Conspiracy? Cowardice? What Is Going On in Israel?

The writer suggests what may be up Netanyahu's sleeve in his choice of a coalition partner - and the process by which the courts might aid his plans, through an analysis of an interview with Knesset Speaker MK Reuven Rivlin.

Prof. Paul Eidelberg

OpEds Paul Eidelberg
Paul Eidelberg

The revelations of Knesset Speaker Reuven Rivlin recorded in a wide-ranging and lengthy interview with journalist Ari Shavit, published in the June 5, 2003 issue of Ha’aretz Magazine are unprecedented and startling.

I hasten to add that the Rivlin interview is more relevant than ever because Israel’s current Prime Minister, Benjamin Netanyahu, having learned absolutely nothing from the past, has joined with Kadima head MK Shaul Mofaz and wants to affix his own name to the Sharon and Aharon Barak legacy.

This is exposed by Knesset Speaker Rivlin.  In fact, Speaker Rivlin revealed what some shrewd pundits might call the 'conspiracy' of Israel’s entire Political and Judicial Establishment.

Part I. Introduction to the Rivlin Revelations

Ari Shavit entitled his interview of Rivlin “Courting Disaster,” apropos the policy of territorial retreat or “disengagement” adopted by Prime Minister Ariel Sharon. This policy necessitated a legal or judicial foundation. Abandoning Gaza required the forced expulsion of 8,000 Jews from their homes. Since this involved a basic issue of law, it required the cooperation or collaboration of Israel’s Supreme Court—grist mill for conspiracy theorists.

Fortunately, the same June 5, 2003 interview of Speaker Rivlin tells the unvarnished story. Mr. Rivlin not only had much to say about Ariel Sharon’s flip-flop character; he also exposed the mentality of Supreme Court President (or Chief Justice) Aharon Barak, whose support Sharon needed to “legalize” Israel’s Gaza withdrawal, which made Gaza judernrein.

Sharon needed Judge Barak’s cooperation since the forced expulsion of Jews from their homes in Gaza was clearly an arguable violation of their property rights, indeed, of Basic Law: Human Dignity and Freedom of which Barak was the principal author!

To legalize this expulsion of Jews from their homes in Gaza, the Barak Court simply held that Gaza (as well as Judea and Samaria) is “belligerent occupied territory” to which the Basic Law in question does not apply. But what gave the Supreme Court the authority to designate Gaza “belligerent occupied territory” and ignore that Basic Law? No such judicial power was granted to the Court by any legislation of the Knesset. Chief Justice Barak simply proclaimed the unprecedented dictum that “everything is justiciable,” a dictum that gave the Court unlimited power. This and more is spelled out in the Rivlin interview of June 5, 2003.

Before examining this extraordinary aspect of the Rivlin interview, the fact that political scientists ignored the revolutionary implications of Judge Barak’s dictum suggests they were either suffering from a cerebral vacuity or that most were reluctant to publicly denounce Sharon’s adoption of Labor’s disengagement policy, even though this policy had been opposed by Israel's highest military and intelligence officials in public testimony before the Knesset’s Foreign Affairs and Defense Committee!

However, rather than impugn the intelligence and patriotism of the political science fraternity, let us explore the scenario of what may be nothing more than a case of the political cowardice and stupidity often attributed to Israel’s ruling elites.

Accordingly, to clear the ground for a serious and scholarly inquiry, I shall cite the most relevant parts of Mr. Rivlin’s June 5, 2003 Ha’aretz interview and let the reader himself answer the accusatory question, “What’s going on in Israel?”

Part II. The Rivlin Revelations

Of its many fascinating revelations, the most significant concern Israel’s ruling elites and the questionable character of Israeli democracy. Only two revelations in this interview need concern us:

Prime Minister Ariel Sharon was a “closet leftist,” and Chief Justice Aharon Barak’s dictum that “everything is justiciable” was nothing less than a “putsch,” a coup d’état.”

