Steve Kramer
Infoisrael.net
We were lucky to get an invitation to a recent thought-provoking conference at Israel's first private, non-profit academic institution, the Interdisciplinary Center in Herzliya. The IDC, as it's known in English, also offers separate English-language undergraduate and graduate programs and its faculty boasts many prestigious professors from top Israeli and American universities.
One such professor is Alan Dershowitz of Harvard
Law School. He was one of three shining stars of law who participated
in the 2008 America-Israel Dialogue: Human Rights and Security. Besides
Dershowitz, the other two panel members for the introductory session we
attended were Aharon Barak, recently retired president (equivalent to
the American chief justice) of Israel's Supreme Court, and Irwin
Cotler, Canada's Minister of Justice and Attorney General.
The
conference was sponsored by the American Jewish Congress. Our friend,
Danny Grossman, Israel Director for the AJC, introduced the moderator
of the panel discussion, Amnon Rubinstein, the current president of
IDC. Rubinstein, a lawyer, journalist, former member of Knesset, former
dean of Tel Aviv University Law School, and former Minister of
Education, is known as the father of constitutional law in Israel. He
pointed out that for years "security with human rights" was an
exclusively Israeli preoccupation. But Al -Qaida has made this concern
universal, as Islamist terrorism has struck America, Spain, Australia,
and other countries. Rubinstein urged that the inadequate rules of the
Geneva Convention be supplemented to apply to terrorists, instead of
just to national armies.
During the course of the evening
Rubinstein interjected with other comments, such as that sometimes 1st
Amendment advocates go mad, like President Bollinger of Columbia did
when he invited the Iranian president Ahmadinejad to his campus. He
called Bollinger and his cohorts "1st Amendment junkies" and abusers of
free speech, whose idea of freedom of speech is limited to their own
political agenda.
Professor Aharon Barak was the first to speak
and, in my opinion, stood somewhat aloof from the other panelists. For
those who don't know about Israel's activist court, Barak, as president
of the Supreme Court, has put a heavy footprint all over Israeli law.
In the absence of both a formal constitution and an activist Knesset,
Barak has eagerly led the Supreme Court to make its own laws, not just
to interpret existing law. The court has taken on a role which
surpasses even America's Supreme Court. Barak's court has declared that
anyone may bring a case to the court on any matter - everything is
justiciable. This has resulted, for example, in decisions which stop
the military in its tracks during wartime if the court deems the IDF is
violating human rights.
While quoting from his many court opinions,
which admittedly have made him world-renowned in judicial circles,
Barak emphasized the judicial necessity to apply universal law (the
Geneva Convention) "as is", even to terrorists (who aren't specified in
the Convention). He made the point that it's impossible to retain human
rights during peace time if they are constrained during wartime. As a
veteran jurist, Barak explained to the audience that anything can
happen anywhere, that public opinion is fickle, but that once
precedents are set, they remain the law unless overturned. He believes
that Supreme Court justices are nearly sacrosanct.
Barak did
show some flexibility when he stated that a constitution isn't a
suicide pact, that civil rights depend on the existence of a viable
state, and that human rights can't be used as a "spade" to bury the
state. But he quickly returned to form when he told the audience that a
country can't use all means to defend itself in war. He stated that a
state like Israel, which has been living under threat of terror for
sixty years, must sometimes "have one hand tied behind its back". In
conclusion, Barak said the fundamental values and principles of judges
are paramount in defining the law to promote and protect democracy. I'd
like to add that in Israel, new judges are chosen by sitting judges.
Aharon Barak has excluded judges who don't share his values from the
Supreme Court, including one of Israel's most highly regarded legal
minds, Ruth Gavison, whose international reputation rivals that of
Barak.
Next, Professor Dershowitz spoke. The contrast was
dramatic. As dry and high-flown as Barak was, Dershowitz was witty,
quick, and accessible. Always "the smartest guy in the room",
Dershowitz kept the audience in the palm of his hand. While Dershowitz
is as much a liberal as Barak, he wasn't hesitant to state that a new
proactive and preventive jurisprudence is required. He spoke about the
value of deterrence, such as Israeli jets buzzing the palace of the
Syrian president, but he also pointed out that deterrence has little
effect on terrorists, who are irrational and have a culture of suicide.
Using the example of Iran, whose leader is guided by a belief in the
coming of the 12th Imam (the avenging messiah), Dershowitz called for a
formalized law of preemption instead of ad hoc or off the cuff military
efforts.
Dershowitz made the interesting comment that dynamism
of the law must always be recognized. He noted the fact that the Talmud
was the first book of law to preserve dissenting opinions. In contrast
to Barak's glorification of the opinions and dissents of judges,
Dershowitz looked forward to jurisprudence accommodating itself to new
situations. For example, the situation where terrorists purposefully
attack from behind human shields, using the enemy's morality against
itself. He stated that the idea of proportionality is ill-conceived:
it's not the number of actual deaths that is significant, but the risk
of death. To further illustrate this, Dershowitz mentioned that rockets
from Gaza are fired to kill as many civilians and/or soldiers as
possible, even though they are relatively ineffective. On the other
hand, he said, Israeli attacks sometimes kill civilians, but they are
never the target of the attack.
Professor Irwin Cotler, an
internationally renowned human rights activist and lawyer, struck a
balance between the humorless Barak and the exuberant Dershowitz.
Cotler decried the state-sanctioned assault on the whole corpus of
human rights by states like Iran and Syria, and especially by Sudan in
the province of Darfur. Cotler described Hizbullah and Hamas, Iran's
surrogates, as exponents of the "perfidy principle", in which
intentional attacks on civilians are a significant tactic. This, he
said, must be factored into any criticism of Israel's
"disproportionate" responses.
Cotler criticized the fact that
Iran's Ahmadinejad carries out verbal attacks against Israel and Jews
in general, with impunity. This is tantamount to genocide and
transgresses the United Nations charter. Cotler concluded by deploring
the lack of a culture of accountability in the face of Iran's
incitement of genocide and Sudan's actual genocide in Darfur.
For
me, Dershowitz was the most exciting speaker. He singled out the UN and
Amnesty International as being at the forefront of making a travesty of
human rights. His conclusion was that human rights are fast becoming
"human lefts" or "human wrongs". Unfortunately, none of the speakers
have a solution. The moderator invited us all to return for more
"fireworks" at the concluding session of the conference. I was unable
to attend, but from all newspaper accounts, despite the fireworks,
"human wrongs" are expected to continue for the foreseeable future.
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