Closing a deal, reaching an agreement, is usually not a simple thing. Certainly not an international agreement concerning important interests, and certainly not with an enemy country.
“The very experience is almost dramatic, to cross the border into the territory of an enemy state,” recalls Dr. Eran Shamir-Burer, Director of the Center for National Security at the Israel Democracy Institute, who went on to serve as head of the International Law Department in the IDF and was a member of the talks with Lebanon and the United Nations “We sat in the same room where the armistice agreements between Israel and Lebanon were actually signed in 1949. It is a significant thing, to come and actually negotiate with an enemy country in order to lower the level of the flames as much as possible.”
The legal complexity of such an agreement of course only intensifies when there is the matter of the election period – we will get to that in a moment. But first, how do you even negotiate with the enemy? “Representatives of the Lebanese army are always busy with the paperwork on their desk and are not free to shake hands,” says Dr. Shamir-Burer. “Everything is very, very correct and serious. On the other side, one could feel that there was a very great concern and a very great effort that there would be no more friendly gestures or interpersonal gestures between the parties.”
“When there is a negotiation, the legal advisor is part of the negotiation team and his goal is to help the team achieve its goals as much as possible,” says Dr. Roy Scheindorf, who accompanied the negotiation team until July 2022. “Part of the challenge is to draft the agreement in such a way that keeps First of all about the interests of the State of Israel, but on the other hand to formulate it in such a way that the other side can also live with it, that the other side can also have some kind of narrative that it can explain to its public.”
There are also disputes in Israel about the content of the agreement. But there is another matter, in the legal context and in the domain of the legal advisor to the government Gali Bahar-Miara, who already after about six months of the beginning of her term was required to one of the most sensitive and significant matters that can be in Israel, and all this – just before elections. “When something is very urgent and very essential and cannot be postponed, then even the rule of restraint and restraint has an exception,” says Dr. Sheindorf.
This is how it was presented in the opinion of the legal counsel that was submitted to the government after endless discussions by and in the Ministry of Justice: “In a normal state of affairs, our opinion was that there is no room to advance the agreement at this time. However, since the opinions of the political and security officials were presented to us, signing the agreement does not amount to Legal prevention, especially in view of the opinion on a narrow window of opportunity and the possible consequences of rejecting the agreement.”
In other words: according to the consultant, the necessity and urgency have been proven and outweigh the rule of restraint and restraint. It can be assumed that the consultant knew that her statement would arouse criticism. But this was still marginal compared to the criticism and debate surrounding Beharev-Miara’s statement, according to which although it is better to bring the agreement to the Knesset for approval, it is also possible to be satisfied with the information, as long as the government discusses it and decides on its own.
“A transitional government is a government that hangs in the air,” says attorney Yitzhak Bam, who represents the “Lavi” organization that petitioned the High Court against the agreement. “She does not have the trust of the Knesset, so she cannot make such an important political agreement without receiving the approval of the Knesset in advance.” And this is exactly the main argument in the petitions filed against the advancement of the agreement, and the High Court will discuss them next week. “We do not seek to interfere in the content of the agreement, even though we think the agreement is bad,” says Attorney Bem. “The question is not whether the agreement is good, the question is who decides.”
“There is a unique situation here that raises legal questions that are not simple legal questions,” says Dr. Scheindorf. “In my estimation, in the end the results of turning a U-turn in relation to this agreement will be so severe that I find it hard to believe that the court will be able to ignore this reality.”
“There have been cases in the past when governments conducted political negotiations in the period close to the elections, and these events also came to be clarified in court,” notes Dr. Shamir-Borr. “This happened in 2000 around the negotiations with the PLO, it happened in 2008 around the negotiations and moderation that was conducted with Syria. The court in those cases decided that it did not prevent the government from continuing the negotiations. I think that part of the things that helped put the court’s opinion in previous cases, was the fact that there was also a commitment that there would be parliamentary oversight in the Knesset regarding these events. I think that also In the current case, the process that happens in the Knesset will eventually play an important role before the High Court.”
“In my opinion, it is a disgrace that Israel signs such an agreement with a country that does not recognize us,” says Attorney Bem. “But the Prime Minister has the right to be an idiot. There is no legal rule that prohibits this.”
“There is a very great professional difficulty to come and judge the final result of a political negotiation based on positions taken along the way,” notes Dr. Shamir-Burer. “In the end, the agreement is made up of many, many components.”
Now, like almost every issue in Israel, the issue reaches the High Court.