Analysis from Israel

Legal Issues

There’s a straight line connecting leftists’ rejection of the settlements’ legality with rightists’ rejection of the indictments against Israeli Prime Minister Benjamin Netanyahu.

One of the modern era’s most dangerous problems is the conflation of politics with law. Political questions are increasingly treated as legal ones, which inevitably results in the law becoming politicized. Last week provided two salient examples.

One was the response to the U.S. State Department’s announcement that Israeli settlements don’t violate international law. What was striking was that many opponents didn’t actually challenge the department’s (correct) legal conclusions. Instead, they objected on policy grounds.

Democratic presidential candidate and former vice president Joe Biden, for instance, complained, “This decision harms the cause of diplomacy, takes us further away from the hope of a two-state solution, and will only further inflame tensions in the region.” Another leading Democratic candidate, South Bend Mayor Pete Buttigieg, termed the announcement “a significant step backward in our efforts to achieve a two-state solution.”

Rabbi Rick Jacobs, president of the Union for Reform Judaism, was particularly blatant. While acknowledging that the decision focused solely on international law, he worried that it “will be widely read as a broader change to the U.S. position on Israeli settlements,” which “would place serious and critical obstacles to a viable two-state solution.” Consequently, he urged the administration “to reverse its position.”

Essentially, all three want the settlements declared illegal simply because they think settlements are bad policy, regardless of what international law actually says. In other words, they’re incapable of distinguishing policy from law.

People who understand this difference have no problem with settlements being recognized as legal because they understand that something can be bad policy even if it’s legal. Indeed, that’s precisely what all administrations, both Republican and Democratic, did for roughly three decades between Jimmy Carter and Barack Obama: They vehemently opposed settlements on policy grounds while simultaneously acknowledging that they weren’t illegal.

Yet the concept of “it’s legal, but it stinks” has evidently gone out of style, especially on the left. When leftists think something stinks, they want it declared illegal, even if it’s not.

The advantages of this tactic are obvious. Policy questions, by definition, are disputable; indeed, many people disagree that settlements are bad policy. But law ostensibly eliminates controversy because once the courts rule something illegal, then everyone is supposed to accept that it must stop. Thus branding any policy one opposes as illegal is meant to make it politically illegitimate. If settlements are illegal, they mustn’t be built, even if they’re actually good policy.

Granted, this ploy has an inherent problem when it comes to international law since there are no recognized courts whose authority to make such judgments is universally accepted. Neither America nor Israel, for instance, ever agreed to accept the legal interpretations of the International Criminal Court, U.N. agencies or any other such body. And without an accepted arbiter, whether or not something violates international law is endlessly debatable.

But the bigger problem is this tactic’s enormous cost, which far outweighs any possible benefit: When people start branding anything they object to as “illegal,” they turn the law into just another player on the political battlefield. And once that happens, legal decisions will be treated with no more respect than any other political pronouncement.

Thus Americans who object to recognizing the settlements’ legality on policy grounds are destroying any pretensions that international law might have to objectivity and impartiality, just as the European Union did by insisting that international law requires labeling products from Israeli settlements, but not from Turkish settlements in northern Cyprus or Moroccan settlements in Western Sahara. In both cases, international law is being treated not as an objective, universally applied standard, but as a selective political tool to punish disfavored countries or policies. And as such, it deserves no more deference than any other political decision.

Given how amorphous international law actually is, that may be no great loss. But when the same tactics are applied to domestic legal systems, the consequences become devastating. Once a significant portion of the citizenry starts to view legal decisions as politics in another guise, the consensus on which democracy’s survival depends—that legal decisions must be honored—will rapidly erode.

As I’ve noted before, this is already happening in Israel. But last week’s indictment of Israeli Prime Minister Benjamin Netanyahu provides a particularly worrying example of the costs.

I’m the rare Netanyahu supporter who thinks that one of the three cases against him is actually serious. But for two understandable reasons, many supporters believe that he’s simply being persecuted by a leftist legal establishment frustrated by repeated failures to oust him through democratic elections.

The first is that the Attorney General’s Office and the courts have intervened in literally thousands of policy decisions over the past three decades, frequently in defiance of actual written law and almost always in the left’s favor. In short, both bodies have routinely behaved like political activists rather than impartial jurists. So rightists have no reason to trust their impartiality now.

Second, Netanyahu has been targeted by frivolous investigations—including, in my view, two of the three now going to trial—ever since he first became prime minister in 1996. All involved genuinely repulsive conduct on Netanyahu’s part. But rather than treating such conduct as a problem on which the public, rather than the courts, must render judgment, the legal establishment repeatedly opened cases against him, to which they devoted countless man-hours before finally closing them.

Now, the legal establishment says it has finally found a real crime. But like the boy who cried wolf, Netanyahu’s supporters no longer believe it.

The combination of these two factors means that many Israelis genuinely feel that their prime minister has been ousted by a corrupt legal establishment solely because it opposes his policies. And that will inevitably foster even greater distrust of the legal system.

Leftists spend a lot of time these days fretting about democracy’s possible collapse. But if they really want to avert such a collapse, the first step is to stop politicizing the law, so that legal institutions can regain public trust. For without a legal system whose decisions are widely respected, democracies will be left with no way of resolving disputes but the one shared by dictatorships and anarchies—plain old-fashioned brute force.

This article was originally syndicated by JNS.org (www.jns.org) on November 27, 2019. © 2019 JNS.org

On June 24, Haaretz columnist Amira Hass compared the case of Mahmoud Qatusa to the infamous Leo Frank case in Atlanta. The comparison was suggested by Qatusa’s lawyer, but Hass enthusiastically seconded it.

One day later, the dramatic denouement of Qatusa’s case proved them both wrong. And the story convincingly refutes claims that Israel has become increasingly racist and “anti-democratic” because it shows that the sine qua non of a flourishing democracy is alive and well—not the absence of problems, but the existence of self-correcting mechanisms to resolve those problems.

To understand why, a recap of both cases is needed. Frank, a Jew, was convicted in 1913 of murdering a 13-year-old Christian employed at the Atlanta factory where he was superintendent. Rumors said the girl was also raped. During the trial, crowds outside the courthouse shouted “Hang the Jew”; he was duly sentenced to death. Multiple appeals were rejected. But Georgia’s governor, disturbed by flaws in the case and the anti-Semitic incitement, commuted the sentence to life imprisonment. Two years later, vigilantes broke into Frank’s prison and murdered him.

Qatusa, a resident of the West Bank village of Deir Qaddis, was arrested on May 1 and held without bail on suspicion of raping a 7-year-old girl from the nearby Jewish settlement of Modi’in Ilit, where he was a janitor at the girl’s school. After his indictment hit the headlines on June 17, social media erupted with anti-Arab incitement, including from several politicians who accused him—with zero evidence—of intending the rape as a terror attack.

But then, Israeli democracy’s self-correcting mechanisms kicked in. Senior officials from Israel’s independent police and prosecution, who weren’t previously involved in the case, reviewed it and discovered numerous problems. The country’s free press investigated and reported additional problems. On June 25, after top law-enforcement officials concluded the evidence was insufficient, charges were dropped, and Qatusa was freed.

