The United Nations General Assembly is getting ready to welcome foreign leaders this month. In advance of the New York gathering, U.S. Secretary of State Antony Blinken called Israeli Prime Minister Benjamin Netanyahu and Palestinian Authority President(-for Life) Mahmoud Abbas yesterday.
Blinken’s call to Netanyahu revolved around four principle elements: working together on “bilateral partnerships”; commitment to Israel’s security including dealing with Iran; integration into the region; and advancing a productive future with Palestinians. The call to Abbas focused on: “ongoing violence” in the region; quality of life for Palestinians; and a commitment for a “two-state solution.”
To Israel, Blinken mentioned a peaceful coexistence with Palestinians but he didn’t even mention the word “Israel” to the PA leader as he focused only Palestinians’ desire for a good quality of life. In addressing the Israeli leader, Blinken mentioned America’s commitment to Israel’s security but to the Palestinians, the Secretary of State simply mentioned concern about the violence without addressing who was committing and instigating the attacks and the U.S.’s determination to stand opposed to terror.
“President Mahmoud Abbas stressed, during the call, that what the Israeli occupation authorities and their forces and settlers who practice terrorism are doing contributes to undermining the two-state solution and destroys all chances of achieving peace, calling on the US administration to accept the State of Palestine’s endeavor to obtain full membership in the UN by a Security Council decision, and to end all sanctions imposed on the Palestinians due to US laws, and build normal relations between the US administration and the State of Palestine, including reopening the US consulate in Jerusalem and an office for Palestine in Washington, and restoring the direct aid program.
“On the other hand, President Abbas stressed the need to oblige the Israeli occupation authorities to stop all their aggressive practices and unilateral Israeli actions, adhere to the signed agreements, and focus on the political horizon.
“President Abbas stressed that the State of Palestine will continue its efforts at the UN level in order to obtain full membership in the UN, and implement the resolutions of international legitimacy and the Arab Peace Initiative, by ending the Israeli occupation of the State of Palestine, with its capital, East Jerusalem, on the 1967 borders.”
While Abbas ranted about Israeli “terrorism’, Blinken seemingly opted to not mention the U.S.’s commitment to Israel’s security, and didn’t even mention “Israel” on the official call notes. Abbas told Blinken that he wanted Palestine to have full UN membership and the opening of political offices for the PA in the U.S., and Blinken avoided the topic and focused on Palestinians rather than the PA.
It is safe to assume that the United Nations General Assembly will continue to be a spectacle of disappointment as a parade of dictators and anti-Semites are given a global platform. Any real peace may be achieved in bilateral meetings held in restaurants and apartments away from the microphones.
The failure to resolve the Israeli-Arab conflict is because the local Arabs refuse to accept the presence of Jews and believe that the Jewish State will eventually disappear. With such orientation, there is virtually no Palestinian interest in peace talks, and popular support is around “resistance” by “any means necessary” to rid the land of Jews.
Meaning, to kill them, or enough of them to make the rest scared enough to leave.
For those interested in resolving the conflict, Palestinian society must be instilled with basic truths:
Jews are indigenous to the holy land
Two Jewish Temples stood in Jerusalem on the Temple Mount
The land of Israel is, and always has been, central to Judaism
Jews are not going to leave; this is their homeland
These truths do not negate (or should not) negate a Palestinian narrative that they are also native to the land and have lived there for generations. However, it replaces the extremist vitriol prevalent among Palestinian leadership, radical imams, college professors (like Columbia University’s Joseph Massad) and the B.D.S. movement which are built on the foundation of antisemitism in advancing anti-Zionism.
