03 July 2007 - When illegality becomes the law

I have started reading Gershom Gorenberg’s The Accidental Empire: Israel and the Birth of the Settlements, 1967-1977, to get a better idea of how Israel got entangled in the territories. The book describes the policy vacuum in which the occupation was born. Before the Six-Day War, here was no military plan to take the territories, and there was no government plan to annex or settle them in the months that followed.

The initiative was taken by two groups within Israeli society. The first group was the radical left, including kibbutzniks and communist ideologues who believed Israel’s possession of the “Whole Land” was linked to global liberation. The second group was the religious Zionists, who believed Israel’s capture of Jerusalem and the West Bank heralded God’s plan for the redemption of the Jews and the world.

What these two groups had in common, in addition to their millenarian beliefs, was a decentralized, almost anarchic structure that allowed for and encouraged radical actions and charismatic leaders. Other early settlers included refugees from the Etzion Bloc, a group of settlements in the West Bank that was brutally wiped out in the 1948 war, as well as a handful of shell-shocked veterans and bored adventurers.

The only portion of the territories that Israel immediately began to transform was East Jerusalem. Otherwise, the general idea was that they would be traded for peace—permanent peace, not a return to the status quo, as in the 1956 war, after which Israel had been forced by the U.S. to give back the Sinai. But the Arab states, instead of seizing the opportunity, rejected any peace, negotiation or recognition.

So the months wore on, and by September 1967, the Israeli government began to take a serious, if surreptitious, interest in approving and encouraging settlement. Its own legal advisers warned that settling the occupied territories would be a violation of the Fourth Geneva Convention, and that Israel’s contention that the West Bank was not technically occupied would not be accepted internationally.

Eventually, Israel did give back the Sinai and remove its settlers there in exchange for full peace with Egypt. But the rest of the “accidental empire,” minus Gaza, remains in place. The “accident” was created partly by Arab intransigence and by ideological zeal among many left-wing and religious Israelis. But it was also created by strategic confusion among Israeli leaders, and ultimately by deliberate choice.

What emerges from Gorenberg’s account is a picture of a polity in which power is concentrated at the center, but the initiative lies at the periphery. Decisions are made by individuals in defiance of the law, while at the same time the government creates its own law according to its needs and whims. The risks and problems are understood by all, but no one is willing or able to enforce boundaries or limits.

At the same time as have been wading through Gorenberg, I have been paging through a book I happened to find in the library, written by South African law professor Anthony Mathews in 1986. Entitled Freedom, State Security and the Rule of Law: Dilemmas of the Apartheid Society, it describes the consequences of apartheid security laws for freedom in the rest of South African society.

The book makes useful comparisons between apartheid South Africa on the one hand, and Northern Ireland and Israel on the other—useful because the comparisons are not contrived to lead to moral judgments or superficial equations. Rather, they are used to highlight the uniquely destructive nature of apartheid laws, and to warn about the possible consequences of security laws elsewhere.

Here is one passage: “The position in Northern Ireland and Israel may be summed up as follows: In Northern Ireland there are no sweeping security crimes of the kind found in South Africa—most prosecutions are for relevant common-law offences such as murder or arson. The few statutory crimes that exist are reasonably narrow in scope and justifiable responses to security threats.

“In Israel there are some security crimes that are loosely drawn and broad in scope; but these are more closely related to actual security threats than in South Africa. There is nothing either in Northern Ireland or Israel remotely approaching the dragnet criminal prohibitions such as subversion and sabotage that are found in South Africa.” (224)

Mathews also points out that while Israel also has a system of preventative detentions, unlike South Africa “it requires independent external control over every detention order issued by the Minister of Defence.” (233; original emphasis) There is far greater judicial involvement and oversight, he notes, and the regulations of detention are “more favourable to the detainee” than in South Africa. (237)

Later, he concludes: “. . . in two other societies with comparable law and order problems, the violation of the principle of government under law is not so complete [as in South Africa]. The security threats faced by Northern Ireland and Israel are more daunting in several respects than those experienced recently in South Africa. The terror groups operating in those two countries are superior in training and equipment, and more fanatical and ruthless in intent, than the resistance movement in South Africa . . . In countering these greater security threats, the authorities in Northern Ireland and Israel have shown more concern for the rule of law and have managed to preserve it to a higher degree than in South Africa.” (267)

