The Jerusalem Post

Unanswered questions in Shaked’s legal ‘revolution’

How much is election pandering and what are real initiative­s by the justice minister?


It has been hard to keep up with Justice Minister Ayelet Shaked’s flurry of proposals for her legal revolution.

The latest came last week when she appeared to call for house demolition­s of Palestinia­ns even before they have committed murder.

As with many of her other recent-hastily tossed out proposals on major controvers­ial issues, she did not give the standard detail which she is known for during non-election season.

The Jerusalem Post has contacted her office numerous times regarding the following list of issues without getting promised responses.

Was she proposing to demolish houses of Palestinia­ns who have committed no crimes based on a “Minority Report” style analysis of what someone posted on social media to show the likelihood that they would have committed a crime?

Was she proposing to demolish houses of Palestinia­ns who are indicted for conspiracy to commit murder when caught after having bought weapons and assembled a terror attack plan, but before they carry it out?

Or did she misspeak and was she simply trying to widen the category of Palestinia­n terrorists’ houses which get demolished? In that case, maybe she was copying MK Avi Dichter’s position that Palestinia­n houses should be demolished in cases of attempted stabbings and shootings which wounded, but which did not succeed in killing, the terrorist’s target.

In the same appearance last week, Shaked complained of “mishpatiza­tzia” (over-legalizati­on) of IDF conduct in dealing with conflict with the Palestinia­ns.

Shaked correctly noted that one of the reasons that the IDF has become more careful since 2009 in using force in low-grade conflict situations is because of pressure from the Internatio­nal Criminal Court in The Hague.

Less clear was her proposal to replace the current approach to cope with the potential threat of ICC indictment­s and internatio­nal arrest warrants against Israeli war decision-makers and IDF soldiers. Some 125 countries, including members of the EU, are treaty-bound by ICC arrest warrants.

Israel’s current approach is to push the envelope on what internatio­nal law of war appears to permit but to stay within certain limits and interpreta­tions which it believes will keep the ICC from getting involved.

If Israel takes an even more aggressive approach to using force which even the US army lawyers would not back and is not recognized by any internatio­nal legal body, how would Shaked deal with the ICC? Israel might be able to get a respite with the Trump administra­tion’s opposition to the ICC, but what happens with the next US president?

It was also unclear on what basis she accused former chief justice Aharon Barak of responsibi­lity for the IDF’s more restrictiv­e rules of engagement since the major change has occurred since 2009, long after Barak’s retirement.

Further, a 2014 Institute for National Security Studies journal article titled “Lawyers in war: Who needs them?”, by academic Ziv Bohrer notes that during the 1948-1949 War of Independen­ce – with an IDF of some 70,000 soldiers – there were 2,424 courts martial, with an average of 400 cases per month. He said this shows that, even in Israel’s first war, lawyers and judges were heavily involved in regulating the army, “and yet Israel still managed to win!”

Shaked’s statements that Barak caused the Basic Law legal revolution are accurate, but in the arena of the IDF there is no real evidence that he held the army back. In fact, he issued the initial decision permitting targeted killings.

Earlier in election season, Shaked avoided answering questions about whether Prime Minister Benjamin Netanyahu’s attempt to fire his office’s legal adviser should change her view that legal advisers should become political appointmen­ts. Netanyahu’s legal adviser happens to have provided negative informatio­n about him and Sara to police when subpoenaed.

Under the current system, legal advisers of ministries answer to Attorney-General Avichai Mandelblit. The attorney-general blocked what appeared to be an attempt by Netanyahu to fire his legal adviser in retaliatio­n for her being truthful to police about some of his and Sara’s conduct in the legal cases they face.

If Shaked’s bill had been in effect to give ministers power over hiring their legal advisers, it is possible that Netanyahu could have fired his adviser without any oversight.

Another question is where she and New Right Co-Party leader Naftali Bennett stand on the treatment of the Druze community (they are essentiall­y omitted) by the Jewish Nation-State Law which was passed as a Basic Law having quasi-constituti­onal status.

Long before elections, Bennett was the first in the government to admit that leaving out some special mention of the Druze community was a mistake or an oversight.

However, when Blue and White leader Benny Gantz made one of his first public appearance­s in the election season calling for an amendment to the Jewish Nation-State Law to secure the Druze community’s special status, Shaked was one of the first to lash out and attack him as left-wing.

Questioned about the seeming discrepanc­y, a spokesman for Shaked said Gantz was wrong to suggest that the specific fix for the Druze community needed to be done by amending the law. Rather, he said the fix might be done by passing a separate law or by a government policy decision.

Pressed that the Druze community was unlikely to accept such a deal – a separate law, if it was not a Basic Law, as well as a government policy decision would both have an inferior status – the spokesman said they could connect the Post with Druze community representa­tives who would endorse this scenario off-record.

No such representa­tives were produced, leaving question marks again about where Shaked stands on the Jewish Nation-State Law and the Druze community.

Shaked has been very clear about one thing – altering the process for appointing Supreme Court justices to a Knesset-centered process with public hearings as in the US.

There are difference­s. In the US, sometimes the Senate is from a different party than the president, which is a check on totally partisan appointmen­ts that Israel would not have if opposition votes were not required.

But agree or disagree, the proposal itself is straightfo­rward and clear.

The question is how many of these half-baked proposals are election season fluff, versus how many could be real initiative­s with the details being filled in after elections?

 ?? (Marc Israel Sellem/The Jerusalem Post) ?? JUSTICE MINISTER Ayelet Shaked
(Marc Israel Sellem/The Jerusalem Post) JUSTICE MINISTER Ayelet Shaked

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