Law as Diplomacy: the Enabling Role of Courts in the Realm of Foreign

Law as Diplomacy: The Role of the Israeli Legal System in the Realm of Foreign Policy

29/5/2018

Recent bids to curtail the judiciary’s power and independence have stirred intense political debate in Israel, which quickly became partisan. Yet the role of legal institutions is a matter of national security as well as politics: a strong and independent judiciary and powerful legal gatekeepers inside the government deflect international pressures, shield Israeli officials from international criminal proceedings, and ultimately enable more robust foreign policy. Should the government undermine these institutions?

 

The Supreme Court in Jerusalem | Photo: Amos Ben-Gershom, GPO

 

In recent years, and more frequently in recent months, Israel’s government has debated several proposals that would alter the delicate balance of power between legal and political institutions. Examples include a bill introducing an “override clause,” which would enable the Knesset to re-pass laws struck down by the High Court of Justice (HCJ); a constitutional reform proposing to strip the Court’s authority to invalidate unconstitutional laws; and bids to increase the influence of politicians in nominating judges and legal counsels in government ministries.  

 

These and other proposals have stirred intense public debate in Israel, apparently driven more by parochial political interests than anything else. Prime Minister Benjamin Netanyahu’s right-wing coalition and its supporters have pointed to the “activist” Supreme Court and the uncontrolled rise of “legalism” inside the executive branch as obstacles to effective governance. Parties on the left and center have maintained that the government is actively seeking to undermine the rule of law, especially in light of the numerous corruption charges against PM Netanyahu and other top members of his government.

 

One critical concern absent from public discourse is the effect of these reforms on Israel’s national security. Strong and independent legal institutions are a diplomatic asset, especially for a small state like Israel. Although they constrain executive action in certain circumstances, their oversight is essential for deflecting international pressure and validating security and foreign policies for legally-conscious audiences. For national security and foreign affairs, strong independent legal institutions are not a hindrance to governance, but rather a force multiplier.

 

No Courts, No “B’Tselem”

In 1993, Israel and the Palestinian Authority (PA) signed the Oslo Accords, hoping to finally bring peace to the war-torn region. One part of the Accords that drew significant criticism in Israel was the establishment of an armed Palestinian police force. Many Israelis feared that the weapons sanctioned by the agreement would be turned against them. To justify this concession, then-Prime Minister Itzhak Rabin argued that a well-armed PA would be able to combat Palestinian terrorists without the interference of judicial review or human rights NGOs such as “B’Tselem.”   

 

The context of Rabin’s words is hard to ignore. He made that statement shortly after the HCJ temporarily halted his government’s decision to deport 415 Hamas members to Lebanon in response to a series of attacks against Israelis. In 1994, Rabin’s message was clear: Israel has a government that fights terrorism, while other actors – first and foremost the Supreme Court – lay obstacles in its path. “No courts and no B’Tselem” soon became a catch phrase against judicial activism.

Legal advice and oversight on security and foreign policy reduce domestic and international pressure on the government, giving it greater leeway to realize its objectives

Some two decades after the Oslo Accords, in 2014, Israel launched a military campaign in the Gaza Strip against Hamas and other militant groups, the third in five years. Commenting on the heavy fighting and mounting criticism against Israel for using excessive and indiscriminate force, then-Justice Minister Tzipi Livni declared that “when the fighting in the field subsides, the legal battle against the State of Israel and its leaders, soldiers, and commanders will begin.”

 

Israel’s best defense, she argued, lay in its robust legal institutions, especially “the Supreme Court and the prestige it enjoys worldwide.” PM Netanyahu recently expressed similar sentiments. In an interview he gave to CNN, Netanyahu proudly asserted that Israel’s Supreme Court is “the only independent court in the Middle East.” This description came on the heels of statements he had made a few weeks earlier, where he extolled the Israeli judiciary, which “has made a name for itself all over the world for the caliber of its justices, its independence, and for the fact that it represents the most exalted values of thousands of years that have become reestablished in the Israeli democracy.”

 

These contrasting statements represent a profound shift in the relationship between Israel’s legal and political institutions. By legal institutions, I mean the judiciary and legal gatekeepers inside the executive and legislative branches, including the influential Military Attorney General’s (MAG) Department of International Law, which provides operational legal advice to the Israeli military on the international law governing its actions. “No courts and no B’Tselem” alludes to a bygone era, in which laws and legal institutions were viewed as irrelevant or even inimical to the government’s ability to carry out its foreign and security policy.

 

Today, independent legal institutions are critical components of Israel’s national security apparatus. Robust legal review signals to civil society organizations and the international community that state actions taken in the international arena (e.g., counterterrorism and its refugee and asylum policy) are constrained by law and thus legitimate. From this perspective, the rule of law does not operate only to limit government power, but serves an enabling function. Legal advice and oversight on security and foreign policy reduce domestic and international pressure on the government, giving it greater leeway to realize national security and foreign policy objectives.

 

What Changed?

