Israel’s Ugly ‘Judicial Revolution’ (Hard Questions, Tough Answers- March 13, 2023)

Israel’s Ugly ‘Judicial Revolution’: the Existential and the Just Plain Disgusting


Yossi Alpher is an independent security analyst. He is the former director of the Jaffee Center for Strategic Studies at Tel Aviv University, a former senior official with the Mossad, and a former IDF intelligence officer. Views and positions expressed here are those of the writer, and do not necessarily represent APN's views and policy positions.

Q. Are you implying that not every measure the Netanyahu government is invoking to downgrade Israel’s High Court and its democracy merits the same degree of urgent opposition?

A. Yes. Some of these measures are of existential proportions because they attack the very foundations of Israeli democracy. Other measures, in contrast, may be disgusting, but they represent ‘more of the same’ in terms of religious coercion and exceptionalist religious delusions. Earlier versions of these measures have existed as entitlements for decades and have been tolerated by Israel’s democracy, including the very High Court of Justice that the ‘judicial revolution’ is targeting.

The coalition that Netanyahu leads is bent on simultaneously sponsoring both types of legislation because, uniquely, it embodies ideological advocates of a libertarian/anti-judicial far-right agenda along with messianics, religious fundamentalists, and a prime minister bent on escaping from his corruption trial. There are no leftists or liberals in this coalition. The so-called liberals in Netanyahu’s own Likud party cringe in fear of their boss, Bibi. Each and every proposed law represents a reciprocal deal among the far-right, the fundamentalists and the messianics.

In following Israel’s ‘judicial revolution’ and the threats it poses--to society, democracy, the rule of law, the economy and the alliance with America--it is important to keep in mind the distinction between existential damage and plain old disgusting measures. To improve its focus and effect, opposition should focus on the former--however unpleasant the latter.

And to be clear, what Netanyahu’s coalition is doing is a governance coup d’etat, not a judicial revolution.

Q. Start with what you consider to be the existential.

A. Two laws, if they pass, will be sufficient to derail an Israeli democracy based, like all successful democracies, on separation of powers between the judicial, the legislative and the executive. One law would allow politicians from the ruling coalition to select judges of the High Court. A second law would allow the Knesset to override High Court decisions by a simple majority vote. If those laws pass and if the Knesset succeeds somehow in neutralizing High Court objections, justice in Israel will have been politicized: subordinated to the ‘will of the people’ as expressed in a Knesset majority led by Kahanists, messianists, Haredim, and reactionary hardliners.

Q. And in turn, what existential strategic interests of Israel will be affected by passage of just these two measures?

A. Here are three existential strategic interests that are already affected by the mere threat of passage.

First, the cohesion and loyalty of the security establishment. Protests and petitions by former IDF officers and Mossad and Shin Bet officials have now escalated to a declared readiness on the part of reserve Israel Air Force pilots not to answer the call to serve. The pilots argue, persuasively, that downgrading the High Court will, by striking at legal accountability in wartime, expose them to prosecution by international tribunals. Because the IAF cannot function without reserve pilots who do active duty once a week, at stake is Israel’s deterrent profile. Israel’s Islamist enemies in Tehran and Gaza are watching hopefully.

The image of army officers taking extreme steps to support democracy is undoubtedly inspiring. But it is also frightening, and not just because of damage to deterrence. As Zvi Barel wrote in Haaretz last week, “Only in non-democratic countries does the army embrace the authority to ‘protect democracy’ as if it is an elected body.” Food for thought.

A second existential strategic interest already affected by the threat of passage of these two laws alone is the resilience of Israel’s economy. Capital flight has commenced. Financial rating firms like Moody’s Analytics have issued warnings. So far the damage is containable. But for how long?

A third interest is the vitality of Israel’s alliance with the United States and with the American Jewish community. Warnings from administration leaders and American Jewish leaders are proliferating. Again, so far these are only warnings. But what will happen when the first existentially-damaging initiative actually becomes law, as soon as early April?

Q. And, in contrast, can you offer examples of pending legislation that is plain disgusting, but not existential and does not mortally threaten Israeli democracy?

