Alex Stein and Gaza’s electricity

Today was not the first time that I read something in Ha’aretz dripping with moral indignation, only to find myself wondering why Ha’aretz gets indignant about things that seem perfectly sensible to me.

The item in question is about the opinions of Alex Stein, a legal scholar who has recently been appointed to Israel’s Supreme Court, along with Judge Ofer Groskopf. Both are considered world-class jurists, but the Left, used to dominating the legal system in Israel, is nervous about Stein’s “conservative” leanings.

It seems that someone discovered that Stein once posted on Facebook his opinion that it would not contravene international law if Israel were to stop supplying Gaza with electricity. To me, it has always seemed reasonable that Israel shouldn’t provide the power to run the lathes that make rocket nozzles while Hamas is bombarding our civilian population with rockets propelled by said nozzles.

Here is the description of Stein’s positions that Ha’aretz finds so extreme:

Stein’s posts on Gaza were published during the 2014 Gaza war. He wrote that because Israel isn’t occupying Gaza, it’s [sic] only obligation while defending itself from rockets is to minimize harm to civilians. For the same reason, Israel isn’t obligated to provide electricity to Gaza, though it may choose to do so for humanitarian reasons.

His posts also criticized what he termed a misinterpretation of international law. The principle of proportionality dictated by international law must suit the reality of modern war and common sense, he argued. An interpretation which says that large countries attacking small countries must seek to maintain parity in the number of victims is ridiculous and unacceptable, he wrote, and it is not what the law intended.

These positions are not in the slightest bit controversial among those who actually understand international law rather than simply claiming that anything Israel does that they oppose violates it. Israel’s supposed “occupation” of Gaza is the only military occupation ever accomplished without a single pair of boots on the ground; limiting the importation of military-use materials and maintaining a secure border may not please the Hamas regime, but it isn’t “occupation.” And the principle of proportionality of attack in warfare means exactly what Stein said.

He also slammed the Supreme Court for its judicial activism. Among other things, he criticized its view that everything is justiciable, in contrast to the American doctrine which holds that courts can’t rule on “political questions.” While Israel’s Supreme Court rarely overturns laws, he continued, its rhetoric is imperial and it demands power under the guise of checks and balances.

Stein also quoted the late U.S. Supreme Court Justice Antonin Scalia as saying that he read Israeli Supreme Court verdicts whenever he wanted to be truly shocked and to convince himself that the American court wasn’t so bad after all.

This is certainly “controversial” to a judicial establishment that is accustomed to a balance of powers between the branches of government biased heavily in its favor, but as an antidote to the putsch carried out by the Court under its former president, Aharon Barak, it is about time that it be administered. It’s only a slight exaggeration to say that according to Barak, the court can rule on anything, and anyone has standing to bring a matter to the Court, even if he is not directly impacted. This doctrine has led to an erosion in the power of the Knesset – that is, the democratically elected representatives of the people, and to some very questionable decisions by the Court.

Unsurprisingly, the Left is unhappy with Stein’s appointment. There have also been personal innuendos thrown at him in an attempt to derail it. And the fact that Stein deleted his Facebook account before he was selected is somehow seen to imply that he is ashamed of or trying to hide his “radical” views.

At the same time (2014) that Stein was commenting on Facebook, another law professor, Avi Bell of Bar-Ilan University and the University of San Diego School of Law, wrote a legal opinion on the subject of Israel’s non-obligation to supply electricity and water to Gaza. This opinion so annoyed another Israeli professor, that he suggested – although he wasn’t prepared to argue the merits of Bell’s argument – that pressure be applied against him to disavow it, because of the “moral horror” inherent in it (Bell, incidentally, said that he did not favor Israel cutting Gaza off even though Israel, in his view, has a legal right to do so).

Legal principles are ultimately derived from moral ones. While I defer to Professors Stein and Bell regarding the legal issue, it seems to me that the moral question of whether it is permissible to cut off electricity to Gaza is not a hard one:

Hezbollah places its rocket launchers in civilian areas in order to deter Israel from attacking them. And the laws of war say that where one side holds its population hostage as human shields, that side bears the responsibility for injuries to such hostages. The moral principle that justifies this is that Hezbollah made the unforced choice to put its people harm’s way.

