On Wednesday 18 January 2023 an expanded panel of the Israeli Supreme Court disqualified Benjamin Netanyahu’s top political ally Arye Dery from serving as a minister for serial corruption offences and deceiving the courts. With this ruling, the Supreme Court signalled that it was up for a fight to remain the ultimate gatekeeper of judicial oversight in Israel. By making Dery’s verdict impervious to administrative circumventions, the Court made it clear that it wouldn’t be intimidated by politicians. But their Honours got it wrong: this time Netanyahu’s coalition is here to shatter the old order of things, not just to rant about doing it. A bill to prevent judicial review of ministerial appointments by the Supreme Court is being passed by the government’s representatives in the Knesset, the Israeli parliament, so Dery could be back in the Cabinet.
Whether or not this form of abrogation will be made invalid by the Supreme Court remains to be seen. The Dery case was the opening shot in the political war that has been unfolding against the judiciary ever since the inauguration of the current government. From the viewpoint of the Supreme Court, the power to define its own jurisdiction is at stake.
Just a few hours after the Dery ruling, in Jenin, about a hundred kilometres from the splendour and grandeur of the Supreme Court building in Jerusalem, Palestinian teacher and father of six Jawad Bwakna, 57, was shot dead by Israeli soldiers as he ran to assist Adham Jibareen, 28, who was also shot dead. The Israeli military prevented ambulances from assisting Bwakna. Since the beginning of 2023, at least one Palestinian has been shot dead by Israeli forces each day because of unwarranted use of force—unwarranted, but licensed. During 2022, the deadliest year since 2005, Israel escalated its military operations in the West Bank, conducting near-daily raids in cities and villages that routinely ended in the killing of civilians. Of the 171 Palestinians killed by Israeli forces in the West Bank in 2022, more than thirty were children and teenagers.
On the face of it, there is no connection between these two events—the growing tension between the government and the Supreme Court and the violence in the West Bank. From one angle, the Dery case appeared to be a struggle between the judiciary and the majority in the legislature. But narrow your eyes, concentrate, look again, and you can see the silhouette holding them together as one body in the form of the Jewish democracy, or better put, the democratic regime of Jewish supremacy, the body that routinely licenses and protects unrestrained violence against Palestinians in the West Bank unleashed by soldiers and settlers, occasionally in coordination. The connective tissue holding the body together is the Jewish citizenry. Just a few months ago, close to two thirds of them voted for the parties now constituting the most right-wing coalition Israel has ever had—the same majority in whose name Prime Minister Netanyahu leads an ambitious institutional reform to hobble judicial oversight.
Plans are beginning to take shape. A number of bills have already been tabled in various parliamentary committees and some are on their way to a first reading. Three main areas of reform have been identified by the government: justices’ appointments, the work of the Supreme Court, and the functions of the attorney general. The coalition government is demanding changes to the composition of the committee that selects Israel’s judges in order to increase representation of politicians at the expense of professional appointees, as well as to cancel the principle of seniority in the Supreme Court. This will enable appointing the president and vice president outside the cadre of Supreme Court justices. Judicial independence just went out the window.
Another bill, no less ominous, will enable the parliament to override the Supreme Court’s disqualification of laws that are inconsistent with the current constitutional framework so that unconstitutional laws can hold. The main concern here is that the constitutional protection of the few human and civil rights that have been legislated could be eroded. Part of this proposal aims to take away the Supreme Court’s power to interpret and invalidate new constitutional laws and amendments. This change may open the way for constitutional laws that in their essence contradict the idea of a democratic constitution. The Supreme Court’s jurisdiction will be further constrained by limiting the power of judicial review in relation to all laws by requiring a specific majority of justices to annul legislation. More reforms will be introduced in the next session of parliament, which will include weakening the review and advisory power of the attorney general in the executive ministries and removing judicial standards used by the courts to review the legality of government decisions, which will make it harder for the courts to exercise judicial oversight over the various institutions of the executive branch.
The grand goal of these reforms is to dramatically change the balance of power between the branches of government so as to enthrone the Knesset as supreme. In fact these changes will vest supremacy in the coalition parties by means of their majority in the Knesset. To paraphrase one Israeli politician from Netanyahu’s party, what is the point of winning the elections if we cannot do as we wish?
