A national purpose

Posted on December 20, 2016 by Vic Rosenthal

ERETZ-ISRAEL was the birthplace of the Jewish people. Here their spiritual, religious and political identity was shaped. Here they first attained to statehood, created cultural values of national and universal significance and gave to the world the eternal Book of Books.

After being forcibly exiled from their land, the people kept faith with it throughout their Dispersion and never ceased to pray and hope for their return to it and for the restoration in it of their political freedom. – Beginning of  Israel’s Declaration of Independence, May 14, 1948

Today there is a deepening ideological divide on one important issue among Israeli Jews. It’s not especially useful to simply refer to it as “left vs. right,” although one’s opinion on this issue usually predicts where one falls on the political spectrum. It is a divergence of opinion about what kind of country we want to have. It’s the disagreement about defining a “Jewish state.”

To see how diverse views are on this subject, here are two quotations. The first is from Aharon Barak, Israeli Supreme Court Chief President from 1995-2006, the person most responsible for the “constitutional revolution” that has made the Court the most powerful branch of government in Israel, more so than the Cabinet and the Knesset combined:

The content of the phrase “Jewish state” will be determined by the level of abstraction which shall be given it. In my opinion, one should give this phrase meaning on a high level of abstraction, which will unite all members of society and find the common among them. The level of abstraction should be so high, until it becomes identical to the democratic nature of the state. The state is Jewish not in a halachic-religious sense, but in the sense that Jews have the right to immigrate to it, and their national experience is the experience of the state (this is expressed, inter alia, in the language and the holidays). …

The basic values of Judaism are the basic values of the state. I mean the values of love of man, the sanctity of life, social justice, doing what is good and just, protecting human dignity, the rule of law over the legislator and the like, values which Judaism bequeathed to the whole world. Reference to those values is on their universal level of abstraction, which suits Israel’s democratic character, thus one should not identify the values of the state of Israel as a Jewish state with the traditional Jewish civil law. It should not be forgotten that in Israel there is a considerable non-Jewish minority. Indeed, the values of the State of Israel as a Jewish state are those universal values common to members of democratic society, which grew from Jewish tradition and history.

What Barak did (Hillel Neuer, in the article in which this appears, calls it “breathtaking intellectual legerdemain”) was to stipulate that Jewish values are identical to the liberal humanistic ones that underlie the secular Western morality that characterizes the most progressive elements in Europe and the US, apparently on the grounds that the latter “grew from Jewish tradition and history.”

If anything specifically Jewish were to remain from this creative abstraction, Barak noted further that there is “a considerable non-Jewish minority” who, it is implied, must not be coerced by laws derived from Jewish tradition that were not subsequently adopted by secular progressive humanists.

In other words, according to Barak, democracy demands that only that part of Jewish tradition with which non-Jews agree can have a part in the definition of the Jewish state. Barak’s idea of a “Jewish state” is a Hebrew-speaking liberal democracy with a Jewish majority, a Law of Return, Jewish holidays, and so forth.

Now let us look at another point of view, this one from Ze’ev Jabotinsky, which was quoted by Menachem Begin when he presented his government to the 9th Knesset in 1977:

Indeed, the true nucleus of our national uniqueness is the pure fruit of the Land of Israel. Before coming to the Land of Israel we were not a nation and we did not exist. On the soil of the Land of Israel the Jewish nation was forged from the fragments of various peoples. On the soil of the Land of Israel we grew and became citizens; we harvested the belief in one god, breathing in the winds of the land, and as we struggle for independence and sovereignty we were enveloped by the winds and our bodies were fed by the grain which grew on our soil. The ideas of our prophets developed in the Land of Israel, and it was there that the Song of Songs was penned. Everything that is Jewish in us was given to us by the Land of Israel. Everything else that is in us is not Jewish. The Jewish people and the Land of Israel are one and the same thing.