It was precisely the Barak dictum “everything is justiciable” that allowed the Court to “legalize” the government’s “unilateral disengagement” policy and the consequent expulsion of Jews from Gaza. This dictum, which virtually transformed Israel into a judicial dictatorship, violates the democratic orientation of the prophets of Israel, who were the primary defenders of the rights of the Jewish people vis-à-vis their government.

Highlights of the Interview:

1. Ari Shavit and Speaker Rivlin

Ari Shavit:  “Reuven (‘Ruby’) Rivlin is unwilling to reveal the names of the settlements that Ariel Sharon intends to evacuate. But he is willing to say how many: 17. [However,] Sharon is adamant that he will not evacuate Netzarim, an isolated settlement in the Gaza Strip, let alone the [Gush] Katif Bloc of settlements in the northern Gaza Strip.” [Sharon expelled their inhabitants in August 2005 before succumbing to his incapacitating stroke. (PE)] ….

Shavit asks Rivlin: “Is [Prime Minister Ariel] Sharon tormented by his personal responsibility for the establishment of the settlements and the need to deal with his mistakes?

Rivlin: “Whereas in the personal realm Sharon is a very sensitive person whose eyes often grow moist, in the national realm he is entirely without emotions.  He is a Mapainik [referring to the Mapai party, the precursor of Labor, which was known for its rampant [left-wing (PE)] pragmatism]. When he forms an opinion, nothing will stop him.”

“Rivlin himself,” Shavit continues, “is agitated and of two minds about the Sharonist shift. Even though he understands the logic that is guiding his political patron, Prime Minister [Sharon], he is not willing to accept it. He, Reuven Rivlin, will never lift a finger to hand over the Land of Israel...He begins to speak with the same fervor about the subject we are here to discuss: the constitutional revolution, Supreme Court President Aharon Barak and the threat posed to democracy precisely by the Israeli establishments. The speaker of the Knesset does not mince his words."

2. Journalist Ari Shavit on the Relationship between Rivlin and Sharon

Shavit: “Ruby Rivlin, you are very close to Sharon. You hold intimate conversations with him. Where is he taking us?”

Rivlin: "Arik is trying to achieve a solution that will put him into the history books as a person who fomented a historical turning point—like Ben-Gurion in 1947, Begin in 1979 and Yitzhak Rabin in 1993. But Arik also understands in the clearest way possible that he cannot achieve a permanent settlement that will satisfy the Arabs. He understands that no one on the Arab side will agree to forgo the areas that he regards as essential for the defense of the State of Israel.

"I refer mainly to areas in the Jordan Rift Valley and to the strip running from Arad to Jerusalem, in the Dead Sea region. Arik is therefore aiming for a temporary settlement. But the temporary settlement he has in mind is far-reaching. He truly intends the establishment of a Palestinian state with territorial contiguity and a true separation between us and 3.5 million Palestinians."

Shavit: “Are you saying that the moderate Sharon we have seen [since the 2003 election is the authentic Sharon contrary to his hawkish reputation]?”

Rivlin: "Undoubtedly. Undoubtedly. Whether I like it or not, the moderate Arik is authentic. Look, sometimes he zigzags. Sometimes he says things ambivalently, which can be interpreted either way. But to my chagrin, he has passed the point of no return. Shavit: “When did you grasp that this is it, that he crossed the Rubicon?”

Rivlin: "In October [2003]. One night he called me into his office and showed me the road map and asked me for my comments. At that moment I understood that we were approaching the moment of truth. That he's really going for [a Palestinian state]."

Shavit: “So deep down he really has remained a Mapainik?”

Rivlin: "Without a doubt. In the end, Arik believes in security above all and is a salient pragmatist, a disciple of Ben-Gurion. He … learned from Ben-Gurion that statecraft is the art of the possible.

