Fighting terrorism within law a daunting challenge
How does Israel control its armed forces’ behaviour when fighting terrorists within a few kilometres from its towns and cities, to ensure proper legal principles – Israeli and international – are adhered to?
This was a thought-provoking talk by Israeli Supreme Court justice and former attorney general, Elyakim Rubinstein (pictured) at Limmud last weekend.
“We see our [the Supreme Court] role as the guardian of human rights even of those who are terrorists and the enemy; by the checks and balances put on our armed forces who must understand and abide by our rulings.
“The concept of ‘proportionality’ is lively in international law, particularly during the recent Gaza conflict when it was the subject of much debate – how to fight terrorism without causing harm to the civilian population, especially when terrorists are using schools and hospitals and tall buildings to fire from.
“So the court developed regulations, implemented by the military and government (there is no question that they must abide by the decisions of the Supreme Court). Even the Red Cross whose role is to protect civilians, says it is difficult to apply this proportionality. But the point is that any legal issue in any realm is subject to the scrutiny of the court.”
There are three elements to proportionality, he says: The measure used should conform to the military aim; the option which is less harmful to citizens must be used; and there should be a proper proportion between the benefit from the action and harm caused to civilians.
“Once when I was attorney general in 2003, a group of security generals told me they had intelligence that a gathering of the main Hamas leaders would take place in a building in Gaza. We knew there were civilians in the building and we decided not to allow an attack, although we could have done away with the whole leadership of Hamas.
“Now in Gaza we use SMSes, flyers, and so on – these are all for the proportionality – to tell people we are going to shoot at the building, and they should leave the building. There is also the big question of who are the terrorists? They don’t wear uniforms.”
Rubinstein was asked by a questioner from the floor whether there was not a better principle than proportionality – which is a vague concept – to regulate the military’s behaviour. For example an absolute “red line” where you cannot fire on a hospital or similar institution under any circumstances.
Rubinstein replied that a commander in the field facing firing of missiles from a hospital had to make the decision whether it still was in reality a hospital and what the best response would be.”
He addressed another question – legal options available to Palestinians suspected of terrorism who are in administrative detention. “They have two military courts to appeal to, but if they petition our Supreme Court, three justices of the court will sit on any individual case.
“This is necessary because they are detained on the basis of intelligence, which cannot be put into open trial – whether human intelligence or electronic. So three justices will sit with the full intelligence file and go through it page by page on the opinions of the military and security services, to see if the detention is appropriate.
“This question of legal oversight applies not only to Gaza, but the fight against Palestinian terrorism over many years. We live within the reality in Jerusalem, not somewhere in Cape Town or New York… but our goal is to make sure that our security forces, our military are working within the law. Terrorism keeps changing its methods, sometimes stones, sometimes suicide bombers – in the early years of the former decade it could be coffee shops exploding or buses exploding.”
While the Supreme Court is there primarily to address Israeli legal questions, in 1967 it was decided to open the court to [non-Israeli] Palestinians from the occupied territories, so they could petition it on issues relating to their rights. The court also does not require ‘standing’, that is, the petitioner does not have to show any personal connection to the case – ‘locus standi’.
Since 1980, the court has received hundreds of petitions every year on various issues connected with Palestinians’ rights. Such as detentions, the security fence, and so on. The procedure is that three justice’s deal with every case.
“Regarding the security fence [erected roughly along the Green Line to prevent terrorists entering Israel from the territories], the International Court said – without any factual basis – that the fence was illegal. So there were petitions to our court, that it was hurting the life of Palestinians around the fence.
“The court decided in a number of cases, that by international law (Israeli law incorporates international law, the fourth Geneva Convention, and so on), the purpose of the fence was to defend our people – the first obligation of a government.
“So the idea of the fence as a barrier to terrorism was fine. But we had another obligation, to the Palestinians according to the Hague Convention and others. So the court said the fence must be rerouted to cause less interference to the Palestinians and more gates should be opened for them to move. We kept the principle of the fence, but also paying attention to the needs of the Palestinians.
The vigorous arguing after Rubinstein’s session illustrated how complex legal oversight of the military was in practise, including the core issues of how one actually defines terrorism.
Closer ties between Zim and Israel rattles ANC
Zimbabwe and Israel have had full diplomatic relations since 1993, but further overtures by our northern neighbour to the Jewish state could cause conflict with South Africa, particularly certain factions in the African National Congress (ANC).
According to an article by Carien du Plessis published on News24 on Wednesday, 3 February, “Zimbabwe has been seeking closer ties with Israel in the hope of securing more investment and doing away with sanctions. This move has caused unease within the ANC, which has a pro-Palestinian stance, although it’s unlikely the party will act on it.
“The ruling party [in Zimbabwe], ZANU-PF, has historically positioned itself as pro-Palestinian, but Zimbabwean President Emmerson Mnangagwa’s latest move closer to Israel represents a change in policy direction,” Du Plessis writes.