Additionally, while anti-Arab racism undoubtedly exists in Israel, it doesn’t seem to have been a factor in Qatusa’s case. Even the senior legal officials who withdrew the charges remain convinced that a rape occurred and that some evidence points to him, just not enough for criminal conviction. Moreover, he was just one of several Palestinians employed at the girl’s school; many others worked elsewhere in the settlement. Modi’in Ilit residents regularly patronized Deir Qaddis garages and relations between the towns were good, as evidenced both by the Modi’in Ilit residents who publicly protested Qatusa’s innocence and by those who danced at the wedding of the Deir Qaddis mayor’s son on June 13.

The case did highlight one real problem: the notorious incompetence of the police’s West Bank division. Back in 2011, Haaretz reported that the division consistently failed to follow basic investigative procedures; consequently, “case after case—against settlers and Palestinians alike—is either closed without going to trial or thrown out of court.” Evidently, not much has improved since then.

But no country anywhere is devoid of problems. What distinguishes democracies from dictatorships is that democracies have self-correcting mechanisms to try to address these problems. And Qatusa’s case shows that despite a real problem of police incompetence, Israel’s self-correcting mechanisms work; consequently, Leo Frank-style travesties of justice don’t happen. Nor, incidentally, do lynchings.

This is also worth remembering with regard to another case that recently made headlines in Israel—the shooting of 18-year-old Solomon Teka on June 30 by an off-duty policeman trying to break up a fight in a park. In this case, racism can’t be dismissed as a factor; many Israelis don’t believe that the incident would have ended with Teka dead had he not been an Ethiopian Israeli. Moreover, police have a history of racism against Ethiopian Israelis: See, for instance, the brutal beating of soldier Damas Pakada in 2017 (in that case, the abusive cop was at least dismissed from the force; Pakada later became a decorated officer in the army’s cyber corps).

Once again, the case highlights real problems—not just racism, but police brutality. The latter affects many demographics: Ethiopian Israelis, Arabs, settlers, migrant workers, demonstrators both right-wing and left-wing, etc. And it too often goes unpunished.

But if Teka’s shooting shows that progress in addressing these problems is clearly insufficient, a government report published in April shows that it is nevertheless occurring. Following Ethiopian-Israeli demonstrations against police brutality in 2015, the government appointed an interministerial committee to propose ways to eradicate racism against Ethiopian Israelis. And since 2016, the Justice Ministry has issued annual reports on implementation of these proposals.

The latest report documented insufficient but nevertheless real progress on the critical problem of over-policing. For instance, while arrests of minors overall were down 29.5 percent in 2018 compared to 2015, arrests of Ethiopian-Israeli minors fell 50.4 percent during this period. Ethiopian Israelis are still arrested disproportionately, accounting for 5.4 percent of all minors arrested in 2018 despite constituting only 1.6 percent of the population. But that’s down from 7.7 percent in 2015.

Insufficient but real progress has also been made on other issues, like the percentage of Ethiopian Israelis graduating high school (still low at 62 percent, but up from 35 percent in 2008). Moreover, as former Knesset member Dov Lipman noted, Israelis stuck in traffic for hours due to Ethiopian-Israeli protests over Teka’s death largely reacted with understanding rather than racist outbursts, indicating that racism, though real, isn’t endemic.

No country has ever managed to eliminate racism, and Teka’s case shows that Israel still has a ways to go. Yet at the same time, the Justice Ministry report shows that democracy’s usual self-correcting mechanisms—demonstrations, media reports, political action, etc.—are having an impact.

Democracy can’t turn human beings into angels, and all democracies fall short of their highest ideals. But they remain much better than non-democracies at creating mechanisms to counter the harm done by our worst impulses, and thereby, over time, to improve society as a whole.

Thus, the true measure of whether a democracy is functioning properly isn’t whether problems exist; they always will. Rather, it’s whether democracy’s self-correcting mechanisms are working effectively to mitigate those problems. And by that standard, Israel’s democracy is doing just fine.

This article was originally syndicated by JNS.org (www.jns.org) on July 17, 2019. © 2019 JNS.org

Three seemingly unrelated incidents occurred last week, yet all share a common denominator: They exemplify the way anti-Israel politics has corrupted the concept of human rights.

Let’s start with best-selling British novelist Richard Zimler’s report that two British cultural organizations recently refused to host him for lectures about his new book, though he has lectured many times on previous books. “They asked me if you were Jewish, and the moment I said you were, they lost all interest,” he quoted his publicist as saying.

It’s not that these groups have anything against Jews per se. They simply feared that hosting a Jew would make them a target for anti-Israel protesters.

Zimler isn’t Israeli, has no relatives or investments in Israel and doesn’t write about Israel. His latest book is set in the Holy Land 2,000 years ago, but its storyline is Christian rather than Jewish (it’s called The Gospel According to Lazarus). So he wouldn’t seem an obvious target, given BDS apologists’ repeated claim that anti-Zionism isn’t anti-Semitic.

Unfortunately, much of the anti-Israel crowd hasn’t gotten that memo. See, for instance, the German courts which ruled that torching a German synagogue wasn’t a hate crime, but an understandable anti-Israel protest. Or the student organizations which demanded that a South African university expel all Jewish students to show its pro-Palestinian bona fides. Or the Norwegian attorney general who ruled that “F*** Jews” isn’t hate speech, but an expression of “dissatisfaction with [Israel’s] policies,” although the speaker never mentioned Israel. Or the dyke marches that banned Jews from holding Jewish pride flags because they remind some people of Israeli flags. And so forth.

So despite deploring the unnamed organizations’ cowardice, I can’t dismiss their fears as unfounded. And that’s the problem.

Human-rights groups and liberals worldwide rush to defend the “rights” of BDS activists; see, for instance, their opposition to anti-BDS legislation on the false grounds that it violates freedom of speech (it actually applies only to actions, not speech). Yet they’ve shown no interest in defending Jewish rights in most of the examples cited above. Evidently, Jewish rights are acceptable collateral damage in the sacred cause of anti-Zionism.

The second incident was the Palestinian Authority’s harassment of Palestinian businessmen who attended the U.S.-sponsored economic workshop in Bahrain on June 25-26. One was arrested, but eventually released under American pressure. Another escaped arrest by fleeing to the Israeli-controlled section of Hebron. And the P.A. raided the homes of several others, confiscating documents like credit cards and passports.

These roughly 15 businessmen traveled legally to Bahrain to participate in what one reporter termed the conference’s “real, unofficial” purpose—closing legal business deals, mainly with fellow Arabs. They explicitly said they represented only themselves, not the P.A, and refused to talk politics, saying only the P.A. was authorized to do that. In short, not only did they commit no crime, they made no attempt to undermine the P.A.’s political positions.

Indeed, the P.A. didn’t even try to pretend that any crime was committed. As one Palestinian security official told Haaretz, there was “no specific charge” against the arrested businessman; the arrest “was a warning. He must understand the implications of this sort of collaboration.”

In other words, this was pure political persecution, which is standard P.A. practice. Palestinian journalists, activists and businessmen have all been arrested for such “crimes” as saying P.A. leader Mahmoud Abbas should resign.

Human-rights groups and liberals worldwide incessantly condemn Israeli violations of Palestinian rights (real or imaginary). They also frequently condemn Israel for utterly fictitious violations of Israeli rights. But innocent Palestinian businessmen arrested and harassed by the P.A. for doing legal business? You won’t hear a peep about that. Palestinian rights are evidently acceptable collateral damage in the sacred struggle against Israel.

