Commentary Magazine


Topic: Israeli Supreme Court

Israel Needs Court Reform and Less Sexism

Israel’s new government was sworn in yesterday amid last minute wrangling among Prime Minister Netanyahu’s supporters and coalition allies. It was not an edifying spectacle and may well heave earned opposition leader Isaac Herzog’s characterization of the new cabinet as something of a “circus” though he might well have said the same thing about the formation of virtually every other Israeli government dating back to the state’s founding. No matter whether the right or the left is in charge, the country’s political system makes it impossible for major parties to form majorities on their own and empowers small factions at the expense of the rest of the country. Politics makes change difficult if not impossible. Yet that’s not the only thing about Israel that needs reform even if a key advocate of another necessary change in the new government is being both unfairly demonized as well as being subjected to sexist attacks. Ayelet Shaked, Israel’s new Minister of Justice has become the piñata of the Jewish left as well as Israel-bashers. Despite this, her critics are not only underestimating her; they are also ignoring the fact that she’s right about altering some aspects of Israel’s judiciary that are out of whack.

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Israel’s new government was sworn in yesterday amid last minute wrangling among Prime Minister Netanyahu’s supporters and coalition allies. It was not an edifying spectacle and may well heave earned opposition leader Isaac Herzog’s characterization of the new cabinet as something of a “circus” though he might well have said the same thing about the formation of virtually every other Israeli government dating back to the state’s founding. No matter whether the right or the left is in charge, the country’s political system makes it impossible for major parties to form majorities on their own and empowers small factions at the expense of the rest of the country. Politics makes change difficult if not impossible. Yet that’s not the only thing about Israel that needs reform even if a key advocate of another necessary change in the new government is being both unfairly demonized as well as being subjected to sexist attacks. Ayelet Shaked, Israel’s new Minister of Justice has become the piñata of the Jewish left as well as Israel-bashers. Despite this, her critics are not only underestimating her; they are also ignoring the fact that she’s right about altering some aspects of Israel’s judiciary that are out of whack.

Shaked is the subject of a profile in today’s New York Times that, for once, does justice to a non-leftist Israeli subject. Other than Netanyahu, Shaked is easily the most visible member of the new government as far as the international media is concerned. The reasons for this are obvious. First, she is young and attractive. But she is also a leader of the Jewish Home Party, the faction to the right of Likud on the Israeli political spectrum. As such her strong views on peace with the Palestinians and the right of Israelis to live in the territories have put a bull’s eye on her back and the country’s leftist-dominated media has been freely firing away at her.

Superficially, this may remind Americans of the way Sarah Palin was skewered by the liberal media when she was the Republicans’ vice presidential candidate in 2008. But the comparisons to Palin don’t hold up. Unlike that brittle and not quite-ready-for-prime-time politician, Shaked combines brilliant political skills with astonishing focus and competence. A secular Jew who was the leading vote getter in a primary dominated by national religious members, the 39-year-old Shaked has risen quickly to the top of Israeli politics. She has made some mistakes, like re-posting an incendiary article about Palestinian civilians on Facebook that she quickly deleted but not before it became a cause célèbre. She has also been subjected to the sort of chauvinistic abuse that always is directed at attractive women who are conservative, both in the United States and Israel and which prompts many of the Palin analogies.

Unlike the former governor of Alaska, there’s plenty of substance to Shaked, a former computer engineer who served a stint as an aide to Netanyahu before breaking with the prime minister and helping to form the Jewish Home Party with another Bibi protégé, Naphtali Bennett. Now that she’s become Justice Minister the attacks on her are starting to be less about her looks and more about her hopes to change some aspects of the country’s judiciary. But they are no less unfair than the cracks from leftists about her more worthy of being a calendar model than a Cabinet minister.

