The High Court or Ben-Gurion

A state judge cannot impose his religion and opinions on secular people, or on those who believe in other gods, thereby completely toppling the fence - which is already riddled with gaping holes - that separates religion and state in Israel.

The High Court of Justice's ruling in the case of Lt. Col. Omri Borberg, the battalion commander at Na'alin, represents a milestone in civilian control over the army. The result is beneficial and desirable: It etches into the consciousness of every chief of staff and military advocate general that their power, too, has limits. Yet alongside its convincing arguments, the verdict in this case included several statements that do the court no credit. In these sections, one could say the court pulled a Borberg.

The most outrageous was Justice Elyakim Rubinstein's remark that the incident in question was a "desecration of God's name." In his own home, every citizen is entitled to worship his God, or to deny His existence, as he sees fit. But a state judge cannot impose his religion and opinions on secular people, or on those who believe in other gods, thereby completely toppling the fence - which is already riddled with gaping holes - that separates religion and state in Israel.

Aside from his personal faith, which he presumed to make binding on others by dint of his position, Rubinstein also bowed in worship - and in this he was joined by fellow justice Hanan Melcer - before David Ben-Gurion. His quotations from Ben-Gurion were cliches, and in this case, they also implied a wink at Borberg's military defense attorney, Col. Ehud Ben-Eliezer, who is Ben-Gurion's great-grandson.

Rubinstein based himself on a sentence inscribed in the General Staff's conference rooms and on army bases: "Every Hebrew mother will know that she has put her son's fate into the hands of commanders worthy of it." But he ignored the necessary conditions for this: "If commanders inspire the trust, loyalty and love of their soldiers, then every Hebrew mother will know...." Like a commentator or speaker at the annual memorial for Ben-Gurion, Rubinstein declared that "we see a consistent line that spans the entire period of his service as prime minister and defense minister - a message of morality, of commanders serving as examples, and of quality and success depending on this. These words, in my opinion, are the moral basis of the spirit of the Israel Defense Forces, and they should be a beacon guiding commanders and soldiers today just as they were then."

But Rubinstein's conclusions rest not on facts, but on mythology. This is like a Greek judge basing his verdicts on tales of Zeus on Mount Olympus. Ben-Gurion's stated desire for truth and integrity was implemented in a very selective manner. While some people were punished severely for every minor deviation from the straight and narrow, Ben-Gurion carefully averted his eyes from the iniquities of others whom he liked - first and foremost the man whom Rubinstein so admires, Moshe Dayan, that champion thief of everything from chickens to antiquities, not to mention offenses against his lovers' husbands. For their next ruling, perhaps the justices will seek out hypocritical quotes from Dayan - a serial violator of discipline both as an officer and chief of staff - about the need for others to maintain discipline.

But because the justices were hearing a case about an officer whose ambiguous order to a soldier led the latter to shoot a bound Palestinian in the foot in order to intimidate him, Rubinstein devoted most of his attention to the IDF's attitude toward its enemies. This was the ostensible basis for the link between Ben-Gurion and the desecration of God's name. In the words of one rabbinic authority cited by Rubinstein: "Deviant and cruel acts toward our enemies by us, even if their goal is to prevent harm to us, are liable to result in the desecration of God's name, [whose test lies] in whether the action accords with or deviates from what non-Jews expect of us, in the ethical norms they ascribe to us in this action."

Rubinstein - who has spent the last 45 years in the defense, diplomatic and legal establishments, and knows about everything that happened in this country before then - surely remembers Ben-Gurion's forgiving attitude toward the criminals of the IDF and the Border Police in the massacre at Kafr Qasem. And that is only part of the story. There is also no record of any response whatsoever by Ben-Gurion to a nauseating incident in which Egyptian captives and civilians were murdered in the 1956 Sinai Campaign by paratroopers who served under Ariel Sharon and Rafael Eitan, and who later told about this incident. If Ben-Gurion even knew what was happening under his nose in Dayan's IDF, or the noses of the other five chiefs of staff who served under him, he was not shocked, did not administer punishments, did not order every recruit and fighter put through a rigorous course of education, did not demand that these ills be eradicated (and that includes the hazing of soldiers, while we are on the subject of human dignity).

Ben-Gurion does not belong in the High Court of Justice. It would be better to leave him out, along with his companion in the Borberg ruling, poet Natan Alterman - who opposed war crimes, but advocated occupying the entire Land of Israel, with no thought for the consequences.