Do we still care about the rule of law? - analysis

How could the High Court let Israeli-Arab candidates who verbally assault the State of Israel and the IDF run in elections, while disqualifying “a Jewish Zionist whose children serve in the IDF”?

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March 19, 2019 06:10
Michael Ben-Ari

Dr. Michael Ben-Ari, Ph.D in archeology and Member of Knesset from 2009 - 2013 with the National Union party. (photo credit: MARC ISRAEL SELLEM)

 
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The convergence of several tectonic shifts and battles in Israeli society raises the question of how much the rule of law is still valued.

The three largest trends are the disputes over the High Court of Justice, the IDF legal division and the probes against Prime Minister Benjamin Netanyahu.

On Sunday, the High Court disqualified Otzma Yehudit candidate Michael Ben-Ari, while allowing his Otzma colleague Itamar Ben-Gvir to run, as well as all of the candidates from the Israeli-Arab parties.

Understandably, many are disturbed by this result.

How could the High Court disqualify “a Jewish Zionist whose children serve in the IDF,” while letting Israeli-Arab candidates, who verbally assault both the State of Israel and the IDF, run in the elections?

Whether the ruling was fair and whether the current elections law on disqualifications serves Israeli democracy are good questions to debate.

However, a review of most of the criticism focuses not on the court’s basis for making its decision, but the results.

By any traditional understanding of what the rule of law is, opposing a ruling solely on the basis of the result and without knowing or understanding the basis of the ruling would seem to suggest less concern for the rule of law.

By the way, though the court has not published all of its reasoning yet, anyone who reviewed Attorney-General Avichai Mandelblit’s legal brief and who followed the High Court hearing got a pretty good sense of the court’s basis.

Agree or disagree with the court’s ruling, upholding the rule of law would seem to mean critiquing its detailed reasoning of statements and actions by Ben-Ari – not simply disliking its result.

It is worth noting, however, that moderate conservative justices Neal Hendel and Yitzhak Amit, and very conservative justice David Mintz all voted to disqualify Ben-Ari, and that Mandelblit himself is known to be politically Center-Right.

It is also worth noting that in 2015, the court approved Ben-Ari’s Otzma colleague Baruch Marzel to run and this time approved Ben-Gvir.

It might be worth asking what the court, especially Hendel, Amit and Mintz, thought was different about Ben-Ari.

It is also not true that the court never bans Israeli-Arab candidates.

In 1965, the High Court banned the entire Arab-Socialist Party, also known as Al-Ard.

Former Balad MK Basel Ghattas has not been banned from running, but that is because the judiciary sent him to jail in 2017 for actual actions relating to terrorists. That pretty much means the courts have blocked him from running. So the attorney-general and the courts do draw a line for Israeli-Arabs, and Ghattas is not the only case.

None of this means that the High Court reached the correct conclusions in this set of decisions. But a commitment to the rule of law would seem to mean critiquing based on a careful analysis of all of the legal issues, and not just the outcome.

A frequent argument is that the current High Court was poisoned by the 1990s Basic Laws revolution.

There are legitimate arguments for critiquing the High Court’s direction since the 1990s made by scholars – such as former justice minister Daniel Friedman.

But this criticism is not a catch-all for everything about the judicial establishment which may disturb the political class.

 

SINCE THE Hebron shooter trial and several times during the ongoing year-long Gaza border conflict, there has been a rising storm of criticism towards the IDF legal division and the courts for allegedly unduly restricting the use of force by IDF soldiers.


Once again, there are legitimate debates about the use of force and what balance of risks IDF soldiers should take on, versus how aggressive they can be against Palestinians when in ambiguous operational situations.

Ironically, in May, the much-criticized High Court approved the IDF’s rules of engagement on the Gaza border. Human rights groups say that approval helped lead to around 250 Palestinian deaths. The IDF legal division has also opened five criminal probes into 11 Palestinian deaths.

If the IDF avoids an International Criminal Court (ICC) prosecution for the 250 Palestinian deaths, it will be because the High Court and the IDF legal division acted – making ICC action extraneous.

But it is also worth noting that the prosecuting of soldiers for alleged violations of the laws of war by Israeli courts and the IDF legal division is not a post-1990s revolution phenomenon.

In a 2014 INSS journal article titled “Lawyers in war: Who needs them?” Ziv Bohrer describes just how far back these prosecutions go.

Bohrer elaborated on the debate, noting that many security officials might view the intervention of lawyers as “annoying, slowing down soldiers from doing their job,” and might say that the situation “was not like this in the past.”

In fact, Bohrer quoted from a letter by then-prime minister David Ben-Gurion on February 10, 1948 – months before the State of Israel was established – in which he pushed hard for courts martial of Palmah and other security forces who were suspected of breaking the laws of war.

Ben-Gurion’s letter to Yaakov Riftin, a member of the Defense Council that managed the pre-state Yishuv’s security issues, led to the formation of what eventually became the IDF legal division and military court system.

Bohrer noted that during the 1948-1949 War of Independence – with an IDF of some 70,000 soldiers – there were 2,424 courts martial (about 3.5%), with an average of 400 cases per month. He said this shows that, even in Israel’s first war, lawyers and judges were heavily involved in regulating the army, “and yet Israel still managed to win!”

This means that when questions are asked about whether the IDF legal division and the courts should prosecute soldiers for laws-of-war issues, the question is not about the 1990s revolution. Rather, it is about changing the State of Israel’s approach since its founding.

If the critique is that international law did not foresee Israeli complexities, one could debate a rebalancing of the rules.

But any commitment to the rule of law as an idea would appear to demand that the new set of rules still specify some kind of case where prosecutions would occur, and any new change would require an explanation for the change – at least to allies like the US.

Once again, the rule of law presumes that sometimes, one is willing to accept a result that one does not like.

The final piece is the likely public corruption indictment facing the prime minister.

Netanyahu has many legitimate defenses and may very well be acquitted. And there is a decent chance that at least Case 2000 – “the Yediot Aharonot-Israel Hayom Affair” – may be dropped before ever reaching the courthouse.

Yet much of the criticism of Mandelblit’s announcement of his intention to indict did not focus on the legal debate or seriously consider the 57 pages of detailed charges, but again centered on the result.

Mandelblit – who Netanyahu hand-picked to be cabinet secretary – allegedly lost his legal conscience and was arm-twisted into indicting Netanyahu by the left-wing legal establishment.

Never mind that the lead lawyer for indicting Netanyahu, Liat Ben-Ari, is the woman who put him in the prime minister’s chair by sending Ehud Olmert to jail.

Commitment to the rule of law would presume that Netanyahu is innocent until proven guilty. However, it would also seem to accept the possibility that he might be guilty and to debate the meticulous charges against him.

A society has the right at any time to redefine the role of its judicial and legal branches, just like any other part of government.

The coming wave of legal conflicts appears set to put to the test the extent that Israeli society is committed to the traditional rule of law – including a thoughtful analysis of the process and the details, as opposed to purely concentrating on the results.

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