Welcome to the Tuesday News Bulletin! Every Tuesday, we publish original reporting on Israel/Palestine by our staff and contributing writers, which goes directly to our newsletter subscribers. The Tuesday News Bulletin also serves as a forum for aggregating stories Jewish Currents staffers are tracking, with plenty of links to other publications so you can keep up with everything happening on our beats.
This article is by Jewish Currents contributing writer Elisheva Goldberg.
Israeli Justice Minister Yariv Levin addressing Knesset in December.
Maya Alleruzzo/AP Photo
January 10th, 2023
On January 4th, Israeli Justice Minister Yariv Levin announced the first stage of his plan for “governance reform.” The proposed changes amount to a shakedown of Israel’s legal and judicial systems, stripping check after check on governmental power by profoundly weakening or abolishing the powers of the judiciary. Yair Lapid, head of the Israeli opposition, dubbed the plan “a threat . . . to destroy the entire constitutional structure of the state of Israel.” According to Israeli news sources, a number of these changes will be up for a vote in the Knesset by the end of the month, where they face no real barriers to passage.
The first change Levin announced was to alter the makeup of the committee for judicial appointments, which would give politicians the voting majority over legal professionals. Putting the government in control of selecting justices undermines the judiciary’s status as an independent body capable of balancing the power of the legislature, threatening the only backstop to legislative overreach. (Just four days after Levin’s speech, the far-right Otzma Yehudit party submitted legislation that would immediately enact this change.) Levin went on to lay out reforms to undermine the authority of the Supreme Court: first, by instituting an “override” clause that will enable the slimmest Knesset majority (61 members) to re-legislate any law the Supreme Court has struck down, and second, by making the judicial review process for regular laws more difficult—and, in the case of Israel’s pseudo-constitutional Basic Laws, impossible. Because Israel has no formal constitution and no Bill of Rights, the only legal protection for minority rights lies in the court’s ability to strike down discriminatory legislation. Without judicial review, minorities are left fully exposed to the whims of any given legislative majority.
Levin’s proposal also included the abolition of the “reasonableness doctrine,” a legal check that enables the court to cancel arbitrary or “unreasonable” administrative government decisions. The doctrine, borrowed from the British system upon which Israel’s judicial branch was built, has been used to protect citizens from abrupt and disruptive government decisions—for example, to stop the state from ending welfare subsidies for children without a waiting period, or to prevent a municipality from charging homeless people property taxes at outrageous rates. (Just last week, the court held a hearing that addressed the question of whether it was “reasonable” for a thrice-convicted politician—Aryeh Deri—to become a minister.) Finally, the reform package would put ministers in charge of their own legal advisors. In other words, instead of being hired by professional committees—making them subordinate to the attorney general and, by extension, the rule of law—ministerial legal advisors will be hired by, and subordinate to, their own minister, making them more like a personal lawyer than a public servant.
Talia Sasson, a former official in Israel’s attorney general’s office, said these changes added up to nothing short of a “revolution.” “If you look at the big picture,” she said, the goal is simple: “to make the judicial subservient to the political.” Levin’s proposed override clause is the clearest example. “The politicians will always have the last word,” she said.
Asaf Goldfarb, the director of the Shatil Center for Policy Change at the New Israel Fund (where, full disclosure, I am the media and policy director), said that the override clause means there will no longer be any legal recourse for minorities in Israel. “The people who will suffer first are the Palestinians in occupied territory, then the Palestinians who live in Israel, then women, then Ethiopian Israelis, then LGBTQ Israelis—anyone who isn’t a hard-right, religious man.”
“There are those in the Arab public who maintain that salvation will never come from the Supreme Court, which has always [privileged Jewish concerns] in the face of the democratic demands of the Arab citizens,” said Amal Oraby, the New Israel Fund’s Arabic media coordinator. “But faced with the government’s determined attempt to reduce civil space and harm individual rights, a broad civil alternative must stand to establish equality for all citizens.”
In the 1990s, the Supreme Court garnered a reputation as an “activist” or “left-wing” court when it began using Israel’s Basic Laws regarding “Human Dignity” and “Freedom of Occupation” to protect individual rights. But such a reputation is long outdated. As I’ve previously reported in Jewish Currents, hundreds of conservative, non-interventionist judges were appointed over the last ten years, and the Supreme Court has become far more reticent to intervene, particularly around Israel’s behavior in the territories it occupies.
But if the right has already captured the judiciary, why gut it? According to Yaniv Roznai, co-director of the Rubinstein Center for Constitutional Challenges at Reichman University, the answer lies in how the right thinks about sovereignty. Levin’s reforms, Roznai told Jewish Currents, “rest on a purist idea of sovereignty.” In this formulation, “the people are the sovereign and the leaders represent the people, so the leaders are sovereign. And if the leaders are sovereign, then any limitation on their power—be it the courts, the gatekeepers, the media, the [political] opposition—is simply illegitimate.”
This same populist rhetoric has been deployed by other backsliding democracies like Hungary and Poland: In both countries, far-right parties have won elections and then overhauled their judiciaries, giving the executive power over the courts. Their reforms, like those now poised to pass in Israel, include political judicial appointments to pack the courts with friendly judges, and legislating procedural changes that allow lawmakers to evade judicial review. “Viktor Orbán called it ‘illiberal democracy,’” said Roznai. “But there is no such thing as illiberal democracy. If you want elections to be fair and genuine, you need to have basic rights, rule of law, and judicial supervision.” Ultimately, he said, “a government that wants absolute power will not settle for anything but a rubber stamp.”
