Introduction
On January 4, 2023, Benjamin Netanyahu’s justice minister, Yariv Levin, announced his “judicial reforms.” The reform includes reducing the powers of the Supreme Court and restructuring the judiciary.1 Levin’s plan is fully backed by far right and religious parties, sparking more than eight months of widespread protests and demonstrations that have shown sharp divisions that included the military’s reservists, the economic elite, politicians, culture, academia, and civil society institutions.
Israeli President Isaac Herzog warned of a turning point that could destroy Israel from within and open the door to historical conflicts that could lead to civil war after his mediation failed to heal the rift between the ruling coalition and the opposition. The same view has been adopted by former Israeli Prime Minister Ehud Olmert, former Defense Minister Benny Gantz and other former and current leaders, who have expressed fear of a civil war leading to the disintegration of Israel from within.2
This article examines the roots of the conflict associated with the judicial “reform” plan and its effect on the Palestinians and the prospects of the two-state solution. It begins with a review of the nature of judicial amendments and radical changes that the ruling coalition seeks to bring about as “reforms,” and then explains the parties to the conflict, its components, and its repercussions. In the final part, it analyzes the potential impacts on the peace process with the Palestinians and the two-state solution.
Judicial Amendments: Radical Changes
The “reforms” or the judicial amendments that Netanyahu’s coalition wants to pass or parts of which it has already passed parts of it3 include four main areas:
First, the authority of the Supreme Court: The authority of the Supreme Court is at the heart of the “judicial reforms” controversy, as the Supreme Court is one of the main actors in the Israeli political system through its role in working to maintain the political balance between the state’s legislative, judicial, and executive institutions. It is important to remind the reader that Israel does not have a clearly defined constitution. It chose instead to have gradual legislation, what’s known as basic laws, which we can think of as articles of the constitution. But they are very easy to change. And like in most common law systems, a lot of the legislative doctrine comes from the history of judicial decisions. The reasonableness doctrine came about from there. It boils down to a judicial review of administrative decisions. So, reasonableness does not apply to laws. The Court will not strike down any law and has never struck down a law because it deemed it unreasonable. Rather, it has sometimes evaluated decisions by ministers, the government, or officials, which, for example, could have a conflict of interest or might have even weighed the serious ramifications of whimsical, capricious decisions which in the United States could also be struck down.
All of these came under the umbrella of reasonableness in Israel. In July the coalition passed the amendment to Basic Law: The Judiciary to cancel reasonableness. One of the main objectives of the judicial amendment is to enable the government to pass legislation, whether previously invalidated by the court or to be passed in the future, with the approval of a simple majority of Knesset members, i.e. 61 out of 120 members. In practical terms, this means that the balance of power will be tilted in favor of legislatures that will be able to enact laws, including statutes, while restricting the role of the Court or any judicial oversight.
Second, the composition of the Supreme Court: The “judicial reform” plan includes giving Knesset members greater influence in the Supreme Court Judges Appointment Committee with the aim of giving political authorities a central role in the selection of committee members, which would allow the current government, if it lasts for four years, to influence the appointment of four new judges to replace the four who will retire over the next three years, three of whom are liberals, and thus control of the Supreme Court. This will end the current balance that requires agreement between political and professional representatives and enable coalition politicians to control appointments.4
Third, protecting Netanyahu and his allies.
Fourth, legal advisers: The ruling coalition seeks to limit the powers and influence of legal advisers within ministries. Supreme Court judges usually cite legal advisors’ recommendations when considering the proper functioning of government. Forthcoming legislative amendments will enable their recommendations to become non-binding advice with a view to weakening the authority of senior State officials.
