In the course of law school, every student will hear many times the dictum: Hard
cases make bad law. Hard cases refer to ones where all one’s emotional
sympathies are with one party, and that sympathy leads to an effort to enunciate
some legal principle to justify ruling in its favor. But once laid down, the
legal principles used to justify the result in the “hard” case often prove to be
poorly developed and result in skewed outcomes in subsequent cases – i.e., bad
Too many major political decisions here follow that pattern of being
determined by emotional considerations with inadequate attention to the
The 2000 withdrawal from Lebanon is a classic
example. At the time of the withdrawal, the IDF was losing more than 20 soldiers
a year in southern Lebanon. That is an extremely heavy price. But like every
other decision in life, it has to be balanced against the likely consequences of
not paying that price.
That was never done. The Four Mothers movement,
aided by the media, kept the focus exclusively on the casualties, so that the
question in the minds of the public became framed as: Are you for or against the
loss of 23 soldiers annually? Put that way, there will not be many
Hanna Naveh, the chief editor of IBA News, later boasted that
she, together with military reporter Carmela Menashe and morning host Shelly
Yacimovich, played a major role in bringing about the IDF withdrawal and our
abandonment of our southern Lebanese allies.
Each of the three had a son
serving in Lebanon, and as Naveh put it, their actions “came from the
One can forgive their desire as mothers to do everything possible
to ensure the safety of their sons. The problem is, however, that the entire
rest of the country came to view the issue only through the lens of mothers of
sons serving in Lebanon.
The Lebanon withdrawal and the haste with which
it was executed conveyed to the Palestinians the message that Israelis could not
bear any level of casualties and thereby provided much of the inspiration for
the second intifada, which claimed more than 1,000 Israeli lives in the three
years following withdrawal.
Even worse, the withdrawal of the IDF created
a vacuum into which an Iranian-backed Hezbollah moved quickly to seize complete
control of southern Lebanon. The 2006 Second Lebanon War – which claimed more
than 120 soldiers, brought civilian life to a virtual halt in the North for a
month and did such great harm to our deterrent capability – was the first
consequence. Today, Hezbollah is the dominant power in Lebanon, and has an
arsenal of 50,000 missiles, with an ability to strike anywhere in the country.
Another war could come with a cost of hundreds, even thousands, of
The lives of the soldiers lost in southern Lebanon were a vital
concern. But they were not the only concern. Yet that’s how the public debate
went, as our hearts and guts were tugged at by the Four Mothers movement and the
media. The result has been the loss of many hundreds of lives, and the potential
for far greater losses in the future.
IN NO area has the tendency of the
media to focus on the emotional angle exacted a higher cost than with respect to
prisoner exchanges. It is perfectly understandable that the parents of captive
soldiers or other prisoners would do everything in their power to bring their
sons home, including exerting pressure on the government to capitulate to the
demands of captors. But that does not excuse the media turning all of us into
the parents of Gilad Schalit or other captives. At the very least, the media
should provide some countervailing pictures of the victims and bereaved families
of released terrorists, who returned immediately to their former
The cost of considering only the point of view of the captives’
families has been very great. In 2003, the government exchanged hundreds of
security prisoners for a shady businessman, Elhanan Tannenbaum, and the bodies
of three soldiers killed by Hezbollah in a kidnapping attempt on Israeli soil.
Tannenbaum was kidnapped by Hezbollah outside Israel, and the high price paid
for his return only encouraged it to attempt more such extraterritorial
The 2008 release of a large number of security prisoners,
including the vicious killer Samir Kuntar, for the bodies of Ehud Goldwasser and
Eldad Regev further reinforced one of the unhappy lessons of the 2003 exchange:
Israel will pay for dead bodies almost as much as for live ones. At no time in
the negotiations did Israel demand proof that Goldwasser and Regev were alive or
act as if it made a great deal of difference to the negotiations.
approach takes away any incentive from ruthless organizations like Hezbollah to
treat captives well. Moreover, the return of Kuntar signaled to would-be
terrorists that there are no acts so heinous that one is sure to spend the rest
of one’s life rotting in prison.
The willingness to pay any price in a
prisoner exchange can even harm the immediate goal of securing the release of
Yuval Diskin, chief of the Shin Bet (Israel Security
Agency), said two weeks ago that he cut off negotiations with Hamas at one point
when he realized it was continuing to up its demands for Gilad Schalit because
it was convinced that public opinion would force the [Olmert] government to
accept any demand.
Thus those who said “no price is too high” actually
ensured that Hamas reached a price that was too high and helped ensure that
Schalit remained captive.
IMMIGRATION POLICY is another area in which
highly charged emotional arguments have often interfered with rational
The slogan “If he was Jewish enough for Hitler, then he is
Jewish enough for us” prevented any revisions of the Law of Return and the Law
of Citizenship during the period of mass aliya from the former Soviet
As a result of bringing in tens of thousands of people who could
claim one drop of “Jewish blood,” and in many cases collateral relatives without
even that drop, the Jewish state now has its own neo-Nazi movement and
Russian-language bookstores specializing in anti-Semitic classics.
comparisons to Jews fleeing over the Swiss border during the Holocaust are
delivered as irrefutable arguments whenever government policy on Sudanese
refugees is discussed.
But even on their own terms, the Holocaust
metaphors are flawed. Jews fleeing into Switzerland were all under a death
sentence if returned to Germany or Nazi-occupied lands. Sudanese who enter via
the Sinai are fleeing from a horrible, war-torn land to one of relative safety
and prosperity. But few of them have been sentenced individually or collectively
to death in Sudan.
Our grievance against the behavior of the Western
nations during the Holocaust is not that any particular nation did not take in
every Jew under a threat of death, but that collectively they were indifferent
to the fate of the Jews. As historian David Wyman has written with respect to
the failed Bermuda Conference, the great fear of the Allies was not that the
Nazis would refuse to release captive Jews, but that they might.
far, no other nation has offered to share the burden of refugees who have made
it here. While this is a relatively prosperous country, it is also a small one.
And it cannot absorb an endless stream of people seeking to escape abject
poverty without creating urban ghettos and sowing future social problems that
will drain scarce resources. The more desperate refugees congregate here, the
greater the toll on Israel’s identity as a Jewish state, which is the fragile
glue holding the country together and providing its citizens with the will to
fight for their future.
All of the emotional arguments we have mentioned
are worthy, and are rightfully part of the policy-making equation, but when they
are allowed to become the entire equation, potential future costs are often
ignored at a high price.The writer is the 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.