In addition to reiterating these facts, governments and the United Nations need to take clear steps to advance peace:
Unequivocally support the Jewish State in fighting terror
Unequivocally condemn the recruiting, training, arming and using children as terrorists
Clearly label Hamas as not only an Islamic militant group but a designated terrorist group, no different than the Taliban, ISIL and Boko Haram
Palestine will be unwelcome to speak at the United Nations unless it ceases funding and inciting terrorist activities
Support Jews peacefully accessing and praying at their holiest site on the Temple Mount, a fundamental human right (reject the “status quo”)
Repeal UN Security Council Resolution 2334 which made it illegal for Jews – and only Jews – to live throughout their homeland
As long as the UN continues to waffle – and contradict – these moral points, Palestinians will continue to reject coexistence and pursue terrorism against Jews. The local Arabs believe that Hamas’s terrorism got Israel to leave Gaza in 2005, and the next generation of terrorists will ultimately chase Jews from their promised land.
The world is exacerbating Palestinian terrorism and destroying any path towards peace because it fails to address the root cause of the conflict which is Palestinians’ refusal to coexist with Jews. The flawed traditional bias of pressuring the more powerful party (Israel) and absolving the weaker (Palestinian Arabs) is exactly the opposite of what is required to form an enduring peace in the Middle East.
Zionists have not internalized the venom with which most Arabs view Jewish presence in the holy land.
Nazi Germany invaded France in May 1940 and the reaction was mixed. A minority saddled up to the Nazis and facilitated the enactment of antisemitic laws and rounding up Jews for deportation. Many French formed “resistance” groups to fight the invaders, and enlisted the help of foreign countries to rid the homeland of those interlopers. They used all means at their disposal to return France to its 1939 reality.
Street in Saint Maxime, France “Rise of the Resistance” against Nazi invaders in WWII (photo: First One Through)
Most Palestinian Arabs view Jews in the holy land the same way.
Arabs reject the history of Jews in Israel, especially in Jerusalem. They claim that the entire Zionist enterprise is a fiction of European creation. Palestinian leadership demands an apology from the United Kingdom for advancing the Balfour Declaration, and Hamas, the dominant political party in the Palestinian parliament considers killing Jews a “natural” response to the colonialist effort. They “resist” the Jews by any and all means possible, and polls show the majority of Palestinian Arabs support killing Jews inside of Israel. They are convinced that eventually these foreign Jews will leave and that the Jewish State won’t live to see its 100th birthday.
Anti-Zionist groups understand this. The Palestinian group Within Our Lifetime held a rally calling to use “any means necessary” (meaning violence) to liberate their land “from the river to the sea.” The Council on American-Islamic Relations (CAIR) told attendees at a conference that American Jews are “enemies” because they support Israel. Students for Justice in Palestine say Zionism is based on “racism, expansionism, [and] settler colonialism,” and the Palestinian Authority Minister of Culture called Jews “invaders.“
Palestinians aren’t frustrated by the lack of a Palestinian State on a fraction of historic Palestine; they are infuriated that the world would consider chopping up their homeland. They rejected the notion of a Jewish State in 1917, again at the United Nations in 1947, and to this very moment. They don’t think of a “Nakba” as an event in the past, but discuss an “ongoing Nakba” in Israel’s existence now.
Yet people talk about the “two state solution” as though it is something that needs to be imposed on Israel, when Israel is the party that has consistently tried to advance an enduring peace. It is the Arabs who reject the “invaders”, “colonialists” and “enemies” who have robbed them of their homeland.
One cannot advance actions for a “peace process” without interalizing that Palestinian Arabs continue to reject the basic presence of Jews. From the 1940s through 1970s, the Palestinians turned to fellow Muslim Arab countries to destroy the Jewish State. Now they turn to the global community to combat the “Zionist entity” and Zionists in the global community.
The New York Times belittled Mayor Adams’ flowery compliments of Israelis.
WHAT HAPPENED: New York City Mayor Eric Adams visited Israel and extolled the people of Israel for overcoming hardships and creating an incredible country. The New York Times not only ignored the mayor’s compliments to Israeli Jews, it wrote that his comments were incomprehensible.
New York City Mayor Eric Adams in Tel Aviv, Israel, August 2023
THE TAKEAWAY: The liberal paper feels that the Democratic Mayor is too illiberal and the Jewish State is unworthy of praise. It wants to make sure that its readership does not get facts but the paper’s jaundiced narrative.