Neither Jabotinsky nor Begin were ‘religious’ in the sense that the term is used in Israel today. Both of them believed in democratic governance and in granting full civil rights to non-Jewish citizens of Israel. And yet both were firmly committed to the idea that there was a transcendent connection between the Jewish people and the Land of Israel. Either would have been strongly opposed to the view of the state as no more than a Hebrew-speaking democracy with a right of return for Jews (although Begin personally respected Aharon Barak and appointed him legal adviser for the Camp David negotiations with Anwar Sadat).

We could put it this way: Barak wants a state whose essence is liberal democracy, and which is “accidentally” – by virtue of its Jewish majority – Jewish; and Jabotinsky and Begin wanted one whose essence is to be an expression of Jewish nationhood on its land, and which has chosen to accomplish this in the form of a liberal democracy.

These two competing visions imply seriously different directions in policy, particularly in connection with questions of sovereignty in Judea, Samaria and Jerusalem. Leaving aside the question of whether territorial compromise would be more likely to lead to peace or war – which is at the heart of the left-right divide – the Jabotinsky-Begin people believe that the historical and religious heart of the Jewish nation is located across the Green Line, and that giving up sovereignty over them would make it impossible for the state to carry out its true purpose: to be a vehicle for the restoration of the Jewish nation to its own land. Barak’s followers, conversely, think that keeping sovereignty is dangerous to the state’s primary purpose, which is to be a liberal democracy.

I’m with Begin and Jabotinsky – and the Declaration of Independence. Barak’s vision contradicts itself. He wants to keep the Law of Return, the Hebrew language, the Jewish holidays and so forth. But he has no way to justify this on purely democratic grounds. Arab citizens of Israel have called for a “democratic state founded on equality between the two national groups” with a Law of Return for “Palestinians,” equal status between Hebrew and Arabic, and more. Barak’s principle that “Jewish = democratic” factors out the “Jewish” part, and leaves him with no argument against them. It also leaves the state with no ideological foundation. Liberal democracy is a form of government, not a reason for being.

Is such a foundation necessary for national survival? I think it is. France, Germany and Sweden are (or were) nation-states, created to provide an expression for the national aspirations of their peoples. But Europe decided to reject nationalism, to declare national aspirations dangerous. Now Europe is struggling with birthrates below replacement level, and some leaders have even chosen to commit national suicide by inviting migrants to solve their manpower problems — and in the process wash away their native cultures.

Most ordinary Israeli Jews understand that Zionism is more than liberalism, that a Jewish state is more than a democratic state, and that Judea, Samaria and Jerusalem are more than bargaining chips in a “peace process.” Most of them are uneasy about what is happening to Amona. Most of them, religious or not, think Jews should be allowed to pray on the Temple Mount.

Israel needs a national purpose greater than just being a refuge or a neighborhood. Such a transcendent purpose is found in Judaism and the Torah. That’s why those whom we call “religious” tend to agree with Jabotinsky and Begin on this issue. But following their example, it is not necessary to be observant in order to understand and respect the historical connection of the Jewish people to the Land of Israel, and to see its settlement by Jews as the overriding national goal of a Jewish, Zionist state.

Posted in Israeli Politics, Israeli Society, Zionism | 1 Comment

Amona

Posted on December 16, 2016 by Vic Rosenthal

I have avoided writing about Amona until now. This is because the legal issues surrounding the notion of land ownership in Judea and Samaria are so arcane that one legal scholar (email correspondence) wrote that “the number of people who have a good understanding of West Bank property law can be counted on one hand.” And I don’t want to add to the noise by writing yet another amateur legal brief about it. There are, though, some things that are clear and worth saying.

First of all, let me state my prejudices: I do not believe Jews living in Judea and Samaria are an “obstacle to peace,” nor do I think that Jewish communities there are illegal or even “illegitimate,” whatever that means. Indeed, I think that Jews settling anywhere in the land of Israel are performing a religious and Zionist mitzvah, and I’m all for it. Those who find this position offensive can stop reading now.

