By Susie Gelman
As Prime Minister Benjamin Netanyahu’s new government places the Israeli Supreme Court in the crosshairs, concerned supporters of Israel, from the Biden administration to American Jewish communal organizations, are raising the alarm about the implications that attacks on Israel’s independent judiciary carry for the country’s democracy, and for the persistence of a bilateral relationship built on shared values.
Unease on this side of the Atlantic about Israel’s institutional malaise echoes the chants of protesters who turned out the last two weeks on streets of Tel Aviv and other cities to rally against the so-called “judicial reforms” that would subordinate the court to the Knesset, eroding a major check on government power in the Jewish state.
While the attention being paid to Israel’s democracy is well-placed, a key context must be emphasized: namely, the Israeli-Palestinian conflict.
Israel’s democratic decay cannot be discussed without mentioning the Palestinian conflict. The Supreme Court is a critical pillar of Israeli democracy, but it is not the only one. Why, then, have would-be authoritarians and theocrats in the coalition taken aim at it first? Why not start with the parliamentary opposition or some other organ of the state?
The obvious answer is that the court, in particular, is widely viewed on the Israeli right as an impediment to Jewish settlement in the West Bank and to an expansive vision of Greater Israel.
The antagonism between the settlement movement, on the one hand, and the court, on the other, is not a new phenomenon. In 1979, the court issued an important verdict barring the establishment of settlements on private land in the occupied territories.
The ruling inflamed opinion among proponents of settlement in the West Bank and Gaza and divided Menachem Begin’s right-wing government, with the hawkish Ariel Sharon — then minister of agriculture — calling sarcastically to lift “the burden of having to make” such “political decisions” from the court and suggesting more directly that the justices “should not be dealing with settlements.”
This was one of the first episodes in what would prove to be an acrimonious relationship between Israeli jurists and Jewish settlers. There was the “judicial revolution” of the 1990s, in which the court under Court President Aharon Barak developed an approach more closely resembling judicial review in the United States and other countries — namely, the ability to strike down unconstitutional laws (or, in Israel’s case, the legislation that violated the quasi-constitutional Basic Laws).
As the court’s reach grew, so did the fears of religious Zionists and settlers that it would stand in the way of their goals.
When the court ordered the demolition of a synagogue built illegally in the Givat Ze’ev settlement in 2015, one opponent of the decision decried it, saying “it’s inconceivable that a Jewish court will destroy a synagogue.”
Of course, the Supreme Court does not always default to the Palestinian position in a case, as advocates for the Palestinian cause will readily point out. But the mere fact that the court does not automatically accept the Jewish or Israeli side over Palestinian petitioners is enough to elicit indignant rage from many who want to erase the Green Line.
Neutralizing the court through legislation that would allow the Knesset to override its decisions would not be damaging only for Palestinian rights; it would limit the judiciary’s ability to protect individuals in Israel across a wide range of axes, whether religion, gender, ability or age. But the Palestinian conflict is the primary reason the court became a target for the Israeli right in the first place.
The battle between the Knesset and the court is far from the lone arena in Israeli politics in which the side effects of the conflict can be felt today.
Talk of removing constraints on soldiers’ conduct in the field — and lifting punishments for those who run afoul of them — is another. The defense of rogue soldiers, whether Elor Azaria in 2016 or the soldier who harassed activists in Hebron late last November, also ties back to the conflict, in addition to having serious implications for the IDF’s chain of command and its moral underpinnings.
The question is whether Israel’s interactions with the Palestinians, either during military operations or along the Green Line, will be governed by laws or by impulse.
The new government is not leaving much open to interpretation here. Alongside its intentions for the court, the coalition also entered office following announcements of bold plans for legalizing hitherto unauthorized West Bank settlements. With the Supreme Court’s future on the line, it is important to shine a spotlight on the state of Israeli democracy, but failing to mention the context of the Israeli-Palestinian conflict leaves our comprehension of the stakes sadly incomplete.
Susie Gelman is board chair of Israel Policy Forum, the U.S. organization founded in 1993 that supports a viable two-state solution consistent with Israel’s security. She is a member of the owner’s group of Mid-Atlantic Media, publisher of Washington Jewish Week.
This piece is reprinted with permission from Haaretz.
I apologize for the delay in writing this comment to Susie Gelman’s tendentious opinion piece. I believe it is necessary to point out a major lacuna in Gelman’s view that the judicial reforms being proposed by the new Netanyahu-led government would subordinate the Israeli Supreme Court “to the Knesset, eroding a major check on government power in the Jewish state.” What she is implying is that it is fine for the Israeli Supreme Court to operate as a check on the legislative branch — the Knesset — , even if that check is considered by many Israelis to have upset the equitable balance of power between the legislative and judicial branches of government. What that further implies is that Gelman finds no problem with the Supreme Court exerting undue influence on the laws passed by the Knesset, yet believes the Knesset has no right to correct a perceived imbalance of power by passing judicial reform legislation to put a check on the unrestrained power of the judiciary — a power that many believe has been abused by a court that has taken the law into its own hands.
In short, since the Israeli system of government resembles the democratic parliamentary system of Britain more than it resembles American democracy (that is based on the concept of a constitutional republic), there is no clear parallel between the Israeli and American systems of democratic government in terms of the checks and balances between the different branches of government.
And, yes, the pro-settler Right has been frustrated time and again by the pro-Palestinian tilt of the Left-leaning Supreme Court simply because the Right and the Left differ on how the concept of Zionism is to be specifically applied in the ancient homeland of the Jewish people — Judea and Samaria, including their ancient capital of Jerusalem. The pro-settler Right believes (rightly in my opinion) that the unrestrained power of the permanently Left-leaning Supreme Court has contributed to Israel’s inability to apply Israeli civil law in Judea and Samaria as it should ,instead of continuing the outdated practice of applying a hodge-podge of obsolete laws dating back to the Ottoman Empire, the British Mandate over Palestine, and the 19-year illegal occupation of Judea and Samaria by Jordan.