The third incident was the estimated 100 fires that incendiary balloons flown from Gaza ignited in southern Israel. That’s an unusually high number for a single week, but incendiary devices from Gaza—courtesy of Hamas’s “balloon unit”—have been wreaking havoc for more than a year. In the six months ending in October 2018, such devices destroyed some 3,000 acres of forest and 4,000 acres of farmland. Since the winter rains ended, additional thousands of acres have been destroyed.

This is a war crime, according to both the Geneva Conventions and the treaty governing the International Criminal Court. Both define “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” as a war crime; the latter also lists causing “widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.” Palestinian arson attacks do both, while serving no military purpose whatsoever.

The ICC is looking into numerous alleged Israeli crimes against the Palestinians and has even begged Palestinians to provide it with more complaints. Human-rights groups and liberals worldwide incessantly condemn these alleged Israeli crimes, including settlement construction, which, even if it were a genuine crime (it isn’t), is far less destructive than scorched-earth tactics (evacuated settlements could theoretically be given to the Palestinians under a peace deal). But I haven’t heard a peep about the destruction of large swaths of southern Israel, nor has the ICC considered probing it. Environmental devastation is evidently acceptable collateral damage in the sacred fight against Israel.

What all these cases show is that human rights have ceased being an objective standard applied equally to all. Instead, they’ve become a political tool to bash groups that liberals dislike. So Jewish rights matter when targeted by right-wing extremists (whom liberals loathe), but not when targeted by anti-Zionists. Palestinians’ rights matter when targeted by Israel, but not when targeted by the P.A. And Israeli rights never matter, except when violated by Israel.

This problem isn’t unique to the Israeli-Palestinian issue, of course. It’s just particularly blatant there.

Liberals and human-rights groups frequently complain that human rights are becoming devalued worldwide, and they’re right. But their own politicization of these rights is the chief culprit. And until this changes, contempt for human rights will only keep growing.

This article was originally syndicated by JNS.org (www.jns.org) on July 3, 2019. © 2019 JNS.org

Israeli Prime Minister Benjamin Netanyahu’s unexpected failure to form a new government, which indicates that his political end may be nearing, has prompted much speculation about what changes a post-Netanyahu era might bring. But here’s one thing that won’t change—the right’s efforts to reform the legal system. And nothing better explains why than the about-face of Finance Minister Moshe Kahlon, previously one of the system’s ardent defenders.

Reform efforts have been widely depicted for months as nothing but a way for Netanyahu to avoid standing trial. Thus many people seem to think they’ll dissipate once Netanyahu goes. As columnist Chemi Shalev wrote in Haaretz on May 28, “Without Netanyahu and his urgent need to avoid indictment, the right-wing crusade against Israel’s Supreme Court in particular and the rule of law in general would falter … without Netanyahu’s personal stake and drive, even a right-wing coalition would find it hard to muster the anti-court majority needed for such a drastic constitutional upheaval.”

In fact, the opposite is true. Legal reform has long enjoyed widespread support in both Netanyahu’s Likud and other rightist parties; the main reason it never happened is that Netanyahu himself repeatedly stymied it throughout his decade as prime minister. His sudden change of heart indeed stems from his own legal problems, but that isn’t true of most rightist politicians or of rightist voters.

Kahlon used to be a major exception. He entered the cabinet in 2015 vowing to thwart any effort to curb the legal system’s power. In his coalition agreement with Likud, he even demanded and received veto power over such legislation. And he exercised his veto repeatedly, inter alia killing bills to change the judicial appointments system and to let the Knesset reenact legislation overruled by the courts.

But after April’s election, Kahlon’s Kulanu Party signaled that it would no longer thwart such efforts. As Revital Hovel reported in Haaretz last month, there are two reasons for this.

First, even Kulanu voters—the most moderate segment of the center-right electorate—objected to Kahlon’s defense of the legal status quo. In April’s election, Kulanu dropped from 10 Knesset seats to four, and the party’s internal polling found that its repeated vetoes of legal reforms were a major reason why. Many rightists simply won’t vote for anyone opposed to legal reform.

Second, Kahlon got mugged by reality. As finance minister, he acquired firsthand experience of the way the Supreme Court prevents governments from governing by repeatedly overturning decisions it deems “unreasonable”—a judgment other democracies leave to voters.

Most dramatically, the court overruled Kahlon’s flagship policy on what even Hovel, a court supporter, admitted were “novel grounds.” Kahlon won election by promising to lower Israel’s cost of living, particularly its astronomical housing prices. He therefore enacted a special tax on third apartments, arguing that making it more expensive to buy housing for investment purposes would cool demand and thereby lower prices.

The tax was part of the annual Economic Arrangements Law, an omnibus bill enacted together with the state budget because the government deems its provisions necessary to meet budgetary targets. It passed all necessary votes in both the Knesset Finance Committee and the full Knesset. Nevertheless, the court overturned it, claiming the legislative process was flawed.

Here, according to the ruling, are the justices’ objections: The Finance Committee’s overnight discussion wasn’t in-depth enough. Knesset members didn’t receive the bill’s final revisions in time, so they relied on treasury officials’ oral explanation of the changes. Government representatives, the committee chairman and some Knesset members repeatedly urged other committee members to stop asking questions and just pass the bill already. In short, the court said, the process was characterized by “haste, pressure and panic,” thereby depriving MKs of the chance to form an “educated opinion” of a bill with significant financial ramifications.

Or in other words, as anyone familiar with the Knesset would know, it was situation normal for the final stage of the annual budget debate, in which MKs must approve thousands of pages of legislation within days to meet the end-of-year deadline (I know this firsthand, having covered the proceedings for years as a reporter). The budget passes less through reasoned debate than through standard legislative horse trading, in which all MKs support certain items they dislike so that other MKs will support their budgetary priorities.

Nevertheless, the court decided that in this particular case, standard practice had suddenly become so unreasonable as to be unconstitutional, and overturned the law. That effectively killed Kahlon’s tax, which, like many tax hikes, was too unpopular to pass outside the annual budgetary horse-trading.

Kahlon also repeatedly fell victim to another of the Supreme Court’s unique interpretations of the “rule of law”—that a government has no right to representation in court if the attorney general disagrees with its position. For instance, as finance minister, Kahlon is ostensibly in charge of taxes. Yet the court overruled his decision to maintain differential taxes on cigarettes and rolling tobacco without his position even being granted legal representation.

The same happened when the court ordered Kahlon to raise the price of price-controlled milk (a vestige of Israel’s socialist past). To be clear, I consider price controls bad policy, especially when, as in this case, higher production costs probably justified raising prices. But by law, the price of price-controlled milk is set by the finance and agriculture ministers, not the attorney general or the court. Thus by overruling Kahlon on the grounds that his decision was unreasonable, the attorney general and the justices effectively usurped the minister’s legal authority and forced him to violate his campaign promise to keep prices down, all without his position even being represented in court.

After more than three decades of such rampant judicial activism, too many rightist legislators and voters have similar stories of policies they cared about being nixed not because they violated any law or constitutional provision, but merely because unelected justices or an unelected attorney general decided to substitute their own policy judgments for those of the elected government.

