Close your eyes & think of England

We're all Tzipi Livni

British Prime Minister Gordon Brown and Foreign Secretary David Miliband have been sitting on their hands rather than push through legislation that would make it impractical for anti-Zionist campaigners to conduct "lawfare" against visiting Israeli officials.

The latest episode in which, to paraphrase Karl von Clausewitz, law is used as the continuation of war by other means, involved the threat to arrest former foreign minister Tzipi Livni on the nonsensical charge that she committed war crimes during Operation Cast Lead. According to yesterday's Guardian, a British court issued the arrest warrant this week only to withdraw it when it turned out that Livni - apparently forewarned - canceled her visit.

Israel's enemies still come away with a propaganda victory because reports that a high-ranking Israeli was accused of such heinous charges chip away at Israel's legitimacy. Note that al-Jazeera on Monday headlined the Livni warrant story instead of immediately going live to Gaza for Hamas's anniversary rally.

The British legal system adheres to "universal jurisdiction" in the matter of war crimes. A magistrates' court need only be convinced to issue a warrant - based on claims by advocacy groups supporting the Palestinian Arab cause - for an Israeli official to be taken into custody for events that had nothing to do with Britain.

In September, Defense Minister Barak was about to be served with a warrant when the Brown government intervened with the court, citing immunity for officials carrying out their diplomatic duties. But Livni might have been exposed to arrest because, unable to schedule a meeting with Brown, her visit to address the Jewish National Fund could have been construed as private.

Pro-Palestinian groups have been engaging in lawfare since 2005, when Maj.-Gen. (Res.) Doron Almog, former OC Southern Command, barely avoided being served with a warrant by remaining on his El Al plane at Heathrow. Unfortunately, he was forced to scrap his mission - to raise funds for adults with autism. There has been a succession of similar attempts against other IDF officers from Aviv Kochavi and Geva Rapp to Moshe Ya'alon; former Shin Bet chief Avi Dichter was also a target.

Those who seek to humiliate the Jewish state mockingly assert that Israel led the way on universal jurisdiction by bringing Eichmann to justice.

PLAINLY, Britain so closely identifies with the Arab position on borders, settlements and Jerusalem that it no longer even feigns diplomatic evenhandedness. For the Foreign Office, the West Bank is simply the "Occupied Palestinian Territories." British officialdom reacted to Livni's near-arrest by releasing the mealy-mouthed statement: "The UK is determined to do all it can to promote peace in the Middle East, and to be a strategic partner of Israel. To do this, Israel's leaders need to be able to come to the UK for talks with the British Government. We are looking urgently at the implications of this case."

What a perfect example of a bunch of words strung together devoid of substance.

The Brown-Miliband government - sadly with the acquiescence of some elements within the British Jewish establishment - has also been promoting a boycott of goods produced over the Green Line on the grounds that a Jewish presence anywhere beyond the 1949 Armistice Lines is illegal. The decision, according to the British Zionist Federation, was instigated by Oxfam (which you might have thought was a nonpartisan charity) and the EU-funded "War on Want."

Too bad London prefers a boycott to a negotiated agreement on permanent boundaries which would equitably resolve the settlement issue. Moreover, Sweden's recently failed effort to have the EU leap-frog negotiations between the parties by preemptively recognizing Palestinian claims to all of east Jerusalem was also strongly backed by the Brown-Miliband government.

Brown twice promised to propose legislation that would hamper lawfare by requiring Her Majesty's Attorney General for England and Wales to approve the issuance of any war crimes warrant.

Some suggest Brown and Miliband have purposefully not fulfilled this promise to chastise Israel. Others say they simply lack the political capital to face down their own rabidly pro-Palestinian backbenchers and - just months before national elections - do not want to be dependent on the Tories to pass a law.

Whatever the explanation, this has not been Britain's finest hour.

Spawn of Ahmad Yassin

Hamas at 22


Time flies when you're spilling blood. Has it really been 22 years since Hamas was established in Gaza as an off-shoot of the Muslim Brotherhood by Sheik Ahmad Yassin?

Tens of thousands of Palestinians packed a Gaza City square yesterday to mark the anniversary and heard Prime Minister Ismail Haniyeh pledge, from behind a podium decorated daintily with orange, white and red flowers, that Hamas would never make peace with Israel.

Propagandists for the Palestinian cause are wont to refer to the territory as "an open-air prison for its 1.4 million residents." In truth, it's more a working model of what a Hamas-led Palestine would look like.

Granted there is plenty of desperation and misery in Gaza - much of it self-inflicted. Women may not be seen astride motorcycles. Couples strolling along the beach have been stopped by police and asked to produce proof of marriage. The freedom of Palestinian journalists to write critically about Hamas is limited, otherwise they might expose the campaign of abductions, unlawful killings, torture, and death threats against critics of the regime.

