Israel in the Post-Reasonableness Era (Hard Questions, Tough Answers- July 31, 2023)


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. Last Monday, the Netanyahu coalition enacted its first judicial ‘reform’, cancelling the reasonableness standard by which the High Court monitors government acts and appointments. Now some Likud MKs appear to be having second thoughts. Your thoughts?

A. These newly-minted Likud ‘rebels’ from the so-called moderate branch of the party leave me skeptical. Some (Defense Minister Yoav Galant, Intelligence Minister Gila Gamliel) now reportedly advocate forming a broad unity government with opposition leaders Benny Gantz and Yair Lapid and without Kahanist National Security Minister Itamar Ben Gvir. But note that their advocacy takes the form of deniable leaks--not open declarations. Other Likud rebels insist that next time around, when the Knesset reconvenes in October, they will oppose Justice Minister Yariv Levin’s one-man legislative program and demand to be ‘consulted’ about a broader basis of consensus.

Where were these brave Likud MKs last Monday? Where will they be once Prime Minister Benjamin Netanyahu clarifies to them their political fate if they do not toe the party line? Right now, their sudden attack of righteousness might look pathetic, but nevertheless should not be dismissed out of hand.

Being outflanked on his left by fellow Likud MKs does not necessarily bother Netanyahu. Indeed, positioning himself in the political center between Likud left and Likud right could enhance Netanyahu’s capacity to manipulate his party and his coalition the way he used to do before he went politically all-out right-religious.

In any event, the only truly righteous post-reasonableness protest in the past week was the resignation of Education Ministry Director General Asaf Zalel, a retired Air Force general and pilot who said his boss, Education Minister (and fellow AF pilot and buddy) Yoav Kish, “crossed the line” in voting last Monday with the Likud-led 64 MK majority.

No one else resigned in protest.

Q. Netanyahu is reassuring the American media (NPR, CNN, ABC, Fox, etc.) that the reasonableness measure was ‘minor’ and that there will be no further non-consensus judicial ‘reform’ legislation. Sounds good, doesn’t it?

A. Too good. Netanyahu does not make these statements in Hebrew to the Israeli public, presumably because large portions of the Israeli public no longer believe anything he says. Netanyahu is speaking to the American press apparently to ward off criticism from the Biden administration and Democrats in Congress. And he wants the US to continue in its efforts to bring Saudi Arabia into a deal involving normalization with Israel.

Sadly, American interviewers do not challenge Netanyahu’s lies as aggressively as do better-informed Israeli interviewers. But the latter are no longer offered access by the PM’s media handlers.

Meanwhile, the Likud hardliners led by Levin, along with their allies Bezalel Smotrich and Ben Gvir of the Kahanist-messianist branch of the coalition, are ignoring Netanyahu’s remarks to US television audiences and reassuring their own followers that in October, when the Knesset is again in session, they will push their ‘reform’ legislative agenda. That will mean formalizing Haredi non-service in the IDF, overriding High Court decisions, and politicizing selection of judges. It will also almost certainly mean firing or radically reducing the authority of Attorney General Gali Baharav-Miara, a gatekeeper who is constantly admonishing this government not to overstep legal bounds.

Q. Moody’s, Citibank, Morgan Stanley, Standard & Poor’s are all warning since last Monday that Israel’s economy will falter because the Netanyahu government’s ‘reform’ campaign hurts global confidence in the Israeli judiciary. High-tech start-ups are reported to be leaving the country.

A. Netanyahu and his ministers downplay these warnings, some of which cite the PM’s own lies back to him--e.g., when earlier he reassured the international credit raters that judicial ‘reform’ legislation would not take place without a Knesset consensus. But note: for the most part, the economic damage will not be felt for months or even a year. This delays the effect of all these alarming warnings on public opinion and, through it, the government.

Q. Meanwhile the High Court is gearing up to hear appeals against the reasonableness act. Against Levin’s refusal to convene the committee for selecting judges unless it is ‘reformed’. And even against Netanyahu’s activism advancing judicial reform despite his pledge to the Court to the contrary due to conflict of interest.

A. As explained in last week’s Q & A, the reasonableness case is particularly thorny and without precedent for the High Court. Last Monday’s legislation was an amendment to a basic law. The High Court has never ruled a basic law, with its quasi-constitutional status, to be unconstitutional.

In one of his recent US TV interviews, Netanyahu cited this complication and intimated he may refuse to comply with a High Court ruling against the reasonableness legislation. This suggests the possibility of a constitutional crisis.

Q. But is Netanyahu still in charge in the Likud and the government? There is a widespread impression that the shots are really being called by Levin, father of the judicial ‘reform’ agenda.

A. That impression, in turn, apparently influenced the leaks from more moderate Likudniks intimating that they had not been consulted regarding the reasonableness legislation. But is Netanyahu fading? Are his coronary issues a factor? Or was it simply convenient for him to let the spotlight focus on Levin, Smotrich and Ben Gvir as the villains pushing through unpopular legislation?

