September 2005

The Fence, Elections, Peace Index, Israeli Institutions at the Crossroads, Nature, New Article, New Books


The Fence

On September 15, 2005, the High Court of Justice in a 9-0 unanimous vote upheld a petition submitted by Palestinian residents of West Bank villages, ruling that the state must reconsider within a reasonable timeframe an alternative route for the fence in the area of the northern West Bank settlement of Alfei Menashe.

The petition was submitted by residents of five Palestinian villages in the Alfei Menashe enclave. The fence separates them from the rest of the West Bank and nearby urban areas - Qalqilyah to the north and Habla to the south - where the residents had gone for most of their services. "Since the fence went up in the area, nearly all the residents of the Palestinian enclave have lost their jobs, and their struggle for survival obligates them to choose between illegal infiltration into Israel and occasional work at starvation wages in Alfei Menashe, as the servants to the settlers," the petition said.

The panel nevertheless rejected the July 2004 ruling by the International Court of Justice in the Hague and ruled that Israel has the principled right to build a separation fence in the West Bank, beyond the Green Line, for security reasons.

This decision contradicts the petitioners' stance that Israel does not have the authority to build the fence beyond the Green Line and that the fence was being built for political, not security, reasons.

The nine-justice panel headed by Supreme Court President Aharon Barak ruled that according to international law, an army in occupied territory is authorized to erect a fence in order to protect the lives of Israelis, including settlers. The High Court based its ruling on regulations of the International Court of Justice in the Hague, which constitute an integral part of international law, as well as the constitutional rights of settlers under Israeli law.

The justices ruled that the international court's decision should be given legal weight, but that since the judges at The Hague were not presented with the complete evidential basis for Israel's security needs, the international court's ruling does not bind the Israeli High Court of Justice.
The panel said the Israel Defense Forces must come up with new solutions that would not adversely affect the quality of life of Palestinian residents as severely as the current route does.
The ruling is likely to have serious repercussions for the actual construction of the separation fence as well as for Israel's foreign policy. Reminder: in June 2004, the High Court invalidated 30 kilometers of the planned fence route near Jerusalem, in response to a petition submitted by residents of the West Bank village of Beit Surik near Mevasseret Zion. In that decision, the court avoided ruling on whether the state has the authority to build a fence in the West Bank - an issue the justices addressed in this ruling.


Elections

The intensity of events in Israel is always impressive. The disengagement process has not ended, as the smell of elections has become strong and pressing. In a matter of a few months, the Likud Central Committee will convene to decide about the future of Sharon, of Bibi, and of the party. This is the prize Sharon received for evacuating lands of Israel.

There is a significant discrepancy between Sharon's popularity in the Israeli public, and his popularity in the Likud Center. Netanyahu, relying on his polls, retired from the government in order to challenge Sharon. His entire agenda is dictated by polls. Hard to believe that this is the way a leader conducts his move, but true. Hard to say whether Sharon will be able to close the gap between him and Netanyahu. Meanwhile, in the Labour Party Ehud Barak, the main rival of Shimon Peres within the party, called his fellow party leaders to unify around Shimon Peres (on August 30, 2005), arguing that Shimon has the best chance of winning the elections, especially against Netanyahu. Barak is right.

I was asked: What do you think of Bibi's chances of gaining the Prime Ministership at the next elections? Well, it is going to be very close. Current polls show that if Sharon would run against Peres, he is sure to win. But the Likud apparently does not want Sharon. The polls show that Peres and Bibi have equal chances to win were they to run against one another.

I have met Bibi several times, and heard him enough times to consolidate an opinion about his abilities. I think he is an excellent PR person, arguably the best spokesperson Israel has. Bibi, however, is not satisfied with this role. He wishes to lead and to make decisions. Here I have many reservations about his capabilities and qualities. I always said that he is clever, a thinker, but neither a deep thinker nor a careful one. He allows his instincts to guide him and to take over. He is rushing into decisions possibly because he lacks the required patience. His worldview is very right-wing, not to say extreme right. He is far from being a moderate who has the will to compromise over the lands of Israel. When he was in power, he did his best, quite successfully, to halt the Oslo process and to frustrate Arafat. He certainly has some shares in paving the way for the eruption of the terror campaign against Israel in 2000. The positive momentum in the Rabin-Peres days was lost, to such an extent that Barak was unable to recapture it. I would not like to trust Israel in the hands of this person. We humans are all prone to make mistakes, but we cannot afford Bibi's likely mistakes.