The last time I mentioned Amona, someone took me to task for advocating “land theft.” It’s private Palestinian land, he said. What more do you need to know? Well, actually there is a great deal to know. Some of the complexities are discussed here. It’s worthwhile reading if you care about more than slogans.

My take on the legal part is that the draconian decision by the Supreme Court to destroy all of Amona and uproot its residents because of what turned out to be a claim on about one half acre of the 125 acres on which it is built, and which ultimately rested on the illegal actions of the Jordanian king, was highly unjust.

How does it happen that a Jewish court would punish Jews for settling in the land of Israel? How does it then happen that alternatives to expelling these families from their homes are opposed by the Court and the government’s legal advisor (who is hand-picked by the Court)?

The answer isn’t legal, but is connected to international politics. Israel is the only country in the world whose real estate laws and transactions are scrutinized by the US State Department, the UN and the European Union’s Foreign Ministry. The Obama Administration, for example, recently weighed in opposing an attempt to move the Amona families to a nearby unused location that was listed as property abandoned by Arabs in 1967. And the EU opposed the Regularization Law (as did the UN), which is intended to legalize outposts built on land claimed by Palestinians by compensating the claimants.

I should add that the EU seems to see nothing wrong with directly financing illegal Palestinian construction in the territories, while vehemently opposing any Israeli building there – all this in “Area C,” which under the Oslo accords is supposed to be under full Israeli control. But their concern for legality apparently doesn’t include obeying Israeli laws.

The Palestinians who claim ownership of the land on which Amona was built didn’t decide to sue the state by themselves. Indeed, the petition to the Supreme Court was filed on their behalf by an “Israeli” NGO called Yesh Din (“there is justice”), an organization which claims to work on behalf of “human rights in the Occupied Palestinian Territories (OPT),” which it does by

collecting and disseminating reliable and updated information regarding systematic human rights violations in the OPT; conducting public and legal advocacy in order to pressure Israel’s authorities to cease violations; and raising public awareness to human rights violations in the OPT.

I put “Israeli” above in quotation marks because although its staff and directors are mostly Jewish Israelis,  the organization receives almost all of its funds from foreign sources. According to NGO Monitor, which examines annual reports filed by Israeli-registered NGOs, 93.5% of its funding from 2002 through 2014 came from foreign sources. Total donations between 2002 and 2016 were about 18 million Israeli Shekels, or about US $4.73 million. Sources (see link above for a breakdown) include individual European countries and the EU, and the US-based New Israel Fund.

When Yesh Din is not petitioning the Supreme Court to throw Jews out of their homes, it is falsely accusing the IDF of war crimes. How patriotic.

I think it’s safe to say that the  international community, led by the Obama Administration, the UN, and the EU, with the support of the great majority of the world media and its academic establishment, wish to force Israel to abandon Judea, Samaria and Jerusalem. It is also an article of faith of the international “progressive” movement – including the Israeli Left – that “The Occupation” is the greatest source of evil in the world. This is shown by the fact that far more effort and money appears to be expended on combating it than on fighting Da’esh or nuclear proliferation.

I won’t speculate what the next step would be if Israel were to leave the territories. But I doubt that would be the end of the pressure.

There are historical reasons that we find ourselves in opposition to so much of the world: Oil, the KGB, victim-blaming from European Holocaust guilt, cowardice in the face of Arab terrorism, Stockholm syndrome, anti-nationalism, Arab grants to educational institutions, bribery of politicians and public figures, old-fashioned Jew-hatred, and our own anti-genius for public relations all had a part in it.

On our side, too, there is a huge expenditure – of effort and money (how much time have the Knesset and ministers spent on issues connected to Amona?), but also of national spirit. How many times can we send our police and soldiers to drag Jews out of their homes in the middle of the night? How many times before we lose our national soul?

