Despite ongoing, widespread demonstrations, Prime Minister Benjamin Netanyahu and his government on Monday passed the first piece of legislation of a radical overhaul to Israel’s judiciary.
The bill eliminates a doctrine within administrative law that currently empowers Israel’s High Court of Justice to strike down government decisions that don’t pass a reasonability standard. It’s a seemingly technical though important standard for judicial review in a country that lacks a constitution. But if the new law is implemented, it will have destructive effects on Israelis and on Palestinians living in the occupied territories. Its passing may also encourage Netanyahu to advance other parts of the judicial overhaul that would further deteriorate the Court’s authority.
It’s important to note that the High Court has been no reliable supporter of Palestinian rights. Legal and human rights experts told me that anti-Palestinian policies have been passed with no opposition from the judiciary. And even the anti-judicial overhaul protests have been more concerned with Israeli politics than the impact on Palestinians. But in some situations, the court has slowed or stopped Israeli government actions, and served as a check on the extreme right-wing government.
“This is not going to be a dramatic overnight shift,” says Yair Wallach, a senior lecturer in Israeli studies at SOAS University of London. “The general agenda is to to weaken the courts in a very significant way.”
To regain the prime ministership after a brief stint out of power, Netanyahu built his current coalition with extreme-right parties. The more than 700,000 Israeli settlers living in the occupied West Bank and East Jerusalem are a key constituency of this government. The parties representing settlers in the parliament are pushing the country toward the further annexation of Palestinian land and, as they’ve said in their own words, the expulsion or transfer of Palestinians out of the occupied West Bank.
This week’s change to the judiciary will remove one potential obstacle, albeit a small one, in the way of achieving those aims. The settlers are a patient political movement, putting in building blocks for a vision of a transformed Israel society.
The new law is part of a bigger agenda
Within Israel, the new law removes a check on potentially corrupt practices. One of the court’s applications of the reasonability standard has been in overturning the appointment of unfit appointees as well as protecting officials against political firings. By removing judicial oversight for “the decision to appoint or fire government employees,” this bill “would, in turn, assist very much the current coalition in the power grab that they are in the process of,” Michael Sfard, a prominent Israeli human rights lawyer, told me.
For Netanyahu, who has been charged with fraud and bribery in an ongoing case, removing the Court’s authority here also removes one of the direct threats to his power. “Of course, the holy grail in this is the attorney general,” says Sfard. The attorney general role in Israel is independent. If the government has power to hire or fire government officials without oversight, as the new law would permit, it could curtail that office’s independence.
Palestinians could stand to suffer the most from this legislation. Palestinians living in the occupied territories lack other forms of representation or legal recourse — they are not citizens of Israel, don’t have the right to vote, or have the same political or civil rights as even Israelis living in nearby settlements in the West Bank. So removing the reasonability clause may have a huge impact on Palestinians, according to Sfard. “For Palestinians, the situation is completely different. The only thing that guards them and their rights from arbitrary use of power against them is judicial review,” he told me.
That isn’t to say that the court has been a staunch protector of Palestinians living under occupation or Palestinian citizens of Israel — far from it. The High Court’s track record has largely been one of enabling the Israeli state under the veneer of legality. “For example, the Court has consistently approved Knesset legislation aimed at ensuring the state’s Jewish majority and certain exclusive privileges for Jews — laws that blatantly favor one ethnic group over another,” Nate Orbach writes in 972 Magazine.
But there have been exceptions. For example, in recent years, Israel’s minister of defense has denied Palestinian families visas to enter Israel for a shared Memorial Day ceremony with bereaved Israeli families. The Court has overturned that decision on the basis that it was arbitrary. “This year, if that amendment stays, then the Supreme Court would not be able to overturn that decision,” Sfard says.
Beyond what the judicial overhaul will mean for both Israelis and Palestinians, it will also send a signal to international audiences about the true character of the Israeli system. “The core of that relationship is certainly on democratic values — shared democratic values and interests, and that will continue to be the case,” White House press secretary Karine Jean-Pierre said. But that argument becomes harder and harder to make.
