Analysis from Israel

“If Israel falls victim” to the International Criminal Court, “any democracy around the world may find itself in the same danger,” Prime Minister Benjamin Netanyahu warned this weekend after the court announced a “preliminary examination into the situation in Palestine.” Netanyahu is entirely correct. Not only has Israel has done nothing in Gaza that America, Britain, France and others haven’t done in places like Afghanistan and Iraq (as I explained when issuing the same warning in 2012), but there’s strong evidence that Israel took greater care to prevent civilian casualties than any of these countries do. Consequently, they have a major interest in ensuring that this “preliminary examination” goes no further.

Given how frequently international institutions apply double standards to Israel, cynics might retort that other countries have no reason to worry. But activist courts desirous of expanding their jurisdiction always begin with “easy” cases that they know will arouse minimal opposition. Then, once the precedent set in the “easy” case has been accepted, they can apply it to more controversial cases.

That’s precisely how Israel’s Supreme Court gained the power to overturn Knesset legislation, which no law actually authorizes it to do. First, it asserted this power in principle while in practice upholding the law at issue, knowing that a purely theoretical claim would generate much less opposition than actually overturning a law. Next, it used this precedent to overturn one small section of a law regulating investment managers, which nobody outside the field cared about; that bolstered the precedent while still not generating much opposition. Only once the precedent was firmly established did it start making truly controversial rulings, like overturning the law enabling the detention of illegal migrants.

Thus for the ICC, a case against Israel represents a golden opportunity. The court has always aspired to worldwide jurisdiction, but until now, all its cases have involved African countries with weak legal systems. Extending its reach to countries with well-developed legal systems requires an “easy” case that will generate little opposition, and Israel fits the bill: Much of the world would be happy to see it in the dock. Then, once the precedent is established, it can be used to indict other Western countries.

The court’s eagerness to seize this opportunity was evident from the unseemly haste with which prosecutor Fatou Bensouda announced her preliminary examination – almost four months before the Palestinians’ ICC membership even takes effect. That bolsters the likelihood that she intends to proceed to a full investigation and then actual charges.

America, France and Britain – the three Western countries most engaged in overseas military operations – thus had a clear interest in keeping the Palestinian Authority from joining the court and starting this process. Instead, France, Britain and the EU as a whole tacitly encouraged it by making it clear that no economic or diplomatic consequences would ensue: The EU will continue funding the PA and supporting it diplomatically. And though Congress may not allow it, the Obama Administration would clearly like to follow suit: It has threatened the PA with no consequences beyond an unspecified “review” of the “implications,” while defending US aid to the PA as benefiting Israel and lambasting Israel for freezing tax transfers to the PA.

Consequently, all three countries will now find themselves in the dock alongside Israel as an essential element of Israel’s defense. After all, the ICC’s jurisdiction is limited to “the most serious crimes of concern to the international community as a whole,” and it’s hard to argue that Israel qualifies if Israel is actually more scrupulous about protecting civilians than other Western countries. And military professionals – as opposed to politicians, journalists, human rights groups and others with no military expertise – generally agree that it is.

That’s why the US army, for instance, sent a “lessons learned” team to Israel after this summer’s Gaza war, inter alia to study Israeli techniques for minimizing civilian casualties. As Martin Dempsey, chairman of the U.S. Joint Chiefs of Staff, said in November, “Israel went to extraordinary lengths to limit collateral damage and civilian casualties … In this kind of conflict, where you are held to a standard that your enemy is not held to, you’re going to be criticized … But they did some extraordinary things to try and limit civilian casualties.”

Similarly, Col. Richard Kemp, the former commander of British forces in Afghanistan, told the Knesset in September that “No army in the world acts with as much discretion and great care as the IDF in order to minimize damage. The US and the UK are careful, but not as much as Israel.” In fact, he said, the global average when fighting in densely populated urban areas is roughly four civilian fatalities for every combatant killed. In Gaza, the ratio of civilian-to-combatant deaths was almost 1:1 – four times better than the global average.

A study published in the New England Journal of Medicine in 2009 also supports this conclusion. The study analyzed victims of U.S. airstrikes in Iraq from 2003-2008 and concluded that of those whose age and gender could be determined, 46% were women and 39% were children. In short, at least 85% were civilians, which roughly matches Kemp’s 4:1 ratio.

By contrast, according to UN data on Palestinian fatalities during the Gaza war, 13% were women and 24% were children. So even if the UN data is credible – which, as I explain here, it almost certainly isn’t – only 37% of Palestinian fatalities were women and children, compared to 85% in Iraq. And that’s despite the fact that the NEJM study deliberately excluded the heaviest battles, when troops are most at risk and fire is likely to be most indiscriminate, whereas the Gaza figures include all the most intense fighting. Had NEJM included the heaviest fighting in Iraq, the comparison would have been even more lopsided in Israel’s favor.

In short, if the ICC prosecutes Israel, other Western democracies won’t be far behind – which means they should be taking the lead in trying to get the case against Israel quashed. Threatening the court’s funding, as Foreign Minister Avigdor Lieberman suggested on Sunday, might be one way to start.

Originally published in The Jerusalem Post on January 19, 2015

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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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