The Roots of the Conflict: The Deep State
There is a belief within the coalition parties that leftists and liberals lost the elections but continued to control the Israeli courts and bureaucracy. This is due to the widespread belief in the existence of a “deep state,” that is, clandestine networks of unelected individuals or groups that operate outside the traditional channels of elected government and have the potential to undermine elected officials, and control legislators and politicians. In 2021, Netanyahu linked the conspiracy against him related to his trial in corruption and bribery cases, and the “deep state” conspiracies against him.5
Settlement First
Negotiations with Palestinians have been stalled since 2014, and the situation on the ground is currently witnessing increasing tensions with increased settler violence and an increase in the frequency of Israeli military operations, especially in the cities of Jenin and Nablus, and hundreds of Palestinians and 35 Israeli have been killed since the beginning of 2023.
Israel has increased settlement activities in the Palestinian territories because it is a priority for the ruling coalition, which consists mainly of extremist settler parties. In addition, one of the main objectives of the judicial amendments is to create new mechanisms for Israeli settlement expansion, specifically on private land. Throughout its history, Israeli courts have served as an instrument for entrenching occupation in the West Bank and as part of a dual legal system in which Palestinians in the West Bank and Gaza Strip are subject to military law applied by Israeli military courts, while Israeli settlers in the West Bank are subject to Israeli civil law and tried in Israeli civilian courts. This has created an unequal system of justice, with settlers enjoying full legal protection while Palestinians are denied the minimum legal protection or justice.
Israeli courts have maintained a cosmetic policy of occupation and in some limited cases have slowed down or halted settlement plans on private Palestinian land.6 This clashes with the plans of settler and far-right movements who seek to accelerate the pace of settlements but at the same time believe that Israeli courts can be an obstacle to their settlement projects, specifically in private Palestinian lands. Thus, the ruling coalition plans to prevent the courts from interfering with the legalization of settlement construction on private land.7
The judicial amendments will facilitate the ruling coalition’s plans to prioritize settlements, as the government agreed to legalize nine illegal outposts and build more than 7,000 new settlement homes in February 2023.
The Judicial “Reform” and the Palestinians
Although the Palestinians consider the judicial reform in Israel to be an internal affair of the Jewish state, the effects of this “reform” could be devastating for the peace process (that is on hold for many years now) and for the two-state solution.
We can say that the judicial “reform” amounts to a declaration of war on the existence of the Palestinian people, whether inside the Green Line by continuing the policies of discrimination and racism and stripping them of their basic rights, or in the territories occupied in 1967 by continuing ethnic cleansing and plundering of Palestinian lands in favor of expanding the settlement enterprise.
The legal “reform” releases the hand of the Israeli army and the General Security Services in violating the rights of Palestinians in general, whether Palestinians of Jerusalem and the Green Line, or in the West Bank and Gaza Strip. For example, the Israeli authorities deprive activists in Jerusalem and the families of prisoners of the right to medical care based on security instructions and not on implementation of any law. In these cases, the victims resort to the Supreme Court or to the courts with jurisdiction, considering that the decisions against them are retaliated, and indeed it has happened that these courts – to preserve their reputation – have recognized that the penalties are not legal and ruled to repeal them, albeit after lengthy deliberations.
In other cases, the Supreme Court ordered the removal of outposts built on privately owned Palestinian land in the West Bank, after landowners had submitted inheritance and proof of ownership of their land. Although it took a long time to pass such decisions and required a major legal effort led by specialized organizations in cooperation with landowners, this opportunity will almost no longer be available now.
The removal of judicial oversight of the decisions and policies of the Israeli government should pave the way for the Palestinian Authority to prosecute Israel before international courts, which until now have rejected claims against Israel’s war crimes, based on the idea that it has a judicial system that can investigate these cases. Anyway, the PA headed by Mahmoud Abbas has proven that it is not serious about prosecuting Israel before international courts. Its attempt to thwart the Goldstone Report on the war crimes committed by Israel in Gaza during the 2008 war is a proof of this, under the pretext of giving the negotiation process a chance.
