Dershowitz: High Court an 'Iron Dome' that protects IDF soldiers from ICC

Justice Minister Yariv Levin’s proposed judicial reforms could remove protections for IDF soldiers from the International Criminal Court that are afforded by the High Court of Justice, professor emeritus of Law at Harvard University Alan Dershowitz explained to The Jerusalem Post on Tuesday night. The famed American defense attorney offered his advice on how to improve the reforms – and his assessment of whether they endangered Israeli democracy.

“There’s a concept in the International Criminal Court called complementarity. And that means that the International Criminal Court doesn’t have jurisdiction over individuals if their countries have legal systems that can satisfactorily pursue justice,” said Dershowitz.

“Right now, the International Criminal Court has no jurisdiction over Israel because the Israeli [High Court] does a wonderful job in protecting the rights of individuals and of alleged victims of war crimes. They put soldiers and settlers on trial, and that legal Iron Dome [the Israeli High Court] would be considerably weakened by these judicial reforms, which would make it easier for Israel’s enemies to claim that the International Criminal Court should have jurisdiction over individual Israelis.”

Dershowitz emphasized that he wouldn’t agree with the ICC; even now Israel doesn’t receive fair treatment from international organizations such as the ICJ or UN bodies, but a weakened court might not withstand the double standards imposed on the Jewish state.

“The Iron Dome doesn’t shoot down every single missile, but it shoots down most of them,” Dershowitz analogized.

For IDF soldiers suspected of involvement in an incident involving alleged war crimes, this means they could be arrested when abroad and brought before The Hague.

Why does Alan Dershowitz think the override clause is bad for Israel?

Dershowitz singled out the Override Clause, which would allow a simple Knesset majority to overturn the High Court’s striking of legislation that contradict the Basic Laws, as the reform item that would impact the court’s protection on the international stage.

The Harvard professor presented a hypothetical situation in which National Security Minister Itamar Ben-Gvir proposes “that the rules of engagement for using live ammunition would differ depending on whether a rock thrower is a Jew or an Arab. Now, if a weakened [High Court] were to uphold that, the International Criminal Court would absolutely reject it. And I would [also] reject it if I were on the International Criminal Court.

“It’s unthinkable and unspeakable to argue that different rules of engagement should apply depending on the ethnicity or race of the individual rock thrower,” he said. “Now, I don’t think the Israeli government is going to enact such legislation or allow such discrimination. But if it were to, it would open itself to the jurisdiction of the International Criminal Court.”

On Friday morning, hundreds of activists from the Darkenu (Our Way) movement protested outside Justice Minister Yariv Levin’s home, positing the same argument as Dershowitz. Darkenu CEO and former Kulanu MK Rachel Azaria compared the court to “a flak jacket” that protected soldiers from petitions to the ICC, saying that “the Override Clause and Levin’s moves to weaken the justice system would hurt IDF soldiers, and hurting our soldiers is a redline.”

Dershowitz agreed with the idea that protecting IDF soldiers was among the redlines, but said that protecting Arabs and other minorities, including Orthodox Jewish ones, was also a redline for him.

His problem with the Override Clause, Dershowitz explained, is that it was connected to “basic core fundamental rights and liberties such as equality and due process and freedom of speech, all of which are counter-majoritarian. You don’t need free speech for people who are in the majority – you need it for people who are in the minority. You don’t need due process for popular defendants – you need it for unpopular defendants.”

In Dershowitz’s opinion, the Override Clause could be improved by altering its scope or vote requirements.

“If you had a three-quarters requirement for override, that would mean that override would generally have to be bipartisan – or multi-partisan in Israel’s case. And that would be a protection. I’d rather no Override [Clause] but I wouldn’t object if a two-thirds or three-quarter vote were required for override,” he said.

“I’m in favor of an override for non-human rights, non-basic civil liberties issues. I think that it is perfectly appropriate to allow the Knesset to override a [High Court] decision on the issue of the gas deal with Lebanon, or even on the issue of whether [Interior and Health Minister Arye] Deri should be able to serve in the government. These are economic and political issues. But where I’m opposed is to 61 votes in the Knesset being enough to overrule the most fundamental concepts of liberty, minority rights, equality and due process.”

Dershowitz also advised that Israel not alter the way judges are selected. As part of the proposed reform, politicians would be added to the selection committee, which includes judges and Bar Association representatives, giving politicians a majority on the panel.

The current system “is much better than the American system,” said Dershowitz. “The American system is overtly political.”

In the American judicial system, candidates for the US Supreme Court are nominated by the president and voted for by the Senate.

“I think the method of selecting justices and override are the two compelling issues that I would strongly advocate for compromise,” said Dershowitz. “And I don’t see how compromise is possible on judicial selection, because right now it’s a very delicate balance. But I do think that compromise is possible on the override.”

According to Dershowitz, Prime Minister Benjamin Netanyahu is inclined to seek compromise, such as limiting the jurisdiction of the Override Clause to issues not pertaining to civil liberties and human rights.

“When I met with my old friend Benjamin Netanyahu, he was very open to compromise. He talked about balance, balance, balance,” said Dershowitz. “I think that Bibi, to his credit, is trying hard to move his government a bit to the center, maybe not on judicial reform, but on other issues. And I hope he’ll succeed. He’s been a master at being able to move his governments more to the center – and I think Israel belongs in the center. For the most part, Israelis are either slightly Left or slightly Right.”

The balance of the Israeli system isn’t understood by Americans and Europeans who engage in broad attacks claiming the government is fascist or undemocratic, Dershowitz noted.

“I think the focus ought to be on specific issues, on specific proposals, not on attacking the government,” he said. “The government is a function of Israeli democracy. So I think that Secretary of State Antony Blinken got it right when he said we’re not going to judge Israel by what some politicians say, but we’re going to judge it by what the government in fact does.”

For his part, Dershowitz doesn’t believe that the reforms would make Israel less democratic, but would remove an important check on democracy. Israel would be less sensitive to minority rights.

“I think the [High Court] as an institution does a good job in protecting minority rights against 61 Knesset votes, which reflect the majority. And I think that’s the confusion that we hear,” he explained. “Opponents of the [High Court] talk about how it’s undemocratic, and then opponents of the reforms say they are undemocratic. They’re wrong. It wouldn’t make it undemocratic. It would make it more responsive to the majority and less responsive to the minority. So it’s a trade off.”

Dershowitz said that even if that trade off were to happen, if all the worst things happen and Israel adopts every single one of the right-wing reforms, it will still be a vibrant democracy with complete free speech. He said that he would continue to support and defend Israel unconditionally while continuing to criticize some of its policies.

“I wouldn’t join a protest generally against the Netanyahu government, as Israel is a democracy. And they voted,” said Dershowitz. “So it’s a democracy. So I wouldn’t join in a protest against the current Israeli government. I would limit my protest to the judicial reforms and be opposed to them.”

As for the loss of protections for IDF soldiers on the international stage, Dershowitz has already volunteered to defend any Israeli soldier or politician who is brought before the International Criminal Court. “And I would put together the best international legal team ever assembled. But we might still lose because it would be a kangaroo court– it would be a court very strongly biased against Israel.”