Israeli prosecutors are wrong to indict the PM

Israeli Prime Minister Benjamin Netanyahu, December 4, 2018. (Photo by: JINIPIX via Jewish News)
Israeli Prime Minister Benjamin Netanyahu, December 4, 2018. (Photo by: JINIPIX via Jewish News)

With Israel in constitutional deadlock and regional instability intensifying, there could not be a more opportune moment for Likud and Benny Gantz’s Blue and White party to join forces in a unity government. 

Yet with Gantz professing to dismiss collaboration while Benjamin Netanyahu, under indictment for corruption, remains Likud leader a third procrastinating general election in under a year is due in March. Although the majority in a recent opinion poll opposed granting him immunity, his decisive backing by party members last week endorsed his refusal to step down as prime minister and gave him the confidence to ask the Knesset for immunity. With the Supreme Court deferring a ruling on whether he is eligible to form a government, the impasse is surely set to threaten Israel’s strategic interests.

In pondering whether to indict Netanyahu, Attorney-General Avital Mandelblit had eminently sound reasons for declining to prosecute. But a narrowness of vision has disappointingly led him to make the wrong call. A close scrutiny of the allegations reveals they are either tendentious or otherwise susceptible of sensibly innocent explanations. The police may have been impelled to “follow the evidence”, but they have shown a blinkered ignorance of the psychological dynamic involved in the relationship between potentates and acolytes and Mandelblit has been wary of letting them down.

Moreover, most of the allegations are dependent on the evidence of witnesses with
a clear axe to grind or who are otherwise self-confessed accomplices and wrongdoers. The principle of not enlisting such witnesses was one to which English Common Law used to subscribe before it surrendered to expediency.

Second, these supposed accomplices were mostly lured into confessing their guilt and simultaneously denouncing Netanyahu by the threat of lengthy sentences. Yet the Talmud decrees ein adam meissim atsmo rasha (Sanhedrin 9b), no one shall accuse himself, the origin of the Common Law privilege against self-incrimination. The rule renders confession evidence absolutely inadmissible – even where there has been no compulsion. If the criminal courts in Israel applied strict rabbinic law, with its traditional concern for protective justice, instead of resorting to Anglo-American laxity, Netanyahu would not be facing prosecution.

But perhaps of even greater importance is Mandelblit’s apparent failure to take primary regard of Israel’s national interest. In a wide-ranging interview in Israeli newspaper Haaretz in 2018, former State Prosecutor Moshe Lador spoke of the circumstances in which he brought down Prime Minister Ehud Olmert. In the aftermath of the war against Hezbollah in 2006, Omert was conducting crucial peace talks with Syria and the Palestinians that might well have led to a milestone agreement with a far-reaching impact on Syria’s relations with Iran and Russia. It would have benefited not only Israel but the whole region. Ought this not to have stayed Lador’s hand? Absolutely not, he protested. To have refrained from “bothering” the prime minister would have betrayed his prosecutor’s duty and rendered meaningless the principle that everyone is equal before the law.

Lador’s analysis is sadly misconceived, placing the fearless pursuit of criminal justice in a vacuum. To suggest it always trumps considerations of national security is both precious and pompous. His belief that such overarching strategic objectives are irrelevant in guiding state prosecutors is to isolate one element of the public interest from the broader dimension of national survival.

Mandelblit should think again.

About the Author
David Wolchover is a Barrister and author of Culprits of Lockerbie
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