That’s what’s truly driving the movement for legal reform. And it won’t disappear when Netanyahu does.

This article was originally syndicated by JNS.org (www.jns.org) on June 5, 2019. © 2019 JNS.org

Distorting the meaning of language is a seductive but dangerous game. It’s seductive because it provides enormous short-term benefits. It’s dangerous because, as two recent examples show, it can ultimately eviscerate fundamental values.

One example comes from this week’s Israeli election, in which Prime Minister Benjamin Netanyahu’s Likud Party actually gained seats despite multiple corruption cases against him. A survey published in February by a Haifa University political scientist explains why: Most voters for Likud and allied parties don’t believe the allegations because they don’t trust the legal system. Fully 65 percent of Likud voters and 75 percent of haredi voters think law-enforcement agencies are simply trying to oust Netanyahu.

On one level, this is shocking. But on another, it’s not shocking at all because the Israeli left has spent decades successfully subverting the concept of “the rule of law” for its own political benefit.

For instance, Israel’s Supreme Court repeatedly overturns government policies not because they violate any law, but because the justices deem them “unreasonable.” Whether or not a policy is reasonable is a question other democracies leave to the voters. But the left has successfully branded all efforts to curb such judicial policy interventions as “contrary to the rule of law,” and thereby managed to stymie proposed reforms: Most legislators don’t want to “sabotage the rule of law.”

Moreover, in almost every Western democracy, the executive and legislative branches choose Supreme Court justices; only in Israel do sitting justices have veto power over the choice of their successors. Yet the left has branded every attempt to align Israel’s judicial appointments system with this Western norm as “contrary to the rule of law,” and thereby successfully staved off change.

Israel is also unique among democracies in treating the attorney general’s views as binding on the government. Thanks to a 1993 Supreme Court ruling, whenever the attorney general opposes a policy, he’s entitled to represent his own position in court rather than the government’s, thereby leaving the government’s position unrepresented and ensuring that it loses cases by default. Letting an unelected attorney general dictate to an elected government is patently undemocratic and preventing any group, even the government, from defending itself in court violates a fundamental democratic right. Yet leftists have successfully branded this, too, as “the rule of law”; consequently, attempted reforms have repeatedly failed.

Finally, there’s the unequal application of laws, as epitomized by a pre-election ruling that disqualified a Jewish Knesset candidate but nixed the disqualification of an Arab party, Balad. The law lists three grounds for disqualification: inciting to racism, rejecting Israel’s character as a Jewish and democratic state, and supporting armed struggle against Israel. Balad, as the court itself has acknowledged, openly rejects Israel’s Jewish character. Several of its MKs have also faced criminal proceedings for abetting anti-Israel terror. Yet the Supreme Court chose to ignore all this, thereby effectively declaring the law a dead letter except when used against Jews.

So here’s how your average rightist voter understands the rule of law today: It means that unelected legal officials—justices and attorneys general—can veto any government decision, thereby making a mockery of democratic elections. It means that laws meant to apply to Jews and Arabs alike are only enforceable against Jews. It means letting justices select their own successors, keeping the court ideologically monochromatic. In short, it’s just a trick for ensuring that the left can continue imposing its views no matter how many elections it loses.

That trick has successfully thwarted all legislative efforts at reform. But the price is that many rightists now distrust and despise “the rule of law” to such an extent that they dismiss pending indictments against a prime minister as just another attempt by the legal establishment to subvert democracy.

This is a tragedy because the rule of law, in its original meaning, is an essential foundation for democracy. Inter alia, it means that the bounds of legitimate action are defined not by the ruler’s whims but by laws whose content is public knowledge; that those laws apply equally to all; and that disputes are settled in court according to those laws rather than by force. In short, it’s a shared framework that protects the individual and enables diverse groups to live together.

The second example is last week’s National Council of Young Israel gala. When a speaker mentioned “the leftist progressive tikkun olam ideology,” the American Modern Orthodox audience booed.

On one level, this is shocking since tikkun olam just means “repairing the world,” and Jews have always believed that Judaism is supposed to make the world better in some fashion. Indeed, the Bible itself says so repeatedly, from God’s promise to Abraham that “through thy seed shall all the nations of the earth be blessed” to Isaiah’s dictum that Israel should be “a light unto the nations.”

Haredi Jews may believe that doing so requires scrupulously obeying Jewish law, while Reform Jews may believe it requires adopting progressive policies. But Jews across the spectrum should be able to say, “Fine, we agree on the goal of improving the world; now let’s argue about the means.”

Yet those boos weren’t actually shocking because Jewish leftists have spent decades trying to conflate tikkun olam with a particular set of progressive policies, such that anyone opposing those policies ipso facto opposes tikkun olam. And as evidenced by that speaker’s choice of words, they’ve succeeded: Even their Jewish opponents now view tikkun olam as a “leftist progressive ideology.”

But by appropriating tikkun olam as their own exclusive property, leftists have discredited the entire concept; many Jews now see it as a stand-in for ideas that they (and many other reasonable people of goodwill) consider destructive. That’s a massive own goal. But it’s also a tragedy for the Jewish people, which has lost a shared moral language that could have been a unifying factor.

The left’s subversion of language has thus wreaked long-lasting harm on both Israel and the Jewish people. And all of us will be paying the price for many years to come.

This article was originally syndicated by JNS.org (www.jns.org) on April 10, 2019 © 2019 JNS.org

Note: This piece is a response to an essay by Haviv Rettig Gur

Like Haviv Rettig Gur in “How and Why Israelis Vote,” I, too, think the advantages of Israel’s parliamentary system outweigh its disadvantages, and for essentially the same reason: because it keeps a great many people in the political system who would otherwise remain outside it.

Critics of the system’s plethora of small parties—as Gur notes, no fewer than 43 parties have been vying for Knesset seats in this year’s election—maintain that it should be streamlined and redesigned so that only big parties would be able to enter the Knesset. In that case, the critics argue, people who currently vote for small parties would simply switch their votes to large ones.

No doubt, some voters would do so—but many others would not. There are at least three groups among whom turnout would plummet if niche parties became by definition unelectable: Arabs, Ḥaredim (including some ḥaredi Zionists), and the protest voters who, in every election, propel a new “fad” party into the Knesset. (In 2015, as Gur writes, the fad party was Kulanu. This year, it’s been Moshe Feiglin’s pro-marijuana, libertarian, right-wing Zehut party, which Gur doesn’t discuss although polls have consistently showed it gaining five to seven seats.)

Together, these three groups constitute roughly a third of the country, and all three are to some extent alienated from the mainstream. If they were no longer even participating in elections, that alienation would grow.

Why does this matter? In answering that question, I’ll focus mainly on Ḥaredim and Arabs, the most significant and also the most stable of the three groups (protest voters being by nature amorphous and changeable).

It matters primarily because people who cease to see politics as a means of furthering their goals are more likely to resort to violence. Indeed, it’s no accident that most political violence in Israel has issued from quarters outside the electoral system.

Among Ḥaredim, violent anti-government demonstrations take place in neighborhoods whose residents don’t vote, not in neighborhoods that vote en masse for United Torah Judaism. As for the violent fringe of the settler movement, it doesn’t vote for pro-settlement parties like Jewish Home or even the extremist Otzmah Yehudit; it doesn’t vote at all. Instead, as revealed in documents made public by the Shin Bet security service in 2015, it seeks to replace democracy in Israel with a religious monarchy.

