturning the chief prosecutor’s decision not to investigate Israel’s botched raid on a 2010 flotilla to Gaza. But the ruling was equally contemptuous of several fundamental legal principles.

The first of these is that judicial decisions should be dictated by law, not politics. The majority judges threw this principle out the window when they asserted that whether the alleged crime was sufficiently grave to merit ICC attention should depend not on what actually happened, but on the amount of “attention and concern that these events attracted” from the international community, as reflected in “several fact-finding efforts on behalf of States and the United Nations.” In other words, the ICC’s choice of cases will depend not on their objective legal merits, but on how many resolutions the dictators who dominate the U.N. Human Rights Council decide to devote to it.

As legal scholar Eugene Kontorovich aptly noted, the ICC is thereby “saying ‘drop dead’ to victims U.N. not interested in,” which is a travesty in and of itself: It means the court will spend its scarce resources investigating 10 people killed while attacking soldiers intercepting a blockade-busting flotilla, but ignore – to cite just one example – the tens of thousands of Syrian civilians killed by their own government’s barrel bombs.

No less appalling, however, is that this is a standard of justice used only in the most benighted regimes: Prosecutions will be based on neither facts nor law, but solely on whether they serve the interests of the politicians in power.

The second fundamental legal principle the decision guts is that the same person shouldn’t be prosecutor, judge and jury. Since a prosecutor is obviously invested in his own case, he cannot be an impartial judge.

But the ICC judges, sitting as a “pre-trial chamber,” decided to actively force the prosecutor to pursue an investigation she considered unjustified (technically, they only ordered her to “reconsider” her decision, but in practice, that order leaves her little choice). Thus the court is no longer an impartial arbiter between prosecution and defense; it is now actively invested in the success of the case.

This blurring of boundaries is justifiable only in extraordinary circumstances. That is why, as Judge Peter Kovacs noted in his dissent, “the Pre-Trial Chamber’s role is merely to make sure that the Prosecutor has not abused her discretion” – or at least, it ought to be. Instead, the majority decided to leave her no discretion at all.

Finally, the court ignored the law itself. As Kovacs also noted in his dissent, customary international law explicitly allows countries to enforce a lawful blockade, including by force if necessary. The blockade of Gaza is legal according to one of the very U.N. fact-finding committees the majority cited in its decision. And force was necessary in this case, since the ship refused repeated orders to halt and then attacked the Israeli boarding party with “fists, knives, chains, wooden clubs, iron rods, and slingshots with metal and glass projectiles.” Thus the casualties “were apparently incidental to lawful action taken in conjunction with protection of the blockade,” and as such, it’s likely that “most if not all of those acts will not qualify as war crimes.”

Yet the majority judges’ opinion doesn’t even mention the laws of blockade much less discuss their application to this case. Evidently, they consider customary international law irrelevant to their decisions.

In my earlier post, I compared the majority ruling to something out of Alice in Wonderland. And in fact, the three elements cited above are precisely the elements that make the Queen of Hearts’ courtroom so arbitrary: The law is irrelevant; judgment depends solely on the whim of the rulers; and the same person is prosecutor, judge and jury.

But the Queen of Hearts is actually preferable, because at least she’s honest about the arbitrary nature of her decisions: “Sentence first – verdict afterwards.” The ICC maintains an expensive taxpayer-funded legal bureaucracy in an effort to disguise it.

Originally published in Commentary on July 20, 2015

Subscribe to Evelyn’s Mailing List

Jewsraelis: A Review of ‘#IsraeliJudaism’ by Shmuel Rosner and Camil Fuchs

Through 2,000 years of exile, Judaism survived because rabbinic sages reshaped it into a portable religion rather than one anchored to a specific land. But what happens once a Jewish state is reestablished? Judaism is changing once again, Shmuel Rosner and Camil Fuchs argue in #IsraeliJudaism: Portrait of a Cultural Revolution—only this time, from the bottom up.

The book, published in Hebrew in 2018 and English in 2019, is based on a survey of beliefs and practices among 3,005 Israeli Jews. The survey was commissioned by the Jewish People Policy Institute, where Rosner is a senior fellow; Fuchs was the project’s statistician. A book based on a survey could easily become an indigestible mass of statistics, but Rosner and Fuchs have produced a highly readable (and superbly translated) analysis of what this data actually tell us.

What they tell us, the authors say, is that a “new Judaism” is emerging in Israel—one that values Jewish tradition, though not strict adherence to halacha (Jewish law), and that views national identity as a crucial component of Judaism. For instance, 73 percent of Jewish Israelis say being Jewish includes observing Jewish festivals and customs. And 72 percent say being a good Jew includes raising one’s children to serve in the Israel Defense Forces, while 60 percent say it includes raising one’s children to live in Israel.

This fusion of religious and national identity characterizes 55 percent of Israeli Jews, whom Rosner and Fuchs infelicitously dub “Jewsraelis.” The rest divide roughly equally among people whose identity is primarily Jewish (17 percent), primarily Israeli (15 percent), and primarily universalist (13 percent).

Israeli Judaism necessarily differs from both the Diaspora and pre-state versions, since its national components, like army service, aren’t possible outside a Jewish state. Moreover, Judaism is present in Israel’s public square to a degree impossible elsewhere, from public-school classes on the Bible (since it’s part of Israel’s cultural heritage) to the country’s complete shutdown on Yom Kippur. Unsurprisingly, this produces fierce arguments over what Judaism’s public component should look like, including efforts to dictate it through legislative or executive action.

Read more
Archives