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by Ron Skolnik
When Time magazine recently entitled its profile of Israel’s prime minister “King Bibi,” my thoughts raced back to my teen years, growing up in what Phil Ochs satirically referred to as “the State of Richard Nixon.”
In the summer of 1973, Congressional hearings into the Watergate break-in had just revealed the existence of secret audiotapes of White House conversations. These tapes were subpoenaed by a U.S. District Court, but Nixon refused to release them. Invoking “executive privilege,” the President’s counsel, James D. St. Clair, infamously argued that the American head of state “is as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land.”
The case eventually reached the Supreme Court, which rejected the President’s arguments and ordered the tapes handed over. Fortunately for American democracy, “Good King Richard” backed down, and the constitutional crisis was defused.
A similar crisis is now brewing in the realm of King Bibi. The role of Israel’s Supreme Court and the future of Israeli democracy are being threatened –— in this case, by Israel’s legislature as well as its executive branch.
The Supreme Court is actually referred to by a different name, the “High Court of Justice” (Bagatz in its popular Hebrew acronym), when it is exercising judicial review over the other branches of government. Over the years, in the absence of an Israeli constitution, Bagatz has frequently been called upon to play the role of arbiter in cases that challenge the delicate balance between human rights and Israeli security — in both Israel proper and the Occupied Territories — and between the country’s Jewish and democratic identities. As a result, the Court has become the object of unbridled hostility from various cultural, political, and social sectors.
The ultra-Orthodox community, for example, regards the High Court with intense distrust due to rulings that have supported gender equality and given limited recognition to the Reform and Conservative movements. Indeed, the haredi world generally rejects the very legitimacy of the “secular court,” since it draws its authority from civil institutions rather than from Torah law.
Outside the haredi community, many Israelis complain that Bagatz is dominated by secular Ashkenazim who “don’t represent the people” — especially Mizrahi Jews who live in the country’s poorer urban neighborhoods and its underdeveloped periphery. Others protest that the Court represents a liberal, “universalist” viewpoint that is at odds with the Jewish-nationalist predilections of the (purported) majority.
The powerful security establishment, too, has often chafed at High Court rulings. Bagatz, for instance, has forced the IDF to relocate the West Bank separation barrier (at a cost of millions of shekels) in cases where it encroached upon Palestinian areas without military justification. In a far-reaching decision in 1999, Bagatz also limited the interrogation methods available to the Shin Bet by banning the use of undue physical pressure and other “extraordinary techniques.”
Last but far from least, the settler community has also been waging a decades-long vendetta against Bagatz, even though its rulings have, in fact, helped build a legal foundation for the settlement enterprise. Bagatz has classified Israel’s presence in the Occupied Territories as a temporary “Belligerent Occupation,” a definition that requires Israel to avoid permanently altering the status quo. This would seem to rule out any Israeli settlement activity whatsoever, but the High Court has worked around this limitation by reasoning that a “permanent settlement does not create a permanent fact” on the ground and is therefore permissible.
Notwithstanding this pro-settlement precedent, however, Bagatz has insisted that all settlement activities adhere to the rule of law — and herein lies the source of the settlers’ bile, and of the imminent constitutional crisis threatening Israel.
The Court has insisted that West Bank land can be confiscated only for legitimate military purposes; that the private property rights of the occupied Palestinians must be respected; that zoning and planning procedures must be adhered to; and that settlements can be created only with the permission of the area’s de facto ruler, the Israel Defense Forces. In other words, sayeth Bagatz, settlement is kosher — as long as you play by the rules.
As long as Israeli governments were openly establishing settlements, the limitations set by the Court were a nuisance but not a major obstacle. Starting in the late 1970s, when the first Likud-led coalition sent settlement construction into overdrive, successive governments found legalistic work-arounds when necessary to satisfy High Court requirements.
Things changed in the 1990s, however, when the Oslo process focused world attention on the settlements’ negative impact on peace talks. Faced with unanimous international disapproval of settlement growth, every Israeli government since 1996 has promised to create no new settlements. While the expansion of existing settlements never ceased, it has exacted a growing diplomatic price — the most salient expression being a 14-1 UN Security Council vote in 2011 to condemn Israel over this practice. That measure was ultimately vetoed (albeit apologetically) by the U.S.
The response of the Israeli government and the settler movement has been to continue settlement growth as before, but now as ostensibly “rogue” actions, so that the government can enjoy a modicum of deniability. In 1998, then-Foreign Minister Ariel Sharon, serving in the first Netanyahu government, brazenly announced the new approach on Israeli radio, calling on settlers to “grab the hilltops, and stake your claim,” since “everything we don’t grab will go to [the Palestinians].” Since Israel would authorize no new settlements, Netanyahu’s senior minister was openly encouraging the settlers to establish new “outposts” (ma’ahazim), illegally.
