A Lot is at Stake in the Weeks Ahead (Hard Questions, Tough Answers- September 11, 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. On Tuesday this week, the High Court of Justice will hear arguments regarding the constitutionality of the ‘reasonableness’ law passed by the Netanyahu government. What will follow?

A. Fateful decisions will follow, even if not right away. Chief Justice Esther Hayut, who retires in mid-October, can take up to three months after that to write the Court’s decision. That, and additional decisions regarding the Knesset’s method of selecting judges and possibly Knesset legislation excepting yeshiva students from conscription and granting them status equal to that of soldiers, could shape Israeli politics and governance for years to come.

What is said and asked in Tuesday’s session, an unprecedented event with all 15 justices sitting in judgment, might give us some indication as to which way the High Court’s majority is leaning regarding the coalition’s attempt to forbid it from judging government appointments and other executive actions based on ‘reasonableness’.

Will the High Court reject the reasonableness law, a basic law with semi-constitutional status, and risk a fateful confrontation with the Netanyahu government? Many ministers, including the prime minister, have threatened to disobey a hostile High Court ruling. Could the High Court reject only part of the law and return it to the Knesset for amendments that moderate it? Or even bow to the will of the Knesset?

At stake is the Israeli judiciary’s independence and integrity in the face of a Knesset majority bent on curtailing its powers in favor of the legislative, thereby dangerously skewing the balance between Israel’s branches of government. In other words, at stake is Israeli democracy.

Q. If the outcome does not in some way resolve the current governance crisis--a near-certain scenario--will President Herzog again intervene?

A. Herzog has twice in the past nine months convened key politicians and experts and presented the government and the opposition with compromise proposals. Twice he has discovered that either Prime Minister Netanyahu backs off from proposals previously thought to be acceptable to him; or members of Netanyahu’s coalition, including from his own party (e.g., Justice Minister Yariv Levin), reject the proposals in defiance of the prime minister, who no longer seems to be fully in control. Herzog’s proposals have also provoked reservations on the part of Knesset opposition leaders Benny Gantz and Yair Lapid, who simply no longer find Netanyahu credible.

Herzog’s latest package of compromises included a watered-down reasonableness law and a freeze on further ‘judicial reform’ legislation for 18 months. But Levin, together with messianist-Kahanist ministers Bezalel Smotrich and Itamar Ben Gvir, scotched it. This offered yet another indication that it is Levin who now ultimately calls the shots in the Likud.

Q. What does this say about Herzog and his attempts to bring Netanyahu to a credible compromise stance?

A. Herzog has tried admirably. He has used up his lawyer’s skills. If he continues this way, he risks looking very weak. Some critics say he now has to act not like a lawyer but like a statesman, take a stance, and publicly put the blame on the coalition extremists and on Netanyahu’s waffling and lack of credibility. Herzog, the critics say, has to stop calling for compromise between a tough but reasonable opposition and the coalition’s anti-democratic reforms.

The fear is that, one way or another, Herzog--whose role is largely ceremonial but who can take the high moral ground to exercise influence--could become increasingly useless and be increasingly ignored. At the national level, this would be a loss.

Q. Does all of this somehow touch on the Biden administration’s attempt to broker a normalization agreement between Israel and Saudi Arabia?

A. Netanyahu needs to postpone if not resolve the acute political strife at home if he is to meet with US President Biden during the upcoming United Nations General Assembly session and register progress on the Saudi normalization deal. Biden has pointedly avoided meeting with Netanyahu since Bibi formed Israel’s most right-messianic government in history nearly nine months ago.

Biden wants to take credit for yet another US-sponsored Arab-Israel normalization breakthrough as he moves toward the November 2024 elections. A fading Netanyahu needs to break the international isolation imposed on him by Washington and Arab leaders, and wants a Saudi breakthrough for his legacy.

As of Sunday, Netanyahu was again trying to cobble together a compromise judicial reform proposal that could, with at least some Knesset opposition support, obviate the High Court deliberations, gain Herzog’s blessing, and pave the way for a well-publicized meeting with Biden in the days ahead.

As for Saudi leader Mohammed bin Salman (MbS), he needs a grand-strategic achievement involving upgraded US military support, a nuclear program, and a solid diplomatic gain for the Palestinians. This could help him reshape his international image in the aftermath of gross human rights abuses like the 2018 Khashoggi assassination affair and, more recently, the mass killing of Ethiopian migrants at the Saudi-Yemeni border.

Biden may indeed be close to finding a way to upgrade Saudi nuclear capabilities without endangering Israel or launching a Middle East nuclear arms race. He also just unveiled, in India, a major global transport and communications project linking that country to Europe via Saudi Arabia and Israel. This appears to be a double-barreled scheme to both one-up China’s Belt & Road initiative and bind Riyadh and Jerusalem strategically. Now Biden just needs to get the Saudis, Israelis and Palestinians on board . . .

Q. But can Netanyahu, with Levin and the Kahanists breathing down his neck, make the necessary concessions to the PLO regarding progress toward statehood and away from West Bank settlement spread?

A. Frankly, even a Netanyahu less constrained by his coalition partners is not likely to offer those concessions. At the end of the day, his current coalition appears to suit Netanyahu’s true political and ideological approach to the Palestinian issue, which one former head of Mossad recently labeled ‘apartheid’.

One partial way around the issue could emerge at the United Nations, where the Palestinians are reportedly negotiating with Brett McGurk, Biden’s senior Middle East adviser, on a package of achievements at the international level. These would include full UN statehood status for Palestine, a reopened Palestinian delegation office in Washington, and a reopened US consulate in East Jerusalem (where the Saudis also want to open a consulate) to liaise with the Ramallah-based PLO. Riyadh is hinting at offering large sums of financial aid to the always needy Palestinian Authority.

The consulates in East Jerusalem, alone among these measures, would still require Israeli approval. But what if that is somehow all that stands in the way of a Saudi normalization deal? It is hard to believe that MbS, whose country traditionally champions Palestinian national rights, would suffice with that. Or Biden: at a minimum, the US president would want to know he is dealing with a democratic Israeli government that has stopped crushing Israel’s judicial branch of government and is no longer stealing Palestinian land.

Q. Bottom line?

A. More than half a year into this, the most extreme of Netanyahu’s coalitions, the fissures are beginning to show. A few Likudniks, led by Defense Minister Yoav Galant and Economy Minister Nir Barkat, are hinting they will ignore Likud threats and honor any High Court decision. Finance Minister Smotrich has been forced to admit that Israel’s economy, compromised by mass public protests against ‘judicial reform’, is not doing as well as he had predicted: the shekel is being continually devalued, prices are skyrocketing, and foreign investment is declining. The Haredi (ultra-Orthodox) factions are feeling the effects of widespread public anger at their insistence on fortifying their special status. Galant and Kahanist National Security Minister Ben Gvir openly confront one another at Cabinet meetings.

Some Israelis are already fed-up. The media is reporting on schemes regarding the establishment of full-fledged ‘colonies’ of liberal Israelis who, fearing growing right-religious domination, are settling or considering settling in nearby places like Cyprus, Greece and Italy. They will either take their high-tech startups with them or administer them from abroad with an occasional visit to the homeland.

In theory, Israel’s centrist-liberals could still make common cause with center-rightists and relatively moderate Haredim and Arabs and right the situation. In theory . . .