To be honest, I think the answer is “no more times.” We spent all we could afford at Yamit and Gush Katif.

It’s time to decide.  Do we care about Judea and Samaria and the Jews that live there? If so, we need to commit, to act as though we truly are the sovereign power; as Annika Rothstein wrote, to make a marriage and not just an extended engagement. Zionism demands it.

If not – well, I don’t want to think about the alternative.

Posted in Israeli Politics, Zionism | 3 Comments

The truth is a minority opinion

Posted on December 12, 2016 by Vic Rosenthal

This morning I got an email from an American correspondent asking what are the arguments for the legitimacy of Israeli communities (not ‘settlements’) across the Green Line, including all of Jerusalem. When I responded, I realized that although I have written about this before, it needs to be repeated – and repeated, because in this case the truth is a minority opinion. So here is a slightly more complete version of my answer:

The Jewish people have a legal, historical and moral right to live anywhere in the land between the Jordan and the Mediterranean; and the only sovereign power in this region is Israel, the state of the Jewish people. Here is why:

From a legal point of view, the land was originally a part of the Ottoman Empire, which ceased to exist at the end of WWI. “Palestine” was set aside for the Jewish people by the Palestine Mandate, which was supposed to be administered for their benefit by Britain, which then tried to subvert it for its own interests. It’s clear that while the intent of the Mandate was that all residents would have civil rights, rights to a “national home” were reserved for the Jewish people, who were also explicitly granted the right of “close settlement on the land”. This was affirmed for all the land from the river to the sea by the representatives of the international community in 1923.

The partition resolution of November 1947 (UNGA 181) was non-binding – a recommendation for a permanent settlement after the end of the Mandate. But it was never implemented. In 1948, the Arabs rejected the UN’s partition resolution and invaded the territory of the former Mandate, blatantly violating  the UN Charter in an attempt to acquire the territory for themselves. The 1949 ceasefire agreement that ended hostilities was not a peace agreement, and both sides insisted that that the ceasefire lines were not political boundaries. Their only significance was to mark the locations of the armies when the shooting stopped.

The 19-year Jordanian annexation of the territory it controlled that followed was illegal, only recognized by Britain (and maybe Pakistan). This occupation did not change the status of the land in any way.

The state of Israel was declared in 1948 and recognized by numerous other states. But what were its borders? Certainly not the armistice lines and not the recommendations of the partition resolution. However, legal scholars Eugene Kontorovich and Avi Bell recently provided a clear answer:

Israel’s borders and territorial scope are a source of seemingly endless debate. Remarkably, despite the intensity of the debates, little attention has been paid to relevance of the doctrine of uti possidetis juris to resolving legal aspects of the border dispute. Uti possidetis juris is widely acknowledged as the doctrine of customary international law that is central to determining territorial sovereignty in the era of decolonization. The doctrine provides that emerging states presumptively inherit their pre-independence administrative boundaries.

Applied to the case of Israel, uti possidetis juris would dictate that Israel inherit the boundaries of the Mandate of Palestine as they existed in May, 1948. The doctrine would thus support Israeli claims to any or all of the currently hotly disputed areas of Jerusalem (including East Jerusalem), the West Bank, and even potentially the Gaza Strip (though not the Golan Heights)

Israel’s practical acquisition of sovereignty over all the land in 1967 is thus entirely legitimate. And since Israel did not occupy land belonging to any other sovereign power, it is incorrect to refer to Judea and Samaria as “occupied territory.” Naftali Bennett’s statement that “you can’t occupy your own land” is precisely correct.

Article 49 of the 4th Geneva convention, the usual justification for saying that settlements are illegal only applies to occupied territory, which Judea and Samaria are not. But even if they were occupied territory, the intent of article 49 was to prevent forcible transfer of a population the way the Nazis sent German Jews to occupied Poland, not people moving of their own free will.

