“The Beginning of Breakdown”

THROUGHOUT HIS BID to become prime minister of Israel, Benny Gantz campaigned as the defender of the rule of law. In his inaugural speech as a Knesset member, delivered last May, he pledged to protect the country’s constitutional order from Prime Minister Benjamin Netanyahu. “We will fight in the streets, in the squares, in the neighborhoods, and in the schools, in the media and the judiciary to defend the rule of law,” Gantz declared. “Otherwise, Israel will find itself in days darker than it has ever known.” 

Less than a year later, Gantz is in the process of joining a right-wing coalition led by the very man he claimed posed a mortal threat to Israel’s political institutions. In so doing, he has broken his central campaign promise: not to sit in a government led by a prime minister under criminal indictment. Against the backdrop of the country’s worsening Covid-19 outbreak, Gantz had limited alternatives. But his decision—made after Netanyahu and his right-wing allies instigated Israel’s most severe constitutional crisis in recent memory to maintain power—has left Israel’s constitutional order more vulnerable to right-wing efforts to undermine it. 

Just a few weeks ago, Gantz briefly appeared on the cusp of finally unseating the prime minister, after three successive elections in the span of a year. Israel’s president, Reuven Rivlin, had given Gantz the first shot at forming a governing coalition, and the parties supporting Gantz held a narrow majority in Israel’s Knesset. But faced with the prospect of losing control over the parliament, the Knesset Speaker at the time, Yuli Edelstein—a member of Netanyahu’s right-wing Likud party—refused to allow a vote on a new speaker, claiming that such a vote would sabotage ongoing, behind-the-scenes talks between Gantz and Netanyahu to form an emergency unity government. When the Supreme Court ordered Edelstein to permit a vote, he resigned rather than comply. In the court’s strongly worded ruling, Chief Justice Esther Hayut accused Edelstein of “undermining the foundations of the democratic process.” It was an unprecedented stand-off between the country’s legislative branch and the judiciary. 

That crisis has been resolved, in part due to the Covid-19 pandemic. And Edelstein, it turned out, was not lying about the unity negotiations. Gantz announced on March 26th that he would join a Netanyahu-led government, fracturing his Blue and White party. Within Blue and White, he had faced insurmountable opposition to forming a minority government that depended on the support of the Arab-led Joint List—the only viable path to unseating Netanyahu. That opposition only grew louder as the country’s coronavirus outbreak worsened, and the pressure to form a unity government with Netanyahu’s right-wing bloc mounted. Now, with support from a fraction of Gantz’s Blue and White, as well as two members of the Labor Party, Netanyahu is poised to form his largest governing coalition yet.

Gantz’s capitulation marked the end of both the constitutional crisis instigated by Edelstein and the country’s protracted political deadlock caused by Netanyahu’s increasingly desperate attempts to hold onto power. But the existing cracks in Israel’s constitutional order have deepened. Netanyahu is not only set to become the first Israeli prime minister to remain in power while facing criminal indictments; he’s also poised to continue the Israeli right’s ongoing efforts to undermine the power of the judiciary, which will only intensify as his trial approaches, and to execute the right’s territorial-maximalist agenda—with minimal parliamentary resistance. 

For years, opposition politicians—in particular those who had served in previous Netanyahu governments, like former defense minister Moshe “Bogie” Ya’alon—have warned that Netanyahu’s Israel is on the path to “Erdoganization”—that is, devolving into a Turkish-style, personality-centered autocracy, in which the judiciary and legislature are completely subordinated to the executive. “Blue and White or Erdogan” (in Hebrew, the phrase rhymes) was one of the party’s slogans in the latest round of elections.

To many, Netanyahu and his allies’ conduct during the first stages of the Israeli Covid-19 outbreak signaled that “Erdoganization” is well underway. On March 15th, his interim Justice Minister, Likud MK Amir Ohana, froze the country’s court system in the name of public safety, and the Jerusalem court where Netanyahu was set to stand trial on March 17th postponed his first hearing until late May. Just three days later, as Netanyahu authorized emergency measures to stop the spread of Covid-19 that included expanded surveillance powers for the police and Shin Bet, Edelstein shut down the Knesset—also in the name of public safety—preventing the formation of the parliamentary oversight committees normally required for such measures (the Knesset re-opened the following week). Here was an interim prime minister, lacking a popular mandate and under multiple indictments, exploiting a state of emergency to push through military-style surveillance of Israeli citizens while his allies shuttered the courts and blocked parliamentary oversight of the executive branch. Human rights attorney Michael Sfard wrote in +972 Magazine that this constituted nothing less than “a government coup.”

