Israel’s Foreign and Defense Ministries, along with their legal counsels, are simply failing to grasp how deep of a hole they have dug for themselves. The defense export policy that they introduced has made Israel into one of the world’s main supporters of state-sponsored terror.
In effect, if it had been politically feasible, the Biden administration should have placed Israeli officials on the United States blacklist for the same reasons that Israeli cyberattack firm NSO was placed on the list last month: For endangering U.S. national security and allowing “foreign governments to conduct transnational repression, including the practice of authoritarian governments targeting dissidents, journalists and activists outside their sovereign borders – with the aim of silencing opposition. Such practices threaten international order and rule of law.”
Through their own obliviousness and arrogance, ministry officials have caused greater strategic damage to Israel than Iran has ever succeeded in inflicting. Yet the ministries continue to deny that they have erred or that they have lost control. All over the world, people have suffered human rights violations due to Israeli defense exports, particularly the NSO phone-hacking software Pegasus. These exports were carried out with a license from the Foreign and Defense Ministries. At any moment, these victims are likely to begin public, legal proceedings against the State of Israel or an Israeli company. Even if the complainants have never taken an interest in the occupation or criticized Israel over the violation of human rights in the Palestinian territories, they are certainly interested in violations of their own rights.
The Foreign and Defense Ministries continue to handle the Pegasus affair as a public relations crisis, rather than a human rights crisis – as a diplomatic issue and an insane legal entanglement.
‘Not a dictator’
The ministries’ latest spin: Countries that purchase surveillance systems from Israel will now be asked to sign a declaration. If this is the best they can come up with – after months of work by ministry officials and their armies of legal advisors, and after grand promises to the U.S. and French President Emmanuel Macron that Israel has learned its lesson – there’s nothing to do but tear our hair out and be embarrassed for those officials who seem to have lost all shame.
In the meantime, they’re willing to throw Tel Aviv District Court Judge Rachel Barkai under the bus as a sacrificial lamb. In July 2020, Barkai rejected a petition by Amnesty International to revoke NSO’s export license. The rights organization, which is one of the oldest and most admired in the world, claimed that the company’s technology was used against an Amnesty staff member. Barkai wrote two rulings in the case. One was kept secret from the public and the other was approved for publication by the Defense Ministry.
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This is the only ruling on the subject of defense exports that the Defense Ministry has ever agreed to publish, and for good reason. Barkai lavishly praises the ministry, claiming that the authorities in charge of defense imports “do their work meticulously before granting a marketing and/or export license. Even afterwards, the licensee is under close surveillance by the department that oversees defense exports, which shows particularly great sensitivity to the subject of human rights violations.”
If the situation was so wonderful at the time, why was the Defense Ministry forced to patent this new declaration for defense export users? Barkai’s claims have been proven false through a large number of exposs on the Pegasus software and the inclusion of NSO on the U.S. blacklist. The participation of a judge in what appears to be Defense Ministry propaganda is no less grave than the text messages that saw Judge Ronit Poznanski-Katz dismissed for coordinating with security officials.
The new declaration is scandalous, both in terms of ideology and content. Ideologically, the ministries are adopting NSO’s method – they claim that they do not monitor the targets of the Pegasus system in real-time, instead relying on purchasing countries to abide by the declarations it makes to the company and on the countries’ internal systems of oversight.
But the Foreign Ministry and the Defense Ministry are not for-profit companies. They are official ministries that, since 2007, are legally responsible for regulation in the field. Instead of commencing supervision of the use of these surveillance systems and their targets, they have deferred their responsibility onto dictatorships and undemocratic regimes that are expected to “self-regulate.”
The Israeli “trust me” method has been upgraded to “trust the dictator.” Just like Israelis have learned to reach over from the driver’s seat and tap “not the driver” on the Waze navigation app, from now on, dictators can simply indicate that they are “not a dictator.”
In terms of content, this is true fraud. The declaration makes no mention of the law or international human rights conventions. In effect, the term “human rights” does not appear at all, perhaps for fear that some dictator who votes with Israel at the United Nations will die of laughter.
The definitions of “terror” and “crime” – i.e. the approved targets of the surveillance technology – have remained in the hands of the purchasing countries. The broad definition of “terror” in the declaration includes not only perpetrating acts of terrorism, but also threats to do so. It is similar to the definition of “terror” found in the criminal laws of Saudi Arabia, Equatorial Guinea and Russia. Broad definitions like these allow opposition members, human rights activists and journalists to be persecuted, arrested, disappeared and murdered.
The wording in the sub-clauses related to causing economic damage and disrupting the supply of natural resources, is precisely the wording that allows for the persecution and assassination of environmental activists and indiginous communities who oppose the deforestation, mining and drilling for oil.
The declaration hardly defines the notion of “serious crime.” It refers to any crime that carries a prison term of six years or more.
Here are several examples of such crimes. In the National Security Law that China has forced on Hong Kong, Article 20 imposes a maximum punishment of life imprisonment on anyone who works to promote Hong Kong’s independence, even in a nonviolent manner. Article 22 defines any interference in the ongoing activity of the government authorities in Hong Kong as a crime punishable by life imprisonment. Articles 26-27 define journalists, lawyers and doctors who provide assistance to demonstrators as terror collaborators – punishable by up to 10 years in prison.
Article 29 defines contact and collusion with foreign forces, or transmitting information to them, as a crime. In other words, citizens of Hong Kong who report human rights violations to the UN, human rights organizations or journalists, will be considered criminals. These crimes carry a maximum of life imprisonment.
Under the penal code in Vietnam, which is a major purchaser of Israeli weapons and surveillance systems, the following are defined as crimes punishable by up to 20 years in prison, or death: Propaganda against the regime (Article 88); organizing and carrying out activities designed to replace the regime (Article 109); disagreeing with the regime’s policies (Article 116); distributing information designed to stir up opposition to the regime (Article 117); interfering with security (Article 118); disturbing the public order (Article 318); invoking the right to democracy or freedom to subvert the regime or individuals connected to it (Article 331).
Do the right thing
Instead of this embarrassing declaration, Israel’s Foreign and Defense Ministries should have adopted the American approach to human rights. Unlike the Israeli document – which focuses on broad definitions of terror and crime that are tailored to the neads of dictators and allow Israel to continue doing business with them – U.S. law focuses on the definition of serious human rights violations, which would disqualify the approval of defense exports.
These include violations that are recognized under international law, including torture, cruel, inhumane or humiliating treatment or punishment, prolonged detention without an indictment and a trial, the disappearance of dissidents by means of kidnapping and keeping them in secret detention facilities, depriving a person’s right to life, liberty and security without a trile, and rape motivated by political, ethnic or religious affiliation.
There is no chance that the foreign and defense ministries will do the right thing. The best and the brightest are probably already busy planning the next spin.
We can also assume that at least some of the employees at the ministries are working under the assumption that a dramatic change in defense export policy may save the companies from moral bankruptcy, but are likely to cause economic bankruptcy. Oh, the horror! When this generation finally retires from civil service, defense exporters may be facing their worst nightmare: Instead of raking in millions from the sale of weapons and surveillance systems, they may have to find another gig. Maybe selling Israeli drip irrigation systems to the non-Jews.