Titan clash: Judges go head to head with corruptors, ideologues

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Can the law hold up against power? Israel’s Supreme Court will decide on the legality of a controversial Knesset bill passed by the powerful settler lobby to legalise illegal settlements. Courts elsewhere face similar confrontations with politicians.

IN THREE countries close to South African Jews – Israel, South Africa and the United States – a monumental fight is raging between defenders of the law and powerful politicians attempting to subvert it. Protagonists are public figures holding high office including presidents, judges and political leaders. The effects will ultimately be felt by ordinary people.

South Africans cheered last year when the constitutional court’s Chief Justice Mogoeng Mogoeng ruled in a landmark case that President Jacob Zuma failed to uphold the constitution of the republic. He had refused to implement the public protector’s instructions to compensate for benefits he received from state money spent upgrading his private homestead Nkandla. The chief justice’s finding affirmed that the law applied equally to all, despite the president’s contempt for it, and Zuma had to pay back some R7m to the state. In parliament last week the Economic Freedom Fighters party aptly labelled him a constitutional “delinquent”.

In the United States in the last two months, judges stood firm against the new president, Donald Trump, ruling that his executive order signed immediately after taking office barring entry to people from seven Muslim-majority countries be put on hold until its constitutionality was properly tested. Trump’s response – consistent with his narcissistic temperament – was outrage towards the judges, who were doggedly teaching him the limits of his power. He had to abide by their rulings.

In Israel, a battle is raging between proponents of constitutional legality and the settler movement, which succeeded last week in passing in the Knesset the Regularisation Law, driven by Education Minister Naftali Bennett’s Jewish Home party. Dubbed the Land-Grab Law by its detractors, it would allow private Palestinian land in the West Bank to be expropriated by Israel to retroactively legalise settlements which were built there illegally. The settlers will not gain ownership of the land but will be allowed to remain.

The Law’s illegality is so blatant that Israeli President Reuven Rivlin publically condemned it, since Israel has not established sovereignty over the West Bank. This principled stand by Rivlin, who actually supports settlements and reportedly believes in a binational state with equal citizenship among Arabs and Jews as the solution to the conflict, echoed that of Israeli attorney-general Avichai Mandelblit, who said he would not defend it before the Supreme Court, which is where it will inevitably land up.

Rivlin said: “Israel has adopted international law [and cannot] apply and enforce its laws on territories that are not under its sovereignty. [Doing so] will cause Israel to be seen as an apartheid state, which it is not.”

The word apartheid is usually applied to Israel by rabid Israel-haters such as the BDS movement and similar groups. South African Jews who lived through apartheid are highly sensitive to its use, claiming it is totally inappropriate for Israel. Now, alarmingly, Israel’s president has himself warned the country by reference to this word. The extremists among the settlers don’t seem to care, however.

Legally, the case against the Regularisation Law is clear and the Supreme Court will almost certainly declare it unconstitutional. But extreme rightwing political forces will not buckle so easily, and the settler lobby is threatening to undercut the Supreme Court’s authority by passing a law enabling the Knesset to override the Court in certain cases. Fortunately, other eminent rightwing figures in the government have said they would oppose this, such as Finance Minister Moshe Kahlon: “We have no other Supreme Court and it must not be harmed.”

What’s in a name? The law’s proponents call it the Regularisation Law; but those who call it the Land-Grab law have a point. Hopefully, the principled Israelis in positions of power who are defending the country’s commitment to legality will prevail.

(GEOFF SIFRIN is a journalist in Johannesburg, South Africa, and former Editor of the SA Jewish Report. Email:  geoffs@icon.co.za )

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UN Resolution 2334 – wise counsel or anti-Israel vitriol?

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Do settlements prevent peace? An Israeli bulldozer demolishes a house in illegal West Bank settlement Maale Rehavam near Bethlehem in 2014, after Israel’s High Court ruled the state must remove the structures, which were on privately-owned Palestinian land.  Photo: MENAHEM KAHANA / AFP

THE kneejerk response of some Jews and supporters of Israel to last week’s UN Security Council resolution declaring Israel’s West Bank settlements a violation of international law was to scream “anti-Semitism!” and “the UN hates Israel.” Israeli PM Benjamin Netanyahu called the resolution “shameful” and lashed out against its supporters.

