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December 7, 2011: The Legal and the Political

December 7, 2011

When I wrote two days ago about what Alan Dershowitz said at the Begin Center, I expressed some surprise, relative to one particular issue.

What Professor Dershowitz said was that the ICC (International Criminal Court) has no jurisdiction with regard to states where there is an independent judiciary that will handle the situation.  And, that the most important weapon in defending Israelis in this venue is Israel’s strong judiciary.

What I wrote was that, while I am not a human rights lawyer, I found his comments surprising in light of what I know is Israeli concern about the ICC — concern that the Palestinian Arabs, if they are recognized as having the authority of a state, might press charges for war crimes via the ICC against those who fight Israel’s wars (minister of defense, generals, etc).

I said I wanted to check further.


Dershowitz also said that Israel allows the best access to its high court in the world.  This is absolutely the case.  Anyone in Israeli can petition the court (which decides whether or not to hear the case).

And then he extrapolated, carrying this thought one step further: Don’t change this system, he warned, as it might weaken Israel’s ability to defend herself in the ICC.

At that point I felt an uneasy sense that Dershowitz might be mixing the legal and the political: drawing on a particular legal take on the matter to reinforce his political position.  Or, putting it differently, perhaps allowing his political position to color his legal take. But on Monday I was not yet prepared to consider this in writing.


Israel is currently deeply embroiled in discussion with regard to limiting access to the court (along with other discussions involving the court in which legislators and others are now engaged).  Legislation is being proposed that would limit ability to petition the court to individuals with standing in a case.

This, which is being decried in certain quarters as “undemocratic,” is precisely how the US Supreme Court works.  Let me provide an example.  Recently the US Court heard a case regarding the right of American citizens born in Jerusalem to have “Israel” on their birth certificates.  The case was brought in the name of a child to whom this situation adheres.  No one would have been permitted to come to the Court and say that he or she, even though not affected personally, demands a certain outcome as a general principle.

But what we have here is a situation in which, for example, Peace Now can go into the Court and protest against a particular settlement in Judea or Samaria when no one directly involved, no one who would be affected by the outcome of the case, has protested or registered a claim.

Does it make sense to refrain from modifying this system — which in the opinion of many badly needs modifying — because of the ICC?


Today I consulted with an international lawyer of considerable experience.  

Leaving aside a number of legal particulars, he said, first, that an “independent judiciary” in and of itself is not enough to insulate us from prosecution by the ICC. 

The State (i.e., Israel in this case) has to be willing and able to investigate and prosecute.  What this means is spelled out within the Statute of the Court: If there is an unwillingness to prosecute because of a desire to shield an individual from criminal responsibility; or if there is an unjustified delay; or proceedings are not being conducted impartially, the State is not insulated.  And so proceedings within our system might provide protection, but the situation is not entirely clear cut.

Would it matter in the slightest if the Israeli court system were adjusted so that only those with standing could petition the court?  Well, most probably not, but…it would be the attorney-general who would have to investigate and prosecute.  As matters stand now, if the a-g refused to prosecute, in theory, someone might petition the court in order to challenge that decision.


At this point my legal expert paused, and said this would be a very unlikely state of affairs. Then he paused again and made a statement of another sort:

The current debate regarding the Court and the relationship between the Court and other branches of the government is a healthy process that is part of the democratic system.  It is dangerous to that democratic process and to the sovereignty of Israel as a nation to bring in international opinions and facts in the course of that debate.  It is, in fact, “wrong” to bring in international issues. 


We are seeing a triumvirate working on behalf of Obama, attempting to weaken Israel.  I’ve already mentioned Defense Secretary Panetta and Howard Gutman, the US Ambassador to Belgium.  But Secretary of State Hillary Clinton must be included.  

Clinton spoke at the Brookings Institution’s Saban Center last Friday night along with Panetta.


Caroline Glick, in her yesterday’s column, “An Ally No More,” described at least part of the situation:

“The same Secretary of State that has heralded negotiations with the violent, fanatical misogynists of the Taliban; who has extolled Saudi Arabia where women are given ten lashes for driving, and whose State Department trained female-hating Muslim Brotherhood operatives in the lead-up to the current elections in Egypt accused Israel of repressing women’s rights. The only state in the region where women are given full rights and legal protections became the focus of Clinton’s righteous feminist wrath.

“In the IDF, as in the rest of the country, religious coercion is forbidden. Jewish law prohibits men from listening to women’s voices in song. And recently, when a group of religious soldiers were presented with an IDF band that featured female vocalists, keeping faith with their Orthodox observance, they walked out of the auditorium. The vocalists were not barred from singing. They were not mistreated. They were simply not listened to.

“And as far as Clinton is concerned, this is proof that women in Israel are under attack. Barred by law from forcing their soldiers [to spurn] their religious obligations, IDF commanders were guilty [says Clinton] of crimes against democracy for allowing the troops to exit the hall.”



This is not the whole story: there is more being reported with regard to what Clinton said, although I’ve been unable to locate the text of her speech on the Internet.  Her words were delivered at a “closed” session that was not supposed to be public.  But public it is!

