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Israel's Liberal Democracy Risks Becoming a Casualty of the Palestinian Conflict
The new hard right seems determined to crush institutions and organizations that interfere with its designs for Jewish supremacy
Wikipedia Commons. Nir Hirshman
In late December, the most far-right, religious and nationalist government in Israeli history was sworn in—the culmination of years of a rightward drift in Israeli society. A few weeks later, on Jan. 19, Hungarian Prime Minister Viktor Orbán tweeted a photo of himself in a meeting in Budapest with Amiad Cohen, the CEO of Israel’s branch of the Tikvah Fund, a conservative “politically Zionist” nonprofit organization. In the tweet, Orbán commended Israel on making great strides, like Hungary, in building a “conservative community.”
It was a jarring moment. Thanks to Orbán, Hungary has already been deemed less than a full democracy by the European Parliament. Orbán favorably comparing Israel’s government with Hungary’s is hardly a good sign.
And sadly, Israel is now embroiled in a battle over its own democratic institutions. A series of legislative proposals to undermine Israel’s judicial system have been introduced by the new Israeli government, and in response, hundreds of thousands of Israelis have filled the streets in protest.
Western powers, the American Jewish community and many Israelis may see the new government and its proposals as an example of yet another liberal democracy turning authoritarian. But the issue runs deeper than that.
There has always been a tension between Israel’s ability to uphold liberal democratic norms while crafting and maintaining a Jewish ethnonational majority to ensure Jews a safe homeland. Many with a strong interest in the success of the Jewish state have believed Israel would be able to handle that tension. But at this point, the Israeli government no longer seems concerned with balancing those goals; rather, it is elevating ethnonationalism and security while relinquishing key norms and institutions of liberal democracy. Now, it seems hard to escape the conclusion that the Israeli government’s anti-democratic initiatives are rooted in Israel’s control over, and dispossession of, Palestinians, and in its perennial military rule and de facto annexation of occupied land.
Subordinating the Judiciary to the Parliament
Israel’s elections were held in November, and the new governing coalition of political parties was formed in December in the Knesset, Israel’s parliament. Within days of assuming power, the new Israeli government, headed once again by Benjamin Netanyahu, presented a plan to radically overhaul Israel’s judicial system, including the High Court of Justice. The High Court is the primary entity providing checks and balances on the Knesset, given that Israel has no written constitution or other houses of government.
The judicial plan, as presented by Justice Minister Yariv Levin, includes several major proposals. The first is an “override” clause that would allow the Knesset to reinstate any law struck down by the High Court of Justice with a simple majority of 61 of the parliament’s 120 members. A second provision would eliminate the “reasonableness” standard by which the legal system has at times disqualified the government’s administrative decisions on grounds they would disproportionately serve political interests over the public interest and public safeguards. This standard was invoked just a few weeks ago when the High Court disqualified Shas Party leader Aryeh Deri from serving as a government minister due to his previous criminal convictions on tax offenses. The ruling coalition is currently trying to find a way to legally circumvent this disqualification.
The ruling coalition would also assume authority over each ministry’s own legal advisers, whose legal opinions would no longer be binding. These advisers also would no longer be under the jurisdiction of the attorney general, who currently has some degree of independence from the rest of the government. A final proposal, which has already passed the first of three readings, would give the ruling coalition’s own representatives an automatic majority on the committee that selects judges.
The cumulative result of these proposals would be to render the judiciary’s checks on government power meaningless. The proposals also look politically motivated: Netanyahu is currently facing charges of corruption in three separate cases.
Moreover, these measures are only the first phase of the plan. The government also intends to weaken the legal standing of Israel’s Basic Law on Humanity Dignity and Liberty, which is the closest thing to a constitution that Israel has, having served over the last 30 years as the basis for several High Court rulings that protected minorities, though only in certain cases and in highly limited ways. The court has, for example, invoked the law to protect gay pride parades and to prevent the expulsion of asylum seekers.
The new government’s judicial proposals, which would effectively politicize the legal system, have drawn condemnations from senior Israeli judges and legal experts, who warn that Israel would cease to be a liberal democracy; Israel’s Attorney General even said it would make Israel a “democracy in name only.” The new laws would allow a tyranny of the majority, removing all checks and balances on government actions, and thereby ending the minimal liberal protections of fundamental minority and human rights currently in place.
The High Court of Justice and the Settlements
Justice Minister Levin and the plan’s supporters justify these proposals as a way to restore balance to a system that has allowed what they call “judicial activism”—a situation where too much control and power is placed in the hands of judges who were not directly elected by the people. “We go to the polls, vote, elect, and, time after time, people we didn’t elect choose for us. Many sectors of the public look to the judicial system and do not find their voices heard,” Levin asserted at a press conference. “That is not democracy.”
A liberal democracy is governed by more than a popular majority, however. By reducing the question of legitimacy strictly to majority rule, Levin suggests that a popular vote should validate any Knesset decision, no matter how unjust it is. To be taken seriously, Levin would need to explain where the Court’s choices have gone wrong.
Many in Israel discount Levin’s comments and point to Netanyahu’s determination to evade conviction and jail time in his corruption cases as the main catalyst for the judicial overhaul. This may indeed play some role in driving the reforms, but in fact, the plan to weaken Israel’s judiciary has been around for decades—well before Netanyahu got in trouble with the law.