Similarly, Hamas’ unforced choice to divert resources of all kinds away from the welfare of its people – including the development of independent sources of water and electricity – and into obtaining weapons and building war-making infrastructure, makes the welfare of the population depend on Israel’s continuing to supply their needs. Because this is Hamas’ choice, Israel is not responsible for injuries that might result from a cutoff.

It’s often argued that cutting off electricity would be collective punishment, which is forbidden by the laws of war. Today the WWII bombing of German cities that did not contain military targets might be considered war crimes for this reason (among others, including proportionality). The argument against collective punishment depends on the premise that the civilian population as a whole is not responsible for the actions of the regime, and that innocent people (e.g., children) would suffer from such an action. But if an electricity blackout were – as it certainly would be – temporary, preceded by warnings, and conditioned on the Hamas regime agreeing to terms, then the responsibility for any injuries would fall on the Hamas regime insofar as it refused to submit.

Whether or not Israel should adopt the tactic of cutting off electricity from Gaza is an additional question, even if it is permissible from the legal and moral standpoints. Here I think that neither Stein nor Bell has advocated such a tactic.

Alex Stein and Ofer Groskopf are first-rate legal minds that would add both intelligence and balance to the rulings of a Supreme Court that could benefit from more of both of those qualities. Stein is not an extremist or immoral because he happens to have a point of view that is uncommon in North Tel Aviv. The Justice Minister, Ayelet Shaked, and the President of the Court, Esther Hayut, should be congratulated on reaching a compromise that will raise the status of the legal establishment in Israel at a time that it could definitely use some help.

Posted in Israeli Politics, Israeli Society | 1 Comment

Are there judges in Tel Aviv?

Today in Israel the media are focused on a shocking revelation: an investigator for the Israel Securities Authority, who is in charge of the investigation of the telecommunications giant Bezeq, was discovered colluding with the judge of the Tel Aviv Magistrate’s court to predetermine the outcome of a hearing to extend (or not) the custody of some of the suspects who are now being interrogated by the police.

There are at least four criminal cases being pursued that may include the Prime Minister as a defendant, with varying degrees of believability and seriousness. The Bezeq case, called “teek (case) 4000” recently got fresh impetus with the defection of a former Netanyahu adviser and confidant, Shlomo Filber, to the prosecution. This scheme is precisely the kind of conspiracy that pro-Netanyahu partisans have been claiming is going on against him.

Imagine that you are a defense lawyer who goes to court to try to get your client released. Suppose he has already been held for almost a week in a cell infested with fleas, has been allowed little sleep and interrogated for hours at a time. You expect to present his case and have the judge listen to you, as well as to the prosecutor who wants to hold him longer, before making a decision.

Then imagine that you find out that the judge and the head investigator have been exchanging text messages and have already decided how long he will be held! “Try and act surprised,” the investigator tells the judge. “I’m practicing my surprised face,” she responds.

It somewhat weakens the feelings of outrage that in this particular case the judge and investigator seem to have conspired to release the suspects sooner than the police wanted, rather than to keep them in custody longer. Nevertheless, the misconduct is clear. A judge must not discuss a case outside of the hearing room.

The judge, Ronit Poznansky-Katz, and the investigator, Eran Shacham-Shavit, have been removed from the case and face disciplinary action, maybe even criminal charges. But this scandal has echoed throughout Israel’s political and judicial systems, with condemnation coming from all sides.

The rights of criminal suspects or defendants, from the beginning of the process to the end are in the hands of the judges. They are the ones that determine how long the police can hold a suspect, whether he or she will be released on house arrest or kept in jail while awaiting trial. And since Israel does not have a jury system, they will decide guilt or innocence and impose a sentence. A judge secretly conspiring with a representative of the prosecution constitutes a severe violation of individual rights.

Naturally, attorneys for the jailed suspects in the Bezeq case say that the case against their clients has been tainted, and they should be released immediately. They have a point, but probably it won’t happen. A new judge has been appointed to handle the case.

The importance of popular trust in the judicial system can’t be overemphasized, especially in a country which does not have a written constitution. “There are judges in Jerusalem,” Menachem Begin famously said, after a Supreme Court decision went against his wishes. Many Israelis on the Right have felt that the Supreme Court has been biased too much toward individual rights, especially those of minorities, and has neglected the national interest. Education Minister Naftali Bennett recently remarked that “there are judges in Jerusalem who have forgotten that there is also a government in Jerusalem.” But until now it’s been thought that outright misconduct of the kind that Poznansky-Katz is accused of was rare.

