Israel's military 'justice' system is turning in on itself

Revolutionaries typically develop their zeal for radical change after being away from the helms of government, after years of feeling excluded and marginalised.

The new government in Israel, in contrast, is composed mainly of parties that have been in power almost without interruption for decades. Nevertheless, these parties - mostly religious conservatives and ultra-nationalists - are being revealed as closet revolutionaries.

They are embracing radicalism and polarisation as a way to mobilise and excite voters and to perpetuate their rule.

The new coalition suddenly professes that democracy simply means the unlimited power of the majority and its elected representatives (a notion Alexis de Tocqueville warned against already at the dawn of modern democracies).

Armed with the understanding that the future is with them, demographically speaking, the radicalised right-wing is interested in swiftly destroying the existing Israeli regime (which it helped build in the past), including its separation of powers and its liberal elements.

This move would enable the right to reshape Israel's society and culture.

To be sure, Prime Minister Benjamin Netanyahu has a personal interest in overpowering the legal system: he is currently facing charges of bribery, fraud and breach of trust, accusations he denies. But in truth, his trial is a mere catalyst for deeper political forces that seek to transform the country on multiple fronts.

As former Prime Minister Yair Lapid aptly put it in parliament the other day when speaking to Justice Minister Yariv Levin: "The policy of the government you have established is always to put the most extreme person on the issue that he is extreme about."

Lapid pointed to racist ultra-nationalist Itamar Ben Gvir being handed responsibility over Al-Aqsa Mosque, militant settler Bezalel Smotrich charged with administration of the illegal West Bank settlements, and notorious homophobe Avi Maoz given power over children's education.

Because of the extremism on every front, many Israelis today are in a state of shock (which is intended, and part of the strategy of the right). This disbelief also stems from the fact that Netanyahu's Likud party did not submit any platform before the elections, keeping its plans hidden and misleading its own voters.

It is also using a very narrow victory in the election to claim that "the people" demanded a regime change, while in fact, in terms of votes cast, the government has the support of less than half of the public.

Finally, it was particularly astonishing for Israelis to learn of the fascist-like mentality found in the very familiar Netanyahu (who always opposed substantial changes in the judiciary), and of the mindset of bookish rabbis heading religious parties - including one that demonises feminists and LGBTQ+ activists, that in a typical doublespeak is called Noam or "pleasantness" - behaviour that Israelis accuse Iran's ayatollahs of.

Most Israelis still remember how Zionism began as one of the most ambitious, secular revolutions of the modern age - breaking every aspect of Jewish life, including traditional structures of rabbinical domination, and professing (in the eyes of its followers at least) human freedom and capacity for human progress - and they wonder how this revolution has been transformed into a conservative-religious and authoritarian one enamoured with the distant past.

A thin ideology

To be sure, the new government promised to improve peoples' lives: to lower the cost of living, to find housing solutions for the young, and to expand free education, among other promises.

However, the goals of the new government also include: expanding illegal Israeli settlements in the occupied West Bank and practically annexing them; enhancing Jewish-religious-nationalist education in schools, and probably curbing LGBTQ+ rights; deepening the grip of neoliberalism on the Israeli economy and weakening the standing of workers and their ability to strike; ensuring that many young Orthodox Jews will not need to serve in the army as other Jewish Israelis do, while substantially increasing the funds to their yeshivas; and advancing "governability" in the Negev and the Galilee, where many Palestinian citizens live and where the authorities lost control over crime and intra-communal violence.

Power is the recurring theme in the dark melody of this government: it strives to shake off any institutional and normative obstacle standing in its path

Many human, individual and minority rights will be infringed upon if these goals are pursued, beginning with the occupied Palestinian living in his village and seeing another piece of his land taken away from him, and extending to the Jewish worker who will see her voice silenced.

Beyond these particular goals, however, the new government has a related, overarching and thin ideology.

It believes in and seeks to augment power – of the current majority over the fragmented minority, of the executive over the legislator and the judiciary, of Jews over Arabs, of (religious) men over women, of Orthodox Jews over Reform and Conservative Jews, of the politicians over the top civil servants and watchdogs, of the party leader(s) over their fellow party members, and of the current political elite over the Israeli demos at large.

Power is the recurring theme in the dark melody of this government: it strives to shake off any institutional and normative obstacle standing in its path in the name of a slim majority of four MPs only.

