Opinion | Why Israel’s Supreme Court Was Right to Ban Michael Ben Ari

March, 22 2019

On May 17, Israel’s Supreme Court banned Michael Ben Ari, leader of the Otzma Yehudit (“Jewish Party”) party from running in the April 9 general elections.

But the issue of racism in Israeli society is far from over. The Court has done what it can to protect democracy and the rule of law. Now it’s up to the rest of us, citizens of Israel and Jews throughout the world.

By his own proud admission, Ben-Ari is disciple of the late Rabbi Meir Kahane, the founder of the Kach movement. During his term in Knesset (from 1984–1988), Kahane brought up proposals to revoke the citizenship of all non-Jewish Israelis, expel all non-Jews from Jerusalem, enslave Arabs and other non-Jews, prohibit non-Jews from living in Jewish neighborhoods, segregate beaches and other public places, forcibly dissolve all intermarriages, and criminalize sexual contact between Jews and Arabs.

In 1988, Israeli authorities declared his party illegal, and the Supreme Court subsequently banned his party when he wanted to run for a second term. In 2019, it is Prime Minister Benjamin Netanyahu who has invited them back into political legitimacy.

In an effort to skew the Israeli electoral system to his advantage, Netanyahu brokered an agreement between the Jewish Home party and the Otzma Yehudit party. He personally made phone calls, convened meetings and offered promises in order to bring the two parties to agree to run together. Netanyahu even postponed a meeting with Russian president Vladimir Putin, scheduled to discuss Russia’s role in Syria, so that he could see the deal through.

He even promised the combined party the education and housing ministries and two seats on the all-powerful Knesset security committee. Netanyahu did all this so that the combined parties would be able to pool their constituencies. His reasons? To enable the combined parties to pass the electoral threshold and thus bolster the right-wing bloc that he needs to form a coalition after the elections. As he has done so often, Netanyahu furthered his own needs without caring about the consequences in terms of what it would mean for Israel’s standing in the world, for the Israel-Diaspora relationship, and most important of all, to Israeli society and democracy.

Left-wing Knesset members appealed to the Central Elections Committee. Attorney General Avichai Mendelblit told that the Central Elections Committee that Ben Ari is not fit to run for office, based on Article 7A of the Basic Law: the Knesset, which lists incitement to racism as a reason for disqualification. He noted that Ben Ari has been indicted over 50 times for incitement against Arabs. But the Central Elections Committee, which is a political institution made up of Knesset members, in which the right has a majority, rejected his opinion. In response, the left-wing Meretz party, MK Stav Shaffir (Labor) and the Reform Movement petitioned the Supreme Court, which overturned the Central Elections Committee’s decision.

While making its decision regarding Ben Ari, the Supreme Court also overturned another decision of the Central Elections Committee, which had decided to ban two Arab lists: the socialist Hadash-Ta’al list and the Arab-nationalist and Islamist Ra’am Balad list, and agreed that Ofer Cassif, Hadash’s sole Jewish candidate, should also be allowed to run. The petition to ban the party was brought by the Likud and the petition against Cassif was brought by Yisrael Beiteinu Chairman and former Defense Minister Avigdor Lieberman.

Balad has been the home of MKs such as Hanin Zoabi, who joined the 2010 Gaza flotilla; Azmi Bishara, who fled Israel over a decade ago to escape indictment for spying for Hezbollah; and Basal Ghattas, who is serving a prison term for providing convicted Palestinian terrorists with cellphones and SIM cards. And Ofer Cassif, a hot headed professor of political science at Hebrew University, among other notable statements, has called the military Chief of Staff a “war criminal” and Justice Minister Ayelet Shaked “neo-Nazi scum.”

But Zoabi, Bishara and Ghattas are not candidates on the Balad party list. And while Ofer Cassif’s statements are reprehensible, they are not damaging to democracy or to the existence of the State of Israel. They are anti-Zionist; they are crude and offensive, but they are not racist. I don’t like them, but they are not calls for action. Furthermore, according to Mandelblit, Cassif told the court that he “opposes any form of violence.”

As anticipated, the decision led to a wave of whataboutism. The Union of Right-Wing Parties, of which the Kahanist Otzma Yehudit is part, said the ruling was a “disgrace” and promised to “stop the irresponsible legal activism of the Supreme Court.” They added: “This is the theater of absurd.”

Fumed Justice Minister Ayelet Shaked, “The judges of the High Court have turned themselves into a political factor. Their decision to disqualify Ben Ari and authorize parties that support terror is a blatant and erroneous intervention in Israeli democracy.”

“A union with right-wing parties is wrong, but working to bring in inciters and those who spy against Israel is legitimate,” Netanyahu asked bitterly, calling the notion “the height of absurdity.”

But these are deceitful symmetries. Cassif opposes the occupation and calls for Israel to renounce its Jewish character and become a “State of all its citizens,” but he does not call for expelling anyone. Ben Ari calls for the violent expulsion of the entire Arab population. Cassif talks about national equality between Jews and Arabs, while Ben Ari refers to Arabs as a “murderous nation,” who “understand only force.”

In a democracy—and as any parent of two or more children knows—fair and same are not synonyms, and equality does not necessarily mean similarity. Banning Ben Ari was a democratic decision; not banning Cassif was also a democratic decision. We Jews are the majority here in Israel, but a real democracy must be much more than rule of the majority.

As Professor Mordechai Kremitzer has written, “In a democracy, one must be particularly wary of a political majority that is national-ethnic in essence, and that seeks to silence a national minority and deny it political representation. In Israel’s special circumstances, and in light of the Palestinian-Israeli conflict, it is not surprising that there is a large gap between the minority’s perspective and that of the majority. Even when the minority’s perception is anathema to the majority, democracy requires the majority to tolerate it.”

The Court’s decision is a statement of resistance to the wave of religiously-based racism in Israel. The Court drew a line–not against free speech, but against extreme ethnocentrism, chauvinism and xenophobia. But the Otzma Yehudit party is still running in these elections, and, should they pass the electoral threshold, Netanyahu will most likely bring them into his coalition and even give them the promised ministries. Self-servingly, to promote his narrow political needs, Netanyahu is willing to mainstream the worst forms of racism.

But even if they do not pass the electoral threshold, we, as loyal Israelis and committed Jews, must make it clear that Ben Ari and his ilk are not legitimate, and we reject them and all that they stand for.

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