Instead, the disdain with which Levin and many of the current far-right members of parliament treat the High Court of Justice and the rule of law in general stems in large part from something else: their view that the judicial system has been the main obstacle to Israel’s efforts to settle the Palestinian territories, and to the Israeli right’s agenda to formalize a “Greater Israel” from the Jordan River to the Mediterranean Sea. Almost a decade ago, Levin said at a conference, “change in the legal system is essential because it will allow us, and will make much easier for us, to take tangible steps on the ground that strengthen the process of advancing sovereignty.” Sovereignty is another term for annexation. This Greater Israel would formally include the West Bank—which Israel refers to by its Biblical names, Judea and Samaria—and, according to some, the Gaza Strip.
Since the 1967 Arab-Israeli war, the state of Israel has moved Israeli civilians into settlements in the occupied territories. While no settlement can function without state approval and services, and although there are various ways Israel appropriates land for the settlements, many settlements are born when a few Israelis decide to claim a hilltop. It is this settler movement and its leaders who have for decades spearheaded the national narrative that these areas are, for both national and religious reasons, an integral part of the Jewish state.
Israel’s settler movement is well integrated into all systems of Israel’s government and numerous ministers and members of government in the ruling coalition (and the opposition) are settlers themselves. They see the High Court as a left-wing, elitist entity. This perception of the court took hold particularly after 2005, when then-Prime Minister Ariel Sharon evacuated Israeli settlers from the Gaza Strip as part of Sharon’s unilateral decision to withdraw Israel from the enclave. The settlers, feeling their rights were violated by being uprooted from homes the state had built for them, had hoped the High Court of Justice would step in to prevent their relocation, but it did not. Since then, Israel’s right-wing parties have targeted the High Court as a major obstacle to the settlers’ continued presence in the occupied territories.
And their resentment goes even further back. In 1979, the High Court ruled the Israeli settlement of Elon Moreh in the West Bank had to be evacuated on grounds it was built on private Palestinian land. This decision set a precedent for periodic court orders to evacuate other settler outposts on the principle that Palestinian land could not be expropriated by the Israeli government, as it had been here, for the sole purpose of privileging Jewish construction. The Israeli right thus sees the High Court as both denying Jews the right to settle where they want and enabling continued Palestinian claims to the land.
There is some irony in the settlers’ view of the court. Since Israel’s military occupation of the West Bank, East Jerusalem, Gaza and the Golan Heights in 1967, the High Court has systematically permitted the establishment of settlements and the eviction of Palestinians from their homes on grounds of military necessity and national security. For example, a High Court decision in May 2022 ruled that there are no legal barriers to expelling 1,200 Palestinian residents from their homes in Musafer Yatta in the West Bank’s South Hebron Hills, because the military has declared it a closed military zone for training. Israeli Jewish settlers, however, are not barred from living there. As far as the Palestinians are concerned, Israel’s judicial system has fully cooperated with the Israeli government in its continued expansion of settlements into occupied territory and its expulsion of the Palestinian population, despite the fact that under international law, all Israeli settlements are illegal.
Nevertheless, the occasional obstacles the High Court’s rulings have posed to the settlements’ expansion have painted a target on its back. Ironically, and sadly, the same proposals that would reduce the High Court’s power to defend Palestinian claims in the West Bank will also reduce its ability to defend the individual rights of Israel’s Jewish citizens.
Undermining the Judiciary Won’t Be the End
The current legislative efforts to undermine Israel’s judiciary have reportedly been conceived and drafted by the Kohelet Policy Forum, a think tank linked to the aforementioned Tikvah Fund and reportedly responsible for the conceptualization of the Jewish Nation State Law. This law, passed in 2018, asserts that the right to national self-determination in Israel is unique and exclusive to the Jewish people, thereby denying not only the Palestinian national minority—which constitutes 20% of Israel’s population—any analogous collective rights, but also denying that the Palestinian people as a whole have national claims to the land under Israeli control.
Israel’s judicial overhaul is just one part of the new government’s plans. In recent weeks we have already seen other illiberal bills and threats that are eerily similar to the kind seen in Hungary over the last decade. These include verbal attacks by members of Knesset on the media, threats to defund Israel’s public broadcasting corporation (KAN), , threats to cut funding of films that document the occupation, and efforts to limit freedom of protest—in particular an effort to ban public displays of the Palestinian flag.
This intolerance is not entirely new. Netanyahu has already led Israel in passing several illiberal laws over the last decade, among them the Anti-Boycott Law, which criminalizes the call for boycotts of Israeli businesses or institutions in settlements in the occupied West Bank; the Anti-Nakba Law, which enables the minister of finance to withdraw government funding (that would otherwise be available to all) to institutions commemorating the “Nakba,” or what Palestinians describe as the “catastrophe,” when over 700,000 Palestinians were displaced in 1948 upon the establishment of Israel; and the Admissions Committees Law, which allows Jewish villages in Israel to vet potential residents in order to keep out Palestinian citizens, thus infringing on Palestinians’ right to equality.
As such, much of Israel’s anti-democratic and illiberal initiatives are rooted in its determination to privilege Jewish rights over Palestinian ones. After 56 years of occupation, with around 700,000 Israelis living in the West Bank and East Jerusalem—about 10% of Israel’s Jewish population—the tension over the legal status of Palestinian people in and around Israel is starting to affect Jewish Israelis inside Israel. Indeed, the same Israeli government that has been willing to override Palestinians’ claims in its quest for land and security is inexorably becoming impatient with the rights and freedoms of Israel’s own Jewish citizens.
This illiberalism could damage the economic, political and diplomatic benefits Israelis enjoy from the country’s standing as a Western liberal democracy: its unconditional U.S. support, its booming tourism industry and its robust economy, which includes an increasing number of trading partners, some now in the Arab world. But the loss of those benefits may begin to pale next to the damage that could accrue to Israelis’ own rights and protections—the very rights and protections that are part of Israel’s raison d’être.