This comes at a very interesting time for the Prime Minister, as well as the police, the judicial and legal systems and the media; interesting because the PM is accusing the others of running an extra-electoral campaign to get him with trumped-up charges of corruption. They can’t beat him at the ballot box, he says (correctly), so they are trying to force him to resign, to be rejected by his coalition partners, or even – if he can be convicted of something  serious – to be removed from office.

The police have recommended that Netanyahu be indicted for cases unrelated to the Bezeq case, and it looks like they are moving toward a similar recommendation in this case. Then it will be up to the Attorney General to decide whether to indict him.

The law is not clear about what would happen if Netanyahu were convicted of a crime. But it seems almost a foregone conclusion that if it happens, and if his coalition stands behind him, it will be the Supreme Court that will decide whether he can stay in office.

Judges in Israel, including Supreme Court justices, are selected by a nine-member committee which includes two members of the Bar Association, the President of the Supreme Court, and two additional Supreme Court justices. It is chaired by the Justice Minister, and also includes two Knesset members one each from the coalition and the opposition. There is therefore an automatic majority to the legal establishment.

When this is combined with the fact that the Attorney General, supposedly the government’s lawyer, must be selected by the Prime Minister from several candidates approved by the Supreme Court, you can see why a government – or a Prime Minister – whose philosophy differs from that of the legal establishment may have difficulties. Despite Netanyahu’s popular support, he is in a very tough spot. Today’s judicial scandal is only a bump in the road for the legal convoy which wants to destroy him.

Israel, it seems to me, has a permanent constitutional crisis, or to put it more correctly, a crisis due to lack of a constitution. The balance of powers between the government, the Knesset and the courts is undefined, and the vacuum tends to be filled by whoever has the power or audacity to jump in and fill it. At the same time, it is impossible to imagine the various factions – the religious, the non-religious, the Arabs – agreeing on the content of a permanent constitution.

Probably the best we can expect is to pass a few key basic laws. I would like to start with a law defining the powers – and the limits of power – of the Supreme Court. Once that is settled, we can move on to a nation-state law, one that would give full meaning to the “Jewish” part of the “Jewish and democratic state” that most of us agree that we want.

Posted in Israeli Politics, Israeli Society | 1 Comment

A great Prime Minister – despite everything

I was talking with a friend yesterday. He is very well-informed and concerned about Israel and the Jewish people, and the prospects for our survival. But he does not live in Israel, so he asked me “what about the legal problems facing the Prime Minister? Would he provoke an international crisis to distract attention from them?”

Well, what about them? It’s something I generally avoid talking about, probably for the same reason that I avoid talking about the US President. I just don’t want to hear, yet again, the talking points of both sides. But since this blog can be a one-way conversation – I can choose to ignore comments if I wish – I am going to say a few words about Mr. Netanyahu.

Let me get this out of the way: I voted for him in 2015 and I would vote for him again if an election were held today. Of course he has his flaws, but I think I join many Israelis who do not see among the potential candidates to lead the nation one that could better ensure our security. And that is the issue, light years ahead of the price of apartments and his wife’s taste in champagne.

Not that I think that all of his policies are optimal. I would like a Prime Minister who pushed harder to settle Jews in all of the Land of Israel (my friend and I also talked a lot about this), because I think that – after dealing with the Iranian threat – is the single most important thing we can do to ensure the survival of the Jewish people.

I would like a Prime Minister who is a little less obsequious toward the US, and who does more to reduce our dependence on it (although Netanyahu has made some very significant accomplishments in improving our relationship with other nations, like India, China, Russia, and some Eastern European and African countries).

Personally, he is arrogant, he holds his cards very close to his vest, does not delegate authority well, and tries too hard to prevent potential rivals from gaining strength. Sometimes he makes enemies out of those who should be allies, because he’s threatened by their potential as possible challengers.

In order to understand the PM’s legal troubles it’s necessary to understand something about the social and political ocean that he swims in. Netanyahu represents the continuation of Menachem Begin’s revolt against the domination of Israeli politics, culture and economy by the Ashkenazi socialist Left. But Israel is a democratic country and not a fascist dictatorship, so the revolution (some might say unfortunately) did not include a purge of the old guard in politics, the legal system, academics, culture and – definitely not least – the media.

