SPIA Reacts: Crisis in the Middle East

Wolfgang Danspeckgruber, the founding director of SPIA’s Liechtenstein Institute on Self-Determination, has been teaching on issues of state, self-determination, diplomacy, and crisis diplomacy at Princeton since 1988.

The violent death and destruction wrought through the Hamas terrorist attacks on Israel – including kidnappings of Israelis on their territory and deliberate civilian killings such as those at the Tribe of Nova Music Festival – represent a potential inflection point in the Middle East and beyond.

These heinous Hamas attacks, on a Sabbat and the Jewish Holiday of Sukkot, are unprecedented in innovation, scope, intensity, and coordination. The combined casualties of the attacks and those of the now ongoing retaliatory Israeli military operations following Prime Minister Netanyahu’s declaration “We are at war” might have a generational impact on Israel, its neighbors, and the region, for years to come – as had the Yom Kippur War, precisely 50 years ago.

Clearly these attacks – incidentally also launched on Vladimir Putin's birthday – required considerable (clandestine) preparation concerning innovative local weapons manufacturing, stockpiling and training, innovative combat tactics, leadership, communication, and coordination, and presumably also some international assistance – even guidance – all of which required time to plan, as well as effective cover, camouflage, and shielding. First reports indicate that some weapons and equipment came from places as far away as Afghanistan, while some tactics and weaponry which have been successfully deployed in current conflicts elsewhere are now used with equal success in a new context.

All of this emphasizes the question both about the level of other actors’ involvement and about the workings and efficiency of Israel's intelligence services, defense, and security apparatus, as well as of allied and U.S. intelligence. While the fighting is still going on and Israel is launching military operations in Gaza, it is too early to fathom the outcome and longer-term ramifications. Nevertheless, some leaders and their interests might well be able to already find advantages in this drama.

Two resulting “arcs of crises and wars” overlap in Israel and its neighborhood. One arc extends from the Baltic Sea to the Black Sea region, along southeastern European coastlines and the Balkans, to the southern Mediterranean and east to the Caucasus and to Afghanistan; the other arc reaches from Afghanistan west into northeast and central Africa. Across these arcs are areas of acute violence, sustained human suffering, and great destruction – resulting in multiple geopolitical crises with potential interactions. This “multiple crisis syndrome” overextends global crisis management capabilities and exhausts resources, while drawing in outside powers on opposite sides, prolonging and extending the scale of the crises and potentially intensifying them.

It is thus important now not to fall into the trap of "reflexive control," but to avoid dramatic escalation and civilian suffering.

Udi Ofer, the John L. Weinberg Visiting Professor and Lecturer of Public and International Affairs, teaches courses on civil rights, policing, criminal justice reform, and public policy, and is chair of the International Advisory Council of the Association for Civil Rights in Israel.

As Israel mourns the brutal and intentional killings of innocent civilians by Hamas militants, and as civilians in Gaza brace for a potential ground invasion and aerial attack that is expected to lead to many innocent civilian casualties, it is now more important than ever for the rule of law to take hold and for a system of constitutional checks and balances to guide Israel’s response.

For 39 straight weeks, hundreds of thousands of Israelis had been pouring into the streets to protest the Netanyahu government’s attempts to overhaul the nation’s judicial powers and to strip the courts of their authority to declare executive or legislative actions unconstitutional. The protests, unprecedented in Israeli history and arguably the largest and longest pro-democracy protests in world history, denounced these moves as an attack on Israeli democracy, including the rights of minorities, secular Israelis, and women. Just last month, the Israeli Supreme Court considered a historic case that challenged its own authority to overrule government decisions that are unreasonable. The hearing took 13 hours and gripped the nation’s attention.

The protests rightfully took a pause on October 7, the day of the horrific assault by Hamas militants against Israeli civilians. Activists from the protest movement used their infrastructure to help in the rescue and evacuation efforts. This was the right thing to do. But the pro-democracy movement should continue. In times of crisis, when national security is often pitted against civil liberties, it is vital for the courts to be empowered to be the last protector of rights and freedoms.

This need is not unique to Israel. In the United States, following the attacks of September 11, 2001, the George W. Bush Administration pushed forward policies and practices that directly conflicted with constitutional protections, all in the name of prosecuting the War on Terror. We saw CIA black sites pop up and torture practices take hold, massive surveillance without suspicion, and even the detention of United States citizens without charges. It took the United States Supreme Court, which has historically shied away from questioning executive actions during moments of crisis, to at least strike down that last action. In 2004, the Supreme Court ruled that United States citizens cannot be detained as enemy combatants without a meaningful opportunity to challenge that detention before a neutral decisionmaker. If not for the Supreme Court, executive actions post-9/11 would have gone much further.

Israel is now entering this phase. While the challenges of pitting national security against civil liberties have existed in Israel since 1948, it is about to get worse. Many have already labeled October 7, 2023, as Israel’s September 11, 2001. If this is true, and if the United States is any guide, Israel will need the courts, at the very least, to help steer the nation to strike that right balance.