WHY IT MATTERS: The NYT is saturating its news articles with its biases. It will undermine political candidates, countries and people it dislikes, even when simply relating a quote. It is perfecting #FakeNews and deepening distrust in the media.
DETAILS: New York City Mayor Eric Adams went to Israel for a few days in August 2023, and shared how deeply impressed he was with the food, technology and people. As he wound up an event discussing battling antisemitism, the current debates about reworking the power of the judiciary and the “start up nation” which remarkably produced dozens of billion dollar companies (“unicorns”), he said the following to the crowd:
“Hard is starting this country being surrounded by people who hated you. Hard is figuring out how to do drop irrigation so you can start growing your own products. Hard is building and being not only a start-up nation, but now leading a number of start-ups you’re seeing across the globe. And the reason you’ve survived layers and layers of difficulties and you’re still here, it is not because of the soil but because you’re made of good quality. It’s the people, folks!”
In covering the story, the NYT offered that Adams saying “Israel is a unicorn,” is “a metaphor open to interpretation.”
Unless this reporter has been living under a rock, everyone knows that a “unicorn” is used to describe companies which have achieved billion dollar-status. Israel has a remarkable number of them, despite its small size.
Even if the Times is clueless, how can anyone misinterpret “you’re made of good quality”?
New York Times belittling compliment to Israelis, August 26, 2023
WRITE THE TIMES “Your ongoing coverage of Israel is pathetic”
US Ambassador to the United Nations lambasts “settlement activity.”
What happened: Linda Thomas-Greenfield, US Ambassador to the United Nations replied to remarks made by Tor Wennesland, UN’s Special Coordinator for the Middle East Peace Process, at the UN Security Council on August 21, 2023. After condemning all acts of violence, whether committed by “Palestinian militants, or extremist Israeli settlers”, she added:
“we urge all parties to take proactive measures to counter all forms of violence and incitement to violence, and refrain from actions that inflame tensions including settlement activity, evictions, the demolition of Palestinian homes, terrorism, incitement of violence, and payments to the families of terrorists.”
The Message: The United States has taken the position that Jews living east of the 1949 Armistice Lines (E49) (commonly called “settlers”) is so upsetting to Arabs that it is on the same level as Palestinians killing Jewish civilians.
It suggests that the US position is that Israeli “actions that inflame tensions,” which could be normal non-violent activity such as Jews visiting the Jewish Temple Mount during normal visiting hours, is equivalent to Palestinians inciting violence and the Arab government paying for the murder.
Scene after Palestinian Arab killed Israeli father and son at a car wash in the West Bank, August 2023
The Danger: There is no moral equivalence between terrorism and… anything. By equating the payment, incitement and actual murder of people with anything, is a tacit blessing to engage in every kind of preventative activity – including violence – to stop such actions from taking place. In the case of the Israeli-Palestinian conflict, it greenlights Palestinian jihadists to attack Jews sleeping in their beds, visiting a car wash or praying in the Old City of Jerusalem.
Email UN Mission to UN: “There is no equivalence between Arab terror and Jews upsetting Palestinians with their presence.”
News departments around the world are at the smallest levels, as the Internet destroyed the business model many years ago. Due to that reality, media outlets use the same source information and then craft it in a manner that fits the biases of its management team and readership.
The range of headlines that can emerge from a single story in a highly charged environment like the Israeli-Palestinian conflict is almost too remarkable to believe. Consider a story from August 17, 2023:
The plain facts are that the Israeli Defense Forces entered Jenin to arrest two people. As they encircled a building to arrest two wanted men, Palestinians fired on the troops who returned fire. A 32-year old Palestinian Arab named Mustafa al-Kastouni died of his wounds. He was a member of the Al-Aqsa Martyrs Brigades, a U.S. designated foreign terrorist organization.