Peace Index

Prof. Ephraim Yaar and Prof. Tamar Hermann found in their peace index survey that was conducted from August 30 to September 1, 2005 the following:

The prevalent view among the Jewish public is that the disengagement plan from Gaza is only a first step toward an extensive evacuation of West Bank settlements that will be carried out in the context of an agreement with the Palestinians. At the same time, only a small majority supports an evacuation of this kind, whether in the framework of an agreement with the Palestinians or in unilateral fashion, with the clear preference being for an evacuation that is part of an agreement. The small advantage of the supporters of a further evacuation can be ascribed to several factors, such as: opposition in principle to dismantling Jewish settlements, especially in the West Bank; lack of trust in the ability and intentions of the Palestinians; and the effects on Israeli society of the Gaza unilateral-evacuation experience.

As for the performance of the disengagement, a large majority of the Jewish public believes the security forces showed great or very great consideration toward the settlers. A slightly smaller majority thinks the degree of violence the settlers displayed was slight or very slight. However, the rate of those saying the settlers’ leadership showed little or very little responsibility is higher than the rate of those who think they demonstrated great or very great responsibility.
As for the Jewish public’s assessment of who can advance the peace process with the Palestinians while safeguarding Israel’s vital interests, it appears that Ariel Sharon is unquestionably in first place, with Bibi Netanyahu and Shimon Peres trailing far behind with equal support. At the bottom of the list, receiving just a few percentage points, is Ehud Barak. About one-fourth of all the Jewish interviewees, however, see none of these individuals as suited to the task.


Israeli Institutions at the Crossroads

Just published: R. Cohen-Almagor, Editor, Israeli Institutions at the Crossroads (London: Routledge, 2005). Here is my final word, published with permission by Routledge:


Israeli Institutions at the Crossroads
Raphael Cohen-Almagor

Abstract

This essay discusses the SHABAC affair of 1984, conceiving it as the most serious scandal in Israel's history. I argue that key figures and institutions in Israeli society, including the president, the prime minister, the government, the knesset, the SHABAC, the army, and the Supreme Court acted wrongly in this affair. I then move on to discuss the government institution, protesting against the tendency to form unified governments composed of the two leading parties, Likud and Labour. I assert that stable democracy needs a strong government and no less importantly a strong coalition. Only in time of war there is room to consider such a unified government. As for the Knesset, it is suggested to raise the entry threshold to 5 percent of the electorate in order to decrease the number of parties represented. It is further suggested to change the voting system: Sixty percent of the Knesset to be elected directly via a party list, and forty percent to be elected in the districts. Finally, I discuss the roles of the Supreme Court, arguing that they do not include legislation. At the same time, judges can employ creative interpretations of the law when they formulate their rulings. It is further suggested that the Court should strive to represent different religious, national and cultural groups of society.

Introduction
In this closing chapter I wish to consider some of the issues raised by the contributors to this book. The discussion is supposed to give the readers some food for thought as to how we can contribute to the safeguarding and enhancing of Israeli institutions.

