(January 5, 2023 / JNS) Does the Israeli left protect Israel from international condemnation and prosecution? This has been the left’s key claim for more than a generation. From former Supreme Court President Aharon Barak to opposition leader Yair Lapid and his colleagues, to the last of Israel’s leftist reporters, commentators and activists, all major and minor operatives on the Israeli left have long insisted that if our elected leaders stray from the left’s positions on either domestic or strategic issues, the gates of hell will open to Israel on the international stage. They are Israel’s protective vest, shielding us from the hostile forces at our doorstep.
In the week since Prime Minister Benjamin Netanyahu and his government took office, this assertion has been made twice. First, they made it in relation to National Security Minister Itamar Ben-Gvir’s visit to the Temple Mount early Tuesday morning. And second, they raised in in response to Justice Minister Yariv Levin’s proposal for judicial reform, which he presented at a press conference Wednesday night.
Ahead of Ben-Gvir’s much-anticipated, but unannounced visit to Judaism’s most sacred site early Tuesday morning, Lapid and his protean choir in the media warned that if Ben-Gvir dared to set foot on the Temple Mount, Hamas would fulfill its threat to bomb Israel and the international community would blame Israel for the terror regime’s wanton aggression. The clear insinuation was that if Ben-Gvir failed to bow to Hamas’s threats, and went ahead with his plan to visit the Temple Mount, any future Hamas aggression would be Israel’s fault.
Although Hamas has yet to launch a new missile campaign against Israel from its terror state in Gaza, Israel has been subjected to a diplomatic pile-on that has included friends like the United States and enemies like the Palestinian Authority along with the UAE, Jordan, the U.K., the EU and Egypt. On Thursday, at the UAE’s request, the U.N. Security Council convened a special session to condemn Israel for Ben-Gvir’s visit.
But the thing of it is, the condemnations have nothing to do with anything that Ben-Gvir did.
In condemning Ben-Gvir’s visit, State Department Spokesman Ned Price said, “The United States stands firmly for preservation of the historic status quo with respect to the holy sites in Jerusalem. We oppose any unilateral actions that undercut the historic status quo. They are unacceptable.”
As the Prime Minister’s Office said in a statement, Ben-Gvir did nothing to undercut any status quo. During his 13-minute visit, he walked along the path allotted for Jews. He said no prayers. And he left.
As Jerusalem researcher Nadav Shragai has documented in two books and countless articles, it is the Muslim officials on the Temple Mount, controlled by Jordan and the Palestinian Authority through the Islamic Wakf, not Israel, who have systematically changed the status quo. In the 1970s, the Wakf began using the Dome of Omar as a mosque for the first time. In 1996 and 1998, the Wakf illegally built two additional mosques on the Temple Mount. During the course of their excavation and construction, the Wakf deliberately destroyed priceless artifacts which they discarded in heaps of refuse disbursed to garbage dumps throughout the city. Israeli archaeologists painstakingly retrieved the artifacts covered in trash and began a sifting project that went on for more than a decade to save whatever they could from the destruction.
In 2019, the Muslims illegally built and began to use a fourth mosque on the Temple Mount. The Muslims have banned Jews from entering the Temple Mount through two gates that were previously open to them.
With the passive and active support of many of the foreign governments condemning Israel for Ben-Gvir’s brief and uneventful visit Tuesday morning, the Muslim officials on the Temple Mount used threats of terrorism and international pressure to coerce Israel to stop enforcing its planning and building laws and the archaeological oversight of construction on the Mount. They unlawfully raised the flags of Israel’s enemies and foreign nations including the PLO, Hamas, Turkey, Hezbollah and other jihadist and jihadist-aligned entities from the minarets of the mosques.
These crimes were carried out as Jordan, the P.A., their agents on the Temple Mount and their allies in the West and the Arab world falsely accused Israel of undermining the status quo.
Given the international context, it is fairly clear that Ben-Gvir did not cause the backlash. At worst, he gave an excuse for those who support the subversion of Israel’s sovereignty in Jerusalem to advance their consistent policy. But had Ben-Gvir not visited the Temple Mount, they would have found a different excuse. They would have vilified a different, entirely lawful action taken by Israel or by Jews in Israel’s capital.
And this returns us to the left, and the safety shield their positions purportedly provide Israel. The Biden administration attacked Israel for protecting Jewish property rights in Jerusalem’s Shimon Hatzaddik neighborhood while Lapid and his colleagues were in office. The administration pressured Israel to agree to permit it to open a U.S. consulate to the Palestinians in Israel’s capital city while Lapid was in office. And the administration made the Palestinian affairs section of the embassy an independent entity, not subordinated to the U.S. ambassador to Israel, during the left’s tenure in office.
