The Case of Clause 97B

With election results now certified and coalition negotiations taking place, the million dollar question in Israel is which multi-party coalition will govern? Will it be a leftist coalition that relies on an uncomfortable alliance with Israel’s ultra-orthodox parties? Will it be a so called national unity government featuring three of the five major parties? Or will it be, as logic dictates, a center-right-religious coalition led by the increasingly dovish Likud party? While the composition of Israel’s next governing alliance is a worthwhile question, it is somewhat unexciting, since the answer will become a matter of public record in a matter of days (or weeks) once negotiations have concluded and a coalition is built. What interests me more is the status of the outgoing government, especially with regards to Prime Minister Ehud Olmert. One of Israel’s most corrupt and villainous politicians, Olmert will face a slate of criminal charges including bribery and fraud. Among the numerous outrages, he stands accused of financially extorting charities dedicated to holocaust education and the assistances of handicapped children. Still, one thing missing from the laundry list of charges for which judicial review is required is Olmert’s obvious violation of clause 97B of Israel’s 1977 Penal Code.

First returned to public attention in May of 2008 when Olmert was allegedly negotiating the surrender of the Golan Heights to the Hezbollah-supporting Iranian proxy state of Syria, clause 97B reads: “A person who, with intent that any area be withdrawn from the sovereignty of the state or placed under the sovereignty of a foreign state, commits an act that has the potential to bring this about is liable to life imprisonment or the death penalty.” Now, Olmert could be guilty of violating this law in at least two instances. First, as Prime Minister, it was alleged by many political insiders and close confidants that he conducted secret negotiations with the Syrian government, as a part of which he offered to withdraw from the Golan Heights. Second, before becoming Prime Minister he was Minister of Industry, Trade, and Labor in the Sharon government when Israel expelled thousands of Jews from their homes and withdrew from Gaza, creating Hamastan. The law makes no such requirement that the individual be Prime Minister for it to apply, nor does it specifically exclude such individuals. Thus, either instances would be grounds for a charge to be filed.

Undoubtedly many people would suggest that the law does not apply here, because the Golan Heights and Gaza are not part of Israel’s internationally recognized borders. Such individuals misunderstand the definition of sovereignty. The Stanford Encyclopedia of Philosophy (edited by scholars in the associated field) defines it simply as having “supreme authority within a territory.” So, whatever international law or politically minded individuals might think of Israel’s presence in territory won in the Six Day War, it is quite clear that the legal questions associated with it are irrelevant to considerations of whether or not sovereignty is involved. Obviously, Gaza and Golan Heights were both sovereign Israeli territory, in that the latter has been annexed by Israel and is fully subject to Israeli law, and the former was ultimately under Israeli control until Sharon’s disengagement.

Some might be tempted to suggest that the law applies to the public, and is not intended to restrain governmental action. This too is false. As Israeli legal scholar and land possession expert Howard Grief noted on this very topic, “Pre-existing law always supercedes policy, and is required to be implemented under the ‘Rule of Law’ principle.” Having been issued in 1977 and not amended or rendered invalid thereafter, clause 97 B of the 1977 Penal Code is still in force today, as it was when Olmert violated it during his time as Prime Minister. Just as present day US law can ban politicians from consulting with representatives of outlawed organizations, so too may Israeli law disallow negotiations or actions that might result in a loss of territory. The concept of having laws that restrict actions generally and apply with equal force to members of government is hardly new or unique to Israel. Since that is not seen as a problem elsewhere, there is no reason to believe that should matter in this particular case either.

Surely, many people, even those convinced that Olmert has run afoul of a valid and enforceable law would suggest that the Penal Code should be revised, with 97B being removed. That would be foolish though, for history has validated this provision. The land for peace formula has proven time and again that lasting Israeli security will not come from giving up land. Instead, doing so only jeopardizes what little security Israel has, further exposing major population centers to missile and rocket attacks and other acts of war. There can be no better proof than Gaza. Instead of utilizing it to build a viable and modern state, the Palestinians installed a jihadist organization in power, which has since used Gaza as an operational center from which to launch a daily barrage of devastating rockets on Israeli cities like Sderot and Ashkelon. But foolish and inappropriately optimistic as Israeli politicians seem to be, those representing the mainstream parties have yet to learn this lesson, even though insightful men such as Rabbi Dr. MK Michael Ben-Ari and Professor Paul Eidelberg have been bringing attention to this reality for decades. This law, if actually enforced would cause a shift in policy that could only aid the long term security of Israel, for it would force an abandonment of the method that has failed Israel for so long. For that to happen though, clause 97B must be made real again. And the best way of doing that is by bringing up Ehud Olmert on such a charge.

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