Analysis from Israel
As a longstanding critic of Israel’s legal system, I share many of the concerns voiced at last week’s demonstrations in support of Rabbis Dov Lior and Ya’acov Yosef. So why don’t I support the demonstrations?
At a demonstration last week to protest the police’s detention of two rabbis for questioning over their endorsement of the controversial halachic tract Torat Hamelech, one theme kept recurring: The legal system is biased against religious and right-of-center Jews. Therefore, the rabbis were justified in ignoring a police summons to show up for questioning, and police were wrong to respond by arresting them.

Rabbi Ya’acov Yosef, one of the detained rabbis, asserted bluntly that the Talmudic ruling requiring Jews to obey state law (dina d’malchuta dina) applies only “if everyone is equal under the law,” and that isn’t the case in Israel. Rabbi Haim Druckman was cheered when he called for “setting the prosecution to rights,” adding: “They say everyone is equal before the law. If only that were so.”

Readers familiar with my work will know I’m a longstanding critic of Israel’s legal system. I think the Attorney General’s Office and the courts intervene far too much in political and social issues that are none of their business, and often in a politically biased fashion; I think the judicial appointments system – which gives sitting Supreme Court justices a dominant role in choosing not only their own successors, but all the country’s judges – has created a dangerously monolithic judiciary where dissenting views are rarely heard; and I think the prosecution indeed sometimes demonstrates political and religious bias. Moreover, I favor legislation to change the judicial appointments system and restrict the Supreme Court’s ability to intervene in political issues. So I should be sympathetic to the demonstrators, right?

Wrong. Because while the demonstrators and their rabbis might genuinely think they’re only trying to reform the legal system, in reality, they are trying to destroy it.

Any legal system depends on most people abiding by it voluntarily, leaving the police and courts free to deal with the minority that doesn’t. If the scofflaw faction becomes too big, the legal system will lack the manpower to cope and the system will break down. That’s the whole point of mass civil disobedience: to create the critical mass of lawbreakers needed to make the system collapse.

But such a collapse has grave consequences, because a system struggling to contain a growing mass of ideological lawbreakers must divert scarce resources from dealing with ordinary crimes and civil suits, to the detriment of the general public. Consequently, it should always be a last resort. For blacks in the American south or Gandhi’s followers in colonial India, it was: Shut out of their respective countries’ power structures, they had no possibility of effecting change from within.

But for right-of-center religious Jews (of which I’m one) to make such a claim is ridiculous. Far from being shut out of the power structure, parties representing most of these demonstrators sit in the governing coalition. Thus what they should be doing is working to enact legislation to reform the system – which requires convincing both Knesset members and the public not only that such reforms are necessary, but that they aren’t, as their opponents frequently claim, anti-democratic.

Instead, the demonstrators undermined the cause of reform by lending credence to the anti-democratic charge. After all, they and their rabbis openly declared that they aren’t bound by the democratically enacted law of the land; see Yosef’s assertion above, or protesters’ chant at another demonstration the previous day: “We don’t believe in the rule of the infidels, we take no heed of their laws.” It’s hard to persuade ordinary Israelis that legal reform would make the country more democratic – which it would – when the loudest voices demanding it are openly anti-democratic.

The case is particularly egregious because police were clearly in the right here. No legal system can survive if certain groups are allowed to flout it with impunity; thus the minute Yosef and Rabbi Dov Lior declared that as rabbis, they were exempt from obeying a police summons, police had no choice but to prove that rabbis aren’t above the law. And that’s true even if the initial summonses were unwarranted.

Moreover, as long as the anti-incitement law exists, police must enforce it. And since the law deems inflammatory speech criminal only if it’s likely to lead to actual violence, the question of whether the speaker has followers likely to act on his words is critical. Hence Lior and Yosef, with thousands of followers willing to take to the streets on their behalf, are more justified targets for an inquiry than, say, the Ben-Gurion University professor who last monthurged people to break right-wing activists’ necks, but has no similarly devoted group of followers. And because the police aren’t experts in halacha, they may genuinely have needed to question the rabbis to determine whether this constituted criminal speech: whether the book really advocates killing Arabs, or whether their followers would view their endorsement of it as a call to do so.

But there’s a final, even more disturbing point about this affair, which lies in the protesters’ chant equating Israel’s legal system with “the rule of the infidels.” The implication – and it’s one increasingly heard on the right-wing fringe – is that the Jewish state as it stands now is no better than the non-Jewish states that oppressed Jews for centuries.

That, frankly, is ridiculous. For all the problems with Israel’s legal system, it’s light-years more supportive of Jewish interests than any non-Jewish system. To take just one example: The International Court of Justice, comprising 15 judges from various countries, ruled 14-1 that Israel had no right to build the security fence to protect its citizens from Palestinian suicide bombers. Indeed, it effectively ruled that Israel had no right of self-defense at all. In contrast, while Israel’s Supreme Court has meddled far too much in the fence’s route, it unequivocally upheld Israel’s right to build it, and consistently upholds Israel’s right to self-defense in other cases, too.

For all its flaws, the Jewish state is a great blessing. We should certainly always strive to improve it, but we must also take great care to preserve it. And by failing to make this crystal clear to their followers, the rabbis concerned have failed the entire Jewish people.

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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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