Analysis from Israel
There’s a straight line connecting leftists’ rejection of the settlements’ legality with rightists’ rejection of the indictments against Israeli Prime Minister Benjamin Netanyahu.

One of the modern era’s most dangerous problems is the conflation of politics with law. Political questions are increasingly treated as legal ones, which inevitably results in the law becoming politicized. Last week provided two salient examples.

One was the response to the U.S. State Department’s announcement that Israeli settlements don’t violate international law. What was striking was that many opponents didn’t actually challenge the department’s (correct) legal conclusions. Instead, they objected on policy grounds.

Democratic presidential candidate and former vice president Joe Biden, for instance, complained, “This decision harms the cause of diplomacy, takes us further away from the hope of a two-state solution, and will only further inflame tensions in the region.” Another leading Democratic candidate, South Bend Mayor Pete Buttigieg, termed the announcement “a significant step backward in our efforts to achieve a two-state solution.”

Rabbi Rick Jacobs, president of the Union for Reform Judaism, was particularly blatant. While acknowledging that the decision focused solely on international law, he worried that it “will be widely read as a broader change to the U.S. position on Israeli settlements,” which “would place serious and critical obstacles to a viable two-state solution.” Consequently, he urged the administration “to reverse its position.”

Essentially, all three want the settlements declared illegal simply because they think settlements are bad policy, regardless of what international law actually says. In other words, they’re incapable of distinguishing policy from law.

People who understand this difference have no problem with settlements being recognized as legal because they understand that something can be bad policy even if it’s legal. Indeed, that’s precisely what all administrations, both Republican and Democratic, did for roughly three decades between Jimmy Carter and Barack Obama: They vehemently opposed settlements on policy grounds while simultaneously acknowledging that they weren’t illegal.

Yet the concept of “it’s legal, but it stinks” has evidently gone out of style, especially on the left. When leftists think something stinks, they want it declared illegal, even if it’s not.

The advantages of this tactic are obvious. Policy questions, by definition, are disputable; indeed, many people disagree that settlements are bad policy. But law ostensibly eliminates controversy because once the courts rule something illegal, then everyone is supposed to accept that it must stop. Thus branding any policy one opposes as illegal is meant to make it politically illegitimate. If settlements are illegal, they mustn’t be built, even if they’re actually good policy.

Granted, this ploy has an inherent problem when it comes to international law since there are no recognized courts whose authority to make such judgments is universally accepted. Neither America nor Israel, for instance, ever agreed to accept the legal interpretations of the International Criminal Court, U.N. agencies or any other such body. And without an accepted arbiter, whether or not something violates international law is endlessly debatable.

But the bigger problem is this tactic’s enormous cost, which far outweighs any possible benefit: When people start branding anything they object to as “illegal,” they turn the law into just another player on the political battlefield. And once that happens, legal decisions will be treated with no more respect than any other political pronouncement.

Thus Americans who object to recognizing the settlements’ legality on policy grounds are destroying any pretensions that international law might have to objectivity and impartiality, just as the European Union did by insisting that international law requires labeling products from Israeli settlements, but not from Turkish settlements in northern Cyprus or Moroccan settlements in Western Sahara. In both cases, international law is being treated not as an objective, universally applied standard, but as a selective political tool to punish disfavored countries or policies. And as such, it deserves no more deference than any other political decision.

Given how amorphous international law actually is, that may be no great loss. But when the same tactics are applied to domestic legal systems, the consequences become devastating. Once a significant portion of the citizenry starts to view legal decisions as politics in another guise, the consensus on which democracy’s survival depends—that legal decisions must be honored—will rapidly erode.

As I’ve noted before, this is already happening in Israel. But last week’s indictment of Israeli Prime Minister Benjamin Netanyahu provides a particularly worrying example of the costs.

