Israel’s Supreme Court has long been criticized because it imposes rules on the country that most of the country thinks are wrong. It’s an odd predicament for a democratic country, in which one would expect the law to reflect the will of the people. It’s particularly odd that this predicament is defended in the streets of Tel Aviv as “democracy.”
One of the key defenses of this odd system is the claim that it’s necessary to protect Israelis from legal attack in other countries. Other countries would like to challenge Israel’s acts of self-defense as “war crimes,” but international law provides that if a country has functioning courts that apply the rule of law, then their judgments will be respected. The courts of other nations or international tribunals will not interfere.
So, a sarcastic sign outside Ben-Gurion International Airport reads:
Dear Traveler: Before leaving Israel, you must check to ensure that no indictment has been brought against you before the International Court at the Hague.
If the fascist overhaul passes.
But you can help prevent this: Join the protest.
What does this really mean?
What it means is this: We, the Jewish people, dragged ourselves home to Israel from the four corners of the earth when we gave up on being treated fairly in the lands of exile. We despaired of getting due process in the czar’s courts, German courts, French or Spanish courts. We’ve even begun to worry about getting a fair hearing in Brooklyn, N.Y., where the people who assault us on the streets—if they’re arrested at all—are released immediately and never punished.
But the opponents of judicial reform claim that we must still believe that the world’s courts will respect the Israeli Supreme Court because it judges our people and our army. Because it demands of that army that it behave in compliance with its obligations under international law.
Thus, we can safely travel abroad without fear of being arrested and charged with a war crime. The army will defend the country and our Supreme Court, applying international law, will defend the army.
How’s that working out in reality?
We’ll start with the United Nations, which, despite Israel’s Supreme Court, denounces Israel’s actions every hour on the hour. In fact, the United Nations set up a new office a few months ago with a budget of millions of dollars that has only one function: Finding ways to attack Israel’s actions as violations of international law.
Next, there’s the International Court of Justice at the Hague. Last December, the U.N. General Assembly asked the ICJ for its opinion on the legality of the “ongoing Israeli occupation.” There’s little doubt that, if the ICJ answers this question, it won’t bless Israel’s “occupation”—not the “occupation” of the disputed territories, the “occupation” of Jerusalem or even the “occupation” of Tel Aviv.
But for the clearest proof that Israel cannot defend itself by submitting to the world’s demands, there is Jenin. In 2002, Israel sent its soldiers into the casbah of that city to put an end to months of terror attacks that had killed dozens of Israeli civilians.
After that operation, we were told about a “massacre” of innocent Arabs, complete with the stench of the rotting bodies of the victims of Israeli aggression. It was all a lie. It was a lie told around the world, by the International Red Cross and dozens of respected media outlets. It was later debunked but, as usual, no one was paying attention.
More important was the strategy Israel adopted in that operation and the reasoning behind it. Israel refused to use air power to kill its enemies in Jenin, not even its most accurate weapons. Instead, to minimize civilian casualties and avoid claims that it was violating international law, Israel sent in ground forces.
The result was predictable. Captured Jenin-based terrorist Thabet Mardawi told CNN that he “and other Palestinian fighters had expected Israel to attack with planes and tanks.”
“I couldn’t believe it when I saw the soldiers,” Mardawi said. “The Israelis knew that any soldier who went into the camp like that was going to get killed.”
Shooting at these men as they walked cautiously down the street “was like hunting … like being given a prize. … I’ve been waiting for a moment like that for years.”
Thirteen Israeli soldiers—husbands, fathers and sons—died in that operation. That’s what comes of worrying too much about what the world thinks.
The way for Israel to be respected by the world is to respect itself. That means respecting the value of the lives of its soldiers, as was not done in Jenin.
It also means respecting the judgment of its citizens and their right to govern themselves. The insistence on broad powers for Israel’s Supreme Court is based on the conviction that Israeli voters don’t have the right to govern themselves, because if they did, they would make the wrong decisions.
They would decide to be too harsh to Arabs who hurt or threaten Jews. They would make the country too religious. They would be inadequately respectful of Reform and Conservative Judaism. They would give too much money to the haredim.
Because these things are bad, Israel’s voters cannot be allowed to choose them. If 15 justices on the Supreme Court can stop these things, they must be empowered to do so.
No other country in the world is governed like this. No other country in the world treats itself or its own citizens like this. Israeli citizens have the right to govern themselves. When they do that, standing up straight, the world will respect them.
If the world doesn’t respect them, then what? The Jewish people will still govern themselves. That is an end in itself and one worth defending.
Jerome M. Marcus is president of the board of directors of Abrams Hebrew Academy.