Hamas considers all of "Palestine" an Islamic trust and itself in a permanent state of war with the Jews. Beginning with the 2005 disengagement and dramatically intensifying after Hamas's takeover of the Strip from Fatah in 2007, Israel has maintained a blockade.

Concrete and steel are embargoed - Hamas would use these for military purposes. But Israel does allow a constant flow of humanitarian goods to go in; 698 trucks last week - not counting a special convoy containing books and stationery donated by Qatar. Unlike prevailing conditions in some Organization of the Islamic Conference states, there is no humanitarian crisis in Gaza. Still, as long as Hamas chooses war with Israel, we'd prefer that Gaza's civilian needs be met via its border with Egypt.

ALL IN all, it has been a decent year for Hamas. Much of its leadership survived Operation Cast Lead by hiding in hospital basements. It did not find it too hard to replace tons of lost weapons - via smuggling tunnels beneath the Philadelphi Corridor - and reconstitute its cadre of commanders. In fact, it now has missiles that can strike Tel Aviv.

Egypt is plainly unable - perhaps unwilling - to stop the smuggling despite advanced equipment and training provided by the US.

Hamas also managed to keep Gilad Schalit's whereabouts secret from IDF intelligence for yet another year. And it continued to brainwash Palestinian children to hate.

The military setbacks suffered by Hamas during Operation Cast Lead were more than offset by a cornucopia of diplomatic benefits thanks to the Goldstone Report and post-war media coverage which accepted Palestinian assertions that most of the war's casualties were civilians and that Israel's use of force against Hamas was "disproportionate" and immoral.

Hamas continues to receive strong military backing from Teheran. On Sunday, its Damascus-based politburo chief, Khaled Mashaal, was hosted by President Mahmoud Ahmadinejad. He urged Hamas not to go wobbly on Israel.

He needn't worry. It is unlikely that Hamas will experience a metamorphosis in 2010 and agree to end terrorism, accept Israel's right to exist and embrace the agreements ratified by the Palestinian Authority.

That is too bad. Because divided between Fatah and Hamas, the Palestinian polity is immobilized. The idea that Mahmoud Abbas will find the courage for genuine give and take at the negotiating table while Hamas breathes down his neck is risible. And if the Netanyahu government assents to a lop-sided prisoner release, Hamas's strength and Fatah's weakness will become even more pronounced.

Given that Israel is not prepared to seize the Gaza Strip from Hamas's clutches and that neither Palestinian elections nor a Palestinian unity government would solve the Hamas problem; and that moreover, Hamas in contrast to Fatah offers coherence and discipline, Nathan Brown of the Carnegie Middle East Center wonders if perhaps Israel should not explore a Machiavellian modus vivendi with the Islamists.

It is an approach some Israeli strategists, including ex-Mossad chief Efraim Halevy, would be prepared to consider… if only Hamas would stop reminding us - as Haniyeh did at yesterday's rally - that "the liberation of the Strip is just a step to liberating all of Palestine."

Just War Theory & Flirting with Treason

[Obama in Oslo. A disturbing aside about Israel.]



The real price tag


The motive behind the torching of a West Bank mosque early Friday morning was, as the graffiti left behind attested, "To exact a price."

But the vandals who targeted the house of worship in Yasuf struck simultaneously at the sovereign authority of the state. The Netanyahu government's imperfections notwithstanding, the establishment of the Third Commonwealth in 1948 created an overarching Zionist authority. Those who reject it and turn to violence are flirting with treason.

The assailants took it upon themselves to decide when and under what circumstances "the Arabs won't have quiet." To our fanatics, not only do the ends justify the means, but we suspect the means deliver a sick sense of primitive gratification. They have no compunctions about igniting a third intifada - or worse - in order to derail the settlement freeze. Their apocalyptic theology and political hubris tempts them to force the hand of God.

They are men without doubts.

As you would expect, Israeli politicians and clergy from across the political spectrum, including settler leaders, have denounced the attack. Yesterday, a group of religious kibbutz movement rabbis sought to reach the scene of the outrage to express remorse, as did middle-of-the-road settlers from Efrat.

Yet there were also those who either refused to condemn the attack or did so with the kind of equivocation and verbal acrobatics we've come to expect from Palestinian "moderates" reacting to attacks on Jews.

We want to hear more settler leaders and rabbis say - plainly, explicitly and without prevarication - that the Yasuf attack, and the perfidious disregard it symbolizes for the authority of Israel's democratic government, is despicable. Let settler spiritual leaders acknowledge that such vandalism amounts to a desecration of God's name and ostracize those who propagate ideas that encourage such behavior.

