Reduce the Court’s Control over the IDF

T. Belman. After the first Gaza war I wrote Don’t Muddy the Waters:

I am totally against involving the courts to impose restrictions on the IDF which result in a price being paid. This is the business of the military and not the courts. When the High Court had to decide on the fence location it used the rule of proportionality to balance the interests of Israel’s security against the inconvenience to the Arabs. How do you give the nod to inconvenience over security?

The Rules of Engagement in Israel have every commander thinking twice about taking action, even at the risk of his own and his soldiers’ lives.

By Gil Solomon, INN

Have you ever wondered why Israel has the most complicated rules of engagement imposed on its military, rules that would never see the light of day in any country on this planet? Now that the IDF and right wing politicians found it necessary topublicly back an IDF commander’s shooting (after firing warning shots in the air) of an Arab youth who threw large rocks at his vehicle several days ago, shattering the window in a planned attack, the question has arisen once again.

Israel’s Rules of Engagement require IAF cockpit operations be watched in real time by a military lawyer with the power to call off a strike at the last second if need be for whatever reason he sees fit. Rules of Engagement ensure every conflict ends prematurely or inconclusively, never with the crushing defeat and unconditional surrender of the enemy, while the media constantly follow the IDF in its sphere of operations wherever that may be.

The sad fact of life is that in Israel this inexplicable procedure is due to the Supreme Court and the Attorney General. The Supreme Court often intervenes in IDF operations and generally disapproves operations that disallow the media. The Attorney General will also not defend a commanding officer that refused to allow the media near a sphere of operations, except in exceptional circumstances.

In addition, the Supreme Court allows all and sundry to sue military officers. They can be bankrupted if the Attorney General refuses to provide for them to be represented in court, while the same Attorney General is not subject to the Executive, the Government or the Knesset.

Below is the most thorough, expansive and brilliant analysis of the Israeli Political/Judicial system I have ever read. It was written by Avi Sheyin-Stevens, an attorney based in the United States. It is not just a worthwhile read but a “Must Read” for anyone concerned with Israel’s well being, security and survival. This analysis has been reproduced with the permission of the author.

“There is much misunderstanding about Israel’s system of government—an assortment of institutions that endow a few people with concealed and despotic power.

“The reason for this pernicious state of affairs is Israel, unlike Australia, France or the United States, has no constitution. Instead, Israel has a variety of ‘Basic Laws’ passed at different times by different governments led by different political parties.

“Basic Laws are enacted by ordinary legislative procedures; and what makes this outrageous, is that in Israel, no quorum is required to pass legislation.

“Israel’s first Basic Law, The Knesset, was initiated by the Knesset Law Committee in 1958, ten years after the founding of the State. Some other Basic Laws are Israel Lands (1960); The President of the State (1964); The Government (1968); The State Economy (1975); The Army (1979); Jerusalem, Capital of Israel (1980); The Judiciary (1984).

“A word about Basic Law: The Government. This law stipulates that ‘The Government is competent to do in the name of the State, subject to any law, any act whose doing is not enjoined by law upon another authority.’ The Government can therefore declare war, make treaties, change the exchange rate, etc., without ever consulting the Knesset.

“Israel’s most important Basic Law: Human Dignity and Freedom (1992), was enacted with only a minority of the Knesset present and voting.

“Nevertheless, Aharon Barak, President of the Supreme Court of Israel (1995-2006), construed this law as endowing the Court with an infinite power of judicial review. This interpretation of Basic Law: Human Dignity and Freedom was a judicial coup d’état, for it prompted Barak to decree that ‘everything is justiciable.’

“The dictum ‘everything is justiciable’ logically includes the laws bestowed at Mount Sinai as well as Israeli Military Ethics. Barak made the Israeli Supreme Court not only a super-legislature, but one that arrogates to itself the power to prescribe the morality and the military defense of the Jewish people!

“Such is the Supreme Court’s unprecedented power—unequaled in any democratic country—that Barak, a left-wing cultural relativist, went so far as to rule in 2005 that Basic Law: Human Dignity and Freedom did not apply to the Government’s expulsion of 10,000 Jews from their homes in Gaza and northern Samaria.

“So what is “basic” about a Basic Law depends on the whim of the Supreme Court. Barak’s dictum that “everything is justiciable” makes nonsense of the rule of law, as well as Israel’s reputation as a democracy. It would be more accurate to classify Israel’s system of governance as a judicial despotism. This is very much the opinion of various scholars, including the eminent American Judge Robert Bork.

“The rule of law is the legal principle that governance is by a specific set of rules rather than by arbitrary power. These rules apply to all the people including those who make the laws.

“According to the principle of binding precedent (stare decisis), a ruling of the Supreme Court is binding upon every entity or organization, and upon every other court, except itself.

The Supreme Court of Israel is exceedingly hyper activist. Under its dictum of ‘everything is justiciable,’ it inserts itself into everything in Israel, including the appointment, the duty, the reward, the performance, and the promotion of public officials; particularly, but not limited to, military officers.

“In the 1990s, the Supreme Court established its control over the Israeli Defense Forces through its self-appointed role as protector of human rights, intervening to secure freedom to demonstrate, reduce military censorship, limit use of certain military methods, rewrite rules of engagement, and, in concert with the independent Attorney General, disallow the appointment of certain senior military officers.