"He didn't know, and he still doesn't know, how to reach a permanent settlement, but he is determined to recognize a Palestinian state and reach a settlement. Think about the fact that when he says the occupation is hard for the people of Israel he is really saying that the occupation corrupts. We have the right to the land but that we can't realize it. In this, he is actually accepting the ideology of the left."

Shavit: “So the person who heads the Likud today is really a Ben-Gurionist?”

Rivlin: "I told him openly: Arik, we are now on an irreversible collision course. You are a disciple of Ben-Gurion and I am a disciple of Jabotinsky. You are a pragmatist and I cannot free myself of my belief. I will not convert my religion, I told him. I have no intention of converting."

Shavit: “Give me a scenario. What's going to happen?”

Rivlin: “There is one thing on which Arik will make no concessions: terrorism. On this subject Arik has no doubts and everyone can trust him, including Likudniks. If there is terrorism, he will not hand over territory. [As a matter of fact, more Jews were murdered by Arab terrorists during Sharon’s reign than under that of any other prime minister (PE)].

"But if we actually reach a situation in which a solution is found for terrorism, and there are signs that the Palestinians are trying to meet us halfway, he will establish a Palestinian state in the territories held by the Palestinians with territorial contiguity, which could be very significant from the point of view of the Israeli government's attitude toward the sacred principle of non-evacuation of settlements.”

Shavit: “Are you saying that Sharon will evacuate settlements already in the stage of the establishment of the temporary Palestinian state?”

Rivlin: "It is definitely possible that an impossible friction between certain settlements and the need for a situation in which the Arabs will not pass through our territory and in which we will not rub shoulders with them - that this will thrust him into a situation in which he will make an Arik-style decision that it's possible that settlements will have to be evacuated.

Shavit: “How many settlements are we talking about?”

Rivlin: "When Arik assumed the office of prime minister, and even earlier, in discussions he held with [former prime minister] Ehud Barak, about 17 settlements were identified."

Shavit: “When Sharon mentions painful concessions, is he referring to these 17 settlements … and does Sharon believe that an evacuation on that scale will bring about calm and conciliation?”

Rivlin: "Sharon thinks that it's necessary to build some sort of relations of trust. Even though, knowing Sharon as I do, I don't see him placing any trust in the Arab side" (Italics added PE).

Shavit: “So there is a basic problem in placing trust in the Arabs?”

Rivlin: "He has no trust in them (italics PE). Arik doesn't like them much because he doesn't believe them. But Arik knows that negotiations are not conducted only with people you believe. Negotiations are conducted in order to solve problems. [But how can serious negotiations be conducted if you don’t trust your negotiating partner? (PE)]. Look [Rivlin continues] Arik does not view the Arabs from a position of superiority. He sees the Arabs as people to whom we owe nothing. We owe nothing to anyone who wants to attack and kill us. That side of the issue is of no interest to him. So when he talks about 3.5 million Palestinians, it is not because of their suffering, but because he has reached the conclusion that to go on ruling them is impractical."

Shavit: “And what about the permanent settlements? Will he not forgo the Jordan Rift Valley and the Gaza Strip and the strip between Arad and Jerusalem even as part of a final peace agreement?”

Rivlin: "In my opinion, he will be more adamant on that than on the question of Jerusalem. That is his casus belli. As far as I know Arik, he will not compromise on that issue. To him, these are territories without which it is impossible to defend Israel. But a situation is liable to develop in which the decision about them will not be his to make" (italics PE).

3. Worrisome Sounds about Jerusalem

Ari Shavit: “Is it possible that Sharon will also compromise on Jerusalem?”

Rivlin: "I don't want to believe that. Arik is suffused with a mystical belief about Jerusalem. But when you embark on the road, you will be asked — Will you now ruin everything just because of Jerusalem? I

Shavit: “So what you fear is that the process will pull him in further than what he himself supposes? Is he the only one who makes the big decisions?”

