Editor’s Notes: Taking the fight to the Iranians

In 2003, while the United States was in the throes of building up its military forces in the Persian Gulf ahead of its planned invasion of Iraq, something interesting happened in another country nearby – Iran.

Fearing that they were next in line after the Taliban and Saddam Hussein, the ayatollahs in Tehran decided to do something until then believed to be impossible: completely suspend all nuclear activity, including the enrichment of uranium at Natanz, the construction of the Arak heavy water facility, and the covert weapons program.

The suspension lasted two years. In 2005 – when it was clear the Americans were not coming – Iran renewed its program.

In the years since, Israelis officials have often looked back on the events of 2003 as proof that Iran’s nuclear program can be stopped without a single shot being fired. Military force, they claim, doesn’t actually have to be used: Just the threat of it.

It is within this context that it is worth looking at the Trump administration’s recent moves against Iran, culminating in this week’s decision to not permit any more waivers for countries that decide to buy Iranian oil. If they continue doing so, they too will come under US sanctions. This move comes just weeks after the US rolled out a new round of sanctions against a network of companies and people in Iran, Turkey and the United Arab Emirates that it accuses of helping fund Iran’s elite Revolutionary Guard.

Combined with President Donald Trump’s decision to withdraw from the nuclear deal with Iran, this is all pretty much a dream come true for Israel and Prime Minister Benjamin Netanyahu. During his recent successful reelection campaign, Netanyahu mentioned a number of times how he succeeded in convincing Trump to pull out of the JCPOA. The continued imposition of sanctions is just another step along the way.

BUT WHAT is the ultimate goal? For Israel, one of the key elements missing from the international community’s campaign to stop Iran has always been the presentation of a credible military threat. While Israel repeatedly beat the war drums over the years and even came close to attacking in 2010 and 2012, the same cannot be said about the United States.

After refusing to attack Syria’s nuclear reactor in 2007, George W. Bush made it clear that he would not take action against Iran, and Barack Obama was vocally opposed to military force from the get-go of his term, which ended in the disastrous nuclear pact.

Israel has always believed that in the absence of a credible threat, the Iranians will not back down from their continued pursuit of a nuclear weapon, which almost all intelligence agencies across the globe agree is the true objective of Iran’s nuclear program.

A military threat, though, will not work on its own, and needs to be combined with tough economic sanctions and diplomatic isolation. This is where the new military maneuvers the US has been holding in the Persian Gulf come into play.

In recent weeks, two US aircraft carrier strike groups have been operating in the region: the USS Abraham Lincoln and the USS John C. Stennis. The gathering of those naval assets at the same time that Washington announced new sanctions against Iran seemed more than just coincidence. It also came on the heels of the US Air Force’s deployment of its fifth-generation F-35 stealth fighter jets to the United Arab Emirates, the first time the aircraft has been sent to the Middle East.

Does this mean that the US is planning action against Iran? Of course not. It could be that the deployment of so many strategic platforms in the Middle East is actually meant to send a message to Russia – as it pertains to its presence in Syria – more than it is to Iran.

EITHER WAY though, it shows the Iranians that the United States is engaged in the region, not just through economic sanctions but also by deploying strategic military assets nearby.

While impressive, none of this, however, will be enough on its own to stop Iran from one day restarting its nuclear program. The Iranian strategy for now seems to be playing the waiting game – wait to see what happens in the 2020 elections, and hope that a Democrat wins and then pushes America back into the JCPOA.

While Trump wants the Iranians to begin negotiating a new and better deal, the Ayatollahs have no reason to rush. Europe and China are still in the original deal, and as long as Tehran continues to abide by it, America has no justification for military action. That would change if Iran suddenly decided to break out to a bomb, a move that does not seem likely.

Netanyahu’s timeline is slightly different. While Trump seems, at times, to be taking cues on Iran from Israel, that will all change if the Democrats take the Oval Office in November 2020. Rejoining the nuclear deal might then be the least of Netanyahu’s problems.
Depending on who wins, Israel could see a president not only walk back all of the so-called gifts Trump has bestowed on Israel – recognition of Jerusalem, the Golan and the moving of the Embassy – but also decide to stop military aid to the Jewish state, a move that would constitute a strategic blow to the IDF’s qualitative military edge.

Trump, on the other hand, begins his reelection campaign this fall, and his time, energy and resources will be focused on ensuring that he wins the 2020 election. Israel, the Palestinians and a new Iran deal will all have to wait.
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There are four key legal initiatives that Netanyahu is contemplating implementing when his new government takes office: passing an override clause so Knesset bills cannot be vetoed by the High Court of Justice; passing a new immunity bill so Netanyahu can avoid indictment; changing the way Supreme Court justices are selected; and finally, redefining the role of the attorney-general.

This is nothing short of an assault on Israel’s legal system, one that if successful could have long-lasting consequences for Israeli democracy.

While it is true that the Right won these elections and that the winner has the right to implement its policies, an independent court is a strategic asset for the State of Israel, not just to uphold human rights and protect Israel’s minorities, but also to ensure that the country – and particularly its soldiers – have protection from international prosecution.

Attacking the court through populism is easy. What is difficult to explain, however, is that if the court’s integrity is undermined, the next time there is a petition to some international tribunal on a matter that the High Court of Justice has already ruled, the Israeli decision will no longer be accepted. What this means is that Israeli soldiers could face prosecution overseas and possible imprisonment.
This is based on the principle of complementarity in international law, which says that if an Israeli court has already handled a complaint, the ICC does not have grounds to intervene.

Will that remain the case if the override clause is passed, or if the method used to select judges is changed? That is not clear. If the court is suddenly viewed as politicized, its decisions might be viewed that way too, and then after the next IDF operation in Gaza or the razing of an illegal Palestinian town, the ICC might decide to get involved.

This does not mean that everything should stay the way it is. There is no question that something needs to change in the relationship between the court and the Knesset. Personally, I am in favor of more transparency in the way judges are selected, currently done via the Judicial Selection Committee and its nine members – two ministers, two MKs, three Supreme Court judges and two representatives of the Bar Association.

WHAT GOES on in the committee is one big mystery. It doesn’t release protocols, and we are not privy to the considerations behind the appointments. While US Senate-like Knesset hearings might be too much, there is room to insert another step along the way that gives the public some type of oversight.

There might even be some merit to a version of an override clause. The Knesset is made up of the public’s elected officials. For better or worse, those 120 people represent the people of Israel, and if they pass laws, maybe they should be allowed to remain in place. Canada, many people claim, also has an override clause and is still a democracy.

The difference is that Canada doesn’t just have an override clause. It also has a Charter of Rights and Freedoms that makes up part of the country’s constitution. It also has more decentralized power distributed between two houses of parliament and different provinces.

Israel, on the other hand, does not have a constitution and does not have decentralized power. On the contrary, the Knesset has potentially unchecked power.

The bigger question for me is whether now is the appropriate time for all of this to be happening. Whatever your opinion is of Netanyahu and regardless of whether you voted for him, he is a suspect in three criminal cases for which the attorney-general – pending a hearing – has already decided to indict him. Should he be the one making these sweeping changes to Israel’s judiciary and legal system?

Just like you don’t send a fox to guard the hen house, a democracy doesn’t let a criminally suspect leader revamp the relationship and separation of powers between the legislature and the judiciary, the same bench that could one day hear his own appeal.

This is not just unhealthy for Israel, it is potentially disastrous.

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