Mathews does, however, warn about some aspects of Israeli security policy that undermine the rule of law. These include laws allowing the government to ban meetings and individuals—which are rarely used, he notes, and are subject to greater constraints and review than in South Africa, but which nonetheless undermine “all the requirements of the rule of law.” (253)

He reserves some of his harshest treatments for Israeli military courts—which still try cases in the occupied territories today: “The use of military courts in Israel [as well as the occupied territories] is a major deviation from criminal justice for which their English ancestry [in the laws of the British Mandate] can no longer be pleaded as an excuse.” (231)

Yet what distinguishes South Africa, he writes, is the degree to which its security laws have undermined law and order everywhere—not just restricting rights for black South Africans, but everyone: “The security system, in brief, has been transformed into an institution destined to serve the interests of none of the social segments of our society, and probably to undermine them all.” (ix; original emphasis)

This is the sign of an apartheid society—“when illegality becomes the law,” as my father often recalls of his youth in South Africa—and, as I have pointed out before, it does not exist in Israel today. Yet the occupation—for which the rule of law has been brushed aside—does threaten the system as a whole, and some have argued for many years that it has contaminated the Israeli legal system already.

In 1990, Professor Steven Cohen—then a professor at Hebrew University, and a human rights activist in both South Africa and Israel—said in a lecture in Jersualem: “[T]he norms of legality applied “over there” spread into, penetrate and contaminate every element of the legal system in Israel itself—lawyers, courts, military police, ordinary police, the prisons, judges, academics.” (5)

Cohen claimed that his South African legal colleagues had been far more conscious of the damage that apartheid laws had done to the law in general, and more active than their Israeli counterparts in exposing it. To the extent that is true, it is very likely the result of what Mathews observed—namely, that apartheid’s laws were worse, while the security threats Israel has faced have been far greater.

Furthermore, the collapse of the rule of law in the occupied territories is not only Israel’s fault; the Palestinian Authority, Fatah and Hamas have done far more than the occupation has done to undermine it. There is a here danger of indulging what Professor Ruth Wisse, in a forthcoming book, calls “moral solipsism,” the self-destructive tendency of Jews to obsess about their own moral imperfections and ignore the role played by others.

Yet the danger that the occupation poses to Israel’s internal cohesion is real—not just because of the demographic threat of an Arab majority in Israeli-controlled lands, but because of the arbitrary, anarchic nature of the occupation. When one looks around at the corruption, the crime, and the general mendacity in Israeli government today, it is hard not to wonder whether the occupation is a cause.

In fact, it is an effect—a symptom of a far deeper problem. Let us go back to 1967. What we see is a picture anticipated by Friedrich Hayek in The Road to Serfdom. Hayek warned that centralized planning, no matter how noble the motive, always led to disaster. Part of the reason was that central planners could never possibly have all the information they would need to make successful interventions.

More important, perhaps, was that central planners would have to make decisions on an arbitrary, ad hoc basis. They would have to make up the rules as they went along, and would have to treat like cases in unlike ways. Over time, Hayek warned, this would undermine the rule of law and return society to the rule of status—the medieval system in which different laws applied to different categories of people.

Hayek’s main concern was that centralization of control in any sphere—even the economic sphere, if separated from the political sphere—would lead to dictatorship. He might just as well have worried about anarchy, for when the rule of law is undermined, citizens take matters into their own hands—setting up black markets, fudging numbers in official reports, setting up illegal enterprises and so on.

Israel today shows signs of both tendencies. In the paralyzed “no-party state” that is the Israeli political system, ordinary people yearn for a strong leader and bemoan the departure of Ariel Sharon. In the economy, people underreport their income to the state and seek kombinas that can create economic value outside the market rules. There is neither despotism nor chaos, but hints of the potential for either.