According to one report, she said that what went on with the women singers reminded her of Iran.  Iran?

Another issue she raised was the efforts of ultra-Orthodox haredim in certain limited communities here to promote separate seating for men and woman on the buses they patronize extensively (something not mandated by Jewish law, it should be noted, and not in any way mandated by Israeli law!)

Making a very inept and insulting comparison, she said this called to mind the situation of Rosa Parks (during the time in 1955 when black people were pushed to the back of the bus in Alabama).


Clinton professed “concern” about the “erosion of democracy” in Israel.  Heaven forbid that she might praise the strength of Israel’s democracy, especially in the face of growing radical Islamist control in surrounding nations.  Nope!  The name of the game is weakening Israel.

And in this respect, there is yet one other issue she raised: efforts by members of the Knesset to limit the foreign funding of NGOs here. 

First of all this is none of her business.  We are a sovereign nation, even if she would prefer not to see it that way.

And the fact is that limiting that foreign funding actually makes our system more, not less, democratic.  I alluded to Peace Now, above, and its ability to petition the Court.  Well, Peace Now receives funding from foreign nations predisposed to establishment of a Palestinian State in Judea and Samaria (which is not how a majority of Israelis are predisposed right now).  There is a strong feeling that NGOs registered in Israel should work on behalf of the Israeli populace and not have a sense of being beholden to foreign governments that do funding.   


Senator Mark Kirk (R-IL) has co-authored with Senator Robert Menendez (D-NJ) a proposal to penalize foreign financial institutions that do business with Iran’s Central Bank by cutting them off from US financial institutions.  In spite of lobbying against it by officials from the administration, it passed the Senate unanimously last week.  And a similar proposal is pending in the House.

Now, however, Kirk is saying that some legislators’ offices have received a communication from the Obama administration that “proposed what they describe as technical fixes.”

Says Kirk, “They are not fixes at all. They are meant to undermine the amendment.”  The administration was suggesting a grace period three times what the original proposal allowed, and “watering down of penalties.”

The argument of the administration is that “threatening allies is not the best way to get cooperation.”  The old Obama line.  Be nice.  Ineffective, but nice.

But zero hour is approaching with regard to Iran’s nuclear capabilities, and hitting Iran’s Central Bank is essential. So I have to ask: Just which side is Obama on?



Just days ago, Prime Minister Netanyahu — in a statement that was both bewildering and absolutely maddening — explained that there seemed to be a moderating tendency in the PA, and so it was time to release tax funds that Israel had withheld since the PA applied for full membership in UNESCO.  Maddening, because of the lack of genuine evidence of PA moderation.

But in light of some new information, it seems possible, if not probable, that he was motivated by some significant additional factors, beyond the normal push by Obama.  It appears that he was operating under duress — subtly blackmailed, is perhaps an accurate description. 

According to the German newspaper Welt am Sonntag, as reported by the JPost, German Chancellor Angela Merkel threatened to stop delivery to the Israeli navy of a dolphin-class German submarine capable of carrying nuclear warheads unless he released funds to the PA.  Israel has three such submarines now, and they could play an important role in a second strike; possession of yet a another is not an insignificant matter.

No one has come forward to testify publicly to exactly what Merkel said to Netanyahu. But the report by the German paper indicates that the announcement by the German government that it would build for Israel and pay up to one-third the cost of the submarine came immediately after Netanyahu announced the release of the PA funds.  What is more, says the paper, the Merkel administration “informed the heads of parties…and leading foreign politicians that Israel made concessions.”


Another “hmmm…” 

I read what I wrote above, which I will let stand, and I wonder about the cost to us of conceding something — even for a good purpose — if “foreign politicians” are told that “Israel made concessions.”  Hey, if we can make concessions in one situation, there will always be more expected of us down the road.  And yet it is probably not possible to function in the real world without concessions sometimes.  The trick is deciding when to make those concessions and how — considering the trade-off and the ramifications.

I would not want to be in Netanyahu’s shoes.


Please see the markedly different interpretation of Daniel Pipes on the election in Egypt.

“If the military colludes with Islamists to remain in power, obviously it, and not Islamists retains ultimate control. This is the key point that conventional analysts miss: the recent election results allow the military to keep power.”



Within the next five years, 20 million African men and youths will undergo circumcisions.  The goal is a reduction in the spread of AIDs: it is anticipated that this will save 3.4 million people from becoming HIV positive and save $16.5 billion in funds that would be needed to care for them.  Studies show that the risk of contracting the disease can be reduced by up to 60% if circumcisions are performed.

Israel has been a significant participant in this program — both advocating this, and providing the expertise on doing the surgery. Israel’s expertise with regard to doing circumcisions on adult males is extraordinary because of some 100,000 men — many from Russia — who came into the country without having been circumcised and but sought to be fully Jewish.  This is now helping to save many lives and enhance medical knowledge in the Third World. 


© Arlene Kushner. This material is produced by Arlene Kushner, functioning as an independent journalist. Permission is granted for it to be reproduced only with proper attribution.




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