INTO THE FRAY: Merited mistrust?

For your perusal, my latest INTO THE FRAY column

Merited mistrust? 

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There is something sick in the State Prosecutor’s Office; Shai Nitzan is not fit to be the State Prosecutor” – Judge Hila Gerstel, former Commissioner for Prosecutorial Oversight


It appears this week on the following sites (in alphabetical order):


Several short excerpts: 

Sed quis custodiet ipsos custodes? (But who will guard the guardians themselves?)

Juvenal, a Roman poet (circa 55 CE- circa 127 CE), Satire VI, line 347.

Public trust in the police – the lowest in the West…only 22% of Israelis believe that judges don’t take bribesHaaretz, Oct. 31, 2011.

Public approval of the police at all time low – below all other public services – Haaretz, July 7, 2013.

Last Thursday (Nov. 21, 2019), Attorney-General Avichai Mandelblit dropped a long-awaited bombshell on Israel’s political system.

Emotions erupt

After months of speculation, he announced his intent to indict Prime Minister Benjamin Netanyahu for bribery, fraud and breach of trust in Case 4000 (the Bezeq-Walla Affair); for breach of trust in Case 1000 (the Illegal Gifts Affair); and for breach of trust in Case 2000 (the Yediot Aharonot-Israel Hayom Affair).

The announcement ignited an eruption of divergent public emotions. The Bibiphobes applauded it with undisguised glee, the Bibiphiles rejected it with unmasked abhorrence.

Netanyahu himself lambasted the decision.

Similar sentiments

I confess that I find that Netanyahu’s words of censure resonate with me.

Indeed, over the past two years I have expressed similar sentiments myself. For example, in February 2018, I wrote a piece entitled Coup d’etat, in which I warned : “If he is … forced out of office, many will see this as naked politicization of law enforcement in the country, in effect, a legalistic coup d’état, designed to annul the outcome of elections — and will deal a mortal blow to their faith in the democratic process”.

Understandable uproar

The hullabaloo is not difficult to understand.

Indeed, for the layman, the indictments appear to be uncompelling—to say the least.

After all, as I have written elsewhere, to “anyone but a rabid “Bibiphobe”, they appear transparently contrived, indeed, a thinly veiled attempt at a legalistic coup…creating a deep sense of unease that Israel’s legal establishment is being exploited for patent political ends  

Puzzling precedent

State Prosecutor, Shai Nitzan


A layman’s puzzlement might well by increased by the fact that the State Prosecution has as good as admitted that Netanyahu could not be indicted on the basis of well-established legal practice—and to do so, new legal precedents needed to be invoked.

This emerges clearly from an interview (May 8, 2019) with Shai Nitzan, the State Prosecutor, leading the legal action against Netanyahu.


Bursting the bubble? 

Judge (ret.) Hila Gerstel, former Commissioner for Prosecutorial Oversight

Significantly, grave questions have been raised over the functioning of the State Prosecutor’s Office, in general, and of the State Prosecutor Nitzan, in particular—by none other than the person appointed to oversee them—retired Judge Hila Gerstel, who resigned from her role as Commissioner for Prosecutorial Oversight—after an acrimonious relationship with the State Prosecutor’s Office.

In an interview in the business daily, The Marker (owned by the far-left Haaretz), headlined There is something sick in the State Prosecutor’s Office; Shai Nitzan is not fit to be the State Prosecutor, Gerstel was sharply critical of both.

Experts excoriate 

Law professors Avi Bell & Alan Dershowitz

The profound sense of unease, which all the preceding accumulation of troubling question marks generates, is heightened by the fact that an impressive battery of internationally renowned legal experts has excoriated the legal action against Netanyahu—in no uncertain terms.

Thus, in a detailed critique in Tablet Magazine, Prof. Avi Bell warned: “Mandelblit’s announcement inserts law enforcement officials into the political arena in an unprecedented way, and on a very shaky legal foundation.  

Capacious crimes? 

Prof. Bell concludes his Table Magazine critique in dour tones: “The dispiriting truth is that there have always been two ways to understand the investigations against Netanyahu, and the implications for Israeli democracy are alarming.”

Contrived criminality

It was Dershowitz who astutely remarked: “If somebody were to introduce legislation saying that it is a crime for a politician to seek good coverage and it came for a vote, it wouldn’t get a single vote in the Knesset. And that’s the best proof that it shouldn’t be prosecuted as a crime under today’s law…If you couldn’t get the Knesset to pass as law criminalizing this, you shouldn’t be punishing it.”

One thing is beyond doubt: No good result can come out of these indictments.

If Netanyahu is found guilty, roughly half the Israeli public will feel that there has been a gross miscarriage of justice—and the already tenuous public trust in Israel’s arms of law and order with be undermined even further.

On the other hand, if he is acquitted, roughly (the other) half of the Israeli public will feel that has been a gross miscarriage of justice-and the already tenuous faith in Israel’s system of law and order will eroded even further.

Among the biggest losers will be those who launched this ill-considered initiative in the first place. The mistrust it will generate in them, will be certainly be well merited.

As usual your talkbacks/comments/critiques welcome,

Best wishes,


Martin Sherman is the founder & executive director of the Israel Institute for Strategic Studies


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