The rule of status has largely replaced the rule of law in the occupied territories, as different rules apply to Israelis and Palestinians. Meanwhile, in Israel itself, there are many people of undefined status—migrant workers, Arabs from East Jerusalem—and many who are absent from large parts of the system altogether—Haredi Jews and many Israeli Arabs, for example, who do not serve in the army.

These traits of Israeli society probably did not appear after 1967, but were present already by then. They were the result of Israel’s early attachment to centralization, a policy doctrine that was still en vogue around the world in the middle of the twentieth century and remains a national obsession today, perhaps even more so than in Europe. Everyone looks to the central government for answers—while coming up with their own improvised and sometimes extralegal solutions in the meantime.

On my first day in Jerusalem, I was on a public bus when a man got on wearing a T-shirt bearing the face of Joseph Stalin. I was tempted to challenge him. After all, would you get on a bus in Jerusalem wearing a picture of Hitler? But many Israelis (with the possible exception of Soviet olim) still have a soft spot for communism.

The blind faith that the government should come up with a solution—invariably accompanied by admiration for the idiosyncratic individual who breaks all the rules (Russian tycoon Arcadi Gaydamak is the latest incarnation)—continues to reinforce the same systemic weakness that allowed the settlement enterprise to emerge in 1967, and that allows the occupation to continue expanding, illegally, even today.

Ironically, the human rights organizations that are most vocal in their opposition to the occupation have reinforced the centralization of power that has made it possible. They do this, for example, by advocating strongly for socioeconomic rights, whose enforcement is not only impossible but demands precisely the kind of power centralization and arbitrary law-making that Hayek once warned about.

Human rights groups also promote the centralization of power in their radical political orientation—a radicalism that invariably calls on the government to take action of some kind. The proposed strike against state institutions, for example, aims at pressuring the government—using both local and international isolation—but does nothing in itself to advance a solution to the Israeli-Palestinian conflict.

A real solution would involve telling the government to do less, not more. Richard Posner is right when he says that Israel needs a constitution. Many Israelis feel the same way—indeed, the Knesset is working on constitutional models right now—but few people understand why it is really necessary. Fewer still understand that a successful constitution’s role is to limit the power of the government.

Instead, most people who want a constitution want it to resolve several burning questions about Israel’s ethno-religious identity. Is Israel a Jewish state, or a state of all its citizens? Are the Arabs to enjoy equal rights, or special minority protections? What about the Law of Return? What about the role of religion? These are the questions everyone cares about; they are also what holds up the process.

But these issues, while important, have nothing to do with the fundamental purpose of a constitution. What they all have in common is that they seek to use the constitution to enforce a particular social aim. In fact, the goal of a constitution should be to do exactly the opposite—to constrain the government from enforcing particular social aims while freeing the people to achieve those aims themselves.

The most important thing an Israeli constitution must do is remove power from the Knesset and vest it in itself. Power in a liberal democracy should not ultimately rest in the hands of politicians, but institutions. As things stand, Israel’s Basic Laws—a quasi-constitution—are determined by the Knesset. Power must devolve in the reverse direction—from the constitution to the legislature, not the other way ’round.

The Israeli attachment to centralization will be difficult to overcome, because it is deeply rooted. Many of the Israel’s early founders were ardent socialists of one stripe or another—there were pro- and anti-Moscow parties in thee Knesset for decades—and that heritage is woven into Israel’s identity. More conservative political strains have been tainted by their overt association with the occupation.

Another reason people trust centralization is the constant danger Israel faces, which has placed the army at the center of national life. The army is sometimes a liberalizing force, but conscription and reserve duty place (most) citizens under national control for much of their lives. Finally, there are many interests—religious schools, unions, etc.—that are dependent on central government for patronage.

But Israel will never get over its existential anxiety until it divests itself of the ideological baggage of the 19th and 20th century, and invests in an independent constitution and limited government. No doubt there are many enemies who deny Israel’s right to exist, but until Israelis themselves create an independent foundation for their own sovereignty, they will feed their own existential anxiety.

