Ever since former Chief Justice Aharon Barak voiced support for a plea bargain for former Prime Minister Benjamin Netanyahu, politicians and pundits alike have been atwitter. His suggestion was attacked from all sides of the political spectrum, with the Right blasting it as yet another ploy by the architect of judicial activism to interfere in the legal process, and the Left castigating it as a blow to the rule of law and Barak's own liberal legacy.
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Both sides focus on the political-personal aspects of the case, the Left as anti-Netanyahu and the Right as anti-Barak. This, however, makes it difficult to look at the issue of a plea bargain objectively.
Among other things, in his remarks in favor of the plea deal, Barak noted the concern of a rift in Israeli society. This is the most convincing argument in favor of the plea deal and not the arguments that have been more prevalent in the media, which focus on the defense of the justice system and to what extent Netanyahu did or did not protect it.
As someone who specializes in dispute resolution outside the court, I believe that not everything is justiciable, i.e. subject to a judicial decision. The judiciary should be restrained and humble, and admit that not every issue should be decided in a court of law, certainly not issues that are hotly debated in Israeli society.
I strongly believe in the power of mediation proceedings to resolve difficult disputes more effectively than a court. A dichotomous judicial decision, in which one side wins and the other loses, often only exacerbates the conflict between the two sides.
Netanyahu's trial has become the subject of a heated public debate, not because of Netanyahu's character but because of the fact that his trial touches the most sensitive nerve in Israeli society, provoking the cultural war of identity politics within it.
The narrow legal-criminal question of whether or not Netanyahu committed the alleged offense of bribery and fraud and breach of trust is only the tip of the iceberg of a much deeper and more acute conflict dividing Israeli society.
The perception is that Netanyahu's trial is an open wound, evoking intense emotions and reflecting the rifts between Right and Left, liberals and conservatives, supporters of the Jewish nation-state and followers of the state of all its citizens' principle, and between those residing in Tel Aviv and in the periphery.
Such a dispute should not be decided in court. It needs another solution – one that would settle the conflict and reconcile the rifts through compromise.
Supreme Court Justice Noam Sohlberg recently said that "compromise is an achievement, not a failure." Indeed, "We perceive compromise as something incomplete, flawed, unsuccessful, lame, and requiring forgoing something; something of retrospect; something that is never pursued in the first place with a whole heart."
However, Sohlberg states, "the stigma attached to it deters us from striving for compromise, even where it is necessary, desirable and beneficial. Perhaps we should practice speaking of healing, connecting, recognition, construction – turns of phrase that express creation and congeniality."
Netanyahu's trial could continue for years, during which it could further deepen the rifts in Israeli society. Many members of Israel's national camp will see the conviction of their leader as the result of ideological persecution and as a severe blow to their identity and feelings; while many leftists will settle for nothing less than the imprisonment of their great rival and his removal from the political arena.
This is the time to mend the rifts and create an alliance that would allow for a new age, one of prosperity in Israeli society, to begin. The only way to do so is to end the Netanyahu affair via a plea bargain or clemency.
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