Over a hundred such outposts were created over the next few years. It should come as no surprise that the government has used taxpayer funds to pay for their infrastructure and security, making only token and half-hearted efforts to remove any.
Enter the High Court of Justice, which began to receive petitions from both Palestinians and pro-peace Israelis claiming that, in establishing the new ma’ahazim as well as “extensions” of existing settlements, the settlers had broken the law. The creation of the Migron outpost north of Jerusalem, for example, was found to be a result of illegal trespass on private Palestinian land. And the developers of the Ulpana neighborhood of the (authorized) Beit El settlement in the central West Bank were found to have forged papers that fraudulently ‘documented’ the sale of the land by its owner. Similar situations have arisen in Hebron and many other locations.
Over the years, whenever the High Court was assailed by powerful detractors, Israel’s prime minister would valiantly defend the independence of the judiciary and its vital role in preserving the rule of law. Bagatz’s existence was a point of pride for an Israel whose international public relations frequently refer to the country as “the only democracy in the Middle East.”
In the last few months, though, the High Court has ordered a reluctant government to clamp down on illegal settlement practices. Rejecting the Israel’s government legal stalling tactics, the Court ordered the illegally built Ulpana neighborhood demolished by July 1st and the illegally settled Migron removed by August 1st. In response, the settlers, along with many members of Netanyahu’s own Likud party, proposed the “Settlement Regulation Bill,” which would have retroactively nullified the High Court’s decisions and validated the illegal settlements.
The major issue is not the fate of a few hundred settlers, but the authority of the Knesset to pass ex-post-facto legislation to undo Court rulings. In the U.S., such legislation is prohibited by the Constitution, which sought to establish a system in which the principles of justice were paramount in “a government of laws and not of men,” as John Adams succinctly put it. But MK Danny Danon, a rising Likud star, is apparently no fan of America’s Founding Fathers. Regarded as an heir or even challenger to Netanyahu, Danon has won significant Likud support for his belief that “Bagatz . . . does not represent the will of the people, but their own views,” which should be nullified by legislation. (In similar spirit, Danon has also blamed “bleeding-heart leftists” for contributing to Israel’s recent wave of violence against African refugees by stymieing the government’s mass deportation efforts.)
The Settlement Regulation Bill, it must be noted, is far from the only assault on Israel’s judiciary. Another bill gaining support, and promoted by Netanyahu’s own Justice Minister, would give the Knesset blanket authority to override any decision by Bagatz with the support of sixty-five of its hundred and twenty members.
Netanyahu has blocked the most egregious affronts to the High Court, such as legislation that would prohibit it from ruling on any security-related matters. But in the matter of Ulpana, there is cause for concern. Although Netanyahu eventually came out against the Settlement Regulation Bill in early June (“Even though for some people the High Court decision is hard, we have to respect it”), his defense of Bagatz was uninspired. The pro-settler Israel Today newspaper reported that he had actually been on the verge of supporting the anti-Bagatz measure, changing his mind only after being assured by his legal counsel that he would not be setting a precedent for future cases involving settlements if he complied with the Ulpana ruling. Bibi might well have chosen the settlers over Bagatz (and still might in the future) if the price to the settlement movement had been much steeper.
That movement is now mobilizing for a moratorium on Ulpana’s removal, and their fight to legitimate the Migron outpost is picking up steam. Other Bagatz-neutralizing bills have been prepared for sponsorship in the Knesset when the political timing is right. Columnist Tzvi Barel of Haaretz believes that the fate of Israel’s democracy is now in Netanyahu’s hands alone. “Bibi is King,” Barel writes, and can push through laws or block them, approve construction in the territories or destroy homes, “as he pleases.”
Which way will the Prime Minister turn? Netanyahu faces an extremist wing in the Likud that is energized, growing, and increasingly willing to dispose of the separation of powers that has kept Israel’s democracy in balance. His fine-tuned political instincts will encourage him to appease his base, and his well-known support for West Bank settlement might one day drive him to choose the illegal outposts over the Court.
In defeating the Settlement Regulation Bill, Israel’s pro-democracy forces won a small tactical victory. But they are girding for the battles that are yet to come and watching closely to see if “King Bibi” is ultimately revealed to be friend or foe.
Ron Skolnik is executive director of Partners for Progressive Israel (formerly Meretz USA), a non-profit organization that supports a genuine peace between the State of Israel and its neighbors (including the Palestinian people) based on a negotiated land-for-peace solution.