“In Israel, the judiciary has evolved beyond the checks and balances of the executive and the legislative branches of government. Israeli judges in general and justices of The Supreme Court in particular cannot be appointed or confirmed by the Knesset.

“The Supreme Court consists of 15 justices that are appointed by the Judicial Selection Committee. The Selection Committee is composed of nine members: Three Supreme Court Justices (including the President of the Supreme Court), two cabinet ministers (one of them being the Minister of Justice), two Knesset members, and two representatives of the Israel Bar Association. In other words, the three Justices and the two attorneys from the Israeli Bar constitute a majority of the Judicial Selection Committee.

“The Judicial Selection Committee was established in 1953 to appoint all judges in Israel. The founding of the committee was intended to prevent outside political pressure, i.e., to preserve left-wing Ashkenazi dominance, given that loads of Middle Eastern and Sephardi Jews were immigrating to Israel and could tilt the political balance away from the founding Ashkenazi Jews.

“The power of parliament to remove Supreme Court Justices or high court judges is the norm in democracies, particularly those under common law. Supreme Court Justices in the United States, as well as any high ranking government official, can be removed from office by the U.S. Congress.

“Supreme Court Justices in Israel cannot be removed from office except by a decision of the Court of Discipline, consisting of judges appointed by the President of the Supreme Court, or upon a decision of the Judicial Selection Committee with the agreement of seven of its nine members, of which three are justices of the Supreme Court and a further two are Israeli Bar attorneys, generally beholden to the Supreme Court.

“The influence of the Supreme Court committee members is almost absolute: although they constitute only a third of the committee, they are the only cohesive and stable group, while the other members change frequently. Besides, the judges dominate the Committee through an alliance forged with representatives of the Bar Association.

“This system – dubbed by some as the ‘friend brings a friend’ cycle – has been criticized by jurists and politicians, mainly aligned with the political right in Israel, who argued that the selection process does not properly represent public opinion, and that since the Supreme Court inevitably discusses politically disputed matters, the process impairs the principles of democracy.

“The Knesset cannot remove a Supreme Court justice, but in theory it can curtail the power of the Supreme Court; however, there are other secrets about Israeli democracy that would make that near impossible.

“Israel makes the entire country a single electoral district, which precludes regional elections—the practice of almost all democracies, about 30 of which are smaller in size and population than Israel. Israelis are compelled to vote for a party list, and parties win Knesset seats via proportional representation.

“The Knesset is not a ‘House of Representatives’ accountable to voters but a ‘House of Parties’ accountable to party leaders. Since MKs are not individually accountable to the voters in constituency elections—which enables them to ignore public opinion with impunity—they have a vested interest in preserving the existing system. This system, superficially democratic, renders the people powerless: it effectively disenfranchises them.

“For example, public opinion in Israel has been more right-wing than the Government on territorial issue. The Government, regardless of which party or party coalition has been at the helm, has kept to the pursuit of the fatal policy of land for peace, backed by those that advocate, with ideological fervor, the establishment of a misogynistic, homophobic Muslim-majority tyranny (a.k.a. a Palestinian state) on the eastern fringes of Greater Tel Aviv, as the panacea for virtually all the country’s ills.

“This policy has been promoted incessantly by the Supreme Court, dominated by Israel’s left wing. The Barak court ruled that Judea, Samaria, and Gaza constitute ‘belligerent occupied territory’—a position thoroughly refuted by many eminent attorneys,including Attorney Howard Grief; The Legal Foundations and Borders of Israel Under International Law.

“If the Knesset were to make its members individually accountable to the voters, a large majority of the latter would demand an end to the Court’s dictum that ‘everything is justiciable,’ the dictum that enabled the Court to sanctify the Government’s expulsion of Jews from Gaza—the fate awaiting hundreds of thousands of Jews in Judea and Samaria.

“Thus, democratizing the Knesset would lead to democratizing the Supreme Court, which would thwart implementing the policy of land for peace.

The policy of land for peace is a consequence of the absence of the rule of law. According to [President and former] MK Ruby Rivlin, what is called the rule of law in Israel is really ‘a gang that rules under the façade of the rule of law.’

“Another example: The Attorney General of Israel that stands at the head of the legal system of the executive branch and the head of the public legal establishment, in charge of protecting the rule of law cannot be appointed, disciplined or removed by the executive branch, the government or the Knesset. It is an independent appointed position, appointed by a public commission, that includes five members: a retired judge of the supreme court, a former justice minister or attorney general, a Knesset member chosen by the Constitutional Affairs committee of the Knesset, an attorney chosen by the national council of the Israel Bar Association, and a legal expert chosen by the heads of the university law schools in Israel.

“In other words, a judge and three or four attorneys outside the Government choose the head of the legal system of the executive branch; the Attorney General attends the weekly cabinet meetings. It is customary that the decision whom to select for the Attorney General position is brought to the approval of the Government, which usually approves the appointment.”

It is not enough to rue the lack of leadership in Israel. Those that rue the lack of leadership in Israel, demonstrate against “land for peace”, etc., will fail unless they actively pursue a constructive and inspiring goal: the radical reform of Israel’s entire system of governance.

Israel requires leaders armed with profound knowledge of institutions—the kind needed to make Israel a Jewish commonwealth capable of conquering her enemies.

Israel needs leaders committed to the reconstruction of the very foundations of the state: democratizing the Supreme Court, democratizing the Government, and democratizing the Knesset itself.