The Attorney General

“The IDF Can Afford to Be Choosier” posited journalist-author Zev Chafets in a column he wrote for Bloomberg. He was airing a perennial argument about the need for universal conscription.  “From its birth in the War of Independence of 1948, the IDF has carefully cultivated its reputation as a people’s army, unique in the world both as a fighting force and for the commitment of the population to its service. But while there is still mandatory conscription, the IDF’s place in Israeli society is changing along with the nature of modern warfare.

Universal conscription is part of Israel’s founding mythology. But changes in the security landscape mean it’s no longer necessary.”

When Israel was attacked by neighbouring Arab armies in 1948 it had no real army. Every able-bodied man and woman was recruited to defend the country. Well, that was the official narrative repeated time and again by   its foreign ministry, ambassadors, emissaries and friends.

Chafets said a senior officer who had been in charge of recruitment during the War of Independence once confided in him that many thousands of citizens applied for exemptions. Some were recent arrivals from the Holocaust who were psychologically unable to face combat. Others were parents trying to keep their children safe. Some were simply draft-dodgers. Were it not for Israel’s highly trained pre-state militia the fledging state would not have survived.

“Today, Israeli men and women are conscripted at the age of 18, serve for two to three years, and then are placed in active reserve units. There are exceptions to this universal draft. Married women, Arabs, ultra-orthodox men and those judged unsuitable are exempted or given early release. Still, most Israelis serve as a matter of course, and many with pride.” 

So, it was surprising that the annual survey of the Israel Democracy Institute found that, for the first time, a plurality of Jewish Israelis say they would prefer to drop the draft and establish a professional army. Participants in the survey   between the ages of 18 and 44 said they support dropping mandatory conscription.

The survey’s findings came as a shock to many people, but it didn’t surprise military insiders. Earlier this month, General Gadi Eisenkot, the IDF’s former chief of staff, called out the trend. “When I enlisted in the army in 1978, 88% of people eligible for the draft went in,” he said. “In 2015, when my son reached draft age, that figure had fallen to 66%.” Military sources estimate that it’s now more like 50%.  

Predictably, 80% of ultra-orthodox say they prefer to abolish the draft and pay professionals to look after national security. But many young Israelis who aren’t ultra-Orthodox feel that in the absence of existential threat, the army can get along without them, too. 

The IDF itself has adopted a lenient policy toward draft dodgers; it can afford to be generous. More than a decade ago, the IDF adopted a new war-fighting doctrine that does not require massive ground power. Israel’s borders are secure. Its main strategic threat now comes from Iran and its increasingly lethal guerrilla proxies in Lebanon and Gaza.

Iran is too distant and too large to be defeated with conventional battle formations of tanks, infantry and artillery. Hamas and Hezbollah could be overwhelmed by such forces, but the cost of Israeli lives lost on the battlefield and the home front was judged to be too high.

As a result, the IDF has adopted a defensive doctrine of containment. To accomplish this, it has armed itself with expensive and highly complex weapons systems: American-made fighter planes that can strike distant targets, multi-billion-dollar German submarines refitted to provide second strike deterrence against a nuclear Iran, a multi-tiered anti-missile system capable of downing (or lasering) incoming fire from across the border or outer space, and a vast network of cyber and intelligence units capable of anticipating threats and disrupting enemies.

All this, however, has come at the expense of the people’s army concept. You can’t just turn the average conscript into a cyber warrior. The IDF handpicks the best and the brainiest high school kids for its technological needs. It does the same with prospective pilots, naval commanders and candidates for sophisticated commando units.

 

These “first draft choices” are asked to sign up for longer service in exchange for being allowed to hone their skills. Service comes with the additional benefit of eventually joining a self-selected group of veterans who form the core of the civilian high-tech industry. Other recruits are sent to armoured or infantry battalions, support units or rear echelon office work. They are out of the mainstream of the IDF and its central challenges. Many begin to wonder if they are wasting their time.

The army is aware of this. Recently, Avi Kohavi, the IDF chief of staff, publicly stated that ordinary fighting men, not cyber soldiers, are still the heroes. No previous chief of staff has felt the need to make such a reassuring declaration.

So far, Israeli leaders and army top brass have refrained from stating openly that the universal conscription model no longer fits the needs of the country’s national defence in the 21st Century. Some may be concerned that change would widen societal divisions or weaken community bonds and a willingness to sacrifice for country.

They needn’t be. The public has already grasped the reality that the existing model is outdated. Formalising such changes may be gradual, but Israel’s military can afford to be more selective these days. 

That being said, the coalition government managed to pass the first reading of the IDF draft bill for Haredim on Monday.

The bill sets out annual targets for the number of ultra-Orthodox men to be enlisted per year beginning in 2022, with rates of enlistment increasing very slowly for the annual cohort of ultra-Orthodox men turning 18.

Should enlistment targets not be met, the bill provides for a reduction in the state budget for yeshivas, money that is distributed to recognised yeshivas for the purposes of paying students a monthly stipend.

