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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Israel’s unity government may prove a constitutional time bomb

That Israel will soon have a government is good news; almost any government would be better than the political dysfunction that has produced three elections in the past year. But aside from its existence, there’s little to like about this “unity” government.

The biggest problem isn’t that many important issues will perforce go unaddressed, though that’s inevitable given the compromises required when neither bloc can govern on its own. Nor is it the risk that the government will be dysfunctional even on “consensual” issues like rescuing the economy from the coronavirus crisis, though this risk is real, since both sides’ leaders will have veto power over every government decision.

Rather, it’s the cavalier way that Israel’s Basic Laws are being amended to serve the particular needs of Prime Minister Benjamin Netanyahu and his new partner, Blue and White chairman Benny Gantz.

Though Israel’s Supreme Court wrongly claims the Basic Laws are a constitution, they were never intended as such by the parliaments that passed them. Indeed, some were approved by a mere quarter of the Knesset or less.

But they were intended as the building blocks of a future constitution should Israel ever adopt one. That’s why this handful of laws, alone of all the laws on Israel’s books, are deemed “Basic Laws,” and why each addresses a fundamental constitutional issue (the executive branch, the legislature, the judiciary, human rights, Israel’s Jewish character, etc.).

In other words, though they aren’t a constitution, they do serve as the foundation of Israel’s system of government. And tinkering with the architecture of any democratic system of government can have unintended consequences, as Israel has discovered before to its detriment.

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