Israeli McCarthyism?

In this op-ed article, IDI Vice President of Research Prof. Mordechai Kremnitzer and IDI researcher Adv. Shiri Krebs question the wisdom of forming a parliamentary commission of inquiry into the funding of Israeli human rights organizations. They warn against a slippery slope to McCarthyism and point out that the establishment of the commission, far from strengthening Israel’s legitimacy, will accelerate efforts to delegitimize Israel and prosecute Israeli officials overseas.

How ironic: The new commission of inquiry that the Knesset has decided to establish in order to expose the questionable sources of funding for human rights organizations operating in Israel is actually intended to conceal the truth. According to the commission's initiators and supporters, their ultimate goal is to prevent the disclosure of potentially incriminating information concerning IDF operations in order to protect military commanders and high-ranking politicians from being placed on trial outside of Israel. Apparently, the 41 Knesset members who supported the establishment of the commission believe that the way to treat allegations of possible violations of the law performed by the State and its emissaries is to conceal, to cover-up, and to silence. An examination, an investigation, or God forbid, a public inquiry—that's not our way.

The initiators of the commission are apparently convinced that the behavior of IDF soldiers is always, and necessarily, beyond reproach. But, was it not the Judge Advocate General himself who recently praised the activities of civil society organizations, which led to the exposure of violations of Israeli and international law? The attitude of the commission's proponents is reminiscent of the sweeping denial that used to characterize the state's official position concerning allegations that the Israeli Security Agency employed coercive measures against suspected terrorists. It was the testimony of numerous secret agents that made this denial untenable. If the commission's supporters are successful, they will manage to turn their "truth" into the accepted truth. If they are successful in their bid to block the use of certain types of evidence, such as the testimony of Palestinian witnesses, the inevitable conclusion will be that the IDF soldier is always blameless— whether or not this reflects the truth.

The assumption underlying the Knesset's decision to establish this commission is that Israel is exempt from the laws of war, and that those who act on its behalf are always immune from investigation and from legal proceedings for suspected violations of the law. It was the same line of thinking that led someone recently to scrawl the word "traitor" on the home of the Judge Advocate General for having filed indictments in several cases where IDF soldiers did apparently violate the laws of war. This position is opposed not only to international law but to Israeli law, which has adopted the norms of customary international law. It therefore contradicts the basic principle of rule of law.

The Knesset's decision—if it remains unchanged—will have two consequences: First, it will accelerate international efforts to prosecute Israeli leaders and military commanders outside of Israel. The only way to block these efforts is to persuade the international community that Israel itself is doing everything possible to investigate allegations of war crimes. But if the Knesset is taking steps to create de facto immunity, members of the international community may be more easily persuaded that international action is needed to investigate the allegations. The Knesset's move to clip the wings of human rights organizations creates the impression that Israel has something to hide. In Gaza, for example, some of the organizations in question represent the only Israeli address to which Palestinians can submit complaints. And in Judea and Samaria, the human rights organizations are a more desirable place to turn than the Israeli authorities, who, not surprisingly, do not enjoy the trust of the Palestinian population. Hence, these organizations play a vital role in Israel's ability to fulfill its obligation to investigate allegations of wrong-doing in a proper manner. In other words, by curtailing the activities of these NGOs, the proponents of the commission hamper Israel's own investigative ability. Without an independent capacity for investigation, it is highly probable that other states will take legal measures— such as the arrest and interrogation of high-ranking Israelis—in order to the fill the resulting accountability vacuum.

The second consequence of allowing this commission to be established will be the further delegitimization of Israel. Consider the following paradox: some on the extreme right exploit the need to combat the global delegitimization campaign and to deflect foreign criticism of the State (two distinct phenomena) in order to justify infringing on the freedom of expression of Israeli citizens. Yet, in so doing, they play into the hands of Israel's enemies and critics. The blows to free speech and free information, which make up the glaring subtext of the aforementioned commission, undermine Israel's democratic character, and provide the enemies of Israel with a powerful weapon in their attacks against the State.

The stated goal of the commission—to discover the sources of funding of the human rights organizations—is implausible. The chances that a parliamentary (as opposed to a state) commission of inquiry without any authority will discover what is hidden from the prying eyes of the security services and the police are close to nil. Thus, it is not the truth that the instigators of the parliamentary commission and their supporters are seeking, but rather the delegitimization of the human rights organizations and the restriction of their ability to act. This delegitimization, however, adds impetus to global processes of delegitimization of Israel.

In addition to the destructive consequences of establishing the commission in the short term, and the grave blow to the principle of the rule of law, the commission of inquiry represents a role reversal with respect to the Knesset's powers. The Knesset has two stated purposes: to legislate, and to oversee the executive branch. It would thus be perfectly appropriate for the Knesset to examine, say, the Foreign Ministry's responsibility for Israel's shaky standing in the world, or to investigate whether the relevant authorities are doing enough to address allegations of war crimes. It is not, however, the Knesset's role to supervise civil society. This is beyond its jurisdiction and can be seen as an abuse of power. By acting to form the commission, the Knesset is turning itself from a national symbol of the sovereignty of all Israel's citizens into a political force in the hands of those on the antiliberal right. This move by the Knesset bears a startling resemblance to one of the darkest pages of American history: the McCarthyist witch hunt of suspected Communists by way of congressional investigation. In a democratic state, which is bound by freedom of expression, even those who take issue with the approach of the civil rights organizations are not entitled to delegitimize them, silence them, or limit their efforts to gather information on the conduct of the state.

The attack on the civil rights organizations is not an isolated phenomenon. It is part of an overall trend, which is subverting Israeli democracy through an assault on independent oversight bodies in Israeli society, including the Supreme Court and academia. It is painful to watch the banners of Judaism and Zionism being hoisted in campaigns to strip civil liberties and deny human rights. This is especially disheartening, given the fact that Jews have made important contributions to the universal tradition of human rights that the extreme right is seeking to undermine. The horrors of World War II, in particular the Holocaust, formed the basis of the revolution that took place in the world to strengthen the status of human rights—for all human beings—as reflected in the Universal Declaration of Human Rights of 1948 and in the body of human rights law that evolved in its wake. The philosophy of the great thinkers of Zionism, such as Herzl, Jabotinsky, and Begin, was unmistakably liberal.

Those who seek to destroy Israel's liberal character are taking the name of Zionism in vain. By contrast, those MKs who still believe in liberal democracy have a duty to enlist in the cause of protecting Israel as a Jewish and democratic state. The slippery slope to McCarthyism lies before us. It is our responsibility to recognize the danger and to avoid it.

Prof. Mordechai Kremnitzer is Vice President for Research at the Israel Democracy Institute. Adv. Shiri Krebs is a Research Assistant at IDI and writing her JSM dissertation at the Stanford University Law School.

A version of this article was published as "The Slippery Slope" in the Jerusalem Post weekend magazine on January 28, 2011.