Notably, this shift does not represent a deep transformation in the social role of law. The “enabling function” is simply a side effect of a highly functional legal system. Legal norms and institutions have historically served to regulate interactions among individuals, between state authorities and individuals, and between branches of government. That traditional role holds true today. In democratic states, the law is a tool through which the sovereign – in democracies, the people – grants its representatives authority to realize desired social goals while protecting individuals from government tyranny. In other words, it is not the law that has changed, but rather the domestic social setting and international political environment in which the law operates.

 

To understand these transformative shifts, it is useful to examine recent societal changes. Currently, public debate over security and foreign policy is largely conducted along legal lines. Perceptions of what constitutes appropriate or inappropriate, true or false, desirable or undesirable, are frequently shaped at the public level by the legality of the act in question. In other words, what is legal is appropriate, and what is appropriate is legal. Both the government and its critics work hard to make the case that the law is on their side in every instance. When questions arise about the legality of a given policy, affirmation of government policies by credible legal institutions may serve to convince elites and other influential observers that the government’s activities are not unlawful.    

 

IDF commandos rappel from helicopters to seize the Mavi Marmara, in 2010. Video: IDF Spokesperson unit 

 

Still more significant is the increasing role of legal discourse in international politics. In recent decades, alongside the steady incursion of international law over national borders, the influence of law on international relations has grown significantly. In this arena too, debates are often conducted in legal terms. Attitudes towards Israel in the liberal West are to great extent a direct outcome of an awareness of the legality of Israel’s actions. Consequently, those seeking to damage Israel’s standing or moral authority will resort to legal arguments to do so.

 

Appeals to legal reasoning are ubiquitous. For instance, international debates over Israel during and after the military campaigns in Lebanon (2006) and Gaza (2009, 2012, and 2014) were largely focused on whether its armed forces had violated or adhered to international laws of warfare. U.N. Security Council Resolution 2334 of December 2016, which condemned the Israeli settlements project in the West Bank, noted that continuing Israeli settlement activities are a “flagrant violation” of international law. More recently, the U.N. Human Rights Council voted to investigate Israel for the killing of Palestinians during the large-scale protests on the Gaza border. This decision mandates the commission of an inquiry “to investigate all alleged violations and abuses of international humanitarian law and international human rights law in the context of the military assaults” on the border.

 

In these three examples and many others, legal discourse has directly impacted Israel’s ability to conduct successful diplomacy and ultimately secure the international support that provides the Israeli government with critical leeway. For example, the Palmer Commission, appointed by former UN Secretary General Ban Ki-moon to investigate the Israeli navy’s seizure of the Mavi Marmara ship in 2010, found that there is a legal basis for Israel’s continued blockade on Gaza, and determined that the blockade is largely being enforced in accordance with the rules of international law. These official findings were a crucial factor in garnering the international legitimacy that allowed Israel to keep enforcing the blockade, which remains in place to this day.

Israel’s fragile constitutional structure enables any coalition of political parties to disrupt the delicate balance between its legal and political institutions

The most vivid expression of the decisive role played by an active domestic legal system in gaining the imprimatur of international audiences stems from the principle of complementarity, as codified under the Rome Statute of the International Criminal Court (ICC). The Statute provides that ICC jurisdiction is based on complementarity – specifically, that the court will impose international criminal prosecution only in cases where national legal authorities have failed to act properly. Independent and well-developed legal institutions that have demonstrated sufficient safeguards against political bias and intervention preempt the ICC’s jurisdiction and subsequent interference.

 

It is clear that the Israeli legal system creates an essential barrier against international legal intervention that might otherwise limit Israel’s ability to implement national security and foreign policy. Political and military authorities thus benefit from the legitimizing force of a robust and independent legal system.

 

Legal Institutions and Political Tradeoffs

There is a strong correlation between a legal system’s independence and professionalism and its ability to fulfill a diplomatic function by providing legitimacy to government actions. Indeed, the price of an authoritative legal system is its independence – and corresponding power to place limits on government action.

 

For example, an independent legal adviser might refuse to sign off a proposed course of action, MAG officers might limit the use of certain military methods due to legal considerations, and a judicial process based on legal principles might deem desirable policies illegal. However burdensome, these hindrances are critical components of twenty-first century diplomacy. Relinquishing the desire for control at the micro level creates greater political freedom at the macro level.

 

Over many years, Israel has successfully developed norms and practices to guarantee the independence of its legal institutions. But Israel’s fragile constitutional structure, including the lack of a formal constitution, enables any coalition of political parties to roll back these norms, disrupting the delicate balance between legal and political institutions. Before reducing the power of the legal system, political actors should consider the critical role legal institutions hold in the realms of foreign policy and national security.

 

Elad Gil is the executive editor of “The Arena” and a doctorate (S.JD) candidate at Duke Law School. He holds an LL.b in Law from the Hebrew University of Jerusalem and an LL.m in International legal studies as a Fulbright scholar from American University School of Law. Before joining Duke, Elad was a researcher at the Israel Democracy Institute (IDI) and a research fellow at the Institute for Counter-Terrorism in Herzliya.

(Photo courtesy of the author)

 

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