The uncomfortable truth is that Resolution 2334 is neither anti-Semitic nor anti-Israel. Most countries that voted for it are Israel’s friends. The Security Council’s permanent members, the United States (which refrained from vetoing it, effectively allowing it to pass), Britain, France, China and Russia, as well as non-permanent members spoke together with a crystal-clear message: For the community of nations, the settlements are illegal.

Predictably, the South African government, which has full diplomatic relations with Israel as well as a long history of comradeship with the Palestinians, called the resolution “long overdue”.

One of the bitterest fights within the Jewish world today, reflected also in South African Jewry, is about Israel’s occupation of the West Bank. Many passionately pro-Israel Jews are unable to defend the country when it is accused of apartheid because Palestinians live under an occupation which has lasted half a century, with a full panoply today of humiliating checkpoints, separate roads, different legal systems and so on. Jewish bodies such as the SA Jewish Board of Deputies valiantly proclaim support for a two-state solution – which corresponds with the government’s line – but are left helpless to defend Israel when illegal settlements proliferate in the West Bank and threaten to make that solution impossible.

A significant proportion of Jews worldwide are dismayed by the impunity with which a relatively small group of ultra-nationalistic, religious Jewish settlers who have a lock-hold on Israel’s government, call the tune and sabotage any possibility of peace by creating new, illegal settlements on land needed for a future Palestinian state. Netanyahu’s claim that the settlements are not the obstacle to peace reflects the complexity of the situation, but does not help Jews who try to defend Israel in the world at large.

Anyone who understands Israel’s context knows ending the settlements will not automatically end the conflict. The Middle East is in turmoil, close to half-a-million Syrians have been killed in that country’s 5-year civil war, and the Palestinians have squandered numerous previous opportunities to get their state, opting instead for terrorism. The rise of Hamas in Gaza after Israel’s withdrawal is a prime example. A change in Palestinian attitudes is demanded by Israel and its friends. But those same friends regard the settlements as illegal and an obstacle to peace.

Settlement supporters take the opposite view, seeing them as today’s authentic Zionism, part of the battle against an anti-Semitic world which wouldn’t care if Israel was eliminated. They accuse anti-settler Jews, such as the peace-seeking Jewish organisation J Street, of being naïve fools who if allowed their way would end up helping Israel’s defeat by its enemies. US president-elect Donald Trump’s proposed US ambassador to Israel David Friedman, an avid settler supporter, likened J Street to the “kapos” – Jews who under the Nazis helped implement European Jews’ extermination.

Settler supporters are mistaken, however, when they declare that Resolution 2334 will spur a new drive to expand Israel into the territories, such as Tzipi Hotovely, Israel’s deputy foreign minister, who says “No decision will cause Israel to stop building on its own land.” Israel cannot forever thumb its nose at the massive global constituency which rejects the settlements.

Resolution 2334 does not say the final Israel-Palestine border should be the June 4, 1967 “green line” between Israel and Jordan which existed before the Six Day War, which is unacceptable for Israel’s security. In 1969, Israel’s legendary diplomat Abba Eban warned that withdrawal from all the territories his country occupied in June 1967 would be a return to “Auschwitz borders.”

But the UN sees that line as the starting point and won’t recognise changes unless agreed by the parties in negotiations. Such changes have already been agreed repeatedly in previous Israeli-Palestinian negotiations, where major settlement blocs will become part of Israel in exchange for Israeli land elsewhere going to Palestine. Jerusalem is the thorniest issue, with its holy sites, but even there workable formulas are possible.

The UN resolution has no short term practical implications. No settlements will be dismantled because of it. But in the long-term countries and organisations may refuse to deal with the settlements, citing the resolution.

Israel is an incredible success story, of which Jews are justifiably proud. Resolution 2334 is a wake-up call from its friends. A wise Israeli leader might see opportunity here to shift direction. But wise leaders are in short supply.

(Geoff Sifrin is a journalist based in Johannesburg, South Africa, and former Editor of the SA Jewish Report. Email: geoffs@icon.co.za)