“It might spell out to a global audience the reality of an inherently undemocratic Israel, without the digestible guise provided by complicit courts,” says Hagai El-Ad, the former executive director of the Israeli human rights organization B’Tselem.
So many violations of Palestinian rights, El-Ad noted, have been approved by the High Court — force-feeding hunger strikers, the demolition of Palestinian homes, and the expulsion of Palestinian residents from West Bank villages — that it’s difficult, at least for him, to get too worked up about this part of the overhaul. He said it’s important to consider the broader “apartheid context” in which the judicial overhaul vote is happening.
1/ As you read news about Israel’s « judicial overhaul », here’s some apartheid context: today the Knesset approved the Admissions Committees Law expansion. How much media coverage is this getting? almost none. This law allows for housing segregation against Palestinian citizens.
— Hagai El-Ad חגי אלעד حجاي إلعاد (@HagaiElAd) July 25, 2023
Still, the reasonability clause is one of several major changes proposed in the judicial overhaul, including revising the selection of judges, and an override clause that would work around the court and limit judicial review.
The Court, according to Sfard, will now have to address any petitions filed challenging the new law, meaning that the Court would be potentially put in the position of ruling on a law meant to restrict its own authority. That’s a recipe for a constitutional crisis in a country without a constitution, and it’s not clear which direction the Court would go. If the law moves forward, then it may encourage the other changes that Netanyahu had paused. “It’s opening a door to moving forward with the overhaul. And their original plans are much larger, including deeply politicizing the way we choose judges,” Avner Gvaryahu, the executive director of the Israeli watchdog group Breaking the Silence, told me.
Settler-politicians will take advantage of the current domestic Israeli crisis
The new law and others on the way will further strengthen the settlers in government, which in turn could enable further violence, like the settler rampage in Huwara in response to the killing of two settlers or the intensive Israeli military operation on the city of Jenin.
Above all, settlers — represented in Netanyahu’s coalition by officials like Security Minister Itamar Ben-Gvir and Finance Minister Bezalel Smotrich — want to annex the occupied Palestinian territories. Already, the Israeli government is allowing settlement construction and expansion at new levels. The settler bloc is among the most disciplined in Netanyahu’s coalition, and will continue to push for other aspects of the overhaul. As IfNotNow, the movement of American Jews that organizes around ending the Israeli occupation, put it, “Israel’s far-right government has made clear that its goal is to remove the few restraints that exist on formalizing its system of apartheid and furthering its theocratic vision.”
Netanyahu returned to the prime minister’s office for his sixth time, with the most extremist and far-right government in Israel’s history. Cabinet members have laid out some specifics as to what the far right seeks. This was never just about judicial overhaul but something bigger: formalizing the annexation of Palestinian land, according to experts who have studied statements from current Israeli government leaders. An increasing body of analysis also notes that the transfer or expulsion of Palestinians to other countries is also on the settler agenda.
In 2017, Smotrich published a radical manifesto entitled “Israel’s Decisive Plan” that advocates the expulsion of Palestinians who seek an independent state. His self-described “pragmatic document” also detailed how to further advance the settlements and illegal outposts, what he calls “Victory Through Settlement.”
This extremist ideology of transfer is not the official platform of Netanyahu’s coalition, but Smotrich and other members of the coalition are bringing it to the mainstream.
Similarly, a decade before gaining his current role as minister of justice, Yariv Levin told a conference that judicial changes are necessary to fulfill the goal of, in essence, annexation of occupied Palestinian territory. “We cannot accept the current situation in which the judicial system is controlled by a radical leftist, post-Zionist minority that elects itself behind closed doors, dictating to us its own values — not just on [annexation] but also on other issues,” Levin has said.
The US and international coverage of this issue has largely focused on Israel’s democratic character as well as how the new laws might strain US-Israel relations. But that risks missing the darker goals of Israel’s key ministers at this pivotal moment.
“There’s nothing hidden there,” Wallach says. “The settlers are the most committed, and have the most radical vision, and they know what they want.”