We should be judged by the International Court — as should others: Mishpatim

This week’s Torah portion is “Mishpatim,” “These are the laws that you shall set before them.”  We come down from the lofty Ten Commandments to begin figuring out the nitty gritty details of just how we are to observe the grand vision.  How do we define “murder?”  What do we do when theft takes place?”  “Who are we commanded not to kill or steal from or mistreat? Everybody?”

Similarly, Israel and many countries of the world are proud signatories of the Universal Declaration of Human Rights and additional lofty, but overly broad declarations and conventions.  But, we don’t want to deal with the details of what those declarations and conventions obligate us to do.

There is nothing that infuriates even the Israeli “left” more than the idea that we might be judged abroad.   Even those who support universal human rights and international law castigate anybody who “washes our dirty laundry in public.”

On the one hand, I understand that after thousands of years of oppression and anti-Semitism, we have no trust in the outside world, and are therefore completely susceptible when our demagogues label any criticism of Israel as Jew-hatred. International law is a gun pointed at our heads.

However, it’s a bit more complicated than that. There are anti-Semites who come out of the woodwork when criticism of Israel makes it seem legitimate to do so, but much of international human rights and humanitarian law was written by Jews BECAUSE of our historical experience. Rabbi Chaim Hirschensohn argued that there is no contradiction between Judaism and international law, and that one day the International Court will be located on the Temple Mount/Haram Al Sharif.

Some of the most common arguments against the ICC’s decision are:

  1. Look at all the countries that are doing much more awful things than we are.
  2. The international community has no right to interfere with our national sovereignty and the democratic will of Israelis.
  3. We have one of the most highly respected court systems in the world, and it protects human rights. We can judge ourselves.
  4. The Palestinians don’t have a sovereign state. They have no right to take us to court, because only states can bring a case to the ICC.

When I was in college, we were trying to get Harvard University to divest its holdings in corporations doing business in South Africa. (We eventually partially succeeded.)  As we went from dorm room to dorm room to talk about the issues, we were frequently asked, “Why single out South Africa?  Are they the only human rights violators in the world?” My point is not to compare the Occupation or treatment of Israel’s non-Jewish citizens with apartheid, but rather to compare the response, “Why us? Others are much worse.”  My response at the time was, “We have to start somewhere.”  Yes, it is true that atrocities in Syria and so many other places are much worse than anything Israel does.  I also bristle when I look at the statistics regarding the percentage of its time that the U.N. human rights commission spends on Israel. However, that doesn’t make our deeds excusable.

Today, a Hebrew article appeared in the magazine section of Israel’s mass-circulation “Yedioth Achronot,” quoting me and telling the story of one Palestinian shepherd I introduced them to. I thought the article was simply about how the proliferating agricultural outposts impact on Palestinians, but it turns out that the context was the International Criminal Court.  Although I thought the article was rather mild and “parve,” I imagine that for many Israelis it was a rare exposure to our actions that much of the world knows more about than we do.

Furthermore, I have always welcomed right-wing organizations looking at human rights organizations with a magnifying glass, if only they would be honest and fair. I want us to be judged because it holds us to a higher standard. Our Torah portion also contains very high expectations regarding both our relationship with God, and with our fellow human beings. That is part of what makes me proud to be a Jew.

Why us? Because we aspire to be better.

However, what Israel almost always does is refuse to cooperate with investigations, and then criticize the results.  Recall that the Goldberg Commission modified its criticisms of Israel when Israel finally responded (Too much so, in my opinion.  The fact is that there were serious flaws in the original report precisely because Israel hadn’t given its perspective, not because of an unfair bias on the Commission.

I have often stated that terrible things have been done “democratically” by majorities.  That is why Alexis DeToqueville warned against “tyranny of the masses.” We need Israeli courts that do not simply reflect the will of the majority. For those that feel bound by it, the Torah also supersedes our own will.  The point of international law regarding occupation is to somewhat even the playing field, and provide counterbalancing protection for populations that otherwise have no protection. There is no democracy for Palestinians under occupation. They do not vote for the Knesset, and they are not judges on the courts that decide their fate.

If the International Court is currently only for countries, that needs to be corrected!  Who can protect Palestinians if the desire of the Israeli majority is to dispossess them? The story told in the Yedioth article doesn’t even qualify as the tip of the proverbial iceberg.

As to our court system, I believe that were somebody to do an analysis of High Court rulings, they would find that the Court has ruled not in accordance with international law more often than in accordance.  I don’t delegitimize the Court the way the right does, but I by no means see it as an institution that protects Palestinians. For example, it has consistently upheld the right of Israel to unilaterally impose on Palestinians a building and zoning system that makes it almost impossible to build legally, and then demolish homes built without a permit.

International law states that when a country fails to deal uphold international law internally, it is the obligation of the international community to step in.

We have failed.

So, yes I would feel better if the ICC was judging atrocities in Syria and around the globe.  I hope that we are just the beginning.  But I want to be judged. I don’t actually know if the ICC will be able to help Palestinians, because ultimately it is almost toothless. But, maybe it will help us. Just maybe we will be able to put aside our denial and our defense systems to understand that if we honestly look in the mirror, we aren’t going to see what we thought we would see, or what we want to see. I want us to voluntarily bind ourselves to something above and beyond our national sovereignty, just as we voluntarily bound ourselves to God’s Higher Power at Sinai. I pray that we will do more than pay lip service to a grand vision, but realize that the true meaning of “Don’t murder,” “Don’t steal,” “Don’t bear false witness,” and “Don’t covet,” can only be understood through the prism of this week’s “You shall not wrong the non-Jew living among you or oppress him/her, for you were in that position in Egypt. You shall not ill-treat any widow or orphan.”  (Exodus 22:20, 21), “You hall not subvert the rights of your needy in their disputes” (23:6) and “You hall not oppress the non-Jew living among you, for you know their feelings because you were that person in Egypt.”(23:9)  Anything less is a violation of “I am Adonai your God,” because only in this way to we honor God’s Image in every human being, Jewish and non-Jewish, wealthy and living in poverty, men and women of all races and creeds.

Shabbat Shalom

About the Author
Rabbi Arik Ascherman is the founder and director of the Israeli human rights organization "Torat Tzedek-Torah of Justice." Previously, he led "Rabbis For Human Rights" for 21 years. Rabbi Ascherman is a sought after lecturer, has received numerous prizes for his human rights work and has been featured in several documentary films, including the 2010 "Israel vs Israel." He and "Torat Tzedek" received the Rabbi David J. Forman Memorial Fund's Human Rights Prize fore 5779. Rabbi Ascherman is recognized as a role model for faith based human rights activism.
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