Analysis from Israel

There’s a popular saying in Israel that if you really want to know what’s going on, you should talk to the taxi drivers. That’s the Israeli version of a worldwide truth: Ordinary people sometimes have a better grasp of reality than intellectuals. A classic example of this truth played out in Western cultural milieus this week, when representatives of both highbrow and lowbrow culture coincidentally weighed in on the Israel issue.

On the highbrow end, we had American literary lion Alice Walker, author of The Color Purple. She has just published a new book, and as Jonathan Tobin detailed here yesterday, it is so vile that even the Anti-Defamation League was moved to denounce its “vitriolic and hateful rhetoric” as blatantly anti-Semitic. As Jonathan noted, Walker also has a long history of anti-Israel activism: Last year, she famously refused to let The Color Purple be translated into Hebrew, to protest what she termed Israel’s “apartheid.”

Across the ocean, over in BDS Central (aka Great Britain), we had the lowbrow riposte, when boycott, divestment and sanctions activists tried to persuade the electronic pop duo Pet Shop Boys to cancel their planned appearance in Israel this weekend. That the group, considered “the most successful duo in UK music history,” rejected the activists’ demand isn’t in itself anything extraordinary: For all the publicity BDS activists receive whenever they do manage to get some performer to cancel an Israel gig, the vast majority of artists refuse.

What was extraordinary, however, was the reason the duo gave. Usually, performers offer some perfectly valid but neutral explanation, such as that boycotts are antithetical to art, or that boycotts impede efforts for peace. But Pet Shop Boys’ vocalist, Neil Tennant, chose instead to challenge the “apartheid” canard head-on. In a statement posted on the group’s website, he wrote:

I don’t agree with this comparison of Israel to apartheid-era South Africa. It’s a caricature. Israel has (in my opinion) some crude and cruel policies based on defence; it also has universal suffrage and equality of rights for all its citizens both Jewish and Arab. In apartheid-era South Africa, artists could only play to segregated audiences; in Israel anyone who buys a ticket can attend a concert.

I might quibble with the “crude and cruel,” but other than that, you couldn’t find a clearer and more succinct explanation of the essential difference between democratic Israel and apartheid-era South Africa.

As George Orwell once wrote of a previous intellectual fad, “One has to belong to the intelligentsia to believe things like that: no ordinary man could be such a fool.” Unfortunately, the “Israeli apartheid” canard appears set to become yet another example of this truth: It is increasingly becoming the bon ton among the global intelligentsia.

That makes it all the more important for the “ordinary man” to speak out against it. And Pet Shop Boys has just provided a welcome example of how to do so.

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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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