Among Israeli Arabs, those in eastern Jerusalem—most of whom cannot vote since they are permanent residents rather than citizens—commit a proportionately much greater amount of violent acts than do other Israeli Arabs. Similarly, the northern branch of Israel’s Islamic Movement, which boycotts elections, foments far more violence than the southern branch, which regularly runs as part of the United Arab List.

True, there is one striking counterexample: the Balad party, whose past members of Knesset (MKs) have included one who fled the country to avoid charges of spying for Hizballah, one convicted of smuggling cellphones to jailed terrorists, and one convicted of threatening fellow Arabs serving in the police. But I can’t think of any other significant exceptions.

By contrast,niche parties not only reduce the incidence of extremist violence but actually help move alienated communities closer to the mainstream.

As Gur observes, the main reason Yisrael Beytenu has risked falling below the electoral threshold in this election is that, as its Russian-immigrant voters have come to feel more at home in Israel, they’ve increasingly switched to more mainstream parties. Another good example is Jewish Home: the principal reason it was polling below the threshold before it hooked up with Otzmah Yehudit is that religious Zionists, too, have migrated to mainstream parties as they have become more integrated.

The same trend is now emerging, albeit slowly, among Ḥaredim. According to Gilad Malach of the Israel Democracy Institute, the proportion of Ḥaredim voting for non-ḥaredi parties rose from 10 percent in 2006 to 17 percent in 2015; this year, Malach expects it to reach 20 percent. One noteworthy sign of the change: in 2018, the ḥaredi city of Bnei Brak elected a city councilman from a non-ḥaredi party; the last time this happened was more than three decades ago, when Bnei Brak still had a sizable non-ḥaredi population.

This shift is propelled primarily by broader changes within ḥaredi society itself, where more and more people are working, attending college, and serving in the army. But it has been facilitated by the presence of ḥaredi parties in the Knesset.

As a Knesset reporter in the 1990s, I watched those parties evolve from caring only about religious issues to speaking out on broader societal ones as well. Their presence in the Knesset—where ḥaredi members advanced to chair powerful committees and became ministers and deputy ministers—meant they couldn’t avoid taking stands on economic, diplomatic, and security issues. This in turn sent a moderating message to their constituents: that Ḥaredim can and should care about Israel’s broader concerns, The logical corollary is that voting on the basis of those broader concerns—that is, voting for mainstream parties—isn’t illegitimate.

Unfortunately,the dynamic is different in the Arab community, where Arab parties routinely win a sweeping majority of the vote. Even as, by many measures, Arab voters have become more integrated in Israeli society, Arab MKs have remained militantly separatist.

Polls over the past few years have repeatedly shown that Israeli Arabs’ main concerns are not the Israel-Palestinian conflict but bread-and-butter issues like crime, housing, and jobs, and that roughly two-thirds of Arab voters want their MKs to join the governing coalition, where they would have more power to address these issues. But the Arab parties have different priorities.

When it comes those priorities, contrary to the picture drawn by Gur, there’s little that distinguishes one Arab party from another. All of them, even the “moderate” Ḥadash-Ta’al, vocally accuse Israel of being an apartheid, criminal state that indiscriminately murders Palestinians; all defend Palestinian terror; and all stridently support maximalist Palestinian demands (including the “right of return,” a euphemism for destroying the Jewish state demographically).

Ayman Odeh, for instance, the chairman of Ḥadash, has refused to condemn Palestinian terror, saying, “I cannot tell the nation how to struggle. . . . I do not put red lines on the Arab Palestinian nation.” In 2015, Odeh went so far as to cancel a meeting with American Jewish leaders because he refused to set foot in a “Zionist” office. (Evidently he makes an exception for the Zionist Knesset.) Ahmad Tibi, the chairman of Ta’al, has written op-eds in American newspapers accusing Israel of running a Jim Crow regime, ignoring the irony of signing these pieces as deputy speaker of Israel’s parliament.

These parties often preemptively declare themselves unwilling to join any government. But they needn’t bother: their embrace of outspokenly anti-Israel positions puts them beyond the pale as coalition partners. It also nourishes feelings on both sides that Israeli Arabs and Israeli Jews are enemies rather than partners who, despite differences of opinion, share common concerns.

Given all this, it’s unsurprising that a 2015 poll found almost half of Arab respondents voicing dissatisfaction with their MKs, or that voting rates among Arabs, unlike among Ḥaredim, are consistently and significantly lower than the national rate. What is surprising, and encouraging, is that according to one recent poll, over 75 percent of Israeli Arabs still consider Knesset representation important. But most would still not consider voting for non-Arab parties. Like many Ḥaredim, they still feel themselves to be a separate community, and want to vote for people with lived experience of their unique circumstances.

What, then,might be done to further the mainstreaming of both haredi and Arab voters? Perhaps counterintuitively, one solution might be to allow even more niche parties into the Knesset.

For a party to gain entry into the Knesset today, as Gur notes, it must win 3.25 percent of the total vote, which in the 120-seat Knesset works out to four seats. If that electoral threshold were lowered to its pre-2015 level of 2 percent (2.4 seats), or even lower, it would become easier for new Arab and ḥaredi parties favoring integration to get elected, join a government, and be in a position to deliver what their constituents want, and thereby to serve as gateways to further integration (just as Yisrael Beytenu and Jewish Home did for their voters).

As it happens, Arab and ḥaredi parties along those lines tried running both in 2015 and again this year, but the four-seat threshold has proved insurmountable.

A lower threshold might also reduce the extortionate power exercised by small parties, vividly described by Gur in his essay. In a government coalition that included several two- or three-seat parties, no single one of them would wield enough electoral clout to mount a challenge to the government’s survival. When, however, every party in a coalition holds at least four seats, it’s easier for one to topple,  or to threaten to topple, the government on its own.

But the foremost reason to reduce the threshold is that making it easier for niche parties to enter the Knesset would give more non-voters an incentive to make their concerns heard through voting. People inside the political system are more likely to feel they have a stake in the country and less likely to resort to violence. In a country as diverse and as contentious as Israel, everyone would benefit from the presence of greater numbers of such people.

Originally published in Mosaic on April 8, 2019

International law used to distinguish between offensive and defensive wars. But modern interpretations have eliminated this distinction, and thereby ended up rewarding aggression.

When U.S. President Donald Trump recognized Israeli sovereignty over the Golan Heights, foreign-policy experts keened in chorus that he was destroying a fundamental principle of the world order: that territory can’t be acquired through force. Let’s hope they’re right—because that principle, far from deterring aggression, actually rewards it.

The problem is that, as currently interpreted, the principle doesn’t distinguish between offensive and defensive wars. Thus for an aggressor, starting a war becomes almost cost-free (assuming he doesn’t care about getting his own people killed). If he wins, he achieves whatever goal he sought to achieve. And if he loses, the international community will pressure his victim to return any captured lands, thereby ensuring that he pays no territorial price.