IT'S A safe bet that those who perpetuated the mosque attack have little tolerance for anything US President Barack Obama says or does. They've written him off as an enemy of Israel, and the members of Israel's security cabinet as his stooges. The mosque assailants were probably savoring - clandestinely - their moment in the limelight as Obama was delivering his Nobel Peace Prize acceptance speech in Oslo's City Hall on Friday.

An eloquent address by an eloquent man is easily taken for granted. It was delivered just as Israelis were ushering in Shabbat, so not many here heard the president outline his worldview. That's too bad, because the speech grappled with how a country can wield power without being corrupted by it; how human behavior can be elevated while accepting the reality of human nature.

Obama drew no applause when he declared that evil was real and pacifism was not the way to confront it. He resurrected a Kennedy-esque Democratic defense of the use of force, making no apologies for US behavior.

He declared that Islam had been defiled by those who kill innocents in the name of God. Adding, "No Holy War can ever be a just war. For if you truly believe that you are carrying out divine will, then there is no need for restraint."

We found ourselves thinking how tragic it would be if Jews fell into the trap that has ensnared Muslims and if ours became a mirror image of violence-ridden Palestinian society.

Obama took his European audience to task for

rejecting the use of force under virtually any circumstances. He discussed the theory of just war, summarizing it as "waged as a last resort or in self-defense; if the force used is proportional; and if, whenever possible, civilians are spared from violence."

Except for the doctrine of proportionality, which may make sense for a global superpower but could bleed our small country to death, the other principles seem worthy. He also said that America reserved the right to act unilaterally - also a tenet of Israel's security doctrine.

We were discomfited by the president's oblique implication, in referencing the Arab-Israel conflict, that Jews and Arabs fell back in the same manner on "tribe" and "religion" in confronting modernity. That's patently not true.

Yet every time extremist settlers behave badly, the real price tag is that it becomes harder to make the case that the Jewish state is a beacon of enlightenment in a benighted Middle East.

Settlement freeze & dissent

False altars

[The interior of a mosque in Samaria said to have been desecrated Thursday night by radical settlers "to exact a price" for the moratorium. Madness]


Thursday's main headline in The Jerusalem Post captured some of the best news of the week: "Thousands rally peaceably against building freeze."

Some 30,000 demonstrators, many of them young people, turned out on a chilly evening near the prime minister's residence in Jerusalem to protest the security cabinet's November 25 moratorium on new settlement construction.

The assembly was a celebration of democracy. There was neither incitement nor violence. It could easily have been otherwise. Fortunately, as our Herb Keinon wrote yesterday, the Yesha Council leadership recognized that a rancorous demonstration - with depictions of Binyamin Netanyahu wearing a keffiyeh or an SS uniform - would alienate the majority of Israelis.

National Union MK Michael Ben-Ari did cross the line when he asserted, "If there is a people that has to be evacuated and should not be here, it is not the Jewish people." It was a clever sound bite, but a tactically unwise and morally untenable argument.

We much more respect the tone set by Ma'aleh Adumim Mayor Benny Kashriel who addressed the premier from the podium: "We worked together for 18 years. And for 18 years you instructed me to build the land. Do not change your path today. We will be by your side to help you withstand American pressure."

This newspaper has questioned the value of a settlement freeze that is so wide as to include strategic settlement blocs such as Ma'aleh Adumim, yet is barely appreciated in Washington and has been utterly dismissed by the Arabs. MK Arye Eldad (National Union) was correct when he told the crowd that the freeze could potentially lead to a disengagement from much of the West Bank. Thus a moratorium which includes areas Israel intends to retain under a permanent accord sends highly problematic signals.

Of course, the main obstacles to the emergence of a demilitarized Palestinian state are the Palestinians themselves. Fatah's ineffective and intransigent "moderates" refuse good faith bargaining; Hamas's ruthless rejectionists seek permanent "armed struggle."

LEADING UP to Thursday's rally, we've been deeply troubled by the claim of settler leaders that their grievances take precedence over the decisions of Israel's security cabinet. Yesha Council head Danny Dayan urged his constituents to forcibly prevent inspectors with stop-work orders from entering settlements. He labeled the government decision "illegitimate" and a "White Paper" - a crass reference to the betrayal by British Mandate authorities of the Balfour Declaration.

Sure enough, there have been clashes up and down the West Bank between settlers - including high-school girls - and authorities. Radical settlers have even sought to "exact a price" by igniting Palestinian violence; others reportedly slashed tires on a quiet Jerusalem street.

The atmosphere of intimidation reached such levels that the IDF reportedly suspended training exercises because it needed personnel to assist the civil administration.

Radical settler Rabbi Eliezer Melamed, of the Har Bracha hesder yeshiva pre-army academy, instructed national-religious recruits to disobey orders that run contrary to the Land of Israel ethos. Though his institution is funded by the Defense Ministry (and Diaspora donors), Melamed let it be known that government officials would have to come to his mountain if they wanted to parlay; he would not come down to them.

