Why did the High Court let a far-right Kahanist run for office? - opinion

I have been deeply troubled and confused by the inclusion of Messrs. Bezalel Smotrich and Itamar Ben-Gvir and their party followers since they were sworn in to the present Knesset in 2022 and became part of Prime Minister Benjamin Netanyahu’s coalition. The decision to allow Ben-Gvir in particular to run for the Knesset, given his notorious background, is particularly disturbing, in light of the fact that the permission came from Israel’s High Court of Justice (also known as the Supreme Court).

This same High Court of Justice that has been fighting tooth and nail against Netanyahu’s attempt to neutralize or even to silence it. This attempt was dressed up by the government as making a slight change in the High Court’s dealings but was broadly seen as a way of stopping it from criticizing the government on issues that they felt were prejudicial to the public interest.

However, the permission to allow a supporter of Rabbi Meir Kahane and his ilk to run contradicts the very essence of their role. Ben-Gvir’s defense in front of the High Court (which can be viewed on YouTube) is that he is a new man, not the Ben-Gvir of old. But this “new” Ben-Gvir saw nothing wrong in marching across the Temple Mount, even though this is expressly forbidden by the enactments of the rabbis he purports to abide by. In addition, he has consistently and stridently cheered on the illegal bunch of young thugs who physically attack and provoke Palestinians in the territories.

Trying to find the reason for the High Court’s apparently lenient decision is not easy. I turned to a site “Just Answer,” an international group of lawyers prepared to answer questions concerning legal issues. From one of these licensed attorneys, Chris Keeler Esq., I received the following response:

“There is no consensus on why the High Court allowed Ben-Gvir to run for office (and no publicly available information or decision). Some argue that the court was simply upholding the principle of free speech, while others believe that the court was making a political statement. It is also possible that the court was concerned about the potential consequences of disqualifying Ben-Gvir, such as sparking unrest or violence.

“Ultimately, Ben-Gvir is the leader of the Otzma Yehudit party and not part of any party that is banned from the Knesset (despite holding similar beliefs). It is possible that the High Court relied on this information.”

From this response, it is possible to learn a few things. Firstly, that even among the High Court there was disagreement about whether or not to let Ben-Gvir run for public office on the grounds of free speech. But surely that was the same dilemma that faced the court over the existence of Kahane’s Kach party. What was the difference, and was it discussed? It remains unknown since, as Keeler notes, no statement on this issue has been released.

Secondly, and even more troubling, is the suggestion that the High Court was afraid of the consequences of its decision, that it might cause a violent reaction among Ben-Gvir’s supporters. If this is so, and the decision was “the political statement” mentioned by Keeler, then this indeed is a dereliction of duty on the part of the judges. Furthermore, the fact that this new fascistic party calls itself Otzmat Yehudit (Jewish Power) rather than Kach should not blind anyone from seeing that the same people have just changed labels, while the contents have remained disturbingly the same.

A reading of the opening verse of the Book of Ruth, “In the time of the judgment of the judges,” is understood by some commentators as meaning when the judges had to be judged. It seems that these days have returned.

The implication of these observations is that the High Court made a highly questionable decision that has contributed to the mayhem that has characterized Netanyahu’s coalition ever since. If it is to have any meaning as an independent tribunal, the High Court must be seen to be above the fray when it comes to the political ramifications of its decisions.

Netanyahu’s war

The current war is seen by many commentators as a continuation of a conflict that has raged on and off for over 100 years. This seems to be the way our beloved prime minister sees it. According to scholars, the Philistines of the ancient world battled with the Israelites for over 500 years, from the time of the exodus from Egypt to the reign of King Solomon. The Canaanites, too, lasted a lot longer than their fight at the time of Joshua. So, instead of viewing the present fracas as a one-off, history suggests that it should be viewed as one episode in a long continuing battle.