This warped interpretation is the diametric opposite of the principle’s original purpose, which was to deter aggression. But it’s also of fairly recently vintage. After World War II, the Allies had no qualms about forcing Germany, the aggressor, to cede territory to its victims. And Western nations still recognized the distinction between offensive and defensive war as recently as 1967.

The proof is Security Council Resolution 242, which is famously interpreted today as requiring Israel to cede all territory captured in the Six-Day War of 1967. But in reality, it was explicitly worded to let Israel keep some of that territory, by demanding a withdrawal only from “territories occupied in the recent conflict,” rather than “the territories” or “all the territories.”

As America’s then U.N. ambassador, Arthur Goldberg, later said, the omitted words “were not accidental … the resolution speaks of withdrawal … without defining the extent of withdrawal.” Lord Caradon, the British U.N. ambassador who drafted the resolution, was even more explicit. “It would have been wrong to demand that Israel return to its positions of June 4, 1967,” he said.

What’s noteworthy, however, is that the clause allowing Israel to retain some captured territory was preceded by a preamble clause, “Emphasizing the inadmissibility of the acquisition of territory by war.” In other words, nobody back then saw any contradiction between emphasizing the inadmissibility of acquiring territory through war and authorizing the victim to keep some of the aggressor’s territory because the ban on gaining territory through war was understood as applying to offensive wars, not defensive ones.

And the Six-Day War—in which Israel acquired the Golan Heights from Syria, the Sinai from Egypt and the West Bank, Gaza and eastern Jerusalem from their illegal Jordanian occupier—was a classic defensive war. It began when Egypt closed the Straits of Tiran to Israeli shipping (a recognized act of war), kicked U.N. peacekeepers out of Sinai, massed troops on Israel’s border and publicly threatened to annihilate it.

Moreover, even after Israel opened the war’s hot phase by attacking and destroying Egypt’s air force, it had no interest in opening additional fronts with Syria or Jordan (famously begging the latter to stay out of the war). Nevertheless, both countries promptly launched their own attacks. In Syria’s case, these included shelling civilian communities from the Golan and conducting airstrikes on them.

In other words, Syria could have sat the war out. Instead, it chose to join the anti-Israel aggression, and in the ensuing fighting, it lost the Golan.

Damascus then spent the next 52 years rejecting repeated offers to trade the Golan for peace while also launching one hot war (in 1973) and providing material support for decades of attacks on Israel from neighboring Lebanon (first by the PLO and later by Hezbollah). In contrast, Egypt made peace with Israel in 1979 (thereby recovering every inch of Sinai), while Jordan signed a formal peace treaty in 1994 after having maintained a de facto peace for the preceding 27 years.

Yet despite Syria’s half-century record of aggression and peace rejectionism, the international community never stopped insisting that Israel must return the Golan to Syria. Damascus believed that it would never have to pay any price for its bad behavior—until Trump came along.

Theories about international law presumably didn’t play a major role in Trump’s decision. Yet by insisting that aggression and peace rejectionism shouldn’t be cost-free, he is being more faithful to this law’s original goal of deterring aggression than its professed devotees, who insist that aggressors should never suffer territorial consequences.

That’s why all the foreign-policy experts claiming that Trump has just legitimized acts of aggression like Russia’s seizure of Crimea are wrong. This claim is possible only under the warped interpretation of international law that makes no distinction between offensive and defensive wars. If all territorial acquisitions through force are equally inadmissible, then legitimizing one would legitimize them all. But under the far more plausible interpretation that prevailed as recently as 50 years ago, the Golan and Crimea are completely different cases because the former was acquired in a defensive war and the latter in an offensive one.

Incidentally, the claim that the decision undermines prospects for Israeli-Palestinian peace is also wrong; as Dr. Martin Kramer of Shalem College pointed out, the opposite is true. Until now, the Palestinians have always found peace rejectionism a profitable business; every time they rejected an Israeli peace offer, the international community rewarded them by demanding additional Israeli concessions. But now, Trump has shown that rejectionism carries a price.

By so doing, a president who scoffs at international law may ironically be saving it. International law was never meant to be a suicide pact, but in its modern interpretation, it has increasingly become one. Under this interpretation, terrorists who operate from amid civilian populations enjoy immunity from military action; countries must accept unlimited numbers of migrants fleeing danger; and aggressors can start wars with impunity. Since all this is detrimental to the well-being of ordinary law-abiding countries, if it continues, more and more countries will simply ditch international law in favor of self-preservation.

By recognizing Israeli sovereignty over the Golan, Trump is restoring the distinction that used to exist between offensive and defensive wars, and thereby restoring international law to sanity. Anyone who actually cares about international law ought to thank him.

This article was originally syndicated by JNS.org (www.jns.org) on March 27, 2019. © 2019 JNS.org

 

Many Israelis are willing to tolerate a racist party in the Knesset because they fear that the alternative is a government that will make life-threatening territorial concessions. And when voters think human life is at stake, telling them to “just say no” won’t work.

Israeli Prime Minister Benjamin Netanyahu’s midwifing of a joint ticket that will bring a far-right extremist party into the Knesset was quickly superseded by new scandals. Yet the fundamental problem that prompted his move remains, and contrary to popular belief, that problem isn’t growing racism. Rather, it’s Israel’s electoral system.

The party in question, Otzma Yehudit, has run for Knesset several times under various names and never gotten in. On its own, it wouldn’t make it into the next Knesset either. In other words, its positions are no more popular than they ever were.

What has changed is Israel’s electoral threshold—the minimum number of votes a party must receive to enter the Knesset. In 2014, it was raised to 3.25 percent of the total vote, equivalent to 3.9 Knesset seats. That sounds like a minor increase from the previous threshold of 2 percent (2.4 seats), but it’s enough that in both the last election and this one, a small mainstream party which could easily have passed the old threshold found itself hovering just below the new one, and consequently hooked up with Otzma in an effort to boost itself over.

The higher threshold also threatens the entire bloc to which an at-risk party belongs since the main electoral blocs are fairly evenly balanced. Either bloc might be able to afford two seats’ worth of wasted votes. But neither can afford almost four seats.

That’s why Netanyahu used a combination of arm-twisting and sweeteners to persuade a veteran religious Zionist party, Jewish Home, to partner with Otzma this election (last election, Otzma’s partner was Yachad, a breakaway from the ultra-Orthodox Shas party led by former Shas leader and six-time minister Eli Yishai; their joint ticket still failed to clear the threshold). Jewish Home was in danger of falling below the threshold because its former leaders, Naftali Bennett and Ayelet Shaked, jumped ship in December to form their own party.

With a lower threshold, Netanyahu would have no interest in promoting a merger between Jewish Home and Otzma: By definition, any party that couldn’t get elected on its own would win few enough votes that the bloc could probably spare them. Today, however, Jewish Home could easily fail to pass the threshold while still wasting enough votes to cost the right its majority. So for anyone who considers a continuation of rightist policy essential, as Netanyahu and Jewish Home both do, shoring up the latter through a joint ticket suddenly looks essential as well.

Many people would obviously argue that partisan interests can never justify mainstreaming an extremist party like Otzma. Others might dismiss the policy justification as a pretext, given that Netanyahu and his main rival, former general Benny Gantz, largely seem to agree on key issues like security and the peace process.

