That Israel, the state of the Jews, should have the highest number of lawyers per capita in the world hardly occasions surprise. Less obvious, however, is that those lawyers – or at least a small cadre of Supreme Court justices and government lawyers – should wield a degree of power unknown anywhere else in the world.
Yet former Supreme Court president Aharon Barak, the primary author of Israel’s legal revolution, had a precedent in Jewish history: the Sanhedrin Hagadol. Just as the Sanhedrin was required to launch a war of choice, so Barak claimed for the Supreme Court authority to render judgment over every governmental action, including troop movements in time of war.
In Barak’s eyes, judges and their emissaries are blessed with a degree of discernment in all matters of public policy – not just the interpretation of traditional legal materials, such as statutes and case law – just like the members of the Sanhedrin Hagadol. The superiority of their wisdom to that of the people’s elected representatives and other government officials is a given. Unlike politicians, who are always suspect of the most self-interested motivations (sadly, true), judges and their emissaries, in Barak’s universe, are totally disinterested seekers of justice (sadly, untrue.) To this, Barak’s predecessor as Court president Moshe Landau responded by accusing him of seeking to create a judicial dictatorship according to his own moral views.
He added acidly that the role of Platonic Guardians appropriated by Barak and his colleagues was one for which they had no training, and showed little aptitude.
The story of how Barak wrought his legal revolution step by step has been frequently told. He began by dispensing with all traditional legal doctrines of standing (who may challenge a government action) and justiciability (what types of issues are appropriate for the judicial system), thereby placing every government action within the purview of the Court.
As the coup de grace, he then subjected those decisions to the standard of “reasonability” – that is, in the eyes of judges who are guided by the views of the “enlightened population” (emphasis added).
The laws passed by the people’s elected representatives and the decisions of the executive branch were thus entitled, in Barak’s eyes, to the most minimal presumption of validity. In the Pinchasi case, for instance, the Supreme Court ordered prime minister Yitzhak Rabin to fire two cabinet ministers indicted for crimes involving moral turpitude, even though the relevant statute specified that only those convicted of a crime involving moral turpitude are ineligible to serve.
Less known but of arguably greater impact, and more insidious because of the lower public visibility of the decisions made, is how Barak turned the attorney-general (a position he once held) and all his or her subalterns in every government office into his emissaries to ride herd on the other branches of government. In the aforementioned Pinchasi case, then-state attorney (and Barak’s successor as Supreme Court president) Dorit Beinisch argued before the Supreme Court against the government’s position.
Barak ruled that the attorney-general was duty-bound to argue in accord with his or her legal understanding, and that as far as the executive branch is concerned, the attorney-general’s opinion defines the legal reality. Thus, the attorney-general was given an almost absolute veto over every governmental action, without even the requirement of providing written opinions in support of his or her opinion – and guided by nothing more than his sense of propriety.
The attorney-general, as the unchallenged and unchallengeable legal authority for the executive branch, has subsequently extended that veto power to the legal advisers in each governmental ministry, who are not selected by the ministers.
The authority granted to legal bureaucrats is without parallel anywhere in the world. Contrast the US: the US attorney-general serves at the behest of the president.
Even at the height of Watergate, no one contested president Richard Nixon’s right to fire attorney-general Elliot Richardson for refusing to follow his orders. And it is assumed that government attorneys serve as legal staff to the executive branch. Thus, former Yale Law dean Harold Hongju Koh, a spiritual disciple of Barak in his eagerness to import “international law” into the American judicial system, nevertheless spent his days as State Department legal adviser writing memos defending the administration’s drone strikes.
The transfer of power to legal bureaucrats has been labeled “juristocracy” by legal scholar Ran Hirschl, and is discussed at length in a forthcoming article by Prof.
Moshe Koppel titled “Israel’s Runaway Juristocracy,” on which I have drawn.
That power is awesome. When deputy attorney-general Mike Blass expressed the opinion that the planned Jerusalem-Tel Aviv railroad line violated the Geneva Accords because 250 meters of track crossed the Green Line, the government had no choice but to scuttle its plan, at the cost of years of delay and several billion dollars in additional costs.
Blass’s position is itself extremely dubious. The main Jerusalem-Tel Aviv highway crosses the Green Line at almost the same point as the proposed rail line. And the logic of his position would render illegal every road built by Israel across the Green Line. Even a French court found in 2013 that Israel’s building of transportation infrastructure across the Green Line does not violate international law.