The fear of the results of the judicial “reform” appears in the petitions that began to be published by Israeli pilots, as well as by soldiers and reserve officers protesting the “judicial reform.” They stressed that harming the judiciary system means the removal of Israeli judicial protections that prevent the issuance of detention orders and investigations against them by international courts or other countries’ courts whose law allows the prosecution of war criminals.
I believe that the “judicial reform” of the right-wing Israeli government will lead to the consolidation of the idea of establishing a “Jewish-Greater Israel” state over the entire area of historic Palestine. And to achieve the objective of this occupation project, the government needs to further weaken the Supreme Court, the legal advisors, the attorney general and the oversight bodies in Israel. By weakening this system and the judicial systems, the way is paved for the government coalition to implement more authoritarian occupation steps in the land of historic Palestine. In other words -and despite the fact that the judicial system and the Supreme Court in Israel, played a role in legitimizing settlements and supporting occupation policies - the Israeli government will be able to annex the West Bank or part of it without any second review from the Court that is the only “higher chamber” to review this kind of decision.
The Reform and the Palestinian democracy
The internal Palestinian situation is very tense. The last presidential elections took place in 2005, and the last parliamentary ones were in 2006. Since then, there were the separation between Gaza Strip under Hamas control and some of the West Bank areas under the PA control.
Both de-facto authorities are controlling the Palestinians in Gaza and the West Bank without any legitimacy except the legitimacy of the security forces and the fear of political arrest. Since 2006, there is no Palestinian parliament and the PA’s president has issued hundreds of laws without any parliamentary review. Both de facto authorities are fully controlling the judicial system through their security forces. In general, with or without the Israeli judiciary “reform,” the internal Palestinian “democratic” situation is bad.
The problem is that the judiciary reform will make the situation much worse. It will allow the government to annex the West Bank or parts of it without any kind of judicial review. This act will not only destroy the two-state solution and the peace process, but it will also destroy any hope for the Palestinian to have a democratic regime.
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1 Jeremy Sharon, Justice Minister unveils plan to shackle the High Court, overhaul Israel’s judiciary, the Times of Israel, 4 January 2023 https://www.timesofisrael.com/justice-minister-unveils-planto-shackle-the-high-court-overhaul-israels-judiciary/
2 Jerusalem Post Staff, Israel is entering a civil war, former Prime Minister Ehud Olmert says, 25 July 2023, https://www.jpost.com/israel-news/article-752356
3 CARRIE KELLER-LYNN, What the ‘reasonableness’ law does — and doesn’t — mean for judicial overhaul, 27 July 2023, The Times of Israel, https://www.timesofisrael.com/what-thereasonableness-law-does-and-doesn’t-mean-for-judicial-overhaul/
4 Dov Lieber, Israel’s Netanyahu Takes On Judges After First Win Over Judicial Reform, 23 July 2023, Wall Street Journal, https://www.wsj.com/articles/israels-government-looks-at-next-stepsin-judicial-overhaul-shrugging-off-protests-7172e0ad
5 Josef Federman, Israel’s Netanyahu lashes out as end of his era draws near, AP, 11 June 2021, https://apnews.com/article/donald-trump-joe-biden-israel-middle-eastgovernment-and-politics-9785d2410bf55bce06b893b19b3e6234
6 Israel: Supreme Court Voids Law Legalizing Settlements Built on Unauthorized and Privately Owned Land in West Bank, Library of the Congress, 14 July 2020, https://www.loc.gov/item/global-legal-monitor/2020-07-14/israel-supreme-court-voids-law-legalizing-settlements-builton-unauthorized-and-privately-owned-land-in-west-bank/#:~:text=The%20court%20held%20that%20the,petitioners%20court%20and%20attorneys'%20fees
7 Netanyahu's previous government passed, on February 7, 2017, a bill in the Knesset allowing settlement construction on private Palestinian land with the aim of legalizing all outposts in the West Bank and opening the way for the seizure and construction of large areas of private Palestinian land, but the High Court accepted a petition against its constitutionality.