The problem is that a critical mass of Israelis patently disagrees. When Netanyahu staked his prestige on the Otzma merger, he was betting that the number of votes his bloc would gain by boosting Jewish Home over the threshold would outweigh the number he’d lose from people disgusted by Otzma. And so far, the polls have proved him right.

To understand why, some history is needed. In the 17 years preceding Netanyahu’s 2009 victory, Israelis thrice elected former generals who campaigned against diplomatic concessions, which they promptly turned around and implemented once in office. Yitzhak Rabin promised no negotiations with the PLO in 1992, then signed the Oslo Accords in 1993. Ehud Barak promised not to divide Jerusalem in 1999, then offered the Palestinians half the city at the Camp David summit in 2000. Ariel Sharon campaigned against a unilateral withdrawal from Gaza in 2003, then implemented one in 2005.

These U-turns reflect a fundamental fact of Israeli life: All prime ministers are under massive, continuous international pressure to make concessions to the Palestinians. Premiers with leftist coalition partners—which Rabin, Barak and Sharon all had, and Gantz almost certainly would as well—are also under pressure from their own coalitions to make such concessions. And most people simply can’t withstand such immense pressure.

But Netanyahu has proven for 10 years now that he can. Thus anyone fearful of further territorial concessions has good reason to stick with him rather than gambling on Gantz.

And given what previous withdrawals have cost, such fear is unquestionably justified. Rabin’s Oslo Accords and Barak’s failed summit both sparked upsurges of terror that together killed some 1,500 Israelis. Sharon’s disengagement led to 20,000 rockets being launched on Israel’s south.

In short, voters who worry that Gantz will be unable to withstand pressure for concessions see Otzma as the lesser evil because they believe that the alternative entails against a significant risk of many dead Israelis. And when voters think human lives are at stake, expecting them to “just say no to racism” won’t work. The only way to return Otzma to the political fringes where it belongs is by lowering the electoral threshold.

I’ve long favored a lower threshold for other reasons as well. First, as researcher Shany Mor persuasively argued in 2013, a low threshold provides a safety valve for fractured societies like Israel’s. By offering the possibility that even small groups can win representation in parliament, it encourages them to pursue their goals through politics as opposed to violence.

Second, as I’ve explained in more detail elsewhere, a lower threshold would facilitate the entry of new parties that Israel actually needs, like a moderate Arab party and a moderate haredi one. Demand exists for such parties in both communities. But a higher threshold discourages voters from taking a flyer on a new party, since it means the party will have less chance of getting in and will waste more votes if it fails.

Yet as the last two elections have counterintuitively proven, a lower threshold also reduces the likelihood of extremists entering the Knesset by eliminating a powerful incentive to merge with them. Thus anyone who wants to see Otzma relegated back to the sidelines should lobby for lowering the threshold. That would be far more effective than expecting voters to nobly shun extremists, even if they think doing so risks Israeli lives.

This article was originally syndicated by JNS.org (www.jns.org) on March 13, 2019. © 2019 JNS.org

Three weeks ago, attention in Israel was riveted on two dramatic events that ultimately changed nothing—a rocket barrage from Gaza that didn’t lead to war and a cabinet resignation that didn’t bring down the government. These dramas overshadowed a truly significant event that occurred that same week: The government stopped being the only entity in Israel deprived of the basic right to defend its positions in court.

To anyone unfamiliar with Israel’s legal system, that probably sounds ridiculous. But it has been reality for the past quarter-century. And the fact that three Supreme Court justices finally rebelled against it indicates that Justice Minister Ayelet Shaked’s efforts to foment a judicial counterrevolution are bearing fruit.

The root of the evil was a 1993 Supreme Court ruling on a petition against Prime Minister Yitzhak Rabin’s refusal to fire a deputy minister, Raphael Pinchasi, whom the attorney general had tentatively decided to indict for corruption. Rabin wanted to wait for Attorney General Yosef Harish’s final decision. But Harish sided with the petitioner (a nongovernmental organization) and refused to represent Rabin’s position in court.

Pinchasi’s attorneys therefore argued that the government’s position hadn’t been properly represented. But the court, astoundingly, asserted that the attorney general’s position is the government’s position, even if the government disagrees. “The attorney general is the authorized interpreter of the law for the executive branch,” it said, and therefore, his opinion is binding on the government.

The result of this ruling was that the government effectively lost its right to defend its policies against legal challenges. If the attorney general happens to support a policy, then he’ll obviously defend it in court. But if he opposes it, he can choose not to defend it, and then the government’s position won’t be heard at all. The government can’t even hire an outside lawyer to defend it without the attorney general’s consent, and needless to say, such consent is rarely given.

This has two obviously pernicious consequences. The first is that in any disagreement between the elected government and the unelected attorney general, the latter’s view automatically prevails. Thus instead of being the government’s lawyer, the attorney general became its ruler.

The second is that the government has been deprived of a fundamental legal right—the right to defend itself in court. Individuals, corporations and NGOs are all entitled to defend themselves against legal challenges. Only the elected government is not.

But after 25 years of upholding this blatant injustice, the court has finally started to question it. The case itself was minor. Science Minister Ofir Akunis had refused to approve a scientist’s appointment to the board of a German-Israeli foundation because she once signed a letter supporting soldiers who refuse to serve in the West Bank. When the scientist and the council of university presidents challenged this decision in court, Attorney General Avichai Mendelblit refused to defend it.

Under the old norms, that should have ended the story: The government would automatically have lost. Instead, the three justices devoted much of the first hearing to criticizing the fact that Akunis’s views weren’t being heard. They then took the unprecedented step of allowing Akunis to represent himself at the next hearing.

Clearly, this isn’t the same as having a trained lawyer represent the government. Akunis, having no legal background, couldn’t advance any legal arguments in his defense. But he could at least explain his policy considerations, which is better than the court receiving no explanation whatsoever. And it’s an important step in the direction of recognizing the government’s right to full legal representation.

One justice also used the hearing to challenge another shibboleth long mandated by the court—that political considerations may not play any role in most government appointments. In other words, aside from a handful of senior office-holders, ministers have no right to appoint people who will support their own policies. This view that political considerations are illegitimate figured largely in Mendelblit’s refusal to defend Akunis’s decision.

But Justice Alex Stein disagreed. “Akunis does have the authority to weigh political considerations,” he said, because “the legislator chose to give the appointment power to the minister, and the legislator presumably knows that the minister is a political figure.”

The justices haven’t yet issued their final ruling, so they may still end up upholding the old order. Moreover, in any normal legal system, nothing about this case would even be an issue. In most democracies, it’s a given that ministers have the right to make political judgments when making appointments; it’s a given that the government is entitled to representation in court; and it’s a given that the attorney general isn’t the government’s master. Like any other lawyer, he’s expected to either represent his client or resign.

But for 25 years, none of the above has been true in Israel’s legal system. Thus the fact that newly appointed justices are starting to rebel against the status quo is a major change. And judicial rebellion is the only remedy currently available because there’s still no parliamentary majority for codifying the necessary reforms in legislation: The legal establishment has been too successful in convincing centrists that a legal system like that of all other democracies would somehow destroy judicial independence and democracy itself.

This sea change is a victory, above all, for Shaked, who has demonstrated unrelenting determination and political savvy in pushing through game-changing appointments. It’s no coincidence that two of the three justices in this case are people she successfully pushed through the Judicial Appointments Committee despite fierce opposition, especially from the three sitting justices who comprise a third of the committee’s members.