This is a critical issue. All of Israel, and much of the rest of the world, are watching and waiting.

Q. The main anti-‘reform’ demonstrations in Tel Aviv and Jerusalem appear to be increasingly violent.

A. Indeed, more violent from both sides. The most active cohort of demonstrators is getting younger and is not afraid to start fires on barricaded roads, challenge the police, and get arrested. The police, for their part, are becoming more violent toward demonstrators, as if to prove to their minister, Ben Gvir, that they are obeying his extreme exhortations that they get tough.

So far, in the course of six months of anti-government protests and police crackdowns involving hundreds of thousands of people, there have been no fatal casualties. Now, unless the current Knesset recess and summer vacations lower the temperature and volume of demonstrations, the outcome of the clashes on Tel Aviv’s Ayalon Freeway and outside the Knesset in Jerusalem is liable to become tragic.

Q. Strategic security consequences?

A. Last week’s reasonableness legislation highlighted and hastened the effect of judicial ‘reform’ on Israel’s overall strategic security in three critical areas: IDF readiness, the danger of armed provocation on the northern front by Hezbollah and Iran, and the prospects for a breakthrough in the Biden administration’s energetic effort to bring about Israeli-Saudi normalization of relations.

Regarding the large-scale protest declarations by IDF volunteer reservists to the effect that they would not answer the call to serve, the overall impression thus far is that the IDF’s readiness has been hurt, but not critically.

For the hemorrhaging to cease, the army needs the government’s judicial ‘reform’ to cease. It is saying as much to the few ministers who are interested in listening. The fact that most ministers in Netanyahu’s government are not interested in warnings regarding the damage they are doing (they refused to be briefed in the hours prior to last Monday’s vote), is one of the most alarming aspects of the current crisis.

The issue of IDF readiness brings us to the danger of provocation, leading to escalation, on Israel’s northern front. IDF intelligence is warning that Hezbollah leader Hassan Nasrallah, who never tires of threatening Israel, could misinterpret the state of Israel’s readiness and, with Iran’s backing, attack on the Lebanese and/or Syrian fronts.

Does Nasrallah understand that, if Israel is attacked, all the striking pilots and other reservists will report immediately to their units? Indeed, does he appreciate that paradoxically this would serve Netanyahu’s interest in quelling anti-government dissent?

As for Israeli-Saudi normalization, the Biden administration is actively pursuing this track despite its frustration with the Netanyahu government’s anti-democratic initiatives. If the Saudi concur to normalize, there would remain two heavy obstacles for the administration to overcome in order to persuade Netanyahu to accept a US-packaged Israel-Saudi normalization deal.

One is the Saudi demand for a US-shepherded nuclear program. Israel has good reason to fear that even a civilian nuclear program would be abused by autocratic Saudi de facto ruler Mohammed bin Salman (MbS) with his record for impulsive and brutal decisions. Netanyahu has reportedly set up a high-level security team to examine the issue.

The other is the inevitable Saudi demand that official normalization be reciprocated by significant Israeli steps toward greater West Bank Palestinian independence and a reduced settler imprint. The radical-messianic branch of Netanyahu’s coalition, spearheaded by ministers Ben Gvir and Smotrich whose platform calls for eventual annexation, would object and threaten to bring down the ruling coalition.

(We recall that a few years ago PM Netanyahu, at the head of a right-center coalition, locked in normalization with the UAE and Bahrain simply by foregoing threatened annexation of some 60 percent of the West Bank, Area C.)

The Biden administration has reportedly consulted with Knesset opposition leaders Gantz and Lapid to make sure they would support a breakthrough in relations with Riyadh despite their hostility to Netanyahu and his judicial ‘reform’ efforts. Would Gantz and Lapid agree, against their declared principles, to join a new and more centrist Netanyahu-led coalition that would drop judicial ‘reform’ and trumpet the achievement of peace with Riyadh?

This, were it to happen, would dovetail nicely with calls by moderate Likudniks to dump Ben Gvir, Smotrich and judicial reform in favor of a new centrist coalition. It would also presumably guarantee Netanyahu an exultant embrace by a triumphant Biden administration intent on winning reelection in a little over a year.

As matters stand, however, Gantz and Lapid refuse to serve under Netanyahu. But they reportedly told the US administration that they might vote with Netanyahu on specific aspects of the Saudi normalization package, without joining the coalition. In this way, if the US does indeed deliver Saudi normalization, it might be approved in the Knesset even as Netanyahu loses his coalition because Smotrich and Ben Gvir defect in protest. That would most likely trigger new Knesset elections.

Q. Bottom line?

A. Despite the Knesset summer recess, we should not be surprised by escalation: between the High Court and the Netanyahu government, and between increasingly angry demonstrators and increasingly violent Israel Police forces.

Could a Biden-engineered breakthrough with Saudi Arabia trump all our pessimistic warnings? Given who Netanyahu is and who MbS is--I doubt it.