Analysis from Israel
Bishara praised Hizbullah’s ‘guerrilla war,’ but Barak didn’t think he was lauding an ‘armed struggle.’

Anyone bewildered by last Wednesday’s violence at Amona ought to read the High Court of Justice ruling on Azmi Bishara issued that same day. Most people undoubtedly consider violence immoral. But when no less an institution than the Supreme Court proclaims that advocating violence constitutes part of a Knesset member’s legitimate duties, it is hardly surprising that a minority has become convinced that Israeli society condones and rewards it.

The ruling stemmed from Bishara’s request that the court cancel his 2001 indictment for supporting a terrorist organization, which was based on two speeches in which he extolled Hizbullah. Bishara argued that his remarks were protected by his substantive parliamentary immunity, which grants an MK absolute protection from prosecution for anything said or done “in the course of fulfilling his duties, or for the sake of fulfilling his duties, as a Knesset member.”

Justices Aharon Barak, Eliezer Rivlin and Esther Hayut all agreed that this immunity is not unlimited; inter alia, it does not cover “support for armed struggle” against Israel. But Barak, backed by Rivlin (Hayut dissented), ruled that Bishara did not specifically laud “armed struggle”; he merely lauded a terrorist organization – a lesser offense that may be covered by substantive immunity.

In principle, this distinction is reasonable: One could, for instance, praise Hamas’s welfare activities without condoning its suicide bombings. But no ordinary reading of Bishara’s speeches could possibly support Barak’s conclusion in this case.

IN THE first speech, given in Umm el-Fahm, Bishara described Israel’s withdrawal from Lebanon in 2000 as follows: “Hizbullah won, and for the first time since 1967 we have tasted the taste of victory?€¦ Lebanon, the weakest of the Arab states, has presented a small model from which, if we examine it in depth, we can draw the conclusions necessary for success and victory?€¦ Hizbullah ensured that its guerrilla war would be well publicized, and each of its achievements greatly influenced the morale of the Israeli people, whose patience was slowly exhausted by the losses it absorbed from Hizbullah.”

In this speech, Bishara explicitly praised Hizbullah’s “guerrilla war” and the “losses” – i.e. casualties – it caused Israel; how that differs from praising “armed struggle” escapes me.

But even absent this explicit statement, is any adult Israeli so ignorant of how Hizbullah achieved its “victory” as to misunderstand the “model” that Bishara urged his listeners to follow? Given that Hizbullah never used any tactic except armed struggle, does Barak really think that Bishara was calling for peaceful negotiations?

THE SAME holds for the second speech, given in Syria, in which Bishara argued that since neither total war nor submission to Israeli dictates was acceptable, it was necessary to “expand the space” between these alternatives – the space “that the victory of the Lebanese resistance successfully exploited.”

Then, after warning that Israel was trying “to narrow this space,” he concluded: “It will be impossible to continue with this third option, the option of ‘resistance,’ except by re-enlarging this space, so that people will be able to carry out struggle and resistance.”

Once again, the reference to “the Lebanese resistance,” which consisted solely of armed struggle, as the paradigmatic example of this “third option” makes it hard to interpret this as anything but a call for facilitating armed struggle against Israel. Does Barak truly think that Bishara might instead have been advocating civil disobedience?

Why Barak was “unconvinced” of Bishara’s support for armed struggle remains a mystery, since he cited nothing in Bishara’s words as having led him to this conclusion. Indeed, the only semi-explanation he offered for being “unconvinced” was that Bishara “has not been questioned about this in the trial courts.” That is circular reasoning par excellence: We cannot prove that he supports armed struggle because he was never questioned in court, but he cannot be questioned in court because his immunity protects him unless we prove that he supports armed struggle.

HAVING NEVERTHELESS somehow concluded that Bishara did not support armed struggle, Barak proceeded to the next issue: whether, given this, his speeches enjoyed immunity. Although support for armed struggle never has immunity, mere support for a terrorist organization may or may not, depending on circumstances.

Here, too, Barak jumped through hoops to protect Bishara. For instance, he argued, Bishara’s comments about Hizbullah were not “central parts” of either speech, and therefore deserved immunity. That may or may not be true of the Syria speech, but it is highly unconvincing regarding the Umm el-Fahm speech. Although the speech was given at a conference whose official subject was the 33rd anniversary of the Six Day War, in the invitations Bishara specified that the June 2000 conference would take place “in the atmosphere of the victory of the Lebanese resistance.” And since invitations generally reflect an event’s primary focus, the inclusion of Hizbullah’s “resistance” on the invitation makes it hard to argue that Bishara deemed this a minor issue.

Even more outrageous was Barak’s argument that Bishara’s remarks deserved immunity because political speeches are among an MK’s core duties. Speaking to constituents, as Bishara did in Umm el-Fahm, is indeed an MK’s duty. But it is hard to see how urging said constituents to learn from Hizbullah’s “model” – which consists exclusively of armed attacks against the very state to which all MKs pledge their allegiance – really accords with anyone’s “duties as an MK.”

And the argument is even more far-fetched regarding the Syria speech. Under what conceivable definition of an MK’s duties could they include traveling (illegally) to an enemy state, sharing a dais with wanted terrorists such as Ahmed Jibril and Hassan Nasrallah, praising said enemy state for having “constantly expanded” the “space” within which Hizbullah-style “resistance” flourishes, and urging it to continue its efforts in that direction?

In their ruling, Barak and Rivlin clearly eviscerated the law, which was written precisely to deny such statements immunity from prosecution. But by deeming advocacy of violence a legitimate parliamentary “duty,” they have also made it much harder to explain to ordinary citizens why practicing violence is nevertheless unacceptable.

The writer, a veteran observer of the Israeli scene, is a weekly contributor.

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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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