It is awkward to be praising Israeli courts on national security matters since they have had a bad track record of protecting human rights. I do not agree with their broad deference to executive authority on these matters, in the same way that I have been critical of the courts in the United States acting in an overly deferential manner to the executive in times of crisis. But at least there is a court in place for some checks on government powers. Under Netanyahu’s judicial plan, courts will be stripped of much of their authority to review government action. It is why hundreds of thousands of Israelis have been protesting in the streets, as these are existential questions on the basic composition of a liberal democracy.

The courts in Israel do have some precedent in siding with civil liberties in times of crisis, often not going far enough in their rulings from a human rights perspective but at least placing some limitations. In 1979, the Israeli Supreme Court limited the Israeli government’s ability to build settlements in the West Bank in the name of national security. In 1999, the Court struck down a provision in the Military Jurisdiction Law that allowed a soldier to be detained for 96 hours before seeing a judge. Also in 1999, the Court held that the General Security Services did not have the authority to employ certain interrogation methods, including those that subject individuals to moderate physical pressure (although it allowed certain defenses). In 2006, the Court invalidated a law that granted the government immunity from compensation for claims brought by Palestinians who are injured by Israel’s security forces. And in 2010, the Court ruled in favor of the right of defendants to a hearing in cases involving national security.

But now, even minimal protections may disappear without the rejection of Netanyahu’s judicial overhaul efforts.

Some may argue that calling for a robust democracy with separation of powers and judicial oversight may appear tone-deaf and cruel at this moment. Civilians are fighting for their lives. Israel just saw the worst single-day slaughter in its history. Personally, I have family and friends in danger’s way. I care deeply about Israel’s security, and I care deeply about the safety of civilians in Gaza.

But I would argue that it’s at times like this that the government most needs rules and boundaries on how it operates, setting clear standards that define right and wrong, and not relying on just one branch of government to make life or death decisions. It’s the rule of law that should define a liberal democracy against an illiberal one. Judicial independence and a deepening of democratic values are as important as ever.

Hundreds of thousands of Israelis have been protesting for dozens of weeks against attacks on judicial independence. Today, those same protesters are mourning the attacks by militants against them and their neighbors and families. It is at times like this that democracies are put to the test. And I can think of few things that are more patriotic than calling for a robust democracy with civil liberties and civil rights for all.

Kim Lane Scheppele, the Laurance S. Rockefeller Professor of Sociology and International Affairs and the University Center for Human Values, studies the intersection of constitutional and international law, particularly in constitutional systems under stress.

Via the conlawprof listserv:

There is ample support for the view that Benjamin Netanyahu ignored warnings from the military and intelligence services that the neighborhood was becoming increasingly dangerous for Israel, that Netanyahu’s frontal assault on Israeli democracy had effects inside the military, and that Netanyahu’s de facto annexation of the West Bank had pushed Palestinians toward the point of no return:

• From July, warnings about the Northern Border.
• From July, warnings about a general threat.
• From March, warnings about how Netanyahu’s assault on democracy within Israel weakened cohesion in the Israeli military.

In short, however shocking, appalling, and inexcusable the Hamas attacks against Israel are, they are not surprising. Instead, there is abundant evidence that Netanyahu knew full well that his attempts to destroy democracy from within Israel and his harsher crackdowns on Palestinian communities by his far-right government were weakening Israeli security. And yet he pushed forward to appease the far-right members of his coalition government in the face of evidence that this would have disastrous security consequences.

Yair Lapid, head of the opposition, offered to form a unified emergency government with Netanyahu to ensure that the response of the government has support across the Israeli political spectrum. So far, Netanyahu has not accepted the offer. Leading from the far right of the Israeli political spectrum will, in my view, only lead to more bloodshed on all sides.

It’s always dangerous to hazard an analysis at the start of a conflict, but the situation in Israel reminds me of the situation in the U.S. before the 9/11 attacks. A new government, taking power by whipping up ideological hatred against the government it replaced and rejecting everything that the prior government stood for, also rejected the warnings that the prior government and its high-level security appointees gave it when the new government came to power. Within a year, the new government ran straight into the peril that the prior government had managed to hold off.

Political polarization has security effects, and I just hope that all politically polarized societies recognize the dangers before it is too late.

Jacob N. Shapiro, a professor of politics and international affairs and director of the Empirical Studies of Conflict Project, researches conflict, economic development, misinformation, and security policy.

In the months to come we will learn much more about the massive intelligence failure that allowed this attack to happen on the 50th anniversary of the Yom Kippur War, a date that should have had Israeli security services on high alert. For now, three observations. First, we should expect a massive and unprecedented reaction from Israel. Seven hundred civilians killed in a nation of Israel’s size is as if the 9/11 attacks had killed more than 21,000. Second, the regional context almost surely played a role here as the emerging rapprochement between Israel and Saudi Arabia posed a significant threat to Hamas’s main sponsor, Iran. Third, worse is almost sure to come. It is hard to see how the Israeli government’s avowed goal of destroying Hamas’s military infrastructure can be achieved without a ground invasion of Gaza. And Hamas conducted this attack without using the kinds of drone technology we see on the battlefield every day in Ukraine. I do not see how such technology can be kept out of Gaza unless Israel imposes constraints on trade that will completely shatter its economy.