Edelstein’s defiance of the Supreme Court and Netanyahu’s recent attacks on its legitimacy are part of a longer arc of right-wing anti-court politics, explained Yaël Mizrahi-Arnaud, a research fellow at the Forum for Regional Thinking, a Jewish-Arab think tank based in Israel. The Israeli right has, for more than a decade, sought to limit the power of the judiciary, which is often construed by right-wing politicians—from Netanyahu to former Justice Minister Ayelet Shaked—as an enemy of the Israeli people. Shaked, who headed the Justice Ministry from 2015 to 2019, vowed to carry out a “conservative revolution” within the court system that, although incomplete, has already had significant ramifications, including the appointment of dozens of conservative judges. Shaked, along with others on the right, has also pushed to strip the Supreme Court of its judicial oversight powers and to subordinate the court to the Knesset. 

The Israeli right’s attempts to cripple the judiciary are in sync with several of its Central and Eastern European allies, where right-wing, xenophobic governments have also sought to subordinate court systems to the executive branch. In Poland, the ruling Law and Justice party, led by Jarosław Kaczyński, has overhauled the country’s judicial system, enabling the government to discipline and even dismiss judges for their rulings. In Hungary, Prime Minister Viktor Orbán has attempted to create a parallel court system that would completely subordinate the judiciary to the executive. Though he has been stymied by pressure from the European Union, yesterday, in response to the pandemic, the legislature granted him emergency powers to rule by decree indefinitely.

What Netanyahu’s Likud shares with Kaczyński’s Law and Justice and Orbán’s Fidesz is an ethnonationalist vision in which the judiciary—as the guardian of civil liberties, minority rights, and rule of law—is an obstacle to the execution of the sovereign will of the people. Such a vision is what Italian historian Enzo Traverso, in his 2019 book The New Faces of Fascism, calls a kind of post-fascism, “a plebiscitary model of democracy that destroys any process of collective deliberation in favor of a relationship that merges people and leader, the nation and its chief.” It is precisely the rise of this post-fascist vision that led Yair Golan, former deputy chief of staff of the Israeli Defense Forces (IDF), to remark during a 2016 Holocaust Remembrance Day speech, “If there is something that frightens me, it is to identify the same terrifying processes that took place in Europe in general, and in Germany specificially—70, 80, and 90 years ago—and bear witness to their presence in our midst, today.”

Despite its critics’ complaints, Israel’s judiciary is hardly a bastion of liberalism. The Supreme Court plays a major role in upholding and legitimating Israel’s decades-long military occupation of the West Bank. But the court has also often served as the last line of defense for civil liberties, an avenue for urgent redress of human rights abuses, and—much to the right’s frustration—a check on legislative excesses. In recent years, the court has blocked key aspects of the right’s ethnonationalist agenda: for instance, it prevented Israel from forcibly deporting tens of thousands of African asylum seekers in the spring of 2018. For this reason, the right has turned the court into an enemy. During the 2019 elections, Naftali Bennett and Ayelet Shaked’s New Right party ran on a slogan that compared the judiciary to a terrorist organization: “Shaked will defeat the court, Bennett will defeat Hamas.” 

Gantz staked his entire campaign on defending the rule of law from these kinds of threats against it. At the core of his campaign was the notion of “mamlachtiyut”—the Hebrew term, coined by David Ben-Gurion, for civic virtue, for putting the good of the state above sectarian divisions and personal interests. Seemingly overnight, Gantz transformed from the defender of the rule of law into its assailant’s junior accomplice.

Of course, Gantz never actually represented a meaningful ideological alternative to Netanyahu. He began his campaign with a video boasting of having returned Gaza to “the Stone Age” during the 2014 war, when he was the IDF’s chief of staff, and he insisted throughout that the Joint List would not be part of his government—the sole campaign promise he appears to have kept. Gantz, like Netanyahu, also pledged to expand Israeli sovereignty over parts of the occupied West Bank. But what Gantz did offer was a change in style: martial moral rectitude in place of Netanyahu’s mafioso populism. Not even that superficial change will happen now; the “statesmanlike” Gantz has genuflected to the corrupt Netanyahu.

Netanyahu could not have planned for the victory the Covid-19 emergency has handed him. If coalition negotiations proceed apace, he will enjoy such a strong right-wing majority that he can pass legislation over the heads of Gantz’s reduced Blue and White faction. The remaining obstacles to the Israeli right’s agenda have largely fallen away. Annexation of the West Bank, whether all at once (in line with the Trump proposal) or piecemeal (starting with the Jordan Valley and the settlements near Jerusalem), is likely to be on the table, along with right-wing proposals to strip the Supreme Court of its judicial oversight powers and enable the Knesset to override the court’s decisions. If enacted, such legislation could potentially shut down any legal objections to annexation and to the human rights violations it is guaranteed to entail. 

“Legitimacy is nothing more than collective belief in the authority of an institution, and if the court has no authority, then we’re looking at anarchy,” political analyst Dahlia Scheindlin told me by phone, one day before Gantz’s fateful decision. After more than a decade of creeping delegitimation, and more than a year of intensive political campaigning against the court, the damage done to the standing of Israel’s judiciary in the eyes of the public “has been very severe,” she added. “This is the beginning of breakdown. The question is, can we pull ourselves back from the brink?”