From a historical point of view, the Palestinians claim that they lived here for generations and European Jews came and displaced them. But in fact all but a few ‘Palestinians’ are descended from Arabs who migrated to the area for economic reasons after the advent of Zionism, and even fewer arrived before the invasion by Muhammad Ali in the 1830s. The Jewish connection to the land doesn’t need further explication. Judea and Samaria, in fact, represent the biblical heartland of the Jewish people, where its history took place and where its holy places are located. If there is any part of the land of Israel that should belong to the Jewish people, it is Judea (including Jerusalem) and Samaria.

From a moral point of view, the Palestinians have had criminal leaders that have relied on war and  terrorism to achieve their goals. Haj Amin al-Husseini started several pogroms in pre-state Palestine, and then collaborated with Hitler in his attempt to bring the Holocaust to the Middle East. Yasser Arafat and the PLO popularized airline (and other) hijacking to blackmail nations into supporting his goals, and was responsible for at least one major regional war (Lebanon 1982) and countless massacres and terror attacks against Israel and other nations. Hamas explicitly calls for genocide against Jews and is guilty of numerous war crimes. Palestinians have refused territorial compromises when offered and have started several wars against Israel (1947, second intifada, Hamas wars). Why should they be allowed to benefit from these actions?

Jerusalem. One interesting additional issue is the insistence of the US State Department that no part of Jerusalem, eastern or western, belongs to Israel. The 1947 partition resolution called for Jerusalem to be under international control. But as I noted, the resolution was only advisory and was never implemented. The Mandate did not give any special status to Jerusalem. The State Department’s insistence on this point is inconsistent, given that it appears to agree that Acco and Nazareth, which were to be parts of the Arab state proposed in 1947, are currently parts of Israel. It is also indefensible. And the deliberate vehemence with which the Obama Administration has pressed this view is irrational, insulting and clearly anti-Zionist.

I hope the information in this post will be helpful to my correspondent, and to others as well. I’ll add that nothing would make me happier than to hear the Government of Israel make an unambiguous declaration of sovereignty over Judea and Samaria, as is our legal, historical and moral right.

Posted in The Jewish people, Zionism | 2 Comments

The Third Lebanon War will be the Last Lebanon War

Posted on December 9, 2016 by Vic Rosenthal

hizpositionsmap

If I’ve learned anything in my relatively comfortable and placid life it is that despite my good luck, evil is real. Sometimes it grows and sometimes declines. Today it’s gathering strength.

Hezbollah came into being in 1985, as a response to the Lebanese Civil War, Western interventions, and the Israeli invasion and its aftermath. Its stated goals were the elimination of Western influence, the assertion of Islamic (Shiite) dominance over Lebanon, and the destruction of Israel, which its founders saw as a tool of the West and an ally of Lebanese Christians.

Its attitude toward Israel is shown by this snippet from an “open letter” published by its founders in a Lebanese newspaper:

hizbstatement

The month-long Second Lebanon War in 2006 was fought by an IDF grown complacent from years of occupation duty and a leadership team (PM Ehud Olmert, Defense Minister Amir Peretz, Foreign Minister Tzipi Livni and Chief of Staff Dan Halutz) who were only marginally competent. While Hezbollah suffered heavy losses and much Lebanese infrastructure was destroyed, Israel was unable to stop the heavy rocket fire on the northern part of the country, which continued until a UN-brokered cease-fire came into effect. 120 IDF soldiers and 43 Israeli civilians were killed, and as many as a half-million Israelis were displaced as a result of Hezbollah rocket attacks. Israel tried to destroy Hezbollah’s leadership both from the air and by commando operations, and failed to do so. UN Security Council Resolution 1701, which was negotiated by Livni to end the fighting, proved worthless in preventing Hezbollah from rearming and rebuilding military infrastructure. Wikipedia called the result a “stalemate,” and I agree.