Rivlin: "He's very centralistic, Arik, very centralistic." …

Shavit: “Is it your assessment that the very course Sharon has embarked on will in the end lead to the 1967 borders or something approximating them?”

Rivlin: "That's more than an apprehension. That's a clear scenario. Unequivocally (emphasis added (PE). Because once we live in a global village and the American sheriff is the sheriff of the whole world, you can be the world's greatest ideologue, but you have to take account of the political situation. And from the moment a crack appears in your belief, the crack gets wider and wider.  Even principles that Arik promised me he would uphold just a few months ago have been eroded. We are entering a process here that does not make conditional the end of one stage before the transition to the next stage. We have already recognized the Palestinians' right to a state and we are talking about the Saudi plan and the right of return. It's all up for grabs. So it's clear that even if there are things that Arik really will not forgo, his successor will continue what he began." [emphasis added (PE)]..

Part III. The Rivlin Revelations: Supreme Court President Aharon Barak

Shavit: “Ruby Rivlin, your attack on the Supreme Court was unprecedented. What brought it on? Why do you perceive the court as being so dangerous?”

Rivlin: "In 1992 I was a member of the [Knesset's] Constitution, Law and Justice Committee, which formulated and passed the Basic Law on Human Dignity and Freedom. So I know what the idea behind that law was. The idea was to consolidate the rights of people insofar as they are people and the rights of the minority insofar as it is a minority. Under no circumstances was the idea to transfer legislative authority from the Knesset to another body. No one even talked about changing the balance of power between the Knesset and the court (emphasis PE).

"So a few months later, when Dan Meridor declared that a constitutional revolution had taken place, I was stunned. Dan Meridor is one of the followers of Justice Barak. Follower is a nice word. I don't want to use a different word, heaven forbid. But unlike him, I thought—like several former Supreme Court presidents that there had been no constitutional revolution here. No such thing.

"Yet as time passed and the court moved ahead with great deliberation and by creeping annexation took over more and more powers, I realized that not only had there been a constitutional revolution, there had been a coup d’état. (emphasis added (PE). I do not accept this revolution. In my view, the Knesset never approved it and therefore it is taking place contrary to the democratic spirit and without authorization."

Shavit: “‘Coup d’état' is a serious term to use in this context; it means a putsch” (emphasis PE).

Rivlin: "Correct. And that is the term I used at the President's Residence last month. Supreme Court President Barak was very hurt by the expression, but in my opinion, when a group of people sit in a room and say that from this moment we are the power, that is a putsch. You tell me: Isn't it a putsch? It's a putsch. After all, they did not receive authorization from anyone. They did not consult with anyone. They created a situation of going ahead and seizing power."

Shavit: “Do you see this as the imposition of a particular worldview on the public by means of an improper procedure? Do you see a move to establish a kind of enlightened absolutism?”

Rivlin: "Yes. It's as clear as day. Aharon Barak says that we have to distinguish between the Knesset as framing and the Knesset as legislating. He says that if you don't frame a constitution, I will set forth a constitution instead of you. But who gave him the right? Who gave him the right?" (emphasis added PE).

Shavit: “What you are actually saying, then, is that the whole constitutional move that Justice Barak led in the past decade is illegitimate?”

Rivlin: "Of course. On the basis of the false claim of a constitutional revolution, a new reality was created here. A new government was forged that is above everyone: both above the Knesset and above the government and above the law, too. Take note that the court has effectively placed itself above the law….

Shavit: “Do you really believe that the court is operating contrary to the democratic spirit and contrary to the values of democracy?

Rivlin: "Without a doubt. The court is disrupting the whole order of government. I will give you an … example. On the issue of the Landau report [a 1987 report about the Shin Bet security service's interrogation methods, drawn up by a commission headed by Justice Moshe Landau, a former president of the Supreme Court], Aharon Barak comes and says, Look, even if all 120 members of the Knesset tell me that in the case of a human ‘ticking bomb,’ moderate physical pressure can be used [as the Landau Commission recommended in certain interrogations], I will strike it down. In other words, Barak is placing himself above 120 legislators. He says, If I think it's wrong, I don't care what the Knesset thinks …

Shavit: “Still, why now? What decisions by the court made you react so harshly?”