Here’s how different media showcased the story online:
“Israeli forces kill Palestinian youth during Jenin raid,” wrote the official Palestinian news media Wafa, describing a 32 year old as a child. He was killed by “Israel forces” making the dynamic a David vs. Goliath scenario.
“Palestinian youth shot dead by zionist forces in Jenin,” read the Turkish ILKHA, repeating the lie that the Palestinian was a child and using inflammatory language that dismisses Israel as a country.
“Martyr, injuries from IOF fire during Jenin raid,” was the headline from Al Mayadeen, a Lebanese-based media group, that opted to sanctify the Palestinian gunman.
“Israel blows up Jenin bakery to assassinate resistance fighter,” was the most inflammatory headline cooked up by an online news site The Cradle, where anyone can contribute.
“Another Israeli raid on occupied West Bank’s Jenin kills one Palestinian,” from The New Arab also added inflammatory language in the headline to make the event part of a broader story of Israelis constantly invading Palestinian territory.
“One fatally shot during Israeli Occupation raid on Jenin,” from Jordan’s RoyaNews did not identify the dead man as a Palestinian Arab which was implied by the Israeli raid.
“Israeli forces kill Palestinian during Jenin raid” was the Middle East Eye headline, giving neither age nor status as to whether the man was armed.
“Israeli forces kill Palestinian during Jenin arrest raid,” from al Quds, an independent Palestinian-British site, was similar.
“Israeli forces fatally shoot Palestinian man in Jenin raid,” from Iranian PressTV also followed the most common fomat.
“Israel forces kill Palestinian in Jenin,” was the short headline from Middle East Monitor, was similar to Middle East Eye but dropped mentioning the raid.
“Israeli raid on Jenin kills Palestinian,” was the curt headline from ArabNews.
“Palestinian Killed in Exchange of Fire With Israeli Military in Jenin, Palestinian Health Ministry Says,” read the left-wing Israeli Haaretz headline, which added that there was an exchange of fire.
“Israeli troops kill a Palestinian militant in a gunbattle outside a West Bank bakery,” wrote ABCNews, in a bizarre highlight of the bakery on the ground floor of the building where the shooting took place.
“Israel raid kills West Bank militant, wounds health worker: Palestinians,” wrote France24, saying that the Palestinian killed was a militant in the West Bank.
“West Bank: a member of the Al Aqsa Martyrs Brigades killed in Jenin,” was the headline from Italy’s AgenziaNova, which uniquely highlighted the terrorist group affiliation of the Palestinian man.
“Palestinian gunman killed, terror cell arrested by Israeli forces in Jenin,” wrote The Times of Israel, marking the incident as between armed groups.
“An Israeli Raid on Jenin, a West Bank Militant Stronghold, Kills 1, Palestinians Say” was the Newsmax headline, which emphasized that Palestinian militants control Jenin.
“Palestinian Terrorist Killed as IDF Engages in Heavy Clashes in Jenin,” was the headline from Hamodia, a Jewish publication, labeling the Palestinian man as a terrorist.
“Clashes erupt in West Bank’s Jenin, one Palestinian terrorist killed,” from Israel’s i24News highlights that a terrorist was killed but doesn’t attribute the source of the fire from Israeli troops.
Such is the biased coverage from pro-Palestinian to pro-Israeli in the Middle East and European media. It demonstrates how news today is a crafted editorial to lead a reader to particular conclusions.
Some additional takeaways from this reporting is that Palestinian news lies openly and Israel’s left-wing Haaretz reporting mirrors that from Arab countries, while the right-wing US site Newsmax aligns its stories with Israeli and Jewish news sites.
Reading a single source of news about the Israeli-Palestinian conflict will inevitably leave a reader with a highly skewed view of any story, and if that source is the official news of the Palestinian Authority, with complete fabrications, commonly called #FakeNews.
James Zogby, President of the Arab American Institute was invited to speak to the United Nations Security Council on June 27, 2023 about the “situation in the Middle East, including the Palestinian question”, to make a case against Israel and defend Palestinian Arabs. The UNSC did not invite a comparable person to make the case against the Palestinian Authority and defend Israel, yet another demonstration of the entrenched bias against the Jewish State.