Credit also goes to her party leader, Naftali Bennett, who could have chosen the justice portfolio for himself instead of the less prestigious education portfolio, but gave it to Shaked because he had the sense and the generosity to recognize that she had a passion for judicial reform, which he lacked.

But the biggest winner is Israeli democracy. After 25 years in which unelected legal officials have had near-dictatorial powers over the elected government, the ship of state is finally starting to turn.

This article was originally syndicated by JNS.org (www.jns.org) on December 5, 2018. © 2018 JNS.org

Note: This article was published on October 10 but posted to my site only on December 3

In my last column, I noted in passing that the International Criminal Court’s blatant anti-Israel bias is merely a symptom of a more fundamental flaw. That isn’t self-evident; court supporters would doubtless argue, just as many people do about the United Nations, that while the court’s anti-Israel bias is regrettable, it’s an isolated flaw that doesn’t outweigh the benefit of ending impunity for atrocities.

What convinced me both that the ICC is unredeemable and that the impunity problem has a better solution was actually a book by one of the court’s ardent supporters—Philippe Sands, a law professor and international lawyer who has worked on ICC cases. In East West Street, Sands traces the development of two key concepts in international law—crimes against humanity and genocide—to their respective culminations in the Nuremberg Trials of 1945 and the Genocide Convention of 1948. But for me, the real eye-opener was his description of the international wrangling that preceded the Nuremberg Trials.

Nuremberg is sometimes derided as victor’s justice. And in one sense, it obviously was: Four of the victors of World War II—America, Britain, Russia and France—decided to put senior officials of their vanquished foe on trial. But what was striking about Nuremberg was the massive degree of international concord required to hold those trials. Lawyers representing several very different legal systems and several very different systems of government nevertheless had to agree on every word and even every comma in the indictments. And since those lawyers were acting on their governments’ behalf, political approval by all four governments was also needed.

In contrast, the ICC needs no international buy-in at all to pursue a case. Granted, its prosecutors and judges come from many different countries, but they represent neither their home governments nor their home legal systems. Politically, they represent nobody but themselves. Legally, they represent one particular interpretation of international law—an interpretation popular with academics and “human rights” organizations, but less so with national governments.

At first glance, both of the above may sound like pluses. Prosecutorial and judicial independence are generally good things, whereas many governments and legal systems leave much to be desired when it comes to protecting human rights.

But the ICC’s version of prosecutorial and judicial independence is very different from the version found in most democracies because the latter is not completely unconstrained. In democracies, prosecutors and judges are constrained first of all by democratically enacted legislation, and usually by democratically enacted constitutions as well. They’re also constrained by the fact that they, too, are citizens of their country, and therefore share concerns important to most of their countrymen—for instance, national self-defense—but unimportant to judges and prosecutors from other countries (which those at the ICC almost always will be).

Moreover, in democracies, courts ultimately derive their power from the consent of the governed since they were established pursuant to democratically elected laws or constitutions. The ICC, in contrast, asserts jurisdiction even over countries that never consented to it. See, for instance, the cases it’s pursuing against Israel and America, neither of which ever joined the court.

What all this means is that a few unelected individuals have been given the power—or even worse, in the case of countries that didn’t join the court, have seized it—to criminalize decisions made by democratically elected national governments. They can do so based on a legal system different from those of many democracies, and whose provisions they can interpret however they please, unburdened by the doctrine of precedent (stare decisis) that democratic legal systems generally employ. They can ignore considerations that citizens of most countries consider important, like national self-defense. They are even free to pursue personal vendettas, as evidenced by their biased treatment of Israel. In short, they have no constraints on their power at all.

All these problems are compounded, as legal scholar Jeremy Rabkin noted last month, when people from countries blessed with peaceful neighbors sit in judgment on the decisions made by countries not so blessed. At the ICC, people with no clue about, say, the difficulty of avoiding civilian casualties when combating attacks launched from crowded urban areas, or the devastating impact of living under constant rocket fire even when the death toll is low, presume to judge countries for whom such problems are daily realities.

In short, the ICC has none of the safeguards that national courts in democracies have. And no international tribunal ever could.

Nevertheless, letting atrocities like genocide go unpunished clearly isn’t an acceptable option. So how do we strike a proper balance between the need to prosecute atrocities and the need to maintain the safeguards that the ICC signally lacks?

The answer lies in the feature that distinguished not only the Nuremberg Trials, but also subsequent ad hoc international criminal tribunals like those on the Rwandan genocide and the Balkan wars of the 1990s—massive international consensus. Cases will be pursued only against acts so outrageous that many different governments and many different legal systems can all concur that they far exceed the realm of reasonable governmental or military action.

Granted, that means many crimes will go unpunished. But it turns out that’s equally true for the ICC. For instance, the court indicted Sudanese President Omar al-Bashir for the Darfur genocide almost a decade ago, but hasn’t been able to pursue the case because none of the many countries he has since visited has been willing to arrest him. Similarly, the ICC’s case against Kenya’s president collapsed because the Kenyan government refused to cooperate. In other words, successful prosecution is unlikely in any event absent either massive international consensus or the target country’s consent.

Thus replacing the ICC with ad hoc tribunals, which could be created only when the requisite international consensus exists, wouldn’t significantly reduce the amount of justice dispensed. But it would significantly alleviate the ICC’s main flaws: political bias, the undermining of national self-defense and interference with democratic national decision-making. That would be a win for both justice and democracy.

This article was originally syndicated by JNS.org (www.jns.org) on October 10, 2018. © 2018 JNS.org

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Why the status quo is the least bad option for Palestinians

Even among people who recognize that Israeli-Palestinian peace is currently impossible, a growing number think that Israel must nevertheless quit the West Bank. Israel has a right to defend itself, their argument goes, but not by controlling another people for decades. Instead, it should withdraw to the “internationally recognized border” and protect itself from there, like other countries do.

Forget for a moment that the “internationally recognized border” is an arrant fiction. Forget as well that Israel remains in the West Bank precisely because defending itself from the 1949 armistice lines (the abovementioned fictional border) hasn’t worked very well in either the West Bank—from which Israel partially withdrew in the 1990s before returning the following decade—or the Gaza Strip.

That still leaves another uncomfortable fact: As long as genuine peace remains impossible, Israeli control of the West Bank, despite the undeniable hardships it causes Palestinians, remains the least bad alternative for the Palestinians themselves. As evidence, just compare the Israeli-controlled West Bank to Gaza, which has been free of both settlers and soldiers since August 2005. By almost any parameter, life in the former is far better.

Take, for instance, casualties. According to B’Tselem’s statistics, Israeli security forces killed 5,706 Palestinians in Gaza from September 2005 through August 2019. That’s almost eight times the 756 killed by Israeli security personnel and settlers combined in the West Bank during this period (no Gazans were killed by settlers since there are no settlers there).

Nor is this surprising. Israel’s control of the West Bank means that suspected terrorists can often be arrested rather than killed, though shootouts (with attendant collateral damage) do occur. But in Gaza, where Israel has no troops, it can’t arrest terrorists. Thus the only way to fight terror is through military action, which naturally produces many more casualties among both combatants and civilians.

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