Michal Cotler-Wunsh

More on the Settlement Law: A Follow-up to the Cotler-Lewin Debate

One of the challenges of the Law is that it is often limited in its analysis to the parameters of the issue at hand, without the zoom-out, birds-eye-view benefit of the context in which it exists. It is this reality check which is largely missing from the legal examinations of the Settlement Law offered by Cotler and Lewin, both internationally renowned legal scholars, one of whom I have the honour of calling Dad.

The context which the Law understandably cannot account for in its analysis is an Orwellian inversion reality, in which free speech and its limitations are taken advantage of to, among other things, bring Georges Bensoussan, one of the world’s leading experts on Jews in Arab lands, to ‘justice’, focusing on words selected when citing the work of an Algerian sociologist in highlighting the prevalence of anti-Semitism; in which Ayaan Hirsi Ali, a brave human rights activist, is denied the honorary degree offered to her by an ivy league, private university; in which regular threats and calls to genocide uttered by a terrorist sponsoring state are ignored while the words of private individuals who become public figures are scrutinized under a microscope; in a far from free-speech reality in which hundreds of university campuses that institute ‘microagressions’ and ‘trigger warnings’ in their speech codes, host the hate fest of ‘Israel apartheid week’ (coming soon to a theatre near you).

Where both scholars ‘miss the forest for the trees’ is in not pointing out the inherent short-sightedness of the Settlement Law as symptomatic of Israel’s failure to address the true issue at hand – the vacuum created by years of avoidance and lack of decision-making that has festered and created a reality that can no longer remain unsettled (no pun intended).

For 50 years, the elected leadership of the State of Israel has refrained from making difficult decisions, possibly concerned that these may compromise the possibility for peace; or compromise its’ position in the international arena; or test the internal cohesiveness of Israeli social fabric. The reasons are as many as the individuals you may ask, if not more.

While I believe that there was no ill will intended in the indecision, nature abhors a vacuum. Nowhere is that clearer than in the middle-eastern reality. As in the case of so many other pressing issues, from separation of religion and State to polygamy to the treatment of minorities, decisions cannot be avoided forever. Where there is a vacuum, something else will take over, at times attributing intent and ill will, at times ascribing plain deficiency of leadership. Regardless, a vacuum cannot remain and is filled in a manner that creates a new, even if unintended, reality.

This is the context in which the Settlement Law was introduced. The frenzy of every-day life and of the genuine survival challenges of Israel serve as no excuse. In the fifty (or more) years of avoidance of discussion and decision, the vacuum created by an oft coalition-paralyzed government has been filled by an active civic society (for another discussion), and by the court. Expected to ‘fill the void’, the court has become the go-to, de-facto decision maker, for all matters unaddressed by the legislative and executive branches. From small, personal, every-day conflicts to large, national, all-encompassing ones, in the absence of policy and clarity, the court is asked to decide.

Herein lies the problem. Blurring the critical boundaries of separation of powers; effacing the importance of checks and balances; exonerating the executive and legislative arms from any sense of responsibility and accountability; it has become dangerously convenient to throw any decision that needs to be made the court’s way. From corrupt officials; to negligent construction companies; to abusive power structures; whatever the challenge, the court is expected to decide.

Contempt of and for the court is institutionalized in this manner, conveniently utilized by the powers that be, to the detriment of us all. Coming from a heritage of healthy, vibrant, Western democracies, including clear appreciation for the importance of separation of powers and checks and balances, both scholars understandably implement legal tools in their analysis of the Settlement Law. In so doing, they miss the forest of which the Settlement Law is but a manifestation of. It is critical to comprehend the context in order to understand the urgency and avoid the distraction that the legal analysis conveniently offers.

Addressing the real issue at hand, the discussion we need to be having is not about the Settlement Law. In our reality, the Court will unfortunately once again have to deal with that. Exposing this challenge, the opportunity offered is to encourage difficult conversations; expect and select leadership that takes responsibility, not advantage; create public policy where it is lacking; uphold the law where it exists; in short – Israel must proactively and wisely fill the vacuum, enabling the court to do its’ job, administering justice.

Failure to do so imperils not only the Supreme Court, but Israeli democracy as a whole.

About the Author
The writer is a lawyer, research fellow, and policy and strategy advisor. She served as an MK in Israel’s 23rd Knesset, co-founding the International Bi-Partisan Task Force to Combat Online Antisemitism.