The disasters wrought by the Oslo accords and the resulting Second Intifada (some call it the “Oslo war”) and the withdrawal from Gaza sealed the demise of the Left as a political bloc. The Left keeps trying, but Israelis haven’t forgotten what was done to them in the name of ‘peace’, and won’t vote for them. But even though polls show that the right-wing parties are much more likely to come out on top in an election, the media and other unelected elites are strongly in the camp of the left. And their attitude toward PM Netanyahu is much like that of the Democrats in America toward Donald Trump: they hate him passionately.

There are at present at least four police investigations that to some extent relate to the PM and, naturally, his wife, who is also a prime target for his enemies. He is accused of 1) providing favors in return for cigars, champagne and other presents, of 2) making a deal with the publisher of the Yediot Aharonot newspaper to receive favorable coverage in return for acting to suppress the circulation of Yediot’s competitor, the free Israel Hayom newspaper, of 3) being somehow connected to a kickback scheme in connection with the purchase of submarines from a German company, and of 4) providing favors to the management and important shareholders of telecommunications company Bezeq in return for favorable coverage on a Bezeq-owned news website). Sara Netanyahu is accused of using public funds for her private benefit.

Overall, some of this is invented, much of it is exaggerated, some is probably true, some is politics as usual, and most comes from informants that the police have put the squeeze on. The police have recommended to the Attorney General that the PM be indicted on charges related to 1) and 2) above, and that his wife be indicted for her actions as well. In my opinion, even if the worst accusations are true, none of them move the needle for corruption by a head of state by world standards. Nevertheless, the law is the law. It is up to the Attorney General to decide whether to indict Netanyahu or drop the charges.

What is outrageous here – and Netanyahu is perfectly right in calling this out – is the behavior of the police and news media (did I mention that the media, especially the broadcast media, are almost 100% on the side of Netanyahu’s political foes?).

The investigations have been going on for at least a year, with Netanyahu or his wife being interrogated by the police multiple times for hours at a time. Every time he or one of numerous others is questioned, including those who have agreed to be state’s witnesses in order to avoid possible prosecution themselves (among them his main political rival Yair Lapid), the nightly “Hadashot” newscast that most Israelis watch leads with a story based on unsourced leaks from the police and other parties involved in the cases against Netanyahu. Newspapers echo the accusations the following day. It’s hard to imagine a clearer case of the media appointing itself judge, jury and executioner.

Note that most of this took place before the investigations were complete and the police had transmitted their recommendations to the Attorney General, who of course has not yet decided whether to indict the PM (there have been weekly demonstrations calling for him to do so led by Netanyahu’s opponents in front of the Attorney General’s home, and demonstrators even entered a synagogue where the AG was saying kaddish for his mother).

Netanyahu  likes to say that his opponents, unable to beat him at the ballot box, are trying to force him out undemocratically. It’s hard to disagree with this assessment. He is not required by law to resign even if he is indicted and possibly not even if he is convicted of a crime, but practically speaking, an indictment would put him in hot water with his own coalition. It could also bring about a constitutional crisis between the government and the Supreme Court.

One can understand why the Americans require a process of impeachment to remove a sitting president. There is an overwhelmingly political aspect to the prosecution of a head of state which cannot be ignored; the American system makes it explicit, while the Israeli system tries to shut its eyes to it. There was an attempt to pass a law that exempts a sitting PM from prosecution for certain kinds of crimes, but it didn’t get off the ground. A law did pass that will prevent the police from making public their recommendations to the Attorney General, but it will not apply retroactively to Netanyahu’s cases.

As I said, Netanyahu has his flaws; but his claim to have dedicated his career and his life to the security of the state of Israel is indisputable. So when my friend asked me if I thought Netanyahu would provoke a crisis in order to draw attention from his legal issues, my answer was “absolutely not.” Although his enemies like to attribute every imaginable moral defect to him, there isn’t the slightest doubt that he puts the state and the Jewish people ahead of his personal interests.

I think a plurality of Israelis agree. A new poll, taken immediately after the latest “revelations” of possible misconduct in the Bezeq affair shows the Likud winning 34 seats in the Knesset, as opposed to the 30 that it holds today.