I’m the rare Netanyahu supporter who thinks that one of the three cases against him is actually serious. But for two understandable reasons, many supporters believe that he’s simply being persecuted by a leftist legal establishment frustrated by repeated failures to oust him through democratic elections.

The first is that the Attorney General’s Office and the courts have intervened in literally thousands of policy decisions over the past three decades, frequently in defiance of actual written law and almost always in the left’s favor. In short, both bodies have routinely behaved like political activists rather than impartial jurists. So rightists have no reason to trust their impartiality now.

Second, Netanyahu has been targeted by frivolous investigations—including, in my view, two of the three now going to trial—ever since he first became prime minister in 1996. All involved genuinely repulsive conduct on Netanyahu’s part. But rather than treating such conduct as a problem on which the public, rather than the courts, must render judgment, the legal establishment repeatedly opened cases against him, to which they devoted countless man-hours before finally closing them.

Now, the legal establishment says it has finally found a real crime. But like the boy who cried wolf, Netanyahu’s supporters no longer believe it.

The combination of these two factors means that many Israelis genuinely feel that their prime minister has been ousted by a corrupt legal establishment solely because it opposes his policies. And that will inevitably foster even greater distrust of the legal system.

Leftists spend a lot of time these days fretting about democracy’s possible collapse. But if they really want to avert such a collapse, the first step is to stop politicizing the law, so that legal institutions can regain public trust. For without a legal system whose decisions are widely respected, democracies will be left with no way of resolving disputes but the one shared by dictatorships and anarchies—plain old-fashioned brute force.

This article was originally syndicated by JNS.org (www.jns.org) on November 27, 2019. © 2019 JNS.org

Subscribe to Evelyn’s Mailing List

In Europe, Israel needs a bottom-up approach to diplomacy

For years, I considered Europe a lost cause from Israel’s perspective and decried the Israeli Foreign Ministry’s Euro-centric focus, arguing that it should instead devote more effort to places like Africa, Asia and South America, which seemed to offer better prospects for flipping countries into the pro-Israel camp. But the past few years have proven that Europe isn’t hopeless—if Israel changes its traditional modus operandi.

This has been evident, first of all, in the alliances that Prime Minister Benjamin Netanyahu has formed with several countries in eastern and southern Europe, resulting in these countries repeatedly blocking anti-Israel decisions at the European Union level. Previously, Israeli diplomacy had focused overwhelmingly on Western Europe. Netanyahu’s key insight was that conservative, nationalist governments seeking to preserve their own nation-states would have more instinctive sympathy for a Jewish state than the liberal universalists who dominate in Western Europe, and whose goal is to replace nation-states with an ever-closer European union.

But as several recent events show, even Western Europe isn’t a lost cause. The difference is that there, conventional high-level diplomacy won’t work. Rather, the key to change is the fact that most Europeans, like most people everywhere, don’t really care that much about Israel, the Palestinians or their unending conflict. Consequently, small groups of committed activists can exert a disproportionate influence on policy.

For years, this has worked against Israel because the anti-Israel crowd woke up to this fact very early and took full advantage of it. Take, for instance, the 2015 decision to boycott Israel adopted by Britain’s national student union. The union represents some 7 million students, but its executive council passed the decision by a vote of 19-12. Or consider the academic boycott of Israel approved in 2006 by Britain’s National Association of Teachers in Further and Higher Education (which no longer exists, having merged into a larger union). The association had some 67,000 members at the time, but only 198 bothered to vote, of whom 109 voted in favor.

Yet it turns out pro-Israel activists can use the same tactics, as in last week’s approval of a resolution saying anti-Zionism is anti-Semitism by the lower house of France’s parliament. The resolution passed 154-72, meaning that fewer than 40 percent of the National Assembly’s 577 deputies bothered to vote, even though 550 deputies were present earlier in the day to vote on the social security budget. In other words, most deputies simply didn’t care about this issue, which meant that passing the resolution required convincing only about a quarter of the house.

Read more
Archives