For the new coalition, indeed, power is both a means necessary to achieve its other goals, and the chief end in its own right. (It is not accidental that the party which is the coalition's ideological path blazer is called Jewish Power.) Since in Israel the only substantial, institutional body checking the government's freedom of action is the Supreme Court, it became the first target of the new government.

Taking on the courts

Only a few days after the new government was sworn in, Levin, the justice minister, submitted a plan that refers to the powers of the Supreme Court, the way judges are chosen and the overall legal ethos shaping the government's policies and decisions.

First, Levin wants to practically abolish the ability of the Supreme Court to revoke laws it deems unconstitutional, arguing that the parliament should be able to overcome such revocation by re-legislating the same laws with a simple majority of 61 MPs. (The revocation of laws was presented as a grave problem by the right in Israel, despite the fact that the Supreme Court used this authority only 22 times in its entire history.)

Levin also wants to eliminate the court's use of the "reasonableness test", a benchmark widely accepted in the democratic world and used to review, in particular, decisions of the executive branch.

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Lire

Uncertain that these changes would be enough to emasculate the courts, Levin would also like to alter the composition of the committee selecting judges.

Rather than a balanced committee appointing professional judges, according to the new plan, politicians from the coalition will control the committee. Judges will thereby be appointed according to political criteria and affiliations, and would be expected to "produce" the desired verdicts.

Finally, Levin is demanding that the legal consuls at the different ministries no longer be under the authority of the attorney general and committed to serve the law and public interest, but rather become political appointees of the ministers; even the instructions of these appointees would become recommendations only, and not obliging.

Critics are concerned that consuls would be expected to help ministers manipulate the law and that corruption would become rampant.

The importance of an independent judiciary is vital in any democracy, but especially in a country like Israel which lacks additional bulwarks against the concentration and abuse of power.

Israel does not have a constitution in the usual sense; it has only one, relatively small house of representatives, which is also extremely weak and is controlled by the government.

The parties are mostly non-democratic internally, and are leader-centred. The president is not required to affirm the laws and has no veto power, and Israel is not part of any trans-state bodies like the European Union, with its courts and accords. Finally, and critically, Israel has a fleeting democratic tradition and liberal norms are not sufficiently entrenched.  

Inspired from abroad - and within

The government's plan of overhauling the judicial system clearly resembles processes in countries such as Poland, Hungary and Turkey. With the first two countries, Netanyahu has had close relationships for years and he and his allies studied these countries closely (Netanyahu's son, Yair, just visited Hungary's Viktor Orban).

But perhaps the more direct inspiration for Levin's plan comes from the model of military government in the West Bank, intimately familiar to many Israelis who served in the military, and surely to the coalition's MPs and ministers who are settlers and actually live in the occupied territory.

In the military type of government, there exists no separation of powers, and the executive/commander is also the supreme legislator. The law is also essentially instrumental, designed first and foremost at guarding and perpetuating power; it is not driven by ethical ideas nor the needs of the occupied.

The rationale of the military type of government Israel has created is shaping the occupying country from within

Moreover, the military commander also appoints the judges, whose first objective is to serve the interests and security of that commander and his forces – in other words, to serve "the executive".

The idea of an independent judiciary and of judicial review is anathema to this type of government.

It is, of course, ridiculous to compare the predicament of an Israeli Jew to that of a Palestinian in the West Bank or East Jerusalem.

Yet we are at an unprecedented, "Frankensteinian" moment: the rationale of the military type of government Israel has created - one which is built on the idea of concentrating and exercising power, not on dialogical politics and ethical norms - is shaping the occupying country from within.

Palestinians on the outside

Israel is deeply divided these days, and resistance to the government's plan is widespread: vast demonstrations in major cities, strikes of high-tech workers and students, stern petitions. That included 270 leading economists warning about the dire consequences of Levin's plan on Israel's economy and future.

However, Palestinians who are Israeli citizens but alienated from the state have not joined the protests so far in substantial numbers. 

Perhaps Levin's plan will somehow be vanquished, delayed or reduced. But as long as the majority of the Jewish centre-left fights against this plan and the radicalised right, but ignores the dehumanising occupation that is its main normative breeding ground, Israeli democracy will remain very fragile.