Hashem and history will ultimately pass a final judgment on Benjamin Netanyahu, regardless of what the temporal courts here decide. I believe that judgment will be that he was one of our greatest Prime Ministers.

Despite everything.

Posted in Israeli Politics | 1 Comment

A threat and an ultimatum

Israel seems to have hopes that diplomatic action by the US or Russia or even the UN can or will restrain Iranian expansionism and threats against Israel. This is pointless, and indeed works in Iran’s favor by giving her time to build up her offensive capabilities, ultimately including nuclear ones.

Every day that goes by marks an improvement in Iran’s strategic position. The time for Israel to act is now.

Dear Mullahs,

In response to the various threats that you have made directly and via Hezbollah, be aware that:

  1. We see Hezbollah as a military arm of your regime, and hold you fully responsible for its actions.
  2. Our evaluation of your capabilities is that even if you activated all of your ground, missile and other forces in your country, Syria, and Lebanon in a first strike against us, you would not succeed in destroying our country or ending our ability to fight. Nevertheless, the cost to us from such an attack would be high, and we will not permit it to happen. We issue the following warning to deter you from the attempt:
  3. As has been made clear, the actions we would be forced to take against your military infrastructure in Lebanon would result in massive destruction and a great number of civilian casualties there (possibly in the tens of thousands). But we understand that you are courageous enough to fight to the last Lebanese or Syrian, so:
    In addition to the necessary tactical actions to destroy your rocket launchers, tunnels, etc. on our northern borders, an attack on us will trigger a strategic response against your homeland, including military installations, nuclear facilities, major cities and national infrastructure. Not only would you lose your chance of establishing a Shia caliphate across the region, your country would essentially cease to exist as a modern nation.
    You would be personally responsible for the worst thing that happened to the Persian people since the Mongol invasion of the 13th Century. And you would be dead, along with tens of millions of others.
  4. We believe the situation today is unstable and must be deescalated in order to avoid the horrific consequences that could result from further aggression. Therefore, we are presenting you with an ultimatum:
  5. We will offer you the chance to dismantle your military infrastructure on our northern borders. If you adhere to the timetable that will be presented, we will take no further action. But if not, we will systematically begin destroying those capabilities that we believe present a threat to our country, in Lebanon, Syria and Iran herself. The choice is up to you.
  6. Our people will be calling your people to inform you of the steps that you will need to take to deescalate the situation. They are all professionals, so I’m sure everything will go smoothly.

In all seriousness,

Posted in Iran, War | Comments Off on A threat and an ultimatum

What happened to my home town

Now a few words about my home town, Fresno California, butt of countless jokes and YouTubes full of mostly derogatory references to it from films and TV shows made in sophisticated Los Angeles. With a population of about 525,000, it boasts a California State University campus and several other major educational institutions. It is the center of one of the most productive agricultural areas in the US, which produces more than half of all the fruits, nuts and vegetables grown in the US.

Reliable estimates of the Jewish population are hard to come by, but probably there are fewer than 1000 Jewish families there. Jews arrived there in the 19th century and made their living in farming, lumbering and ranching, and of course commerce. After WWII, a number of Jewish GIs who had been stationed at Hammer Field (now Fresno Yosemite International Airport) married local girls and stayed on. There are a few Israelis working in agricultural technology. But for whatever reason, a large Jewish community never developed.

There is a Reform Temple with about 300 families, a now-tiny Conservative synagogue, and a Chabad house. The Jewish Federation of Central California is based there. There is no local source for kosher meat, with the exception of poultry products sporadically carried by Trader Joe’s or Whole Foods.

I wasn’t born there, but it was the place I spent the greatest part of my life, the place I met my wife shortly before making aliyah, and the place I to which I returned in 1988 after almost a decade in Israel. Probably because I knew in my heart (and because my wife and kids never stopped reminding me) that I should have stayed in Israel, I became active in Jewish and Zionist affairs, such as they were. I spent 26 years there, always in touch with what was happening in Israel and with my kids, who moved back as soon as they were old enough to become “lone soldiers” in the IDF.

I did my best to counteract the always-growing stream of propaganda aimed to demonize and delegitimize Israel, as it flowed from the media, the local “peace” organizations and a few anti-Israel activists at the university who regularly organized offensive films and speakers. In 2007, the university received a large grant from an Iranian-connected organization and established a Middle East Studies Department. Like virtually all such departments, it related to Israel only as a foreign body in the Muslim Middle East (you can read here about how I got kicked out of a conference held by that department).