A. The list is long, and thoroughly corrupt. But Israel would not be the only democracy that embraces corrupt pork-barrel practices.

Start with the Haredim, the ultra-Orthodox. They see in this coalition an opportunity to enshrine in law parasitic privileges that they have more or less enjoyed for years: total exemption from military service; permission for their education system to avoid teaching the basics like math and English; bestowing the status of university graduates on graduates of their religious education system, the yeshivot.

On to the Netanyahus. They have fancied themselves royalty for years: recall the huge gifts of Cuban cigars (for him) and pink champagne (for her) that underlie one of the corruption charges pending in court against the prime minister. Now Bibi wants total financial subsidizing of not one but two homes, in Jerusalem and Caesaria. Bibi and Sara Netanyahu want an allowance of NIS 6600/month for clothing; that’s more than the minimum wage. And last week the Knesset approved on preliminary reading a law that will allow Netanyahu to receive donations from private individuals to finance his legal battles--something the High Court has hitherto disallowed.

Will Israeli democracy survive if these laws are enacted? Yes. Many of these laws formalize corrupt practices that have long existed to one extent or another. Some of these practices exist in other democratic societies. Will these laws cause a constitutional crisis that causes capital flight or sours the United States on Israel as a democratic ally? No.

Do these laws and the practices they formalize reflect the corruption of Israeli society? Absolutely.

Q. Can you cite some event or confluence of events that could serve as an inflexion point that brings the existential issues to a boiling point? Some sort of ‘perfect storm’?

A. I thought we were there last Thursday, March 9. Whether this was indeed an inflection point, time will tell. It was a day of angry demonstrations against the Netanyahu government’s legislative designs, staged by large numbers of Israelis throughout the country. Demonstrators blocking roads forced Netanyahu to meet with US Defense Secretary Austin in an embarrassingly improvised setting, then to take off late for a weekend trip to Rome with a retinue of 60 in a plane for which El Al had difficulty finding a willing crew. It looked as if Netanyahu could barely function.

In Tel Aviv that same day, when an Israel Police commander prevented police violence against demonstrators, National Security Minister Ben Gvir was so disappointed he forced Chief of Police Shabtai to fire him. The Commander of the Israel Air Force then suspended a reserve colonel who had led others in refusing reserve duty. This looked like the kind of dysfunctionality that damages Israeli deterrence. As if in response, in the early evening a Palestinian terrorist attacked and wounded three young Israeli men in the heart of Tel Aviv, on Dizengoff Street.

Meanwhile, President Herzog went on prime-time TV to escalate his own significant intervention in the crisis. No more calls for compromise. “All the legislation currently pending in committee must disappear immediately. It is wrong. It is predatory, it rocks our democratic foundations.” The president of Israel was lending the prestige of his office to opposition to the government’s attempt to upset the separation of powers.

Netanyahu, by now in Rome’s main synagogue addressing the Jewish community, looked weak and impotent when he received all this worrisome news. Then the head of Rome’s Jewish community openly criticized him over the ‘judicial revolution’. Would Netanyahu cut short his visit, which appeared to many to be a messy Roman escape from his many troubles at home?

All this in a single day! Inflection point? By late Friday night, Chief of Police Shabtai had reversed himself in deference to Attorney General Baharav Miara and in defiance of his Kahanist minister. So had the commander of the IAF, reinstating the reservist in deference to widespread reserve pilot protests. In Tel Aviv, off-duty security personnel had ‘neutralized’ the terrorist. Netanyahu had decided to remain in Rome to celebrate his wedding anniversary with Sara, in a five-star hotel paid for by angry Israeli taxpayers.

Perfect storm? We had everything here, from the fragmentation of the Israel Police and the IAF (existential) being prevented by a triumph of the rule of law and of common sense, via a presidential ultimatum (existential), then alienation of Diaspora Jewry (also existential, albeit in a marginal Jewish community), and ending up with the prime minister’s difficulty in traveling on what looked like a corrupt junket (only disgusting).

This confluence of crises was over almost before it began. Yet it may still bear fruit.