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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Israel’s unity government may prove a constitutional time bomb

That Israel will soon have a government is good news; almost any government would be better than the political dysfunction that has produced three elections in the past year. But aside from its existence, there’s little to like about this “unity” government.

The biggest problem isn’t that many important issues will perforce go unaddressed, though that’s inevitable given the compromises required when neither bloc can govern on its own. Nor is it the risk that the government will be dysfunctional even on “consensual” issues like rescuing the economy from the coronavirus crisis, though this risk is real, since both sides’ leaders will have veto power over every government decision.

Rather, it’s the cavalier way that Israel’s Basic Laws are being amended to serve the particular needs of Prime Minister Benjamin Netanyahu and his new partner, Blue and White chairman Benny Gantz.

Though Israel’s Supreme Court wrongly claims the Basic Laws are a constitution, they were never intended as such by the parliaments that passed them. Indeed, some were approved by a mere quarter of the Knesset or less.

But they were intended as the building blocks of a future constitution should Israel ever adopt one. That’s why this handful of laws, alone of all the laws on Israel’s books, are deemed “Basic Laws,” and why each addresses a fundamental constitutional issue (the executive branch, the legislature, the judiciary, human rights, Israel’s Jewish character, etc.).

In other words, though they aren’t a constitution, they do serve as the foundation of Israel’s system of government. And tinkering with the architecture of any democratic system of government can have unintended consequences, as Israel has discovered before to its detriment.

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