The Role of the President
Yitzhak Navon discusses in his article the SHABAC (Line 300 episode) of 12 April 1984, specifically the decision of President Haim Herzog to grant clemency to the SHABAC agents involved in the killing and coverup of the two Arabs who kidnapped a bus and were subsequently caught. Israeli democracy has known many tragic affairs and scandals but I think the SHABAC affair is arguably the most serious of all. Almost all the key figures involved in this episode acted, in my opinion, wrongly. The affair started with the wrong decision of the head of the SHABAC, Avraham Shalom, to execute the two kidnappers after they surrendered; continued with SHABAC attempts to sabotage and to undermine the work of two investigation committees - the Zorea Committee established in April 1984 and the Blatman Committee established in April 1985 - appointed to reveal the truth. The SHABAC insisted on having a representative in the Zorea Committee and here the SHABAC top agent, Yossi Genosar, excelled in his attempts to clear his colleauges and to incriminate Brigadier General Yitzhak Mordechay, who interrogated the two Arabs in the field outside the bus but did not kill them. Mordechay had to face a court trial which exonerated him. Then, in October 1985 three SHABAC top officers, Reuven Hazak, Peleg Raday and Rafi Malka, who could not continue living with the deceit approached Prime Minister Shimon Peres, told him what they know about the affair, but Peres preferred to back up Avraham Shalom. Consequently, the three top officers were forced to resign from the service. The two other members in the "Prime Ministers Forum", Yitzhak Shamir and Yitzhak Rabin, backed Peres's erroneous decision.
The government, wishing to put an end to this affair, in effect terminated the Attorney General's term in office, although Prof. Zamir made it clear that he wished to serve in office until the affair comes to a conclusion. The main figure who stood for law, order and furthering truth and justice had to step down from office for his insistence to pursue the matter by ordering a police investigation. However, the scheme did not help as Zamir's replacement, Yoseph Harish who entered office in June 1986, reached the same conclusion and ordered the opening of a police investigation.
Then came President Herzog's shameless decision to grant clemency to the SHABAC agents before they were convicted. The decision was backed by Attorney General Harish, Minister of Justice Yitzhak Modai, Minister of Defence Arens and most of the government ministers (the only objection came from Ezer Weitzman, who later became President). This act mocks procedures of justice. And finally the Supreme Court refrained from disqualifying the amnesty decision, preferring security considerations over the principle of equality before the law. The Supreme Court, in a 2 to 1 decision (Meir Shamgar and Miriam Ben-Porat v. Aharon Barak) held that were the SHABAC agents to stand trial, severe damage was to be expected to the highest public interest, and that under the circumstances no other reasonable solution could be effectuated. I beg to differ. To my mind, severe damage was inflicted on the public interest as a result of the clemency decision, and the reasonable solution should have been to unveil the deceit and corrupt behaviour of the SHABAC in this affair, introducing law and order norms into a service that was acting secretively, away from the public eye, and consequently allowed itself to act in accordance with unacceptable norms of murdering people after they surrender, lying to law and order authorities, blaming others for their own wrong deeds, and then getting away with all this misconduct by approaching the state president, holding tight to the altar of security. Never in our history was there such a lunar eclipse, where key figures cooperated to defend a corrupt secret service, holding false security considerations as a sacred supreme value.[1]

The Government
In the near future it seems that the Likud Party will continue to lead the country. The Labour Party should resist the temptation to join another coalition government with the Likud. Stable democracy needs a strong government and no less important a strong opposition. Labour, and Israel, paid a high price for sitting together with the Likud in the previous governments. Labour lost its identity. You cannot be part of a government and then go out and criticize it for misconduct. The public is not stupid. The public realizes that Labour was part of this same government until yesterday and all it has to offer is different people, but the same direction. If the choice is between the original and the copy, the original is preferable.
Israel also paid a high price. I see a direct link between the lack of strong opposition and rising corruption. Without sufficient safeguards and brakes, both parties are exploiting their power and some are tempted to cross not only ethical but also legal boundaries. I think that the only exception to this anti-Likud/Labour coalition is a time of war. Such a coalition was justified in 1967, on the eve of the Six Day War for a limited period of time. I did not imagine that Labour and the Likud would stick to this coalition for years since the 1980s. I hope the leaders of the second largest party will be wise enough to understand the political price they will have to pay if they do this. The Labour leaders were not very prudent in entering into a coalition government under Ariel Sharon's leadership. Now they pay the price.
Patience will pay in the long run. To be credible, the second major party should offer opposition to the government, otherwise it will lose its identity.