Without the threat of the court striking down discriminatory or unreasonable executive action or legislation, the Knesset majority will be able to churn out a never-ending stream of extremist legislation. Currently, for example, the Knesset is in the process of fast-tracking a law that would revoke the citizenship or residency of a person convicted of terrorism—a penalty that restricts access to the most basic elements of life in a nation-state, from schools to jobs to marriage, and which will mostly affect Israel’s Palestinian citizens. Though it is unlikely to do so, should the Supreme Court strike it down, the Knesset could simply re-legislate it. Roznai suggests that the override clause is likely to bring a high level of chaos into the government. “Everyone has their own agenda,” and “every coalition party will push to its own extremes,” he said.
Thousands of Israelis took to the streets of Tel Aviv on Saturday night, January 7th, to protest the new government’s plans to gut Israel’s remaining democratic institutions. “We haven’t seen this kind of protest since the summer of 2011,” said Shatil’s Goldfarb. “It is true that we are going to lose,” he said. “But Israel’s history books will show that we did not go quietly.”
Israeli anti-Zionist activists hold signs condemning Israeli colonialism at a largely liberal Zionist mass protest against the new far-right government in Tel Aviv on January 7th. Some Israeli activists only oppose Israel’s military occupation of the West Bank, Gaza, and East Jerusalem, while anti-Zionist Israelis oppose the entire Israeli system of rule imposed on Palestinians between the Mediterranean Sea and the Jordan River. Photo: Activestills.
As part of the Tuesday News Bulletin, Jewish Currents is publishing a photograph taken by members of Activestills every week, archiving ongoing dispossession and resistance from the river to the sea. You can find more information on this collaboration here.
On Sunday, Israeli National Security Minister Itamar Ben-Gvir ordered the Israeli police to carry out a new policy of removing Palestinian flags from public spaces. Ben-Gvir said he “ordered the removal of flags supporting terrorism from the public space and to stop the incitement against Israel.” The minister was reportedly upset at the flying of Palestinian flags during celebrations welcoming a Palestinian prisoner home. Until now, Palestinian flags were technically allowed to be displayed, though the police were able to use their discretion to remove the flags if they deemed them a disturbance to public order. Israeli forces frequently remove flags from Palestinian protests or other mass gatherings; last May, during the funeral procession for the slain Palestinian American journalist Shireen Abu Akleh, Israeli police officers ripped Palestinian flags off the hearse carrying her coffin.
Israel imposed economic sanctions on the Palestinian Authority (PA) on Friday in response to Palestinians’ successful effort to request an International Court of Justice opinion on Israel’s military occupation. Israeli authorities will withhold tens of millions of dollars in tax revenue it collects on behalf of the PA, freeze Palestinian construction projects in certain parts of the occupied West Bank, and revoke permits for Palestinian officials that give them expedited access to pass Israeli military checkpoints. Asked at a press conference whether there was concern the PA would collapse because of these measures, Israeli Finance Minister Bezalel Smotrich said he has “no interest for it to continue to exist,” a view at odds with Israeli security officials who see the PA as a partner in efforts to fight militancy against Israel.
Israeli soldiers killed 146 Palestinians in the West Bank in 2022, the highest death toll since 2004, according to a new report from Israeli human rights group B’Tselem. According to the report, 60% of Israeli killings of Palestinians in the West Bank last year were “unlawful.” Included in this figure were Palestinians shot while walking home, trying to enter Israel without a permit, documenting Israeli confrontations with Palestinians, and throwing stones. Fourteen of these incidents involved Palestinians killed after attacking Israeli forces; B’Tselem said the tks were slain after the danger they posed had subsided. The report also found that Israeli forces killed 34 Palestinian children and teenagers—the most since 2004. Palestinians killed six Israeli civilians and four Israeli soldiers in the West Bank in 2022, as well as 11 civilians, one police officer, and three foreign nationals in Israel.
The US State Department last Wednesday urged Israel not to move forward with a plan to legalize the settlement outpost of Homesh in the occupied West Bank. “The Homesh outpost in the West Bank is illegal. It is illegal even under Israeli law,” State Department spokesperson Ned Price said. Unlike most Israeli settlements—which are established with the backing of the Israeli government but which most countries consider to be illegal under international law—Homesh is a settlement built without Defense Ministry approval. But as part of a Likud deal with Otzma Yehudit to form a governing coalition, Prime Minister Benjamin Netanyahu promised to legalize the outpost.
Harvard denied former Human Rights Watch executive director Ken Roth a fellowship over his criticisms of Israel, according to a report in The Nation. The Harvard Kennedy School’s Carr Center for Human Rights Policy asked Roth to be a fellow last year after Roth announced his retirement from Human Rights Watch. But shortly after the Carr Center offer, Harvard dean Douglas Elmendorf vetoed the fellowship offer, citing Roth’s “anti-Israel bias.” In response to the report, civil liberties groups criticized Harvard. The American Civil Liberties Union said the decision was “profoundly troubling,” while PEN America said that “withholding Roth’s participation in a human rights program due to his own staunch critiques of human rights abuses by governments worldwide raises serious questions about the credibility of the Harvard program itself.”