Analysis from Israel

That Desmond Tutu once again accused Israel of apartheid yesterday is nothing new; he’s one of several Nobel Peace laureates who have made second careers out of Israel-bashing (think Jimmy Carter or Mairead Maguire). But it’s far more worrying when similar rhetoric is used by a sitting U.S. president – as Barack Obama did in the most outrageous but widely overlooked line of his interview with Jeffrey Goldberg earlier this month. Culminating a series of rhetorical questions about what Israel would do if no Palestinian state arises, he asked, “Do you place restrictions on Arab-Israelis in ways that run counter to Israel’s traditions?”

As Haaretz diplomatic correspondent Barak Ravid noted, “There is not much distance between this statement and an explicit warning that Israel is liable to turn into an apartheid state.” In short, even if Israel isn’t an apartheid state today, the U.S. president considers it perfectly reasonable to assume it will be someday soon – that instead of a democracy where all citizens are equal before the law, it will become the kind of state that imposes legal restrictions on certain citizens because of their ethnicity. But since Israeli Arabs haven’t been subject to special restrictions since Israel abolished its military administration in 1966, and no subsequent Israeli government has ever contemplated reinstating such restrictions, on what exactly does Obama base this assumption?

The logical conclusion is that he got it from the Israeli Arab leadership and radical Jewish leftists, both of which accuse Israel of apartheid ad nauseam. Yet believing these accusations requires willfully ignoring the facts.

This past December, for instance, one Ahmed Tibi wrote an article for The Hill accusing Israel of treating its Arab citizens like southerners treated blacks in the Jim Crow era. The analogy was a trifle marred by the tagline at the end, in which Tibi admitted he is currently deputy speaker of the Israeli Knesset: Blacks didn’t occupy prominent positions in southern legislatures under Jim Crow, much less in South Africa under apartheid. It was further undermined when another Arab deputy Knesset speaker, Hamad Amar, wrote a riposte in The Hill the next week terming Tibi’s claims arrant nonsense. The spectacle of two Arab deputy speakers of parliament publicly dueling, without any fear of consequences, over whether their country discriminates against Arabs isn’t exactly an example of proto-apartheid behavior. But hey, who you gonna believe: Tibi or your lying eyes?

Then there are all the other Arabs in prominent positions – college presidents, hospital directors, ambassadors, army officers, Supreme Court justices and more. The Elder of Ziyon blog has a must-see poster collection featuring these and many other examples that are the very antithesis of apartheid. But hey, who you gonna believe: Haaretz’s Gideon Levy or your lying eyes?

Indeed, on the issue that seems to concern Obama most – freedom of movement, which he highlighted in the rhetorical question immediately preceding the one on Arab Israelis – Arab citizens and permanent residents arguably have greater rights than Israeli Jews: For instance, they can freely visit the Temple Mount, which Israeli Jews can’t; they can also visit the Palestinian Authority, which Israeli law bars Jews from doing. In fact, their freedom of movement is precisely why terrorist organizations consider them prize recruits. It’s a sad day when Palestinian terrorists have a better grasp of Israel’s true nature than the U.S. president.

Obama, of course, is just a symptom of a much larger problem: Too many Western liberals willfully close their eyes to the truth when it comes to Israel, preferring to parrot the current bon ton. But for an administration that explicitly pledged to pursue “evidence-based policy,” a little more attention to the evidence on Israel would be a nice place to start.

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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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