The unequivocal verdict against Elor Azaria, the IDF soldier accused of killing an unarmed terrorist in Hebron, was a rare victory for human rights, the IDF and the rule of law. Azaria was unequivocally convicted of manslaughter: the military court that tried him didn’t leave even a sliver of doubt in its judgment. It is a measure of the degree to which confidence in the legal system has been eroded in recent years that so many Israelis were taken by surprise by the clear-cut, no-ifs-or-buts decision rendered by the Tel Aviv Military Court.
The reactions were swift and harsh. Education Minister Naftali Bennett blasted the “sullied” legal procedure and called for an immediate pardon for Azaria. Culture Minister Miri Regev described Azaria’s judges as a “kangaroo court” that was influenced by the media. The lead judge, Colonel Maya Heller, was immediately subjected to death threats on Facebook, as was the chief of staff, Gadi Eisenkot, who has taken a consistently tough line against right-wing efforts to coopt Azaria and depict him as a hapless victim of overzealous liberals, rather than an ideologically-motivated soldier who violated orders, unjustly killed another human being and then invented a deceitful line of defense that was contradicted, first and foremost, by the video footage of the March 24, 2016 incident shot by a B’Tselem volunteer.
This is the part of the glass that is half-full: The system still works. The army is still capable of resisting politicization. The prosecutors and the judges can still resist overwhelming political pressure. When push come to shove, IDF officers will still stand up for what is right, judges are still able to render verdicts without fear or favor and the legal system, for the most part, will still come down on the side of justice rather than its perversion.
But this is the part of the glass that is half empty, at least, if not more: The rule of law in Israel is living on borrowed time. Its enemies grow stronger every day and they are on the ascendant. The willingness to replace objective testimony and evidence with politically motivated narratives that may distort reality but serve a greater ideological purpose is growing day by day. There are more legislators in Israel’s ruling coalition willing to blast the military judges and to defend Azaria than those courageous enough to confound their own constituents and stand up for facts and justice. The 40-year war of the right wing in general, and the settler movement in particular, against the secular, liberal and therefore alien legal system is making steady gains.
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The conflict between the settler movement and the rule of law was evident almost from day one. Government-sanctioned settlements, starting with Kfar Etzion, which was set up in the summer of 1967, may have been viewed by the international community as illegitimate if not illegal but at least were duly authorized by the competent Israeli authorities. But this was not enough for Jewish settlers in general and for the Gush Emunim movement, in particular: They set up their own, unauthorized settlements in defiance of government guidelines in order to create “facts on the ground” in places such as Hebron, in 1968, and Sebastia, in 1975. By now, both international law and the Israeli-imposed legal system in the territories were viewed as impediments, if not mortal enemies.
The battle lines were finally drawn in 1979, in the so-called Elon Moreh judgment, in which the High Court of Justice ruled that without security justifications, settlements could not be built on privately owned Palestinian land. 47 years later, in the recent scuffle over the outpost at Amona, Bennett and the settlers finally succeeded in getting the government to approve a law that would undermine the Elon Moreh verdict in the so-called Regulation Law. It was one of the triggers for the U.S. decision to refrain from vetoing UN Security Council Resolution 2334 last week.
In the meantime, the right wing has launched an all-out offensive against the Supreme Court and the rule of law. It has portrayed the court as a champion of secular and liberal constitutional values that are anathema to Jewish ideals. It has equated the court’s defense of human rights and basic freedoms as tantamount to collaboration with the enemy. It has depicted the Supreme Court judges as living fossils of “old elites” representing an undemocratic and antiquated aristocracy trying to cling to power and to resist the march of time. In its efforts to reduce Israeli democracy to majority rule, if not mob rule, the settlers and the right have cast the courts and the legal system as sinister, illegitimate, and treasonous.
The logic of the right-wing campaign against the rule of law is self-evident. On the personal level, it allows political leaders such as Benjamin Netanyahu, who are suspected of wrongdoing, to describe the police and state attorneys as agents, unwitting or not, of political rivals, not officers of the law fighting crime and corruption. On the national level, the campaign against the courts is meant to establish the supremacy of ethnic, nationalist or religious considerations of the Jewish majority in Israel over equality under the law and constitutional safeguards of basic freedoms of all Israelis and Palestinians. Before moving on to full-throttle apartheid that would be “legal” under Israeli law, the remnants of the old system, modeled along the lines of the best Western democracies, must be completely dismantled.
These forces of darkness suffered a defeat on Wednesday: The court methodically dismantled the various lines of defense they concocted in an effort to exonerate Azaria. The court rejected the notion that the security situation and the war on terror justified chucking out rules of engagement and the so-called “purity of arms” of the IDF. It resisted efforts to define Palestinian lives, including those of terrorists, as essentially worthless. It placed a major roadblock to slow the advance of the ongoing campaign to do away with IDF values and standards on the way to a ruthless and rule-less Jewish regime in the West Bank.
But the right-wing enemies of the rule of law won’t rest. They never do. In the short run, they will fight to overturn the conviction of Azaria by appeals for pardons and clemencies. They will continue to portray the judges and the IDF commanders as agents of Israel’s enemies. They will relentlessly chip away at the Israeli legal system, continue their efforts to pack the courts and limit their independence, go on with their campaign to deprive the High Court of Justice of its constitutional powers of review over Knesset legislation, continue exerting public pressure on the judges so that next time they will think twice before standing up for what is right, as Azaria’s judges did.
The force is with the enemies of the rule of law and time is working in their favor: as long as Likud leaders, from Netanyahu on down, prefer to placate the mob rather than confront it, the rule of law will enjoy only temporary tactical victories while beating strategic retreats. Azaria’s conviction is a milestone, but not necessarily a positive one: It could go down as a last-gasp triumph of the Israel republic before it gets run over by the Jewish barbarians at the gate.
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