The Knesset
The Knesset, as Naomi Chazan rightly notes, has far too many parties. Consequently, its legislative effectiveness is relatively small, and the government’s ability to sustain power is lessened. The multi-faction composition opens the way to manipulations, gives rise to blackmail and undermines coalition effectiveness. The threshold to enter parliament, 1.5 percent of the electoral vote, gives a lot of leeway to representation and exploitation at the expense of stability, working to further the ends of partisan groups. I would suggest raising the threshold to five percent, as is the case in Germany. Effectively, this law restricts the number of splinter parties in the Bundestag and the regional parliaments and promotes political stability.[2] The five percent clause has been a factor in every federal election since 1957.
Germany has certainly learnt the lessons of its history and can serve as a model also with regard to the voting system. Germany is using a mixed electoral system[3] in which part of the Bundestag is elected in single majority districts in which a candidate must gain the greatest number of votes to win, and part is elected through proportional representation, which gives all parties a fair opportunity to gain some representation in the legislature based on their electoral strength. Germany’s policymakers after WWII wanted to avoid a repetition of the Weimar proportional representation system, which encouraged multiplicity of parties to run candidates for the Reichstag, thereby contributing to political instability and to the rise of National Socialism.[4] In the early 1990s, Russia, Mexico and Japan adopted a similar mixed electoral system. I suggest the same for Israel. Sixty percent of the Knesset to be elected directly via a party list as is now the case in the proportional system, and forty percent to be elected in the districts.[5] The idea is to split Israel into several districts in a way that would reflect the various groups in society and their relative prominence.[6] Each voter will cast two ballots: the first for one of the competing party candidates in the district; the second for one of the lists of candidates drawn up by each party. The number of mandates received by the party is based on its percentage of votes in the entire country. The seats are then distributed to the parties according to their strength in each district.[7] The combination of a relatively high threshold and a mixed electoral system would reduce the ability of small interest parties to be elected, will make the Knesset less diversified, with five or six parties at most, and reduce the extortion power of the small parties, some of which would altogether disappear. The Knesset’s power will rise and its effectiveness as a legislative body would grow.
I am not the first to suggest these reforms. They have been put on the public agenda time and again, and every time have been turned down due to pressure exerted by the small parties fighting for their survival. Most notably, the religious parties have resisted such attempts with notable success. Israel needs strong and bold leaders who are able to rise above and beyond their immediate interest to sustain power in order to carry out these reforms to better legislative ability.

The Supreme Court
The Supreme Court has attracted quite a lot of criticism in recent years. It was attacked by conservative and religious circles for its liberal adjudication on civil matters. In turn, the Court was attacked by the political left for its often hard line approach on security matters. I would like to take issue with two general lines of critique: the Court's activist approach, and its lack of representation of significant segments of society.
As for the first issue, Israel has no constitution, no bill of rights, nor even a Basic Law to defend fundamental civil liberties, thus the Court is the main bastion of safeguarding democracy and human rights. For this reason justices of the Supreme Court are often required to adopt a creative approach in adjudication. The Court cannot hide behind the lack of explicit written provision when crucial questions of constitutional nature are at issue, leaving their resolution in the hands of partisan politicians. Since political parties had failed to reach a compromise over the enactment of a law to safeguard civil rights, requiring individuals and bodies to approach the Court to find assistance, the Court should not refrain from taking a stand on constitutional matters. Having said that, the Court derives its authority from the law, and it has to adjudicate in accordance with the law. In addition, the Court cannot ignore the social and political environment in which its decisions are made and their likely implications.