At the top of Shaked’s agenda is a plan to change the way judges are appointed in Israel. She also wants to put in some theoretical limits on the power of the country’s Supreme Court to override the will of the Knesset. This is being widely represented as nothing less than a putsch by fanatic right-wingers who want to destroy both democracy and the independent judiciary. That’s the sort of rhetoric that feeds into prejudicial attitudes about the Israeli right in the United States and it is as misleading as much of the rest of the mainstream media’s coverage of Israel. As Haviv Rettig Gur notes in an informative Times of Israel feature, the notion that Shaked is trying “to strangle” Israel’s high court says more about the unwillingness of the country’s political elites to discuss serious questions than it does about her ideas.

What most Americans don’t know about the Israeli Supreme Court is that its members more or less dictate the nominations of all judges in the country. In effect, the members of the court not only get to name their successors but also those on lower benches. . All she wants to do is to expand the committee that makes the selection to include members of Knesset so as to inject some diversity of opinion in the process. Imagine such a set up in the United States and you’ll quickly see why Shaked wants the liberal-dominated court not to have such untrammeled power.

More controversial is Shaked’s plan to allow the Knesset the right to overturn rulings of the High Court. Put into an American context, that sounds like a dangerous plan to do away with judicial review, the legal concept that allows the U.S. Supreme Court to guard constitutional principles against transitory and often wrong-headed political decisions made by the executive or the legislative branches. But the thing to remember about Israel is that there is no written constitution for the court to guard against a partisan Knesset. The court’s rulings can sometimes be as arbitrary and partisan as those of any Knesset. The ideal solution would be to create a constitution something that most Israelis understand is necessary but also impossible due to politics. Subjecting the court to political majorities as she suggests, sounds like an even worse idea than the current system. But at least Shaked is confronting basic issues that need addressing, which is more than can be said for her left-wing critics who merely defend an unsatisfactory status quo and smear those advocating for change as opponents of democracy.

In a government with only a two seat 61-59 majority, Shaked’s reforms may not have a chance. But those who think she will flop and fade out the way Palin did may be making a serious mistake. While it’s impossible to predict Israeli politics, Shaked may be the sort of politician who can not only help change the country but also cure it of some of the sexist attitudes that persist in its culture and politics.

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Justice Failed in the Demjanjuk Case

Yesterday, John Demjanjuk died in a German nursing home. Though twice convicted of participation in one of history’s great atrocities, with the assistance of clever lawyers, liberal judges and owing to his age and infirmity, Demjanjuk didn’t pass away in jail. Upon his death, his family once again declared his innocence and, due to a technicality in German law that says sentences are not final until the last appeal is ruled on, could even claim that his death voided his conviction. The New York Times obituary, though providing voluminous detail about his case, insisted on describing his case as merely a one of “questions” and “mysteries.”

But any objective examination of his story reveals little that could be fairly termed a “mystery.” Demjanjuk was a soldier in the Red Army who was captured by the Germans. Like many other Ukrainians he fought for Hitler’s army. But he was no ordinary turncoat solider hoping to evade the grim fate that befell most Soviet prisoners of the Nazis. He volunteered to be a death camp guard. Even if one accepts the doubts that were raised as to whether he was the infamous “Ivan the Terrible” of the Treblinka extermination facility, there is no doubt that he was a terrible Ivan who served at the equally horrific Sobibor, Majdanek and Flossenbürg camps. But though enough proof of his complicity in these crimes was brought forward to secure two convictions many years later, like many another Holocaust criminal, Demjanjuk didn’t die inside prison walls. While his Holocaust-denying fan club (among whose members we must count pundit and former presidential candidate Pat Buchanan) may claim the last laugh we must credit the hard work of activists and prosecutors who never gave up the fight to bring him to book for his crimes. In doing so, they did honor to the victims as well as to the cause of justice. We can’t help but note though that their efforts must be said to have fallen short since Demjanjuk never got the date with the hangman that he richly deserved.

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Yesterday, John Demjanjuk died in a German nursing home. Though twice convicted of participation in one of history’s great atrocities, with the assistance of clever lawyers, liberal judges and owing to his age and infirmity, Demjanjuk didn’t pass away in jail. Upon his death, his family once again declared his innocence and, due to a technicality in German law that says sentences are not final until the last appeal is ruled on, could even claim that his death voided his conviction. The New York Times obituary, though providing voluminous detail about his case, insisted on describing his case as merely a one of “questions” and “mysteries.”