Bennett said the bill would among things help Haredim join the workforce, thus benefitting the entire country.

Not everyone agreed with the prime minister’s optimistic outlook. United Torah Judaism party leader Moshe Gafni shouted at Bennett after the vote that the bill was shameful. Earlier in his speech to the plenum, Gafni said he was more ashamed of the bill than any other in Israel’s history.

Likud MK Yoav Galant, a retired general who headed the IDF Southern Command, told the plenum it would do more harm than good to draft people who do not want to serve.

The bill also temporarily reduces the age of exemption to 21 in order to encourage ultra-Orthodox men to enter the workforce, and over the course of three years then raises the age to 23.

The Supreme Court had ruled that the draft bill must be passed by the end of January.

This week a lot of newsmedia prime time was devoted to exiting Attorney General Avichai Mandelblit’s “swan song” marking the end of his six-year tenure.  Listening to his speech astute observers and the rest of us detected a direct accusation aimed at former prime minister Benjamin Netanyahu.

“There were those who tried to present the harm (they sought to cause) to the rule of law as an ideological move, under the pretext of ‘governance,’

but time and time again, we saw that what really stood behind these moves was a desire to advance personal interests, severely damaging the principle of fidelity to the public.”

Mandelblit, who was appointed to his post by Netanyahu, led the initial corruption investigation into the ex-premier, and faced criticism from officials at both ends of the political spectrum throughout the course of the probe.

Those on the left at first argued that the attorney general was stalling the investigation.

However, when Mandelblit issued charges in three of Netanyahu’s cases, the ex-prime minister and his supporters on the right said that the attorney general was part of a conspiracy spanning the state's judiciary and law enforcement institutions which was determined to oust Israel’s longtime leader.

“The rule of law is not the attorney general’s personal property,” Mandelblit declared in his parting remarks

“Israel must split the attorney-general’s role to ensure rule of law.” 

Opined Professor Yedidia Z. Stern former dean of Bar-Ilan University’s law faculty.

“The current attorney-general’s balanced and cautious approach, under particularly difficult circumstances, is no guarantee for the future. We can’t rely on the miracle to continue.

Israel’s attorney-general wears two hats: He is both legal adviser to the executive branch and the state’s chief prosecutor. The coalition parties want to split the roles so that the state’s chief prosecutor will be autonomous and not subordinate to the attorney-general. However, those who have served as attorney-general, as state prosecutor or as Supreme Court justices (and who have expressed themselves on the subject) unanimously oppose this split. Who is right – the politicians or the jurists?

The attorney-general currently holds vast governmental power in his hands, a centre of gravity of authority that challenges the principle of separation of powers in a democracy. Concern for Israel’s democratic character is growing in the absence of a constitution that would impose restrictions on the attorney-general. To date, the position has been held by people loyal to the public interest, but there may come a day when the office falls into other hands. The current attorney-general’s balanced and cautious approach, under particularly difficult circumstances, is no guarantee for the future. We can’t rely on the miracle to continue. The system itself must address the present concerns.

There are functional difficulties as well: The two roles require entirely different kinds of expertise. An attorney-general who has an excellent professional grasp of civil law will usually be a novice in criminal law, and vice versa. Thus, the chief prosecutor could be a mere apprentice in the criminal field, or the attorney-general could be one in the civil field. In either case, the public interest will be harmed.

This multiplicity of tasks, combined with the lack of experience in one of the areas under his responsibility, creates a huge load on the system. It is busy with current and urgent matters and has trouble making time for strategic concerns. And yet, despite the existence of a State Prosecutor’s Office whose expertise and mission it is to engage with those concerns, the attorneys- general are devoting a significant portion of their time to making decisions on the fate of a specific criminal case involving a public figure. Aside from wasting the time and administrative resources of those responsible for all aspects of the rule of law, the Attorney-General’s Office is attracting public criticism. This state of affairs does not, to say the least, make it easy for the institution to fulfill its central role.

There is also an inherent conflict of interest between the two functions: The attorney-general’s role is to stand with the government and assist it in implementing the policy it was elected to advance. The state prosecutor’s role is to stand up to the government and protect the rule of law from it. These are two entirely different psychological and professional positions. Only angels, not human beings, could with complete openness seek counsel from someone who has the authority to put them on trial.

Faced with these difficulties, the jurists who oppose the split argue, among other things, 

Exiting Attorney General Avichai Mandelblit

that if prosecutorial power is taken from the hands of the attorney-general, his deterrence power before the government would diminish, and his advice would go unheeded. In my view, this is an insulting argument, from both a democratic and a cultural point of view. It assumes that the state’s leaders are a bunch of miscreants who, unless there is a whip over their heads, cannot be trusted. Although it has been proven that there are public figures for whom such concern is justified, this implicit defamatory generalisation is inappropriate. ”

The current heterogeneous coalition is particularly well positioned to formulate an agreement on an institutional and functional split of the Attorney-General’s Office, out of full fidelity to the rule of law, without which we are destined to fail.”

 

Take care.

 

Beni,                                                               3^rd of February, 2022.