Our government's thundering silence

Two Israelis languish in a Thai jail awaiting execution. Israel refuses to get involved on the grounds that it is bound by international treaty obligations to show trust in the legal systems of other countries.

Besides, says a Justice Ministry spokesman, the two Israelis were drug traffickers.

A likely scenario? Hardly.

And yet the Justice Ministry has taken essentially the same stance with respect to the ongoing custody dispute in Italy between Tali Rosenberg and Moshe Dulberg over custody of their two children.

Israel has rejected all appeals to get involved in the case, despite clear evidence that Judaism itself is on trial in Italy. It has contented itself with noting that Rosenberg illegally hid with her daughters for two years.

Yet neither Rosenberg's misdeeds nor Israel's obligations under the Hague Convention prevent it from raising concerns over legal proceedings in Italy. Article 19 of the Hague Convention specifies that the child's welfare, not the desire to punish parents who have illegally absconded with their children, is to govern custody proceedings.

Moreover, as Prof. Pinchas Shiffman, Israel's leading authority on family law, has pointed out, with specific reference to the Dulberg case, the Hague Convention assumes a high degree of ongoing cooperation between the signatory states to protect the best interests of the child.

Article 7 provides, for instance, for the exchange of information concerning the social background of the child. (The juvenile court in Genoa, which originally decided the custody issue, refused to hear any witnesses about traditional Jewish practice.)

The convention provides that a signatory state can refuse to return a child if there is reason to believe that its basic principles concerning individual rights will be violated by the recipient state (Article 20) or if the child will be exposed to psychological or physical harm or placed in an intolerable situation (Article 13b).

As Shiffman notes, Israel's interests do not end with respect to these issues after the child's return, particularly when, as in this case, the children are Israeli citizens.

To ensure that signatory states do not refuse to return children on the basis of such provisions, the Hague Convention requires the recipient state to respect the legal procedures and customs of the returning state, and envisions continuing contact between the countries to ensure that this takes place.

PERHAPS I'm naive, but I do not believe that the State of Israel, which was created to serve as a haven for Jews, would have returned the Dulberg sisters to Italy if it had known that the central issue in Italy would be Judaism itself.

From the beginning, Dulberg's attorney - one of Italy's finest litigators - has followed a litigation strategy of attacking traditional Judaism.

Just last week, in a Venice appeals court, he characterized the laws of kashrut as cruelty to children because they cannot drink milk after eating meat. He drew a picture of hungry Jewish children heartlessly denied food because it is not kosher. And he argued that sexually segregated schooling stunts children's educational and emotional growth. (The leading social science research on the topic indicates, to the contrary, that single-sex schools enhance academic performance, especially of girls.)

In earlier proceedings in Genoa, Orthodox Jews were likened to everything from Serbian war criminals to drug addicts to those who killed their children at Jonestown.

They were accused of being incapable of loving their children and as viewing cruelty to children as legitimate.

These charges have fallen on receptive ears and echo throughout the courts' opinions. The Genoa court characterized Lubavitch, under whose auspices Mrs.
Rosenberg originally became religious, as "a totalitarian sect." And the court explicitly accepted the absurd claim that Mrs. Rosenberg does not really love her daughters.

Contrary to the explicit provisions of the Hague Convention, the Genoa court manifested contempt for the girls' Israeli and Jewish identities.The court denied them the right to communicate with anyone in Israel, insisted that they speak Italian, and instructed their father to raise them as normal Italians.

These are hardly issues of no concern to Israel.

In December, a Venice juvenile court took the drastic step of declaring Rosenberg no longer her daughters' legal parent. Such orders are unknown in Israel, except in the most extreme circumstances. The court did so without any evidentiary hearings, and without even any notice to Rosenberg of its intention to reopen a file dormant for over three years.

Most telling, the court declared Rosenberg's Orthodox lifestyle to be "aberrant, from the point of view of a parent."

The proceedings in Genoa and Venice hardly constitute the fair and impartial hearing concerning the girls' welfare that the Israeli Supreme Court explicitly anticipated when it ordered the return of the two sisters to Italy.

Besides the extreme prejudice shown towards traditional Jewish practice, the Italian courts have denied two young Israeli citizens their basic rights to due process, according to Prof. Dan Sharon, a member of the Israel Commission on the Rights of the Child.

The Italian courts ignored the girls' desire to be reunited with their mother, failed to appoint objective experts to examine the parents and daughters to determine the best interests of the latter, heard no witnesses and permitted no cross-examination of the parties.

Dulberg told the Israeli courts that he was an observant Jew. In fact, he is a practicing Catholic. (The Orthodox Union Web site has a full transcript of the priest who baptized him confirming this fact, along with an audiotape of the priest's admission.)

Had the truth been known, the Israeli Supreme Court would surely have refused to return the sisters to Italy on the grounds that placing observant Jewish girls with a Catholic father constitutes an "insufferable situation." Israel maintains an ongoing interest in guarding its judicial proceedings against perjury.

Having mistakenly returned two young Israeli girls to Italy, Israel must not wash its hands of them. They, after all, did nothing wrong.