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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Jewsraelis: A Review of ‘#IsraeliJudaism’ by Shmuel Rosner and Camil Fuchs

Through 2,000 years of exile, Judaism survived because rabbinic sages reshaped it into a portable religion rather than one anchored to a specific land. But what happens once a Jewish state is reestablished? Judaism is changing once again, Shmuel Rosner and Camil Fuchs argue in #IsraeliJudaism: Portrait of a Cultural Revolution—only this time, from the bottom up.

The book, published in Hebrew in 2018 and English in 2019, is based on a survey of beliefs and practices among 3,005 Israeli Jews. The survey was commissioned by the Jewish People Policy Institute, where Rosner is a senior fellow; Fuchs was the project’s statistician. A book based on a survey could easily become an indigestible mass of statistics, but Rosner and Fuchs have produced a highly readable (and superbly translated) analysis of what this data actually tell us.

What they tell us, the authors say, is that a “new Judaism” is emerging in Israel—one that values Jewish tradition, though not strict adherence to halacha (Jewish law), and that views national identity as a crucial component of Judaism. For instance, 73 percent of Jewish Israelis say being Jewish includes observing Jewish festivals and customs. And 72 percent say being a good Jew includes raising one’s children to serve in the Israel Defense Forces, while 60 percent say it includes raising one’s children to live in Israel.

This fusion of religious and national identity characterizes 55 percent of Israeli Jews, whom Rosner and Fuchs infelicitously dub “Jewsraelis.” The rest divide roughly equally among people whose identity is primarily Jewish (17 percent), primarily Israeli (15 percent), and primarily universalist (13 percent).

Israeli Judaism necessarily differs from both the Diaspora and pre-state versions, since its national components, like army service, aren’t possible outside a Jewish state. Moreover, Judaism is present in Israel’s public square to a degree impossible elsewhere, from public-school classes on the Bible (since it’s part of Israel’s cultural heritage) to the country’s complete shutdown on Yom Kippur. Unsurprisingly, this produces fierce arguments over what Judaism’s public component should look like, including efforts to dictate it through legislative or executive action.

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