Analysis from Israel

If the International Criminal Court ever had any pretensions of being a serious legal institution, they were effectively demolished by yesterday’s ruling overturning Prosecutor Fatou Bensouda’s decision not to investigate Israel’s botched raid on a 2010 flotilla to Gaza. Reading the ruling feels like falling down the rabbit hole straight into the Queen of Hearts’ courtroom, for many reasons. But here’s the one I found most astonishing: In a 27-page document devoted almost entirely to discussing whether the alleged Israeli crimes were grave enough to merit the court’s attention, not once did the majority judges mention one of the most salient facts of the case: that flotilla passengers had attacked the Israeli soldiers with “fists, knives, chains, wooden clubs, iron rods, and slingshots with metal and glass projectiles,” causing nine soldiers serious injuries.

That fact appeared only in Judge Peter Kovacs’ dissent. Anyone reading the majority decision would conclude that the soldiers opened fire for no reason whatsoever.

This is not a minor detail; it was central to Bensouda’s decision to close the case. She noted that the soldiers opened fire, ultimately killing 10 passengers, aboard only one of the flotilla’s seven ships – the one where passengers attacked them. That strongly indicates there was no deliberate plan to kill civilians; rather, the soldiers intended to peacefully intercept all the vessels, and the killings were the unpremeditated result of a chaotic combat situation that unexpectedly developed aboard one ship. Or in her words, “none of the information available suggests […] the intended object of the attack was the civilian passengers on board these vessels.”

The majority judges, however, dismiss that conclusion, asserting that the lack of casualties aboard the other ships doesn’t preclude the possibility that soldiers intended from the outset to kill the Mavi Marmara’s passengers. They then offer a string of wild suppositions to explain why soldiers might have wanted to perpetrate a massacre aboard that ship but not the others. Perhaps, they suggest gravely, it’s because the Mavi Marmara carried the most passengers. Or, perhaps because it carried no humanitarian aid. In any event, the soldiers clearly used more violence against the Mavi Marmara than against other ships that also refused their orders to halt, so “It is reasonable to consider these circumstances as possibly explaining that the Mavi Marmara was treated by the IDF differently from the other vessels of the flotilla from the outset.”

But of course, the only way to make that unsupported speculation remotely plausible is by ignoring the fact that the Mavi Marmara was the only ship whose passengers brutally attacked the soldiers. Once you acknowledge this fact, it’s obvious that it’s a far more likely explanation for the ship’s different treatment than any of the majority judges’ outlandish theories.

So how do they get around this problem? Very simply: by refusing to admit the fact’s existence. At no point in those 27 pages do they ever acknowledge that the passengers attacked the soldiers. And then, having obliterated the actual reason why the soldiers opened fire from the record, they can accuse Bensouda of having erred by not considering their alternate-universe theory that the soldiers opened fire out of malice aforethought.

In the Queen of Hearts’ courtroom, the rule is “Sentence first – verdict afterwards.” The ICC judges, in contrast, are perfectly willing to let the verdict precede the sentence; they merely insist that said verdict exclude any evidence which might contradict their preconceived conclusions.

And, in that case, the Queen of Hearts’ approach actually makes much more sense. If you already know what the verdict is going to be, it’s much more efficient to move straight to the sentence. At least that way you don’t waste taxpayers’ time and money on lengthy legal proceedings.

Originally published in Commentary on July 17, 2015

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In today’s world, Orthodox and Conservative Jews should be natural allies

Jewish tradition holds that the Second Temple was destroyed by baseless hatred. Since we’re currently in the annual three-week mourning period for the destruction of both Temples, which culminates in the holiday of Tisha B’Av, it’s a good time to consider a particularly counterproductive bit of baseless hatred: that between the Orthodox and Conservative movements.

Orthodox Jews tend to view Conservative and Reform Jewry as indistinguishable, lumping them both together as “non-Orthodox.” But in reality, there’s a yawning gap between them. The Conservative movement officially maintains that Jews must follow halachah (traditional Jewish law), including by observing Shabbat, kashrut, the Jewish holidays and so forth. The Reform movement rejects the very idea of binding halachah. Thus on the fundamental issue that has preserved the Jewish people for millennia—the binding nature of halachah—the Conservatives are formally on the Orthodox side of the divide.

Admittedly, most Conservative Jews don’t practice what their movement preaches, so one could legitimately ask what value this formal commitment to halachah has if most of its members ignore it. Moreover, this failure to produce and sustain observant communities has led many Jews raised in committed Conservative homes to switch to Orthodoxy (I’m one of them), and if the most observant continue leaving, I wonder how long even a formal commitment to halachah will survive.

But right now, the Conservative movement still contains a traditionalist faction that’s committed to observing halachah as the movement defines it. And because of this commitment, traditionalist Conservatives have far more in common with Orthodoxy than Reform.

Granted, Conservative interpretations of halachah diverge from Orthodox ones in nontrivial ways. But that strikes me as a less serious problem, because radically divergent interpretations of halachah have been common throughout Jewish history.

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