This book describes in detail the tensions and schisms that are part and parcel of Israeli life. In such an atmosphere, the role of the judge is to set standards for action for both politicians and the courts when they are faced with constitutional matters, especially where attacks on the very foundations of democracy are concerned. Hence a framework exists for taking normative constitutional principles into account. These principles may in some "hard cases" convince the Court to take a creative approach.[8] Here are two sets of considerations that inevitably play their part when judges come to formulate a ruling. One set is related to the moral convictions held by the judges, influenced by their personal upbringing and educational background, as well as by the tradition and values of the society in which they live. The other is concerned with the specific legal history. Precedents and other legal facts are bound to limit the moral considerations of judges but they should not exclude moral considerations altogether. When faced with an unprecedented situation, in which they are required to use their discretion to find a judicial solution to a "hard case", judges should decide the case by interpreting the political structure of their community so as to find the best possible justification, in principles of political morality, for the structure as a whole. Accordingly, if the right of people to be treated as equals and not to be harmed by others can be defended only by creative adjudication, then creativity is not only in order but necessary. This is the case as long as the judge tries to make the creative decision in line with previous ones rather than starting in a new direction as if writing on a clean slate.[9]
At the same time, a difference exists between creative interpretation and judicial legislation. It is not the role of the Court to legislate. Instead, one of its roles is to scrutinize the legislature. One may argue that the difference between the two concepts is merely semantic. I, on the other hand, think that the tone often makes the music. Even only for tactical reasons, the Court should be aware of its place and of its role in the democratic system and exhibit its awareness to the public. It should not attempt to replace the work of the Knesset.
The second major critique that is often voiced against the Court relates to its lack of representation. The Court was attacked for its social homogeneity. There was never an Arab justice in permanent appointment. The Court consists of mainly Ashkenazi, secular Jews and it is argued that they tend to have much in common. Consequently their adjudications do not reflect ideas and opinions that are prevalent among the Sephardi and the more traditional circles.
The ethnic/religious/national origins of a candidate should not be the major consideration in appointing him or her to the Court. Merit, of course, should be the first and foremost consideration. But sometimes there may be two or three candidates with similar credentials and experience. Then the candidate's social background may play a role. The Court should strive to represent major sectors of society, and not be aloof from the social environment and the citizens whom it serves. It is to its advantage to try to represent large societal segments and to have plural worldviews stemming from different religious, national and cultural backgrounds.


Nature

The two terrifying storms, Katrina and Rita evoked somber thoughts. We have achieved so much, conquering the moon and Mars, yet stand and watch how such storms are building up, and the only measure we take is evacuation. If people in the Bush administration are reading this, I plead with you: Put together a group of scientists to explore ways to mitigate storms and halt their building up into destructive hurricanes. I find it hard to believe that we can't do anything, but just watch their gaining strength.


New Article

Media Coverage of Acts of Terrorism: Troubling Episodes and Suggested Guidelines, Canadian Journal of Communication, Volume 30, No. 3 (2005), pp. 383-409.


The job of the press is not to worry about the consequences of its coverage, but to tell the truth… As much as those of us in the press would like to be popular and loved, it is more important that we are accurate and fair… and let the chips fall where they may.


Larry Grossmann,
President, NBC News

Abstract
During the past forty years there have been many instances in which media coverage of terrorist events was problematic and irresponsible, evoking public criticism and antagonizing the authorities. This essay aims to shed light on the intricate relationships between government, media and terrorists. Through close scrutiny of irresponsible actions of some organs of the media in crisis situations in the USA, the UK, Israel, Canada and Germany, it is argued that important lessons should be learned, indicating the need to develop a set of guidelines for responsible media coverage of terror. One might think that in this triangle of government, media, and terrorists the media would side with the government in the fight against terror. This study shows that this was not always the case, and that the media sometimes allied themselves with terrorists for partisan or ideological reasons. The media should cooperate with the government when human lives are at stake in order to bring a peaceful end to the terrorist episode.


The article will be of interest to people who are interested in ethics, communication and terror; to academics, media professionals and politicians. Those interested to read it are welcome to contact me and I'll gladly send a copy.


New Books

Eric Barendt, Freedom of Speech (Oxford: Oxford University Press, 2005), revised and updated edition of the 1985 book.

R. Cohen-Almagor, Israeli Democracy at the Crossroads (London: Routledge, 2005).

R. Cohen-Almagor, Israeli Institutions at the Crossroads (London: Routledge, 2005).

Martin Hirst and Roger Patching, Journalism Ethics: Arguments and Cases (Melbourne: Oxford University Press, 2005).