But any objective examination of his story reveals little that could be fairly termed a “mystery.” Demjanjuk was a soldier in the Red Army who was captured by the Germans. Like many other Ukrainians he fought for Hitler’s army. But he was no ordinary turncoat solider hoping to evade the grim fate that befell most Soviet prisoners of the Nazis. He volunteered to be a death camp guard. Even if one accepts the doubts that were raised as to whether he was the infamous “Ivan the Terrible” of the Treblinka extermination facility, there is no doubt that he was a terrible Ivan who served at the equally horrific Sobibor, Majdanek and Flossenbürg camps. But though enough proof of his complicity in these crimes was brought forward to secure two convictions many years later, like many another Holocaust criminal, Demjanjuk didn’t die inside prison walls. While his Holocaust-denying fan club (among whose members we must count pundit and former presidential candidate Pat Buchanan) may claim the last laugh we must credit the hard work of activists and prosecutors who never gave up the fight to bring him to book for his crimes. In doing so, they did honor to the victims as well as to the cause of justice. We can’t help but note though that their efforts must be said to have fallen short since Demjanjuk never got the date with the hangman that he richly deserved.

The Cold War allowed many Eastern Europeans who took part in Nazi-era crimes to pretend to be victims. Demjanjuk was one such person and like many others who took part in these crimes, Demjanjuk evaded the long arm of the law after World War II ended and entered the United States where he took the name John and eventually became a citizen and raised a family. But unfortunately for him, evidence of his ties to the SS was uncovered, including an identity card with his picture. Survivors also identified him. His lies were eventually exposed and after many years of litigation the Justice Department was able to revoke his citizenship and deport him to Israel where he was put on trial.

After exhaustive arguments and extensive testimony from survivors who identified him as the man who brutally assaulted victims and killed many with his bare hands at Treblinka, Demjanjuk was convicted and sentenced to death. But five years later, the Israeli Supreme Court overturned the verdict and set him free.

The court’s justification for this action was the claim that other guards claimed that another Ivan, named Marchenko was the “terrible” guard of Treblinka. But the court’s ruling was not so much a conclusive ruling about his innocence as a meditation on the role of Israel justice. The majority seemed to feel that so long as even a shadow of a doubt existed as to his guilt it would be better that Israel should not take his life or deprive him of his liberty. This was meant and was actually perceived in many quarters as tribute to the quality of Jewish mercy as well as Israeli justice but it may well have been very bad law. As even the Times noted, Demjanjuk had listed his mother’s maiden name as Marchenko on his U.S. entry papers. The preponderance of evidence still must be said to show that Demjanjuk really was Ivan the Terrible of Treblinka.

Instead of the execution that he merited, he was sent back to America in 1993. But there again, intrepid prosecutors set to work to try and convict him again, this time, for being a guard at the camps that his lawyers said he was at rather than Treblinka. Again long delays put off his second deportation and trial (this time in Germany) and his conviction on those awful charges did not come until 2011.

We may take some solace in that the extended legal process for Demjanjuk helped educate the world about the Holocaust. We may also take pride in the efforts of those who labored for so many years to try and bring him to account for his part in these crimes. But there is much about this case that ought to be regarded with disgust.

Among the most shameful aspects of this story is the way some, like Buchanan, used Cold War enmity to obfuscate the guilt of Demjanjuk and other Eastern Europeans who were Hitler’s collaborators. Also shameful was the criticism aimed at the many Holocaust survivors who stepped forward to identify Demjanjuk as one of their torturers. The aspersions cast and doubts that were raised about the veracity of their testimony were deeply unfortunate. Most of all, the unwillingness of the Israeli Supreme Court to take responsibility for the case and to rule with fairness as well as mercy did little honor to that institution.

The plain fact of the matter is that John Demjanjuk never got the sentence his crimes warranted. In that he was not alone since many such criminals evaded prosecution, let alone prison time or execution. And for that we may all hang our heads in shame.

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