On its way to bulldoze just about everything, Netanyahu’s coalition is also planning to close down the national broadcaster and restrict the freedom of the press, in a country where journalists are already little more than another arm of the Zionist consensus. The government is also concocting plans to finance new settlements in the West Bank, establish a national guard tasked to patrol and bully Palestinian citizens, deepen and broaden toxic educational programs, and sync itself with the worst regimes around the globe. It has already began reversing climate change policies. Necessary measures though these may be in the eyes of the coalition, the principal effort is directed at the Supreme Court. As it is deemed the national emblem of liberal justice, the present rulers and their supporters are demanding its downfall.
This, as a comprehensive study conducted by legal researchers David Kretzmer and Yael Ronen shows, is the same Supreme Court that since 1967 has largely served to legitimise government policies and practices in the Occupied Territories—or, to borrow words from the incisive assessment of the Jerusalem-based human rights organisation B’Tselem, this is the court that has permitted nearly every kind of human rights violation Israel has committed in the Occupied Territories, including punitive house demolitions, lengthy detention without trial, the ongoing blockade of the Gaza Strip, the expulsion of entire communities from their homes, and the land grab following the construction of the Separation Barrier on Palestinian territory along the West Bank border. The legal scaffolding provided by the Supreme Court has helped to perpetuate the occupation, reproduce the Israeli public’s trust in the military and restrain critique of the Israeli regime by international observers. Even the satisfaction of those few Palestinians who are served with justice by the Israeli Supreme Court helps to enhance and legitimise its misleading image as an impartial and fair institution. It is this Supreme Court that Netanyahu’s task force wants to raze to the ground.
Observers with an eye to recent events have probably seen the news about the Palestinian village of Masafer Yatta in the southern Hebron Hills. On 23 November 2022 the state sent its military to demolish a primary school built in one of the hamlets of Masafer Yatta, Khirbet a-Safai al-Foqa. The demolition was sanctioned by Supreme Court Justice Isaac Amit. Earlier, in May, Israel’s Supreme Court had dismissed a petition submitted by residents from Masafer Yatta, giving the state the go-ahead to expel them. As I write, more than a thousand Palestinians from Masafer Yatta are to be ejected from their land. Even more egregiously, in April 2018 the Supreme Court determined that the open-fire regulations used by the Israeli military in the Great March of Return protests near the Gaza Strip fence were lawful. According to the UN Independent Commission of Inquiry into the 2018 Gaza protests, Israeli security forces injured 6106 Palestinians with live ammunition at the protest sites. Another 3098 Palestinians were injured by bullet fragmentation, rubber-coated metal bullets or hits from tear gas canisters. By 31 December 2018, 189 Palestinians had been killed during the demonstrations. Thirty-five of these fatalities were children, three were paramedics and two were journalists. To reiterate: the military’s indiscriminate firing, all the killing and injuring of Palestinians during the Gaza fence protests were lawful according to the Israeli Supreme Court.
Green line division or not, citizens or not, as long as it applies to Palestinians, the Supreme Court has been nothing but consistent. It only takes a small sample of the Court’s decisions on constitutional and other significant laws to show a pattern of injustice. In July 2021, the Supreme Court upheld the Nation-State Basic Law legislated in 2018 despite multiple petitions from human rights organisations. This law enshrines Jewish supremacy and racial segregation as constitutional principles of the State of Israel. In September 2014, an expanded panel of the Supreme Court dismissed a petition brought by the Legal Centre for Arab Minority Rights in Israel Adalah against the Admissions Committees Law enacted in 2011. This law allows for small communities in the Naqab (Negev) in the south and in the Galilee in the north to reject applicants for housing based on the criteria of ‘social suitability’ and ‘the social and cultural fabric’ of the community—criteria blatantly designed to prevent Palestinian citizens from becoming residents in these small towns.
During 2012, the Supreme Court rejected four petitions seeking to cancel the clauses in the Citizenship Law banning family unification between Palestinian citizens of Israel and Palestinian residents of the Occupied Territories in Israel. This verdict upheld a decision on the matter from 2006. In the same year, the court also dismissed petitions to declare the Nakba Law unconstitutional. This law, enacted in 2011, authorises the finance minister to reduce state funding or support to an institution if it engages in an activity that rejects the existence of Israel as a Jewish and democratic state or commemorates Israel’s Independence Day or the day on which the state was established as a day of mourning. This is the equivalent of the Australian parliament criminalising Invasion Day protests—perhaps not as farfetched as one may assume. It is no coincidence, therefore, that the president of Israel’s Supreme Court, Justice Esther Hayut, in a speech given on 12 January 2023, was not able to refer to the Supreme Court’s contributions to Palestinian human and civil rights in response to the plans to transform the judiciary. There was nothing for her to refer to.
