Singling out Israel? Yes – calling on it to behave like other democratic states

Subjecting Israel’s Nuclear Program to the Rule of Law

The time has come for Israel to handle its most open secret differently

Avner Cohen, Haaretz
14 September, 2017

Last week, the High Court of Justice heard a precedent-setting petition filed by lawyer Eitay Mack on behalf of over 100 citizens. (Full disclosure: This writer was one of the initiators of the petition and took part in writing it). The petition asked the High Court to intervene and regulate the status of the Israel Atomic Energy Commission. I say precedent-setting because the subject is the most secretive of the three secret organizations operating under the prime minister, whose administrative status has never been brought before the High Court, and because the legal remedy it requested from the High Court is extremely radical.

In light of the justices’ comments during the proceedings, it was clear to the petitioners that the High Court would reject the petition. But from our perspective, it was important to see how the court formulated the grounds for its rejection, and to hear what it would say about the petition itself.

I myself made a special trip from the United States to attend proceedings, in the hope of saying a few words about the subject as an academic scholar. At the same time, on the eve of the discussion and with the aid of one of my research students, I published a data-rich study comparing the way in which three Western democracies with nuclear weapons – the United States, Great Britain and France – have dealt with the challenge of nuclear legislation, compared with the way Israel has handled – or failed to handle – the challenge.

The petition’s starting point is that the existence and activities of the IAEC – like the Mossad, but different from the Shin Bet security service (since 2003, when the Shin Bet law was passed) – are not anchored in primary Knesset legislation, and its legality stems from a series of classified government decisions that are familiar only to an extremely limited number of people.

The result is that fateful matters of governability regarding the nuclear realm – in other words, defining powers and subordination, decision-making, monitoring, supervision etc., including the question of how secret it should be – have never passed under the scrutiny of the Israeli legislator.

This situation is an anomaly. Is such an anomaly correct and appropriate for Israel at this moment in time? Is this a situation that accurately reflects the principle of the rule of law? The petition was intended precisely for such questions. These are questions that have never been seriously discussed openly and I believe they have barely been discussed by the Knesset, even in confidential forums.

Moreover, these are questions that Israeli law has difficulty even formulating, let alone dealing with. This is why the group of petitioners believed that, 50 years after Israel reached nuclear capability, the time had come to regulate this area through legislation.

The reason for the present situation is clear: the activities of the IAEC are regarded in Israel as the country’s “great secret.” But this may actually be “the most open secret in the world.” After all, “foreign sources” repeatedly report that the IAEC is the Israeli government organization responsible for the development, production, maintenance and control of Israel’s nuclear arsenal. What Israelis regard as secret and taboo – something the State of Israel has never formally recognized and for which it has never openly taken responsibility – is seen by foreigners as nothing more than a fake secret, the reason for which has long since lapsed.

On Tuesday, the High Court officially published its decision. As expected, the petition was rejected, but it was clear the High Court justices (Esther Hayut, Menachem Mazuz and Noam Sohlberg) addressed the problem with all due respect. The petition was rejected because, as stated in the ruling, the High Court does not have the authority to order the state to enact a law. But its rejection is not a determination regarding the question of whether or not such legislation should be introduced.

Perhaps the most important thing about the court’s decision was its recognition of the public importance of the problem the petition raised. The justices wrote: “The issue raised by the petitioners regarding the necessity of a law that regulates the commission’s activity is certainly an important issue that should be examined and considered in all seriousness by the legislative authority. But a public issue, as important as it may be, should not be confused with an issue that gives rise to legal cause and justifies handing down a judicial order. The issue before us fails to reveal such grounds and, therefore, the relevant discussion of it must be left in the public arena.”

The study I published with my research student only illustrates this point empirically. The study examines how four Western nuclear democracies coped with the tension between nuclear power and democracy. They all recognized the existence of this tension and of the special need to create secrecy surrounding the nuclear program. Unlike Israel, however, the other three all understood there was a need – and even an obligation – to place the subject under the rule of law. They all passed legislation on the issue.

Only Israel, under cover of its policy of nuclear ambiguity, has created a unique anomaly in which a democratic nuclear state has never attempted to find a reasonable compromise between nuclear power and democracy. In the spirit of the High Court ruling, it must be said openly and clearly that the time has come to handle our most open secret differently. The time has come to begin “normalizing” the nuclear issue and to soften the taboo.

Avner Cohen is a professor at the Middlebury Institute of International Studies in Monterey, California