By 2016, Hezbollah has achieved most of its goals. It now completely controls Lebanon for all intents and purposes. It has not destroyed Israel, and after its bloody skirmish with the IDF ten years ago, it seems to have decided that it will wait until its chance of success is much greater. Over the years it has lost most of its autonomy to its Iranian patron. Nothing illustrates this more clearly than the way it has been used to fight – and suffer many casualties – on behalf of Iranian interests in Syria.

Militarily, Hezbollah seems to grow stronger as time goes on, despite its losses in 2006 and more recently in Syria. In the 2006 war, it fired about 4,000 rockets into Israel, mostly inaccurate short-range Katyusha or Grad rockets with a range of about 30 km. Although it possessed some longer-range rockets, they were destroyed by IAF bombardment before they could be launched. Hezbollah had about 13,000 rockets at the beginning of the war.

Today, thanks to Iran, it is estimated that Hezbollah has at least ten times as many rockets, many of them capable of longer ranges and/or larger payloads, and some with guidance systems that make it possible to hit a precise target, like a military base or industrial installation. Hezbollah has also made plans for incursions into Israel to kidnap civilians or even to hold territory, possibly by way of tunnels like those constructed by Hamas. If Hezbollah is allowed to actualize its plans, the destruction wrought in Israel will be worse  by far than in any previous war.

War is terrible no matter how it is fought, but Iran has planned our next one with a particularly diabolical twist: as the map preceding this post shows, it has embedded rocket launchers and other military infrastructure in civilian residential areas. A 2013 report describes an Iranian-funded program to enlist residents of southern Lebanon as human shields:

…the Shiite terror group launched a major social/real-estate project that bolstered its political standing: It purchased lands on the outskirts of the villages, built homes on these lands and offered them to poor Shiite families at bargain prices (to rent or buy), one the condition that at least one rocket launcher would be placed in one of the house’s rooms or in the basement, along with a number of rockets, which will be fired at predetermined targets in Israel when the order is given.

In addition, Hezbollah has set up camouflaged defense positions in villages which contain advanced Russian-made anti-tank missiles it had received from Syria. Hezbollah gunmen have planted large explosive devices along the access roads, and inside the villages structures that were purchased by the organization were converted into arms caches.

In this manner some 180 Shiite villages and small towns situated between the Zahrani River and the border with Israel have been converted into fighting zones in which Hezbollah is preparing – above and below ground – for the next conflict with Israel. Hezbollah has some 65,000 [now more than twice that number — vr] rockets and missiles at its disposal.

The deliberate use of civilians as shields is a war crime, prohibited by the Geneva Convention. But according to the rules of war, an action that causes casualties among civilians is not considered ‘disproportional’ if the force used was necessary to achieve a military objective. In other words, if a Lebanese family is killed because there is a missile launcher firing from its garage, Hezbollah has committed a war crime, and Israel has not.

Israel has warned Hezbollah and the Lebanese government on numerous occasions over the past several years – most recently when it declassified and released the map above on Tuesday. Officials from the Prime Minister on down have made it clear that a rocket attack will be met with overwhelming force targeting the launchers and other infrastructure, regardless of where it is located. The IDF’s Deputy Chief of Staff recently said that the next war would do “devastating damage” to Lebanon. They have correctly stated that both morally and legally, Hezbollah will be responsible for civilians that are hurt or killed as a result.

But emotional appeals are powerful, especially when it is claimed that children are being hurt. In 2006, Hezbollah made use of humanitarian concerns – both real and fabricated (fascinating link!) – to sway opinion against Israel. Even Condoleezza Rice was influenced to call for a cease-fire by the bombing of a building in which civilians including children were killed (although it’s likely that the number of casualties was inflated and heart-rending photos were faked).

This technique, also used by Hamas, will certainly be repeated. During the 2014 Operation Protective Edge in Gaza, US Secretary of State John Kerry sarcastically referred to a “pinpoint operation” after 13 IDF soldiers and 62 Palestinians were killed in the battle of Shuja’iyya, where civilians were warned to evacuate but did not do so because of Hamas threats. President Obama also reacted to a widely-criticized attack on a UN school in Jabaliya and even held up shipments of arms to Israel as a result.