Please consider ordering them for your library.


With my very best wishes from Villa dei Pini, Shana Tova U'meusheret,

Rafi

My last communications are available on http://almagor.blogspot.com
Earlier posts at my home page: http://lib-stu.haifa.ac.il/staff/rcohen-Almagor
Books archived at http://almagor.fetchauthor.info
Center for Democratic Studies http://hcc.haifa.ac.il/~rca/center/


Those wishing to subscribe this monthly Newsletter are welcome to contact Raphael Cohen-Almagor at ralmagor@soc.haifa.ac.il

[1]. For further discussion, see "Maariv Report: The Shabac Affair", Maariv (18 July 1986), pp. 6-8 (Hebrew); M. Kremnitzer, "The Case of the Security Services Pardon", Tel-Aviv Univ. L. Rev., Vol. 12 (1986), 595; Ilan Rachum, The Shabac Affair (Jerusalem: Carmel, 1990) (Hebrew).
· [2]. In Germany, parties that achieve less than 5% of the votes or do not receive at least three direct mandates for the constituency candidates cannot participate in the allocation of seats. See Eckhard Jesse, Elections: The Federal Republic of Germany in Comparison (New York: Berg, 1990), p. 71.
· [3]. But see Eckhard Jesse, "The Electoral System: More Continuity than Change", in Ludger Helms (ed.), Institutions and Institutional Change in the Federal Republic of Germany (Houndmills: Macmillan, 2000), pp. 124-142, esp. p. 127.
· [4]. Gerhard Braunthal, Parties and Politics in Modern Germany (Boulder, Col.: Westview Press, 1996), p. 46. See also Susan E. Scarrow, "Political Parties and the Changing Framework of German Electoral Competition", in Christopher J. Anderson and Carsten Zelle (eds.), Stability and Change in German Elections (Westport, Conn.: Praeger, 1998), pp. 301-322.
· [5]. In Germany, each of the two systems weighs 50 per cent of the voting power. I suggest breaking the balance and giving more weight to the proportional system because experience of primaries held in the two major parties, Labour and Likud, showed that candidates competing on the national level were better equipped to serve as legislators than representatives elected in the districts. The Likud does not hold primaries anymore and shifted the locus of power to its central committee. Labour still resorts to primaries that combine the mixed electoral system: some are elected nationally; others in the districts.
· [6]. Until German unification in 1990, each Bundestag had at least 496 deputies, half of them elected directly by plurality in the 248 single-member districts and the other half elected on a system of proportional representation by party lists in the country. Since unification, the deputies number at least 656, and the districts 328 to provide sufficient representation to eastern German voters. The size of each district must not deviate by more than one fourth from the national average. See David P. Conradt, “The 1994 Campaign and Election”, in David P. Conradt, Gerald R. Kleinfeld, George K. Romoser and Christian Soe (eds.), Germany’s New Politics (Providence, RI.: Berghahn Books, 1995), p. 2; Braunthal, Parties and Politics in Modern Germany, op. cit., p. 47. See also Peter James, The German Electoral System (London: Ashgate, 2003).
· [7]. Of the two ballots, the second is the more important because it will determine the number of parliament seats that each party gains. If a party receives more direct seats than it would be entitled to under proportional representation, then it receives additional seats. In the 1994 Bundestag elections, two of the parties (CDU and SPD) received 16 additional mandates. For further discussion, see Gert-Joachim Glaessner, The Unification Process in Germany (London: Pinter Publishers, 1992).
[8]. Ronald M. Dworkin, "Hard Cases", Harvard Law Review, Vol. 88, No.6 (1975): 1057-1109; idem, Law's Empire (Cambridge, Mass.: Harvard University Press, 1986).
· [9]. R. Cohen-Almagor, The Boundaries of Liberty and Tolerance (Gainesville, FL: The University Press of Florida, 1994), chap. 11.