Given the Supreme Court’s record of enabling the abuses of the Israeli government, it begs the question, why would Netanyahu’s crusaders want to kill the goose that has been laying the legal golden eggs of Palestinian subjugation? A confluence of interests lies behind the proposed reforms of the judiciary and its relations with the Knesset. As far as it concerns Netanyahu himself, all he wants is to ensure that when he appeals the corruption charges he currently faces he will deal with an indebted judicial panel that will dismiss all his indictments. Literally nothing else matters to King Bibi. But his troubles go even further. Israel’s Attorney General Gali Baharav-Miara is considering declaring Netanyahu unfit for office because his direct involvement with the law-making tsunami the coalition is promoting is a clear violation of his conflict-of-interest arrangement in his criminal trial. A petition submitted to the Supreme Court on this very matter might accelerate the Attorney General’s decision. But as the coalition sees these legal moves as a coup d’état, it is moving quickly to pre-empt this move by legislating to limit the Attorney General’s ability to rule Netanyahu unfit for office. Tensions in the streets are palpable, I’m witnessing first-hand, so it is not hard to guess what the dimensions of the popular reaction to declaring Netanyahu unfit to rule could be.
On another flank, Netanyahu’s coalition is not just the most far-Right ensemble Israel has ever had; it is a strident concert of uninhibited haters. Along and across this coalition, the common denominator is the unreserved virulent loathing of Palestinians. But its plans also include infringing women’s and LGBTQ+ people’s rights. Many among them are determined to bring Israel even closer to a fully religious state. These voices in Netanyahu’s coalition are not marginal, but ministers with real administrative powers over the police, settlement, finances, the media, religion and education. Nor are these people idle theoreticians. They are going full steam ahead with their agenda. There is something suicidal about it. Just to avoid confusion, these extreme flows in government were not unanticipated. They have been cultured and matured for more than a hundred years in the petri dish of the Zionist movement. Extremes are always constructed around a centre, only now the boiling pot of Israeli politics today has set them free. Go and create a settler-colonial movement, segregate yourselves, dispossess people of their land and expel them for more than a hundred years, kill them arbitrarily when they refuse to cede their dignity, and you don’t think you will birth a generation of fascists? Good luck with that.
Netanyahu’s rancorous plans to dilute the Supreme Court’s judicial oversight of the legislature and the executive have set off massive protests condemning the harm it will likely do to what they call Israel’s democratic regime. With tensions on the rise, President Isaac Herzog launched his own solution to the alleged rift in society by proposing what some self-declared pundits have absurdly started to render as a compromise. Rather than just guillotining judicial oversight, Herzog is making it more palatable. According to his plans, the judiciary will still be diminished to a point of irrelevance and control by the executive. No wonder Netanyahu and his allies were quick to say that they would consider the initiative.
The protest movement is right about one thing: in any regime, undermining judicial oversight is the equivalent of announcing open season on human, civil and collective rights. Political corruption will now be rampant—not that it was lacking before. There is no room for schadenfreude. After all, even the crumbs of justice are still justice. And the more disadvantaged people are, the less likely they are to be well served by a damaged legal system. No other community beats the Palestinians in that sad contest. This is perhaps why in a recent poll of Israeli citizens conducted by the Israel Democracy Institute, an overwhelming 87 per cent of the Palestinian respondents wished the Supreme Court to retain the authority to annul laws enacted by the Knesset, versus only 51 per cent of the Jewish respondents. Granted, some Israelis are truly concerned about the consequences of Netanyahu’s reform, though for most of the protesters the fact that Israel is holding seven million Palestinians under a continuum of forms of repression—from military occupation to siege to limited citizenship—is beyond their ethical grasp.
At the level of the grand design of things, we are witnessing a battle between two different styles of settler-colonial domination. In one corner are Netanyahu’s knights, followed by the majority of Jewish voters. In the other is the protest camp, formed by an array of groups supported by the leading elites. The military elite was quick to warn Netanyahu of the international repercussions of handing Bezalel Smotrich, the leader of the Religious Zionist Party, jurisdiction over the West Bank; senior members of the legal guild have sounded the alarm over the reforms to the judiciary; and prominent Israeli economists have cautioned that judicial overhaul may damage the country’s economy.