The use of human shields is therefore an effective political and psychological weapon, either because officials and the public are actually affected by emotional appeals or find it convenient to use them as justifications for the actions that they would like to take anyway.

But today Hezbollah is entirely different from Hamas. Tehran has built it into an existential threat. If war breaks out we will have to unleash as quickly as possible the most powerful conventional weapons at our disposal against the rocket launchers. Look at the map! Perhaps such an attack would kill tens of thousands in Lebanon. But there’s no alternative. Israel is a tiny country with a concentrated population. We can’t absorb hundreds of missiles an hour, especially accurate ones with heavy payloads. We can’t afford to wait, not even a few minutes, once it starts.

Incidentally, if Hezbollah and Iran want to reap the benefit of the human shield strategy, then now is the time to do it. I suspect that Trump and his advisors would be less biased against Israel than the present administration, and therefore less likely to interfere with Israel’s response. Our enemies probably agree with me, and this means war is more likely in the next two months than at a later time. Maybe that’s why our officials have made the effort just now to ensure that Iran and Hezbollah understand the consequences of their possible actions.

It only makes sense to threaten Iran as well. The regime would be happy to sacrifice Lebanon and its people to destroy Israel, and the regime is pulling the strings, not Nasrallah. There need to be consequences for Iranian leaders too.

Evil is growing stronger and good is retreating. Deterrence may put off the reckoning for a time, but unless something completely unforeseen happens, the day will come when our PM will have to give the order to save one nation by destroying another. I’m glad I’m not the one to do it.

Posted in War | 3 Comments

Israel needs a constitution, but won’t get one

Posted on December 4, 2016 by Vic Rosenthal

Israel’s Declaration of Independence states that a constitution for the State of Israel “shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948.”

Clearly they’re running a little late. And this is more than Jewish standard time.  Despite (or because of) the Jewish proclivity for legalistic arguments, this never happened. In 1950, the Knesset gave up and decided instead to work toward a constitution piecemeal by passing a series of Basic Laws that taken together would ultimately serve the purpose of a constitution.

There are currently 11 Basic Laws. They determine some of the nuts-and-bolts issues of our political system, such as the way Knesset members are elected and how a Prime Minister is chosen and a government is formed. Two of them, Human Dignity and Liberty and Freedom of Occupation, which were adopted in 1992, represent a partial “Bill of Rights.” But nowhere in the 11 laws are such things as freedom of speech, press or religion mentioned. These rights do exist in Israel, established by Supreme Court decisions, but they should be constitutionally guaranteed. And while the Supreme Court is discussed, its powers are only sketchily described. In particular its relationship to the Knesset and the existence of a power of judicial review of laws passed by the Knesset are not discussed.

The Supreme Court exploded into the power vacuum left by the absence of a constitution. The Court more or less selects its own members, and has declared that it has the right to adjudicate any matter brought to it by anybody (the concept of standing, which requires that a petitioner be affected by the outcome of a case, has been eliminated, as well as limitations on the Court’s involvement in political and other issues). And unlike the US Supreme Court, Israel’s Court has original jurisdiction – it can rule on anything, whether or not a lower court has acted on it.

And this isn’t all, as Moshe Koppel of the Kohelet Forum explains. The Attorney General performs the function of the government’s lawyer when it must go to court. But in Israel the AG and the legal advisers to its ministries, paid by the government, don’t answer to it. Although it may seem unbelievable to those who are used to an adversarial system, the Supreme Court has decided that the government and its ministries must be represented in court by lawyers who have been vetted by the legal establishment and the Court, and who even have freedom of action to oppose their governmental clients! In several recent cases, the government backed down from taking a particular action because the AG advised it that he would not defend its policy at the Supreme Court.