She reports that although the head of the ANC committee on international relations, Lindiwe Zulu, said that, “We cannot interfere with the sovereign decisions of the governing party of any other government”, there have been divisions within ZANU-PF and within the ANC about the Israel matter.
“A pro-Palestine lobby within the ANC wants South Africa’s governing party to take a more hardline approach to its Zimbabwean counterpart, while the pragmatists prefer not to push this issue for diplomatic reasons,” Du Plessis says.
Darren Bergman, the shadow minister for international relations and cooperation and a member of the Southern African Development Community (SADC) Parliamentary Forum Human Rights Committee, didn’t mince his words about South Africa’s response.
“The people of Zimbabwe are suffering. The internal affairs of Zimbabwe couldn’t get South Africa to act, the situation in Zimbabwe couldn’t get South Africa to act, but the relationship with Israel gets South Africa to act,” he said.
“This is a sinister situation that must make the SADC and African Union [AU] question what exactly South Africa’s situation is with regard to the Middle East,” Bergman said.
“It’s one thing to have an opinion and a position, but it’s another to keep a hard-pressed, almost spiteful stance at all times that can actually harm and injure the people and the continent. To this I would say that South Africa should show diplomatic constraint, and hold back.”
One of Mnangagwa’s recent moves to improve relations with Israel is the appointment last year of Israeli national Ronny Levi Musan as honorary consul of Zimbabwe to Israel.
The Afro-Middle East Centre reported in October 2020 that, “Musan has set plans into motion for Mnangagwa’s official visit to Israel. His activities in Zimbabwe include collaboration with Pentecostal churches to push for Christian support for Israel. Zimbabwe’s honorary consul is also pushing for Israeli businesses to invest in Zimbabwe’s agricultural sector, and he recently announced the intention to open an Israeli academy of agriculture in Zimbabwe. On the diplomatic front, Israel hopes that Mnangagwa will follow the example of his Malawian counterpart, Lazarus Chakwera, who announced plans to open an embassy in Jerusalem.”
Musan told the SA Jewish Report he had worked in Africa for the past 20 years to strengthen links between churches and the Holy Land. “About five years ago, I was invited to visit Zimbabwe which lasted about two weeks. I tried to do everything possible to connect Zimbabwe to Israel on a practical level. After the first visit, I visited Zimbabwe several more times, and met a number of ministers and church leaders, and just fell in love with the place.
“From there, it continued through my activities with the Israeli foreign ministry and the foreign ministry in Zimbabwe to promote diplomatic relations between the countries.” He was eventually appointed to this role.
“My main responsibility is to do everything possible in every field to bring knowledge and support from Israel to Zimbabwe, and vice versa. The main issue is technology in the field of agriculture, education, and innovation. These are the cornerstones that will return the crown to Zimbabwe as the ‘grain basket of Africa’.”
Local political analyst Daniel Silke says that Zimbabwe’s overtures to Israel “could well be an attempt by Zimbabwe to follow the Sudan example, in which currying favour with the United States via the channel of restoring relations with Israel allows the country to receive assistance and perhaps even escape some of the worst sanctions. But, of course, [former US] President Donald Trump is no longer in the White House. Whether this will have any traction with Joe Biden, who I think will be a lot more critical of the Zimbabwean regime, remains to be seen.”
In terms of the impact it could have on South African-Israel relations, Silke says, “Many other African countries are forging their own path in terms of relations with Israel. For President [Cyril] Ramaphosa, it’s a difficult balancing act given the demands from within his own party. But I don’t think South Africa has any leg to stand on in terms of interference with any country which wishes to forge some sort of close relationship with the Jewish state. As head of the AU, Ramaphosa is again in a tough position because of the changing dynamics across Africa, but I don’t think it’s an issue that will really get much attention.”
Rowan Polovin, the chairperson of the South African Zionist Federation, says, “We see this as a positive development, particularly for Southern Africa, which is part of the momentum that is being created by the Abraham Accords.
“Northern Africa has been very much part of the momentum. In the southern region, Malawi, which is diplomatically and geographically close to South Africa, has signalled its intention to open an embassy in Israel. If all this has an impact on South Africa’s neighbours, then South Africa will see the benefits. It’s very hard to ignore the importance of building ties with Israel, which has so many solutions for African issues, particularly water, electricity, agriculture, and security. Notwithstanding the noise that the ANC might make, ultimately it’s positive.”
Just how successful is Israel’s vaccine push?
Israel is reporting promising initial results from its COVID-19 vaccine rollout, the fastest in the world.
The first official findings released by the health ministry show that only 0.04% of people caught the virus a week after their second dose, and a mere 0.002% needed hospital treatment.
Clalit, the country’s largest health service organisation, has also released its preliminary data. It compared 200 000 people aged 60 and over who’ve been vaccinated with 200 000 similar unvaccinated older adults. It found that the rate of those who tested positive dropped 33% among the vaccinated 14 days after they received it. No decline was seen in the unvaccinated.