Zogby was given the floor for some time when he said the following:
“Given that traumatic nightmare visited upon millions of Palestinians for the past 56 years, is it any wonder that a recent poll shows a majority of Palestinians rejecting moderate leadership, despairing of peaceful change and now favouring armed struggle? That tragic deformity in Palestinian political culture is the result of the continued brutality of the occupation. It is also important to see the impact the harshness the occupation is having on the Arab world. While polls we conducted four years ago found a large majority in most Arab countries favouring exploring peace with Israel, saying that it might temper Israel’s behaviour and stop the violence, more recent polling suggests the hope has decidedly diminished.”
Zogby lies that Palestinian Arabs have changed their views and rejected moderate leadership and turned to violently fighting Israel in several regards.
“Moderate leadership”
The Palestinian Authority president is Mahmoud Abbas.
He wrote his doctoral thesis on Holocaust denial
He actively pays and prioritizes the payment of monies to terrorists who kill Israelis
He jails Arabs who sell homes to Jews
He has demanded a new country to be devoid of Jews
He’s viewed as wildly corrupt by Palestinians
He’s refused to hold elections, as he knows he would get trounced, so has remained in power since 2005, 18 years on, even though he was elected to a four year term
The Palestinian parliament is controlled by Hamas, with 58% of the seats since 2006.
It is a U.S. foreign terrorist organization, and many other countries consider it a terrorist group
It has the most antisemitic founding charter of any ever written in the world – including Nazi Germany – blending a mix of the forgery Protocols of the Elders of Zion (from which it quotes) and Adolf Hitler’s Mein Kampf
It has fired tens of thousands of rockets into Israel
It is committed to the destruction of the Jewish State
It is devoted to covering the entire region with Islamic religious law
In what world do the Palestinians have a “moderate leadership?” Palestinians elected and are governed by corrupt, antisemitic, genocidal jihadists.
Palestinians elected and are governed by corrupt, antisemitic, genocidal jihadists.
Palestinians have always preferred violence to peace.
Rejected the 1947 U.N. Partition Plan and opted to enlist the surrounding Arab states to destroy Israel
Attempted to destroy Israel again in 1967
Attempted to destroy Israel again during the holiest day in Judaism, Yom Kippur, in 1973
After Israel handed several cities to the Palestinian Authority and tried to make peace as part of the Oslo Accords, Palestinians opted to embark on a multi-year wave of horrific terrorism from 2000 to 2004, which only abated after Israel erected a security barrier and with the death of Yasser Arafat
After Israel withdrew from Gaza, Palestinians let the enclave be governed by the political-terrorist group Hamas which has launched repeated wars from the area
Gazans have always preferred violence to peace in every poll since 2001 (see chart below), while the sentiment of West Bank Arabs has changed over time.
Data from PCPSR polls shows the majority of Gazans always in favor of killing Jewish civilians inside of Israel, and West Bank Arabs generally moving away from such sentiment from 2008 to 2014 and again from 2017 to 2021.
That does not represent a society “despairing of peaceful change” but of a barbaric cult.
The 2011 Massacre of the Fogel Family in Itamar
It was briefly satisfying to hear a leading Arab voice acknowledge at the United Nations that there is a current “deformity in Palestinian political culture” but unfortunately the toxicity goes well beyond politics and a moment in time.
Palestinians have violently opposed Jews living in Israel for a century. The occasional massacres of the 1920s gave way to multi-year pogroms in the late 1930s. When the British announced their intention to leave the region and terminate their mandate, the local Arabs rejected the 1947 United Nations Partition Plan and enlisted neighboring Arab countries to destroy the Jewish State.