By preemptively blaming Ben-Gvir, Lapid and his colleagues may simply be trying to weaken the government politically at home. But the overall effect of their action is to legitimize the international pile-on not against Netanyahu, but against Israel itself.
This brings us to Levin’s judicial reform package. On Wednesday night, Levin announced a multifaceted plan to reinstate checks on Israel’s currently unrestrained judiciary and legal fraternity. Among other things, Levin’s proposal includes reform of the judicial selection process. Currently, the Supreme Court controls the process for selecting justices. Under Levin’s plan, politicians and their representatives would control the judicial selection process, which would be subject to public scrutiny through Knesset hearings for Supreme Court nominees.
Levin’s reform package also limits the Supreme Court’s power to cancel duly promulgated laws and government policies, a power the Court currently exercises without legal basis, and in an unlimited way.
Since the 1990s, when the High Court first absconded with the Knesset’s legislative powers and placed itself as above the parliament and the government as the ultimate arbiter of legislation and government policies, Israel’s justices and their supporters on the left have insisted that by exercising those powers, the court protects Israeli leaders and IDF soldiers and commanders from international criminal tribunals. Expressing this view Thursday morning at a demonstration outside the Supreme Court, former IDF Chief of Staff Moshe Ya’alon said, “Without the Supreme Court, I would be on trial at the Hague.”
The basic claim propounded by Aharon Barak and his colleagues in defense of their seized powers relates to the legal concept of “complementarity.” The international legal concept of complementarity holds that international criminal jurisdiction is complementary to domestic jurisdiction. In other words, there should be no international prosecutions where a matter is already investigated and/or prosecuted by a legitimate domestic prosecution.
According to the champions of unchecked judicial power on the left, any check on the Supreme Court’s powers will throw out Israel’s defense of complementarity.
The problem with this claim is that it is counterfactual.
As Prof. Avi Bell from Bar-Ilan University and University of San Diego law schools explains, the claim is wrong in three ways. First, Israel hasn’t committed any war crimes, so by their nature, the investigations of Israel’s military actions are political.
As Bell put it, “If the threats to bring criminal suits against Israelis were made in good faith by actors like the International Criminal Court, then complementarity would never arise in the first place because there are no crimes to investigate. The fact that these investigations exist shows that complementarity never has and never will play a role in their investigations against Israelis and against Israel.”
The second reason the complementarity claim is incorrect is because Levin’s proposed reforms have nothing to do with the basis for complementarity. “Complementarity,” Bell continues, “is about the reliability of investigatory procedures. It has nothing to do with how judges are appointed or judicial review of legislation or any other issue that is part of the proposed reform. So even if [international investigatory authorities] were acting in good faith, judicial reform will neither help nor hurt Israel against a potential claim of complementarity.”
The final reason that Levin’s proposed reforms will have no impact on international investigations of Israel is because politically motivated investigations began decades ago, while the Supreme Court’s powers were unchecked. To date, their most notable product was the U.N. Human Rights Committee’s Goldstone Report, which followed the Goldstone Committee’s investigation of Israel’s actions during the first Hamas missile war against Israel in 2009. Despite the fact that the Supreme Court’s powers were unchecked at the time, the Goldstone Committee acted in bad faith, and produced a report that was so utterly libelous that its eponymous chairman, Judge Richard Goldstone disavowed it.
“Bad faith investigators of Israel from the ICC or the Goldstone Committee or anywhere else are perfectly aware of complementarity and have already shown how they neutralize it. They do so by writing reports that claim that all Israeli investigations are defective. In other words, they lie,” Bell concludes.
Israel is the target of a lawfare campaign. Lawfare is the use of the language of law—rather than law itself—to achieve a political goal. The international tribunals against Israel have nothing to do with anything Israel does. Like the pile-on regarding Ben-Gvir’s anodyne, entirely lawful and routine visit to the Temple Mount, lawfare assaults are part of a political campaign to undermine and delegitimize Israel’s sovereignty and right to self-defense. The powers of the Supreme Court are completely irrelevant to those who undertake it.
The likes of Lapid, the legal fraternity and their partners in the media attack the Netanyahu government because they oppose it, and in most cases that is all well and good in the politics of a democracy. But both in the case of their castigation of Ben-Gvir, who did nothing blameworthy by standing up to Hamas on Tuesday morning, and by accusing the government of endangering “complementarity,” when its proposals for judicial reform do no such thing, they are not protecting Israel. To the contrary. They are exploiting the international hostility towards their country and endangering Israel’s national interests to advance their domestic political fortunes and power.
Caroline Glick is an award-winning columnist and author of The Israeli Solution: A One-State Plan for Peace in the Middle East.
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