But far more outrageous than Blass’s opinion was the absurdity that the government could not even test its own legal view in court. Under Barak’s jurisprudence, every single citizen of Israel (and non-citizens as well) are entitled to challenge almost any government action, no matter how slight or nonexistent their interest in the issue at hand, before the Bagatz sitting as a court of original jurisdiction. The only party that cannot gain a hearing for its legal position is the government itself, if the attorney- general or one of his delegatees disagrees.
(The problem with the American judicial system is almost exactly the opposite. Even when the president effectively rewrites Congressional laws by executive order, as President Barack Obama has done more than a dozen times with respect to Obamacare, standing requirements make it almost impossible to challenge those actions in court in a timely fashion. The common element in both systems is the fulfillment of the progressive dream of the most crucial governmental decisions being made by the anointed wise men – justices and the juristocracy in Israel, Obama in America – anyone besides the elected representatives of the people.)
Nowhere does the power of the juristocracy pose a greater threat than in the military sphere. In the 1986 Ressler case, Barak unequivocally answered “yes” to the question of whether “going to war or making peace are also justiciable decisions that can be ‘confined’ by legal norms and judicial discussions.” That dictum has become reality in Israel.
No army in the world is subject to such a high degree of legal supervision as the IDF. Every battleplan contains an opinion from the Judge Advocates corps. Every building in Gaza and southern Lebanon has been marked, in light of the latest intelligence, as to whether, and under what circumstances, it is a legitimate military target.
The Second Lebanon War may have been a military defeat for Israel, but in the opinion of then-attorney-general Manni Mazuz, it was worthy of celebration as the most “lawyerly” war in human history. As columnist Caroline Glick pointed out recently in these pages (“Hezbollah and Israel’s Lawyers-in-Chief”), Israel’s generals and political leaders limited their goals from the start in accord with perceived legal restrictions.
To some degree, that legalization of the military is prudent, given the certainty that any Israeli military operation will be condemned as “disproportionate” and otherwise in violation of that nebulous entity, “customary international humanitarian law.”
But Israel dare not forget, to paraphrase Voltaire, that “customary international humanitarian law” is neither customary nor international nor law nor humanitarian.
It is not customary, because it does not conform to the actual practice of nations throughout history. Nor is it international, since the only country to which its strictures are ever applied is Israel. It is not law, in that it was not enacted by any body to which sovereign states have ceded the right to legislate with respect to them. And finally, it is not humanitarian, in that as applied to Israel it provides incentives for non-state actors and terrorists to conduct their operations from among civilian populations.
But that does not mean that Israel’s juristocracy will view the matter in that fashion. The government legal bureaucracy is overwhelmingly leftist in orientation, and thus likely to give far more credence to so-called customary international humanitarian law than it deserves, and adopt unduly restrictive limitations on the IDF. Prof. Ruth Gavison, as a member of the Winograd Commission, pointed to this danger in noting that “international law in the context of international conflicts is very biased and very political.” Internalizing its supposed rules, she argued, constitutes a “strategic danger.”
The strength of the IDF has always been the ability of its junior commanders to improvise and make quick decisions in rapidly changing circumstances on the battlefield.
If those commanders are constantly looking over their shoulders at embedded IDF lawyers, they will lose their decisive advantage.
Perhaps the IDF felt it had the luxury of such deliberation in the Second Lebanon War, when Hezbollah was not yet a fully trained military force capable of largescale ground operations. But Hezbollah’s capacities have grown exponentially, as a consequence of the combat experience gained in Syria, and soon in Iraq.
The laws of war will not weigh heavily on Hezbollah if they decide to launch their huge missile arsenal at Israeli civilian population centers and infrastructure. And if those missiles start flying, Israel cannot afford to be making fine legal judgments on the permissibility of striking the buildings and homes in which those missiles are housed, and from which they are fired.
Like President Obama, Aharon Barak has been a transformational figure in Israel’s history. And like the former, he has done serious injury to his country’s democratic character, and rendered it more vulnerable.
The writer is director of Jewish Media Resources, has written a regular column in The Jerusalem Post Magazine since 1997, and is the author of eight biographies of modern Jewish leaders.