The loss of part of the land to Israel was balanced by the capture of Gaza by Egypt and much of Judea and Samaria by Transjordan. The Arab armies assembled to destroy Israel again in 1967 and in 1973 on Judaism’s holiest Day, losing their wars again. On their own, the Stateless Arabs from Palestine (SAPs) continued the mayhem, killing Jewish Olympians, blowing up synagogues and hijacking planes in their persistent effort to eradicate the presence of Jews in the Jewish holy land.
The SAPs seemingly were willing to turn a new page in favor of coexistence with Jews in 1991 with the Madrid Conference which eventually developed into the 1993 Oslo I and 1995 Oslo II Accords. Despite ongoing Arab violence, Israel facilitated the creation of Palestinian governmental institutions and handed over significant sections of the area east of the 1949 Armistice Lines (E49) to Palestinian control. The goal was to finalize all matters by September 2000, at the five year anniversary of the Oslo II signing.
The SAPs chose to return to their violent ways instead of concluding an agreement.
In September 2000, under the command of Yasser Arafat, Arabs committed waves of terrorist attacks, blowing up men, women and children in pizza stores, parks, on buses and in synagogues. The Arab brutality was seemingly without end, and was only curtailed in 2004 when Israel erected a security barrier to stem the flow of Arab killers and the death of Arafat.
In an effort to reengage, Israel handed Gaza to the Palestinians in 2005, with assurances from the United States that it would support Israel’s positions on retaining some land in E49 and that all Palestinian refugees would be settled in a new Palestinian State.
The SAPs would fail to capitalize on this second chance at peace as well.
First, the Palestinians elected the terrorist group Hamas to 58% of the Palestinian parliament in 2006, and then had the political-terrorist group take over all of Gaza in 2007. The Palestinians used Gaza as a launching ground for missiles in the air and tunnels below ground to attack Israelis. Full blown battles from Gaza erupted in 2008, 2012 and 2014.
Rather than Gaza proving a model for coexistence of two states living side-by-side in peace, it showed that Palestinians will never accept the presence of Jews nor existence of a Jewish State.
There is an old adage “fool me once, shame on you; fool me twice, shame on me” meant to convey that it’s not nice of the perpetrator to take advantage of someone one time, but by the second time, the fault lies with the victim who should have known better than to reengage.
There is no line for “fool me three times”, as no rational actor acting on free will would ever consider such preposterous notion.
Which is precisely why the anti-Israel community is calling for BDS resolutions against Israel and electing anti-Israel candidates like Rep. Rashida Tlaib (D-MI), Rep. Ilhan Omar (D-MN) and Rep. Jamaal Bowman (D-NY), to force Israel to reengage yet again with Palestinians who have repeatedly shown they have no interest in coexistence.
Alt-Left anti-Israel members of Congress, Rashida Tlaib, Ilhan Omar and Jamaal Bowman
“Fool me once or twice is a matter between parties; fool me thrice is a hostage situation” in which the victim is compelled to undermine their own well-being. Such is the situation today among those pressuring Israel to advance a DOA peace process.
Coercion is the polar opposite of freedom, and it is gaining strength while oblivious Israelis ponder how much power to leave in judiciary’s hands. Israel’s internal debate about democracy is shrouding the potential loss of freedom from external actors.
White House Press Secretary Karine Jean-Pierre issued a bizarre statement on behalf of President Joe Biden about Israel’s passing of a law to limit one method which the Supreme Court uses to block legislation. Her July 24 statement was:
“As a lifelong friend of Israel, President Biden has publicly and privately expressed his views that major changes in a democracy to be enduring must have as broad a consensus as possible. It is unfortunate that the vote today took place with the slimmest possible majority. We understand talks are ongoing and likely to continue over the coming weeks and months to forge a broader compromise even with the Knesset in recess. The United States will continue to support the efforts of President Herzog and other Israeli leaders as they seek to build a broader consensus through political dialogue.”
Let’s unpack the statement surrounding “the slimmest possible majority.”
The vote was 64-0. The opposition walked out, leaving the final tally a complete trouncing.
In the 120-seat Knesset, a majority is 61 seats. The vote passed with three votes over the slimmest majority.
