Thursday, March 01, 2018

  • Thursday, March 01, 2018
  • Elder of Ziyon

 Vic Rosenthal's Weekly Column

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.

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