These warnings are fuelling the demonstrations, and indeed, demonstrations are taking place every week and gaining traction among more and more sectors. Yet boundaries were set quite from the start echoing those of the political community. Palestinian citizens can join as long as their leave their identity, interests and needs at home. And those who choose to join nevertheless are disinvited, as happened in Haifa on 18 February when organisers realised that a Palestinian speaker meant to connect the crisis and the occupation. Vocal figures in the protest movement have made clear that this is not the time for the Palestinian issue and the occupation to be raised. ‘We need first to save our democracy’, they claim. Salvaging a Jewish-only democracy makes sense for those who have enjoyed its benefits, and also because it has helped sustain a democratic image that until very recently has worked so successfully to the advantage of Israel internationally.
Forever wanting to not be seen in terms of what it actually does, the regime has been represented as a fortress of Western progress, always reasonable, technologically cutting-edge and meticulously invested in minimising the impacts of its own excesses. As long as Israel could continue pretending to be a full democracy, the world could look aside and ignore the occupation. That task was vitally aided by widespread state-sponsored propaganda and by the legitimacy vested in it by their Honours the Justices of the Supreme Court of Israel. For sure, an honourable settler-colonialism they did establish. A struggle to salvage the Supreme Court and judicial oversight should be always laudable, but in the hands of this Jewish-only protest, that struggle is first and foremost one for the survival of a Supreme Court of the occupation, not of human rights. As Palestinian political philosopher Raef Zreik recently put it in an op-ed in Haaretz, ‘It does not make sense to save the judicial system and continue with the regime of dispossession and oppression’.
Indifferent to diplomatic formalities, the rulers of the day have had enough of pretending. The Palestinian territories, they argue, are neither occupied nor disputed: they were not the Palestinians’ in the first place. And to make more effective and less apologetic ruling over them, the less judicial barriers the better. The need to dim the realities of Jewish supremacy with democratic sentiment is beyond the current coalition’s grasp. This new style of settler-domination does not seek to explain. Fortuitously, shortly we will no longer face the agonising need to refute Hasbara, the propaganda discourses that Israel has developed to counter and shut down criticism. Stripped of the mantle of false narratives, perhaps the conversation about Palestine may finally begin to open a rational space, and with that, just maybe, the international community will step up out of its circle of shame and begin to show true support for the Palestinian people. The first to react has been the city of Barcelona, cutting ties with Israel until it ends the systemic violation of Palestinian human rights. May this drop become a flood.
There are some ethnic undertones to this all-Jewish struggle. After all, the Ashkenazi ‘nobility’ still muscles in when important decisions are made, and the intergenerational impacts of decades of Mizrahi discrimination have not faded away. But this is not just about Bibi’s Mizrahim (Jews from Arab and Muslim lands) versus the Ashkenazim (European Jews). To buy into that dichotomy would be to fall prey to Netanyahu’s populist discourses. It is far more nuanced that that. As Israeli sociologist Momi Dahan has shown, although the Right bloc enjoys greater support in towns and cities where Mizrahi families are the majority, beyond ethnicity other variables are growing in significance, mainly class and education, complicating the understanding of Mizrahi voting. And it would be false to claim that Netanyahu’s camp is free of Ashkenazi leaders and supporters or to claim that Mizrahim are boycotting the protests. The source of the division lies elsewhere.
During the last twenty years, one important way of grappling with the challenges posed by the changing forms of Palestinian resistance has been to change the distribution of settler-colonial spoils: making it more egalitarian, bringing more Jewish social groups in to enjoy the fruits of Palestinian subjugation. As a result, social hierarchies have been morphing, and alternative visions of settler-colonial domination contend now for supremacy. And yet, this is what the world should fully understand: cutting across these Jewish internal struggles is the great common denominator—the active Israeli desire to usurp Palestine.
This is why, whatever dissent may be in the making between Jewish camps, what binds this society together largely prevails. And this is also why we can’t do away with the most important historical question the Jewish people are faced with: how many more Zionist mutations must those living between the Sea and the River endure until a Jewish social transformation emerges? This is not to say that Palestinian liberation is contingent on it, but if one is interested in liberation it would remain a partial project if the coloniser did not step up. Judging by the course of the anti-government protests, Israeli society has not yet begun its march of redemption. Alternatives are not lacking: all that is required is to listen to the Palestinians and to those small but important Palestinian–Jewish solidarity groups that have been explaining it to us all for a long time. It’s the Zionism, stupid!
Jeff Halper, Jun 2021
Is the solution a two-state solution…or should we be looking for a process of decolonisation?