This can be likened to a transition from adolescence to adulthood. Social and religious movements were, of course, critical in the formation and preservation of the state and its identity. Without the utopians who drained the malarial marshes and the fanatics who revived the Hebrew language and the rabbis that gave Israel its spiritual soul, the Zionist project would have been little but a literary fantasy.

These collectivist yet anarchist groups were the earliest forms of institutional life in the Yishuv. They not only laid the foundations and the framework for the Israeli state, but they were the tools with which the Jews of exile re-created themselves as the agents of history rather than its objects. They were, as Hannah Arendt pointed out, the first attempt in centuries by Jews to join the political world, the real world.

And yet these groups had one singular weakness: they could not adapt to changing circumstances. They created institutions, but could not sustain them. We see this today in the Arab world, where leftist groups and Islamist groups have created a nascent alternative to the old postcolonial autocracies, but with a few exceptions have failed to develop their institutional capacity beyond the capacity for violence.

There are a few very successful institutions in Israel today: the Bank of Israel, the High Court of Justice, and of course the IDF, to name a few. But these institutions are bearing more than their share of the burden of sovereignty. The reason, perhaps, that Aharon Barak was such an activist justice was that he had to be: he had to create a de facto constitutional law where none actually exists.

And so the challenge, as Wisse has pointed out, is not for Israel to determine the Jewishness of the state, but the stateness of the Jews. What this might mean is that the solution to the problem of the Israeli occupation of the West Bank (less so the Golan) is not just how to deal with Israel’s external enemies but how to deal with Israel’s own internal political contradictions—its centralized, anarchic character.

Wisse opposed the Oslo peace process because, in her view, it placed undeserved faith in Israel’s enemies, handing them the weapons that they soon turned against Israeli civilians. Oslo was, for Wisse, the latest version of the failed Jewish strategy of adaptation, which makes collective survival conditional on acceptance by the outside world, rather than building and relying on the community’s own strength.

Such a view might counsel against further territorial withdrawals, since they seem only to encourage Israel’s radical enemies, who construe withdrawal as retreat. The experience of the withdrawal from Lebanon in 2000 and the disengagement from Gaza in 2005 provides plenty of evidence for that argument. With Iran on the horizon, better not to pull back from yet more territory in the West Bank and Golan.

And yet the greatness of the disengagement, as well as the controversial security barrier in the West Bank, is that they both set limits (real and potential, respectively) to Israel’s borders. In Gaza in particular, the Israeli government finally upheld the rule of law (domestic and international) in relation to the territories when it removed thousands of its own citizens from the area.

These measures, in setting limits to Israel’s territorial ambitions and to the dream of a “Greater Israel,” confirmed not only the willingness of Israelis to make sacrifices for peace but also the paramount importance of the rule of law in Israeli society. The disengagement was a political decision by a rump government, but given broad public support for the policy, had quasi-independent legitimacy.

In 2006, Ehud Olmert and the Kadima party were elected on the promise of further withdrawals. Today, in the wake of the Lebanon War and the Hamas takeover in Gaza, it would be almost impossible to get an Israeli majority to back withdrawals from more territory. New Labour Party leader Ehud Barak is proposing to continue where Sharon left off, but it is hard to see the public supporting that plan.

There is talk of other options. One is to wait and do nothing until the Palestinians figure out that they have to build their own state. Another is the idea of Palestinian confederation with Jordan, which opposition from King Abdullah has failed to kill. There is the Northern Ireland option, which I suggested earlier this week, and there is also the radical single-state option, which nobody important takes seriously (yet).

No one knows what will eventually happen; and in any case, none of these proposals is a magic formula for peace. Israel’s best option in the short term might be to remain open to negotiated settlement, while focusing on internal reforms, especially the constitution. Creating a new system that takes power away from the central government and enshrines the rule of law might also help resolve the occupation.

Last night, someone pointed out to me the fallacy of the canard that “Israel’s strength is its weakness.” It is the way in which Israel uses—or fails to use—power, not the fact of its power, that makes it vulnerable. To assert that power successfully in the region, it needs to rebuild the foundations of that power internally as well. The political vacuum that enabled the occupation should not continue to prevent its end.