Analysis from Israel

With the Gaza war finally over, attention is returning to a problem the fighting temporarily pushed aside: the worrying surge in anti-Arab violence, whose worst but by no means only manifestation was July’s horrific revenge killing of teenager Mohammed Abu Khdeir by Jews. Education Minister Shay Piron has ordered schools to devote class time to coexistence and combating racism. President Reuven Rivlin is working on his own program to combat violence. Police are cracking down on anti-Arab incitement. All these are worthy initiatives.

Yet if Israel is serious about combating anti-Arab violence, there’s something else it has to do: stop giving Arab terrorists a get-out-of-jail-free card. Clearly, wholesale releases of Arab prisoners who murdered Jews don’t justify Jewish attacks on Arabs. But they do make such violence harder to prevent.

To understand why, I’d like to borrow an insight from Times of Israel blogger Gil Reich on a seemingly unrelated topic: the Torah’s prescriptions for dealing with the sotah, a woman suspected by her husband of adultery, and the eshet yefat toar, an enemy woman desired by a soldier during wartime.

The sotah’s husband is told to put her through a humiliating ritual that culminates in drinking a liquid which will supposedly kill her if she’s guilty, but help her become pregnant if she’s innocent. The soldier is told to put his female captive through a humiliating ritual that entails spending a month making herself ugly. In both cases, Reich noted, this outrages our moral sense: Instead of humiliating these women, we want the Torah to “just say no” – to tell the jealous husband he can’t abuse or kill his suspect wife and the soldier he can’t rape his captive. But in fact, the Torah already has: It clearly prohibits murder, assault and rape. So why does it also prescribe these rituals?

The answer, Reich argues, is that sometimes, in the face of a very powerful emotion – the rage and suspicion of a jealous husband, the lust of a soldier at war – just saying no isn’t enough: The emotion will overcome the legal prohibition unless it is channeled instead into some safer outlet. So the Torah prescribes detailed legal procedures into which the husband or soldier can channel his rage or lust, thereby giving the white-hot emotions time to cool. And in practice, it seems to work: In Jewish society, the product of this millennia-old tradition, “honor killings” and military rape are both relatively rare by comparison with many other societies.

Revenge is an equally powerful emotion that also needs a channel. And in most societies, this channel is the legal system, which seeks to replace revenge killings with courtroom proceedings.

That’s precisely why blood feuds are common mainly in places where the legal system is weak or distrusted. In 19th-century America, for instance, the legendary Hatfield-McCoy feud claimed dozens of lives. But feuds like that don’t happen in today’s America, except perhaps in inner-city gang wars – places where the law’s writ still doesn’t run. Elsewhere, as the justice system gradually penetrated the frontier and backwoods areas, blood feuds gave way to criminal trials.

Israelis, too, have long channeled the natural human desire for revenge into legal proceedings. I witnessed this process firsthand at a shiva call following a 2002 suicide bombing. The victim’s brother furiously announced that he wanted to avenge her by killing Arabs – a normal response for a grief-stricken teenager. But his father and the other men present insisted it was the wrong response: We have a state and an army, they said; her killers will be caught, and they’ll spend the rest of their lives behind bars. And it worked.

The problem is that it no longer works, because only the first half of that equation remains true. The security services still excel at hunting down terrorists who murder Israelis; I have no doubt, for instance, that the terrorists who kidnapped and murdered three Israeli teens this June will eventually be caught. But how could anyone still believe that these men, once caught, will actually spend their lives behind bars?

It was bad enough when Israel was only freeing terrorists in exchange for kidnapped soldiers. Since abductions are mercifully rare, this at least allowed hope – however delusional it often proved – that killers would remain in jail.

But in July 2013, Prime Minister Benjamin Netanyahu destroyed even that faint hope by agreeing to free 104 murderers (in four batches) not in exchange for kidnapped Israelis, but merely for the privilege of holding negotiations with the Palestinian Authority. Unlike kidnappings, talks with the PA or efforts to restart them aren’t rare occurrences; one or the other is almost always happening. So by agreeing to pay for them in the currency of freed terrorists, Netanyahu raised the specter of prisoner releases becoming chronic. True, he swore never to do it again, but he’s broken too many previous promises not to release terrorists for this one to be believable.

Thus today, the legal process is no longer a credible substitute for revenge; it’s too obvious that any arrested terrorist will eventually be freed in some deal or another. And once this realization sunk in, all it took was the spark provided by the three teens’ abduction: Absent a credible legal outlet for the grief and anger all Israelis shared, a minority of hotheads, mostly teenagers, channeled it instead into random, vicious attacks on Arabs.

In short, it’s no accident that the worst anti-Arab violence in decades erupted this summer: Three prisoner releases in nine months, solely to keep the PA at the negotiating table, were the straw that broke the legal system’s back. And without a credible legal system capable of channeling the desire for revenge, the primitive rule of the blood feud has returned.

Teaching children that anti-Arab violence is unacceptable is obviously important. So is arresting people who engage in such violence. But against a powerful emotion like revenge, education and enforcement alone will never suffice. Israel also needs a credible legal process into which this emotion can be channeled – one in which murderers, once put behind bars, actually stay there.

Originally published in The Jerusalem Post

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Israel’s constitutional crisis has been postponed, not resolved

After years of leftists crying wolf about democracy being endangered, Israel finally experienced a real constitutional crisis last week. That crisis was temporarily frozen by the decision to form a unity government, but it will come roaring back once the coronavirus crisis has passed.

It began with Knesset Speaker Yuli Edelstein’s refusal to let the newly elected Knesset vote to replace him as speaker and culminated in two interventions by the High Court of Justice. I’m one of very few people on my side of the political spectrum who considers the court’s initial intervention justifiable. But its second was an unprecedented usurpation of the prerogatives of another branch of government, in flagrant violation of legislation that the court itself deems constitutional.

Edelstein’s refusal, despite its terrible optics, stemmed from a genuine constitutional concern, and was consequently backed even by Knesset legal adviser Eyal Yinon, who had opposed Edelstein many times before and would do so again later in this saga. The problem was that neither political bloc could form a government on its own, yet the proposed new speaker came from the faction of Benny Gantz’s Blue and White Party that adamantly opposed a unity government. Thus whether a unity government was formed or Prime Minister Benjamin Netanyahu’s caretaker government continued, the new speaker would be in the opposition.

But as Yinon told the court, speakers have always come from the governing coalition because an opposition speaker can effectively stymie all government work. And once elected, he would be virtually impossible to oust, since 90 of the Knesset’s 120 members must vote to do so. An opposition speaker would thus “hurt democracy,” warned Yinon. “We’re planting a bug in the system, and this, too, undermines our constitutional fabric.” That’s why Edelstein wanted to wait, as Knesset bylaws permit, until a government was formed and could choose its own speaker.

Yet despite this genuine and serious concern, the fact remains that a newly elected majority was being barred from exercising its power. Moreover, it had no parliamentary way of solving the problem because only the speaker can convene parliament and schedule a vote. Thus if you believe majorities should be allowed to govern, the court was right to intervene by ordering Edelstein to hold the vote.

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