As for the attorney general, although appointed by the government, he or she must be selected from a very small set of candidates nominated by a committee; that committee is headed by a retired supreme-court justice who is appointed, in turn, by the sitting chief justice. This system, devised by the justices themselves, makes the attorney general a judicial plant in the executive branch.

Would you allow your opponent in a lawsuit to choose your lawyer for you? This is essentially the position of Israel’s Prime Minister and his cabinet. And since the Court decided to give itself the power to review and reject laws passed by the Knesset without recourse – a power not specified in the Basic Law that established the Court – both the Executive and Legislative branches of the government are subject to the dictatorial control of the Judicial branch.

If you think the US suffers gridlock when the Congressional majority and the President are from different parties, imagine a right-wing Israeli government – elected by a large majority of voters – paralyzed by a left-wing Supreme Court and legal establishment. But no need to imagine it: just turn on our evening news.

Israel’s Minister of Justice, Ayelet Shaked, tried to make the Court less monolithic by changing the way the Judicial Selection Committee chooses Supreme Court justices. She was forced to back down when the Chief Justice threatened to completely cut her out of negotiations for candidates for the Court. If she had succeeded, it might have reduced the paralysis somewhat, but it wouldn’t have solved the basic problem: there is a massive imbalance in power between the branches of government.

The ideal fix would be for Israel to write herself a real constitution, which would define the relationship between the PM and his cabinet, the Knesset, and the Supreme Court in a balanced way. It could also include a Bill of Rights to protect citizens against the abuses of power by government agencies that are not unheard of.

Unfortunately, there is a reason this hasn’t happened yet. Israel’s self-definition seems to exist in a continuous condition of deliberate ambiguity, like the question of whether or not we have nuclear weapons.

For example, a constitution would probably begin by declaring that the State of Israel is a Jewish and democratic state. But good luck in getting anyone to agree about what either Jewish or democratic mean.

Is a Jewish state one whose laws follow halacha? Should they be at least inspired by it? What in general is the role of Judaism – would it be an established religion like the Anglican Church in the UK, or more or less than that?

In order to explicate ‘Jewish’, it might be necessary to define ‘Jew’, something that today has a different meaning for someone contemplating aliyah or someone planning marriage. Do Modern Orthodox, masorti or Reform conversions count? How about those performed under the auspices of “Jews for Jesus?”

‘Democratic’ is similarly problematic. Is it undemocratic to have a flag and a national anthem that doesn’t satisfy the aspirations of some citizens? Is it undemocratic to expose foreign-funded NGOs? Some Israelis think so.

And then there is the question of whose state it is, anyway. Does it belong in some sense to the Jewish people, worldwide? Or just to Israelis? To Jewish Israelis or Jewish and Arab Israelis? If to the Jewish people everywhere, does the American Union for Reform Judaism get to vote? They seem to think so.

Although I would happily write a constitution myself, a real constitution must have broad legitimacy among most sectors of society; and what wasn’t possible in 1950 due to tensions between religious and secular Israelis would be even harder today as a result of increased Palestinian nationalism among Arab citizens.

A good solution would be more ambitious than Shaked’s effort (which itself may have been too ambitious to succeed): a rewriting of the Basic Law for the Judiciary, to spell out the powers and functions of the Supreme Court. It would have to limit some of the excessively broad powers the Court arrogated to itself, and create checks and balances to prevent one branch of the government from dominating the others. And it would make the court accountable to more than just the legal establishment and itself.

I really wish we had a constitution. As an American, I know that the US Constitution has been a very positive factor in the nation’s history. It has served as a source of unifying principles, and a touchstone to define national goals and provide stability in difficult times. The constitution and its amendments made the Civil Rights movement of the 1960s more than just an exercise in identity politics.

But as an Israeli, I have to be pragmatic. Today, I will settle for a right-wing Supreme Court Justice or two.

Posted in Israeli Politics | 3 Comments