In contrast, Rabbi Haim Druckman, another leading hesder rabbi, has written against exploiting the army to make political capital.

The establishment of the state means that competing centers of authority cannot be tolerated. There can be no false altars.

Settler leaders are being disingenuous if they think they can turn to the High Court of Justice, appeal to public opinion and lobby members of Knesset yet retain the "right" to violently confront the state if they don't get their way.

WHILE INSISTING settlers work within the law, we are not oblivious to the often dysfunctional nature of Israel's political system or the possibility of individual corruption. That is why we support Wednesday's Knesset vote to expedite legislative consideration of a bill that would require a national referendum prior to any withdrawals from the Golan Heights or east Jerusalem. Consideration might be given to a similar requirement for substantial withdrawals in Judea and Samaria as well.

In this way, decisions about Israel's permanent boarders would benefit from the unassailable legitimacy of the body politic. For now, however, the security cabinet's settlement freeze decision deserves the absolute allegiance of the governed.

The place of Jewish Law in Contemporary Israel

Justice and Halacha

Justice Minister Yaakov Neeman must have been thinking out loud when he told a legal conference Monday night that judicial decisions in this country ought to be based on Torah principles and this goal should be implemented incrementally.

"We will bestow upon the citizens of Israel the laws of the Torah and we will turn Halacha into the binding law of the nation," the minister pledged, "Soon, in the near future, amen."

What possessed this savvy lawyer, consigliere to the stars, and a power broker in his own right, to in effect call for the creation of a theocracy? Does Neeman envision it would be based on his type of progressive national-religious Orthodoxy? Would it not more likely adhere to a form of haredism? Shas spiritual leader Rabbi Ovadia Yosef was inspired to blurt out that he anyway discourages his followers from turning to goyish courts because Israeli judges do not adjudicate according to Halacha.

Having unleashed a storm of concern, Neeman's office "clarified" that he did not, actually, mean what he said - though Neeman later told the Knesset that rabbis could right now start taking some of the burden off judges.

Frankly, Neeman's remarks catch us by surprise. We had pegged him as a man who appreciated where fundamentalist Orthodoxy - the stream now ascendant - is leading the country.

It was a committee Neeman chaired that recommended Robinson's Arch as a solution to the Orthodox hegemony at the Western Wall. It was Neeman who proposed the formation of the Institute of Jewish Studies, where representatives of different streams of Judaism would instruct prospective converts. And it was Neeman who supported the appointment of more compassionate Orthodox rabbis to the rabbinical courts.

Neeman well knows that operating a modern state on the basis of Halacha is unworkable.

In 1953, the secular state enacted the Rabbinical Courts Adjudication Law that empowered the rabbinate to apply Halacha in areas of marriage, divorce and citizenship. The results have been ... unsatisfactory.

Thousands of citizens must go abroad to marry because the state clergy does not acknowledge they are Jewish. Scores of women are chained in dead marriages because the same clergy will not grant them divorces. Tens of thousands of potential Jews have been turned away from Jewish civilization because they will not commit to leading Orthodox lifestyles.

The profane blending of politics, patronage and piety has alienated countless secular Israelis. Yet jealous of their prerogatives, the Orthodox will not share the taxpayers' resources with the Masorti and Reform streams who might be able to reach these people.

LIKE NEEMAN we, too, cherish the halachic tradition. Over thousands of years, the sages created legal foundations that have formed a basis for Western jurisprudence.

For instance, laws of inheritance and torts, topics being studied this week by Talmudists worldwide, epitomize Jewish ideals of fairness. From the Pentateuch to responsa literature, Halacha has made it possible for Jews to flourish intellectually, communally and spiritually under the harshest conditions.

It is a grand idea for Israeli jurists to be informed by Halacha, but it would be terrible if they were bound by it.

Halacha, like American constitutional law, is organic, evolving and malleable. It is intended to unify the Jewish people. Tragically, however, those who today dominate the application of Halacha tend to be strict constructionists. A theocratic state in which such rabbis would replace judges would be hellish.

A learned, astute observer, a personal friend of the minister, told The Jerusalem Post the idea that Israeli jurisprudence could operate on halachic grounds is "not serious" and Neeman well knows this.

"Jewish law was never the law of the land in any period of Jewish history. So no one really wants this, not the secular, and also not the rabbis; the secular for obvious reasons; and the rabbis because it would require a stunning revolution in Jewish law," the source said.

After all, what, practically, does Hebrew law have to say about the currency markets? Where would bad guys go? Can contemporary litigation follow halachic rules of witnesses or the limitations on the testimony of women?

If our justice minister wants to think out loud, he should do so in the privacy of his own home.