The rights of all should be protected by Israel

The planned judicial reforms would undermine the most fundamental principles of human rights and equality that are essential to any democracy, especially in a tinderbox country


Protesters lift flags and placards as they march against the Israeli government's judicial overhaul plan in Tel Aviv on July 29, 2023. (Photo by JACK GUEZ / AFP) (Photo by JACK GUEZ/AFP via Getty Images)

August 17, 2023 12:33

In 1940, a decorated French veteran of the Great War escaped the Nazis and fled to Britain. Nearly a year later, he broadcast from London an appeal to his fellow French Jews to join up on the side of the General De Gaulle and the Free French. His argument was that Jews should repay the constitutional freedoms they had enjoyed in France since the Revolution. The Vichy authorities condemned him to death in absentia. Many of the Jews that remained were of course condemned to death anyway.

On his return to liberated France, René Cassin was sent by his government to the United Nations, where he became one of the leading jurors tasked with drawing up a revolutionary document, the United Nations Declaration of Human Rights (UDHR). Adopted by the General Assembly in 1948, its aim was to try to codify and thus help to guarantee the “universal” rights of individuals and groups.

As Professor Francesca Klug has pointed out, several of the leading advocates of the UNHDR were Jews, including Raphael Lemkin, who originally coined the term “genocide”. One of its objectives was to take away, as she put it, “the cloak of national sovereignty behind which governments hide”. Of course that hasn’t stopped them hiding, just as it hasn’t stopped all genocides, but it has provided a benchmark against which citizens can judge their country’s goodness.

The Declaration, as endorsed by many national constitutions and regional bodies, is of course a hedge against oppressive majoritarianism. Because there is no tyrant, despot, autocrat, demagogue, opportunist or dictator who does not claim majority support for their actions, not least in dealing with minorities.

So when the prime minister of Israel claims that measures to rein in the capacity of the courts to stymie certain actions on the part of government are so that the politicians can “carry out policy in line with the decision of the majority of the citizens of the country”, it should be fairly obvious what the problem is. And it’s not just that this wielding of a popular majority is precariously founded on the particularities of the current coalition; it is that someone somewhere is going to lose something. This is not all being done so public transport can be improved.

Recently, I have become interested in the political doctrine of “ethnonationalism” that describes itself as National Conservatism. Largely the creation of right-wing Americans, one of National Conservatism’s figureheads and founders is the Israeli political philosopher Yoram Hazony. A former advisor to Mr Netanyahu, Hazony is the author of a book much favoured on the right, The Virtue of Nationalism. Hazony was a fan of the spirit, if not the violence, of the murdered Jewish fascist Meir Kahane.

In his “heartfelt farewell” to Kahane, Hazony wrote: “Rabbi Kahane was the only Jewish leader who ever cared enough about our lives to actually come around and tell us what he thought we could do… (he) helped us grow up into strong, Jewish men and women.” He also inspired a generation of violent Jewish extremists and murderers. It is something less than an irony that Hazony is the founder of the Edmund Burke Foundation. One can easily guess what Burke would have made of Meir Kahane.

This affiliation is, I think, an important background to understanding Hazony’s argument in support of the current measures voted through by Netanyahu and his far-right coalition. In an essay titled The Current Crisis in Israel’s Constitution, Hazony dates the problem back to the Israeli Supreme Court’s 2000 judgment in the case of Adel Ka’aden, in which two Arab citizens were granted equal rights with Jews in a matter of land allocation. Hazony notes disapprovingly that in stating “explicitly that equality (and not also security, liberty, the well-being of the Jewish people, and other values) is the general purpose of Israeli law, and explicitly invoking American cases such as Brown vs Board of Education [the Separate but Equal case] to rule inequality illegal in Israel, (the court was making) an announcement of a new constitutional order.” In so doing, the court, in Hazony’s view, put human rights above what he deemed to be the interests — and historic birth-rights — of Jews.

This is what the attack on the Israeli courts aims to address. In the meantime, though, says Hazony, there’s no reason for non-Jewish Israelis to fret because Israel will be “a nation that cherishes its non-Jewish citizens who have chosen to make their lives in the Jewish state”, because, you know, Jews are great people.

How nice it is to be “cherished”. How unnecessary it is, then, to have equal rights. Or a court to uphold them. Those who argued for the benefits of separate black education in the Separate but Equal case argued out of similar affection for their non-white fellow citizens.

I venture to think that Jews in the diaspora don’t want to be “cherished”. They are minorities in other countries. Their protections are guaranteed by the same sort of judicial autonomy and concern for equal rights that Hazony and his comrades in the Knesset wish now to dismantle in Israel. I hope they are René Cassin Jews and Zionists, not Kahane-loving Jim Crow Zionists.

August 17, 2023 12:33

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