October 8, 2017: Israel’s rights

Letters (photo credit: REUTERS)
(photo credit: REUTERS)
In “Have we lost our senses?” (Comment & Features, October 3), Asher Maoz states that “most international lawyers challenge Israel’s right to establish settlements within the territories.”
And he adds: “Even regarding east Jerusalem the International Court of Justice declared that Israel holds it as an ‘occupying power.’” The opinion he refers to was the abysmally strange and much criticized 2004 advisory opinion regarding Israel’s security barrier, built to combat the continuing terrorist war unleashed on Israel in the preceding years.
Lest the reader be led to believe that Israel was flouting a judicially-sanctioned obligation, it is important to note that: • The opinion was legally non-binding.
• It was sought by the UN General Assembly in a form that merely asked the court to rubber- stamp its own pre-determined views.
• The court willingly obliged.
• It based itself on mere “unconvincing” assertions, in the words American Judge Thomas Buergenthal.
• Among the strangest assertions was the assumption that a state has a UN Charter-based right to defend itself against force launched by states, but no such right against force launched by non-state actors, notably, terrorist groups. (Maoz correctly notes that our highest court “successfully challenged the court’s opinion.”
On the status of Jerusalem, however, as dean of the Peres Academic Law School, Maoz might have acknowledged in some form the stand of Shimon Peres. On June 10, 1994 – after Oslo – Peres declared: “Jerusalem will not be re-divided.... It is the historical capital of Israel.... I would say that in the political sense, the issue of Jerusalem is closed and it will remain the united capital of Israel” (see Jerusalem in America’s Foreign Policy, pp. 343-344).
In this context, it is also appropriate to note that luminaries in international law such as Julius Stone and Stephen Schwebel (judge and later president of the International Court of Justice) considered that Israel had a better claim to the entire city of Jerusalem than any other claimant.
The writer is James G. McDonald Professor of American History, emeritus; former chairman of the Department of American Studies in the Faculty of Humanities at the Hebrew University of Jerusalem; and author of Jerusalem in America’s Foreign Policy.
Kicking the can
By advancing settlements (“Netanyahu promises: We won’t uproot Jews or Arabs,” September 28), Prime Minister Benjamin Netanyahu appeases the Right rather than enabling Israel’s future.
No settlement or occupation advocate explains how Israel won’t become either a bi-national, non-Jewish state or an apartheid state – as four prime ministers, including David Ben-Gurion, warned – if it doesn’t stop.
Yitzhak Rabin called the settlements a “cancer on society.”
Even Netanyahu realizes this if he sincerely wants a two-state solution.
A sixth prime minister, Ariel Sharon, said: “You cannot like the word, but what is happening is an occupation – to hold 3.5 million Palestinians under occupation.
I believe that is a terrible thing for Israel and for the Palestinians.”
He asked: “Do you want to stay forever in Jenin, in Nablus, in Ramallah, in Bethlehem? I don’t think that’s right.”
UN Security Council Resolution 242 calls for “withdrawal of Israeli armed forces from territories occupied in the recent [1967] conflict.” While everyone argues about whether this means all or some of the West Bank, most ignore and accept the key word “occupied.” No one can explain how occupation and expansionism keep either bi-nationalism, apartheid or conflagration from becoming inevitable.
Rabin, Sharon, Ehud Barak and Ehud Olmert sincerely worked for peace and security while prime minister. Tragically, Netanyahu keeps kicking the can of self-destructive inevitability farther down road.
Cambridge, Massachusetts
Christian support
“Zionist Evangelicals trail Trump to Holy Land with cash in hand” (October 2) portrays a misleading perspective of Christian support for Israel.
For a number of years, I’ve worked closely with Christians who support Israel. While they might be happy that the Trump administration has a different and largely more supportive perspective vis a vis Israel, it’s not as if suddenly they are coming out of the closet to show their support.
Christians who support Israel are not motivated by the nature of the US administration, but on the biblical imperative to do so.
If anything, one could make the argument that an administration that’s less supportive of Israel could galvanize their support even more.
Your article ends with the proof of this: The International Fellowship of Christians and Jews raised $132 million in 2015. It’s hard to imagine more motivation brought on by a new administration in 2017.
Essence of democracy
I read with keen interest David Kirshenbaum’s “Restoring Israel’s democracy” (Comment & Features, October 2).
He correctly states that Justice Aharon Barak did not suffer from any excess of humility – but not for the reasons stated. Barak believed that the judiciary as an institution should be immune from criticism, a notion that flies in the face of freedom of speech, and that any institution placing itself beyond the free market of ideas will in the end wither.
But Kirshenbaum misses what is the essence of what he calls “a properly functioning democracy.”
Democracies function when they reflect the wishes of the majority, but only so long as these wishes do not harm the legitimate rights of all – rights that are not dependent on consent of the majority, but rather accrue to every person by virtue of their being members of the community. In his enthusiasm for governance based on majority vote, nowhere does he explain how such rights would be protected in the face of majority power if not through the mechanism of judicial review.
In his book Freedom’s Law, Ronald Dworkin, a leading law professor and philosopher, explained that democracy came in two forms: majoritarian and constitutional.
In the former, majority rule governs. A majority of voters or their elected representatives can decide that one group should not be entitled to vote or that its lands can be taken for the benefit of a more powerful majority or that even within the majority, those with greater resources can bend the rules at the expense of others. Without judicial review, such decisions could become the law of the land.
Jews should know that unfettered majority rule is a slippery slope, that those in power at the top might one day find themselves at the bottom and at the mercy of a different majority.
In a constitutional democracy, majority rule governs, but only so long as decisions treat all members of the community with equal concern and respect.
It is true that “[i]n a true democracy, power and authority are granted by the consent of the governed,” but only so long as its exercise does not violate the equal rights and dignity of every person. It is only independent judicial review that assures the protection of these rights.
It could be that Israel’s Basic Laws were not enacted with the deliberation appropriate to a constitutional process, and the top court must be subject to the same public accountability and criticism as any other institution of government. But without independent judicial review, who will protect the rights of the powerless and disenfranchised? Who will ensure that we as a people with a long history – but perhaps short memory of being powerless and persecuted – abide by our own first principle: Every person is created in the image of God?