Of course, in Netanyahu’s case the continuation of the war is an excuse for keeping him out of the courtroom, where he is facing a number of related misdemeanors while in office (which has so far lasted 16 years). At the moment, only he can decide on the nation at war, and he shows no signs of moving from his lofty position. In so doing, he has alienated more than members of his own coalition and his party but also, more importantly, his foreign allies, especially the US and its president, Mr. Joe Biden.

Maybe the fact that Netanyahu’s late father, Benzion Netanyahu, was a historian gives his son a longer historical view of the war situation in which he finds himself. As Maxim Gorky wrote to Isaac Babel when the latter asked him if he, a Jew with glasses, should join the Cossack cavalry: “The soup tastes different when you’re in it.”

A midrash tells us that Aaron’s sons, Nadav and Avihu, who were walking behind their father and Moses, asked (apparently aloud) “When are these old guys going to die and let us take over the leadership?” God overheard them and replied, “We’ll see who buries who!” Readers are invited to unpack the metaphor implied in this quotation from the Talmud (Sanhedrin 52).

Sympathy for Arabs

It’s not only the Arab kingdoms but also others, especially those with an antisemitic bent, that have a problem with the very existence of Israel and the Jews. How is it possible, they seem to wonder, that this slither of a nation, dwelling on a slither of a country, can hold out for so long against huge numbers of aggressive enemies who want their demise?

Others have tried to squash us and not only failed but have perished themselves. Thus the empires of Babylon, Medes, Greece, and Rome have either disappeared completely or have been mightily reduced in their power. The massive populations of Christian and Islamic nations notwithstanding, not to mention the Communist regimes of Russia and China, and the massive territories that are under their jurisdiction, cannot fathom how the Jews have not disappeared or at least assimilated into their surrounding cultures.

The Jews, of course, have an explanation for their longevity. It is part of a divine plan, whether or not you believe in a divinity. In lieu of a rational answer, or ones that are rooted in history, these nations seek conspiracy theories to help explain this oddity. “It’s the Americans, its the Russians, it’s UFOs.” Someone, it seems, is always on the side of the Jews, helping them survive despite the terrific odds stacked against them. This is part of the so-called mystery of Israel, which is shared by Jews and non-Jews alike. But whereas the non-Jewish world often feels frustration at this implacable fact, we Jews celebrate our uniqueness.

On the other hand, as the well-known American journalist Sydney Harris once observed: “Over a period of time, enemies, as well as lovers, come to resemble each other.” There is a great danger that this is what is happening to our leaders, who in their enthusiasm for revenge have lost their moral compass and have begun to resemble the awfulness of our foes.

Knesset vote on Cassif

An attempt to expel Ofer Cassif, the only Jewish member of the Arab-Israeli Hadash-Taal party, narrowly failed in the Knesset on February 19. In what was the first time the Israeli parliament voted on a measure to oust one of its own members, the vote fell short of the majority necessary for expulsion, garnering 85 of the 90 votes needed in the 120-seat Knesset. The move came after Cassif publicly supported South Africa’s charge in the International Court of Justice that Israel was committing genocide in Gaza.

“The voice against the war, the voice against the carnage of innocent civilians, the voice for the immediate release of the hostages, the voice for peace and justice will not be silenced – My voice will not be silenced!” Cassif wrote on X following the vote. “My colleagues and I, democratic Jews and Arabs, Israelis and Palestinians, will keep our struggle alive and loud – for the end of the brutal occupation and war, and for the well-being and prosperity of both peoples in their independent sovereign states.”

Leading the charge against Cassif was MK Oded Forer from Avigdor Liberman’s Yisrael Beytenu party, who argued that supporting South Africa’s case against Israel meant that Cassif stood on the side of Hamas. “I feel dismay on behalf of the soldiers of the IDF, who according to Cassif are war criminals who need to stand trial in an international court,” Forer said after the vote. “I will continue working to take out of the Knesset whoever acts against the existence of the State of Israel.”

Twenty-four MKs abstained from the vote, including from the opposition Yesh Atid party, which argued that if the Knesset had decided to expel Cassif, the move would likely have been overturned on appeal by the Supreme Court.■