During and after the Second Lebanon War of 2006 and the mini-wars in Gaza, there were anti-Israel demonstrations at an important intersection in town, organized at first by the “peace” groups. Led by activists associated with the Islamic Cultural Center of Fresno, more and more Muslims began taking part, sometimes leading to near-confrontations with greatly outnumbered pro-Israel demonstrators.

All this time I struggled to try to get positive coverage of Israel in the local media, which were mostly ignorant about the issues or hostile. And I tried to develop Zionist consciousness in the Jewish community.

I almost completely failed at the latter task. Although there was a small nucleus of pro-Israel people (some of whom were transplants from Israel), the larger community was apathetic. As time went by, more and more of them seemed to be actively anti-Israel, especially after the election of Barak Obama, whom the Jewish community supported heavily.

In particular, the Reform temple became less and less hospitable to pro-Israel presentations. A new rabbi took over in 2011, and on several occasions he decided that speakers or films that presented a Zionist point of view would be “divisive,” and did not permit events to be held at the temple.

He particularly emphasized interfaith activities, but the other faith groups included only the Islamic Center and liberal denominations. He is quite proud of his “friendship” with the Imam of the Islamic Center, and appeared together with him on TV to denounce alleged “Islamophobia,” but he did not reach out to Fresno’s large Evangelical community – who, by the way, had been extremely supportive of pro-Israel activities, even hosting speakers for us that the rabbi had rejected as divisive!

The Jewish Federation remained helpful, although I could see beads of sweat breaking out on foreheads when I suggested sponsoring an event that some donors might find a little too pro-Israel for comfort. But one constant was that every year the Federation and the synagogues all got together to organize an Israel Independence Day event, held at the Reform Temple, the largest facility available.

Although I haven’t been back to the US in three and a half years, I’m in contact with my old friends there. And what they told me this year was shocking.

It seems that the theme suggested by the chairperson from the Federation was “A Free People in Our Land,” from Israel’s anthem “Hatikva.” But this was unacceptable to the Reform rabbi. He reportedly said that many in Israel were not free, most importantly himself as a “second class” Jew who is “not free” to practice his religion in Israel. This is absurd, since he can walk into any one of numerous Reform synagogues in Israel and practice his religion.

But worse, he added that “A Free People in Our Land” would “upset” his interfaith group – I presume they would not like the implication that the Land of Israel belongs to the Jewish people – and that it would lead to a “huge outcry” in Fresno and possibly protests at the gate of the Temple! And he, as the leader of the Jewish community, would be blamed.

Rather than let him take his Temple and go home, it was decided that the theme would be “People in Our Land,” thus converting a proud Zionist statement into a celebration of multi-cultural kumbaya.

The idea of observing Israel’s Independence Day without mentioning freedom or suggesting that the land belongs to the Jewish people is certainly original. This particular rabbi was always on the liberal end of the spectrum, but I can’t imagine him saying something like this even a few years ago. This illustrates the danger of the “interfaith engagement” that the rabbi made such an important element in his job. He seems to have abdicated his own volition as a Jew to a group that is implacably hostile to the Jewish state. He has let them dictate what Jews are allowed to say about the Jewish state.

The well-meaning “Jewish leader” who, while actually powerless, serves as a tool for the gentile regime and facilitates their control of the Jewish population is a well-known figure in Diaspora history. Such individuals sometimes were merely targets for contempt, but other times – such as during the Holocaust – played more sinister roles.

This is a classic Diaspora story, and actually serves as a lesson in Zionism. The Jewish people need a sovereign state because they need to live somewhere that they can actually be a free people, where they don’t have to worry about what an “Interfaith Alliance” of ultra-liberal Protestants, Muslims, Hindus, Buddhists, Catholics and other non-Jews think about the theme of their Independence Day event.

A very few members of my former community tried to stand up against this abysmal failure to protect Jewish honor and dignity, but without success. Most don’t see the problem. So it will be a celebration of “People in Our Land.” I am embarrassed for them, and saddened by what happened to the community that I lived in and cared about for so long.

Posted in American Jews, American society, Zionism | 2 Comments