Israelis voted 61-50 with 8 abstentions to support the Oslo Accords in September 1993. Should the Israelis have abandoned the effort to work out a peace agreement with the Stateless Arabs from Palestine (SAPs) at the outset with truly the “slimmest possible majority”?
If a “broad consensus” is desired for “major changes in a democracy,” the 6-3 U.S. Supreme Court ruling (66.7%) overturning Roe v. Wade looks to be the enduring preferred outcome for the Biden administration, so why all of the fuss?
Further, if everything should be decided by a broad consensus, why has Biden issued any executive orders, let alone nearly 120 of them, including forgiving over $66 billion in student loans?
The New York Democratic Committee plans on cooking up a wide margin of victory in 2024 by gerrymandering districts yet again to unseat Republicans, a dirty political game meant to stifle the opposition. Perhaps that’s the kind of circumvention of democracy that the Biden administration favors.
The White House’s comments about the Israeli vote was both foolish and insulting. For a president who took office amid riots at the Capital building and who passes orders completely bypassing Congress, to publicly berate Israel in such fashion is a vile combination of smugness and lack of self-awareness.
American Jews have a history of supporting Democrats. It remains to be seen if the party will even obtain the “slimmest possible majority” as it continues to insult the Jewish State.
The media has told you how to feel about the passage of an Israeli law to remove the Supreme Court’s ability to override the government’s decisions. No outlet has taken the effort to educate its readership about the issue, opting to broadcast emotions.
Left-wing articles describe “controversial changes” by the “far-right government to weaken the judiciary” which “pushes the country toward authoritarianism,” an action which will “transform Israel’s already flawed democracy into a kind of system that no longer deserves the name.” Such sentiments can be found in NPR, Vox and The New York Times.
Right-wing articles noted that Israeli “Prime Minister Benjamin Netanyahu’s government was negotiating compromises” to the “judicial reform bill” and was “defying months of protests,” as it quoted Israeli lawmakers who celebrated that the new law “reducing the reasonableness standard shows governance.” These quotes come from Fox, The Wall Street Journal and Israel’s Arutz Sheva.
Below is an effort to inform people about the law so people can possibly arrive at their own conclusion about it, rather than follow their preferred horde, an action very much encouraged by traditional media, even as it slams social media of being the true instigator of group think in an echo chamber.
The Israeli Judiciary And British “Unreasonableness” Standard
Israel has a set of Basic Laws which includes one establishing the judiciary in 1984, 36 years after the country was founded. The Israeli courts had existed beforehand, with a significant basis of its system stemming from British law, as the region had been administered under the British Mandate from 1924 to 1948. Included within British law was the notion of “unreasonableness” as to whether legislation and regulations were compatible with constitutional rights.
In 1948, when Israel declared itself a new state, England was debating rules regulating children under fifteen years old being allowed to go to the movies on Sunday, with or without parents, an already controversial action as laws at that time generally prohibited the opening of cinemas on what was viewed as a holy day. The case of ASSOCIATED PROVINCIAL PICTURE HOUSES, LIMITED v. WEDNESBURY CORPORATION considered three main items regarding a court over-ruling a law: 1) was there authority to enact such law, especially for local courts; 2) did the governmental authority consider all relevant matters in arriving at such law; and 3) did the authority “nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it.”
In 1984, when Israel was passing its judicial basic law, the “Wednesbury unreasonableness” standard was equated with “irrationality,” in which a decision “is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”
In other words, the standard set an extremely high bar for overturning a ruling which was properly considered.
Israeli Court’s “Reasonableness Standard”
Israeli courts essentially followed the “extreme unreasonableness” standard of the British system and rarely overturned laws. That began to change in the 1990s under Aharon Barak, who served as a member of the court from 1978 to 1995 and as its president from 1995 to 2006. He took a more activist approach, writing in 2002 that “the judge of a supreme court is not a mirror. He is an artist, creating the picture with his or her own hands. He is “legislating”—engaging in “judicial legislation.” Judicial creativity—judicial legislation—is natural to law itself. Law without discretion is a body without a spirit. Judicial creativity is part of legal existence. Such creativity—“judicial lawmaking”—is the task of a supreme court.”