Maccabi, another healthcare organisation, saw an even larger drop. Infections decreased 60% among 430 000 people 13 to 21 days after they received the vaccine. The data also suggested the vaccine was 92% effective, close to the 95% efficacy claimed by Pfizer.
Israeli researchers are conducting more in-depth analysis, and point out that real-world effectiveness of vaccines is often lower than the efficacy seen in clinical trials due to a number of factors.
But experts warn that this data has yet to be published in a peer-reviewed journal so it should be viewed with some caution.
There are also various factors that could be influencing the results. The current lockdown and behaviour such as travelling and gathering less, wearing masks, and greater physical distancing might be decreasing infections.
The first people to receive the vaccine were mostly from vulnerable populations, so they are more likely to take precautions which could also skew the data.
In spite of the encouraging news, the death toll from COVID-19 continues to climb. Of the 4 816 fatalities at the time of writing, 30% occurred in January when the vaccination rollout was already in full swing. The government blames this on the more transmissible British variant of the virus, especially among children. According to Clalit, when the vaccination campaign started in late December, the new variant caused 30% to 40% of infections, whereas now that figure has doubled.
As for the South African strain, there are currently 80 detected cases in Israel, and there is concern that the vaccine isn’t as effective against this variant. A number of Israelis who previously had COVID-19 have been re-infected with the South African strain, with the most recent case identified two days ago.
Compounding the situation is the flagrant disregard by the ultra-Orthodox community, that comprises just less than 13% of the population, for lockdown rules. Since the start of the pandemic, one in five ultra-Orthodox has tested positive.
Many in the community doubt the safety of the vaccine or believe the country’s citizens are being used as guinea pigs to test its efficacy. Prominent rabbis have also said that communal prayer and study needs to overwrite lockdown concerns.
Last Sunday, 31 January, thousands of ultra-Orthodox mourners, many without masks, crowded together to attend two funerals of famous rabbis who died from coronavirus. Prime Minister Benjamin Netanyahu has been criticised for not cracking down harshly enough on the community for political reasons – he needs their votes in the upcoming 23 March election.
Residents of Tel Aviv spoke to the SA Jewish Report, complaining that the actions of the ultra-Orthodox were forcing the whole country to go repeatedly into lockdown, and it wasn’t fair. It’s no surprise thus that the latest word from the government is that the current – third – nationwide lockdown may not be Israel’s last.
Many Israelis want cities and towns to once again be divided into red, orange, yellow, and green zones and scales of restrictions to be put in place accordingly. This would mean those who obey the restrictions wouldn’t have to pay the price of those who don’t.
In recent days, there’s also growing concern in some quarters in Israel that because the mass vaccination campaign is running in parallel with an active coronavirus outbreak, it could lead to an “evolutionary pressure” on the virus in which it would ultimately become immune to vaccination. Doctors are suggesting that in future, people will need to take an annual anti-COVID-19 jab, much in the same way the annual flu injection is taken.
But for now, the race to innoculate everyone is on. Among the first to be injected were people aged 60 or older. More than two-thirds of this age group have already received the required two doses. Up to 200 000 people are being injected each day, and the vaccine is now available to anyone over the age of 35. High-school students aged 16 to 18 are also included in the hope that they will be able to sit for exams. It seems Netanyahu is on track to fulfil his promise of innoculating five million of the country’s nine million citizens by the end of March.
To date, just more than one in three Israelis has been inoculated – about 1.7 million of them twice. Because this is a far higher fraction than anywhere else in the world, it makes the country a test case for the international vaccine push.
The right to demonstrate, even during lockdown
Israelis are being allowed out of their homes in full lockdown to call for the resignation of Prime Minister Benjamin Netanyahu (Bibi), who is viewed by many on both sides of the political spectrum as corrupt.
This freedom in a lockdown which ordinarily limits you to being no more than one kilometre from your house is based on the country’s constitutional right to protest. On bridges, at junctions, and outside Bibi’s house in Jerusalem, daily protests occur, resuming after Shabbat goes out on Saturday night.
“Lech! Lech!” (Go!) is shouted loudly – which is also the name for the movement against Netanyahu.
There are some staunch Likud followers who scream, “Arafat and Rabin sold out the country,” prompting laughter amongst some demonstrators, who point out that their arguments are old and outdated. Demonstrators including doctors, lawyers, pilots, accountants, and students point out that this isn’t about the Israel-Palestine issue, it’s not about being leftist or rightist, but about ethics and bringing to justice an allegedly corrupt prime minister.
The protestors are passionate, some defying orders not to camp outside Bibi’s residence. At 21:30, police order the drums, trumpets, and whistles to cease. The protestors obey, but continue to demonstrate quietly, so as not to disturb the Jerusalem neighbourhood.
Then, at about 23:00, carrying Israeli flags in blue and white and others in red and white, the protestors pack up and go home to lockdown.
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