Rivlin: ...You realize that we have reached a state of total madness... the decision by the High Court of Justice on the question of the Church of the Nativity in Bethlehem [when armed Palestinians took refuge there during Operation Defensive Shield in May, 2002 (brackets in original).

"The very fact that the court did not kick out the petitioners and agreed to get into a discussion about the conduct of war policy in wartime proved to me that the court is now placing itself above the government, too. Because the moment the court starts weighing the considerations of the government in matters about which only the government can decide and for which it alone bears responsibility, it's all over. The court has actually turned itself into a meta-government.

"Therefore, I reached the conclusion that someone had to tell His Honor Justice Barak that there is a limit. Someone had to tell him, It's not your affair. It's the affair of the government."

Shavit: “Do you seriously intend to curb the power of the court by means of legislation?

Rivlin: "Definitely. It has to be done. We are talking about a burning problem. We are talking about a situation in which they are already talking about a requiem for the law, about how the judge overcame the law. And we are talking about a situation in which the judicial system is endangering the democratic system in Israel because its people [the judges] are sure that they are better than others.

"What's going on here, after all? Effectively there is no longer any law here because the law changes every minute according to the interpretation of the court based on some sort of meta-norm that has never been defined, so no one knows what it is. The result is a situation in which a very small group of people has arrogated to itself the authority to decide values and rules and even policy for a whole country and for a whole public that never gave them any such authorization."…

Therefore I tell you that they are a gang …. A gang like any other gang. Except that the name of this gang is the gang of the rule of law" (emphasis PE).

Epilogue by Prof. Paul Eidelberg

The late Professor Benzion Netanyahu, who called the expulsion of Jews from Gush Katif a “crime,” thereby implied that, in this crucial respect, the Sharon’s Likud-led Government acted as a criminal conspiracy. Indeed, that this Likud government under Sharon adopted Labor’s policy of unilateral disengagement from Gaza—a policy rejected by at least 70 percent of the voters in the 2003 elections—may well be deemed an unspeakable crime!

Benjamin Netanyahu was a cabinet minister in that Sharon Government. His culpability was made transparent on June 14, 2009 when he endorsed the creation of a Palestinian state in Judea and Samaria.

Now, under these undemocratic and illicit circumstances, Benjamin Netanyahu can the more readily be expected to fulfill Sharon’s perfidious legacy. “More readily” indeed: for the people of Israel, misled by the myth of Israeli democracy, will probably give the treacherous Likud Party a landslide victory in the forthcoming national elections.

Question: What’s Going on in Israel?

Israeli secularists know how to count. They know that time favors the religious parties because of the high birthrate of the religious community. They know that this demographic development spells the end of the secular foundations of Israel's present (and ill-designed) system of governance. (Not that the religious parties will save this country. Let’s not forget that the ultra-religious parties received 290 million shekels to join the Sharon government—the bribe that doomed Gush Katif.) Nevertheless, Israel's future is in the hands of her religious youth.

Now, consider again Speaker Rivlin’s reference to the “putsch” executed under the ultra-secular Judge Aharon Barak. This putsch was ignored not only by the ordinary Israeli, but even by Israel's political science community. Why no reaction to a revolution that virtually disempowered the people of this country and made the cherished ideas and values of the Jewish heritage a plaything of Israel’s “courtocracy”? Can it be that political science departments of Israel are dominated by the anti-Jewish mentality of Judge Barak? Can it be that many political scientists—if they are not quietly engaged in a conspiracy to dejudaize Israel—have been infected by the political timidity and stupidity that reigns in this country?

Paul Eidelberg is president of the Israel-America Renaissance Institute