Judges fear that public confidence in the judiciary will be affected if the public discovers the truth…. The public has the right to know that we [judges] make law and how we do it; the public should not be deceived.
Israeli Supreme Court President Aharon Barak, 2002
In a country with no constitution, an activist court had and has watered down the “extreme unreasonableness” standard to a subjective personal “reasonableness approach.” While sometimes the two methods would reach the same conclusion (a politician jailed for tax fraud should not be the Finance Minister), in many other cases, the court could and has overreached and interfered with approved legislation.
the main question is not “if,”-it is not–“do judges of the supreme court make law”; the main question is “how.”
Israeli Supreme Court President Aharon Barak, 2002
The Controversy On “Reasonableness” Is About Values
The arguments against the Israeli court’s reasonableness standard are not new. Supreme Court Justice Noam Sohlberg wrote a lengthy article a few years ago suggesting that its usage needed moderation. Had some proposal been put forward at that time, there likely would have been no uproar about amending it back to something closer to the British extreme unreasonableness standard.
The current controversy of the Knesset’s Constitution, Law and Justice Committee move to change the situation stems from two main dynamics: Netanyahu being under criminal investigation, and the far-right nature of the today’s parliament.
There is a fear that if Netanyahu weakens the court, he will be able to escape prosecution. He will fortify his position in power with loyalists whom he buys off with feeding their passions, without an external check on his authority.
The anger about Netanyahu is exacerbated by the secular Israeli fear of the religious and nationalist blocks. Barak’s remaking of the Supreme Court was based on his liberal values which he saw in a liberal country. Two decades on, the 25th Knesset includes the Religious Zionist Party which won 14 seats and two other ultra-Orthodox parties which won 18 seats. Secular Israelis fear that the country’s values have turned more conservative, and that same court which Barak crafted to reflect liberal values in society, will now echo conservative values.
Courts are not representative bodies, and it will be a tragedy if they become representative. Courts are reflective bodies; they reflect the basic values of their system.
Israeli Supreme Court President Aharon Barak, 2002
The various protests for and against the law have much less to do with amending the provision which has long been viewed as too far-reaching for a polarized society, and about the changing composition of Israel.
Compromises And Next Steps
The Knesset passed a law on July 24 to get rid of the reasonableness doctrine, as the opposition walked out of the room screaming “shame!” and refused to vote. A natural compromise would have been to go back to the extreme unreasonableness standard which was the Israeli policy pre-Barak.
The Council of Foreign Relations wrote that the Kohelet Policy Forum, which drafted the initial version of the judicial reforms, suggested only using reasonableness for administrative rulings and not government decisions. Former MK Natan Sharansky said “I believe that on the question of human rights, the last word has to be with the judges, and on questions of policy the last word should be with the Knesset.”
The judge learns about the basic values of his or her legal system from the aggregate national experience, from the nature of the political system as a democracy, and from understanding the basic concepts of the nation.
Israeli Supreme Court President Aharon Barak, 2002
Another possible compromise could have been to have any override by the Supreme Court occur only with a super-majority opinion. There are countless other ideas which could be attempted.
A critical component of the reform is yet to come, and considers how Supreme Court judges are elected. The current system essentially allows sitting liberal judges to select their replacements, which is deeply flawed by any reasonableness standard. A credible court should have both liberal and conservative views represented and each should base their opinions on laws, not personal opinions.
Beyond the immediate judicial reforms, the brouhaha should lead all Israelis to conclude that the country must have a constitution. While Israel’s founders may have felt that the nascent state was too fragile to constrain certain actions, 75 years on, the nation is strong militarily and economically, and will be stronger socially if there are laws which represent and protect all its citizens.
Protests about judiciary reform in Tel Aviv, March 2023
First One Through 