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Israeli democracy may not survive a ‘reform’ of its Supreme Court
(JTA) — On Dec. 29, Israel swore in Benjamin Netanyahu’s sixth government. The Likud leader became Israel’s prime minister once more, and one week later, Israel’s long-anticipated judicial counterrevolution began.
In the Knesset Wednesday, newly minted Justice Minister and Netanyahu confidant Yariv Levin unveiled a package of proposed legislation that would alter the balance of power between Israel’s legislature and its Supreme Court.
At the core of this plan is a bill to allow the Knesset to override the Supreme Court. Levin’s proposals — which almost certainly have the immediate support of a Knesset majority, regardless of Levin’s assurances that they would be subject to “thorough debate” — would pave the way for Israel’s new government to pass legislation that curtails rights and undermines the rule of law, dealing a blow to Israeli democracy.
The dire implications of this proposed judicial reform are rooted in key characteristics of the Israeli political system that set it apart from other liberal democracies. Israel has no constitution to determine the balance of power between its various branches of government. In fact, there is no separation between Israel’s executive and legislative branches, given that the government automatically controls a majority in the parliament.
Instead, it has a series of basic laws enacted piecemeal over the course of the state’s history that have a quasi-constitutional status, with the initial intention that they would eventually constitute a de jure constitution.
Through the 1980s, the Knesset passed basic laws that primarily served to define state institutions, such as the country’s legislature and electoral system, capital and military. In the 1990s, there was a paradigm shift with the passage of two basic laws that for the first time concerned individuals’ rights rather than institutions, one on Human Dignity and Liberty (1992) and the other on Freedom of Occupation (1994). These laws enshrined rights to freedom of movement, personal freedom, human dignity and others to all who reside in Israel.
Aharon Barak, the president of Israel’s Supreme Court from 1995 to 2006, argued that these laws constituted a de facto bill of rights, empowering the court to review Knesset legislation and to strike down laws that violate civil liberties, a responsibility not explicitly bestowed upon the court in the basic law pertaining to the judiciary. In 1995, the Supreme Court officially ruled that it could indeed repeal legislation that violates the country’s basic laws, heralding an era of increased judicial activism in Israel in what became known as the “judicial revolution.” The court has struck down 20 laws since, a fairly modest number compared to other democracies.
The judicial revolution of the 1990s shifted the balance of power in Israel’s political system from one of parliamentary sovereignty, in which the Knesset enjoyed ultimate power, to one in which the legislature is restricted from violating the country’s (incomplete) constitution. Israel’s Supreme Court became a check on the legislative branch in a country that lacks other checks and balances and separations of power.
As a result of these characteristics, the Supreme Court currently serves as one of the only checks on the extraordinary power of Israel’s 120-member Knesset — which is why shifting that balance of power would have such a dramatic impact on Israel’s democracy.
Levin’s proposed judicial overhaul includes several elements that would weaken the power and independence of Israel’s Supreme Court. The plan includes forbidding the Supreme Court from deliberating on and striking down basic laws themselves. It would require an unspecified “special majority” of the court to strike down legislation, raising the threshold from where it currently stands.
Levin has also called for altering the composition of the selection committee that appoints top judges to give the government, rather than legal professionals, a majority on the panel. It would allow cabinet ministers to appoint legal advisors to act on their behalf, rather than that of the justice ministry, canceling these advisors’ role as safeguards against government overreach. Should a minister enact a decision that contravenes a basic law, the ministry’s legal advisor would no longer report the violation to the attorney general, and would instead merely offer non-binding legal advice to the minister.
The pièce de résistance is, of course, the override clause that would allow the Knesset to reinstate laws struck down by the Supreme Court by 61 members of Knesset, a simple majority assuming all members are present. The sole restriction on this override would be a provision preventing the Knesset from re-legislating laws struck down unanimously, by all 15 judges, within the same Knesset term.
This plan’s obvious and most immediate result would be the effective annulment of the quasi-constitutional status of Israel’s basic laws. If the Knesset’s power to legislate is no longer bound by basic laws, these de facto constitutional amendments no longer have any teeth. There are no guardrails preventing any Knesset majority from doing as it wishes, including violating basic human rights. The Knesset could pass laws openly curtailing freedom of the press or gender equality, for example, should it choose to do so.
This counterrevolution, in effect, goes further than merely undoing what occurred in the 1990s.
Most crucially, the Knesset that would once again enjoy full parliamentary sovereignty in 2022 is not the Knesset of Israel’s first four decades. Shackling the Supreme Court is essential to the agendas of the new government’s various ultra-right and ultra-religious parties. For example, the haredi Orthodox parties are eager to re-legislate a blanket exemption to the military draft for their community, which the court struck down in 2017 on the grounds that it was discriminatory. They also have their sights on revoking recognition of non-Orthodox conversions for immigrants to Israel, undoing a court decision from 2021.
The far-right, Jewish supremacist parties of Bezalel Smotrich and Itamar Ben-Gvir, meanwhile, see an opportunity to deal a decisive blow to an institution that has long served as a check on the settlement movement. They hope to tie the court’s hands in the face of oncoming legislation to retroactively legalize settlements built on private Palestinian land, which are illegal under Israeli law. But this is only the beginning: Neutering the authority of the court could pave the way for legal discrimination against Israel’s Arab minority, such as Ben-Gvir’s proposal to deport minorities who show insufficient loyalty.
The timing of Levin’s announcement Wednesday could not be more germane. The Knesset recently amended the basic law to legalize the appointment of Aryeh Deri, the Shas party leader who is serving a suspended sentence for tax fraud, as a minister in the new government. The Supreme Court convened Thursday morning to hear petitions against his appointment from those arguing that it is “unreasonable” to rehabilitate Deri given his multiple criminal convictions, a view shared by Israel’s attorney general. Levin’s proposals would bar the court from using this “reasonability” standard.
The Israeli right has long chafed at the power of the Supreme Court, which it accuses of having a left-wing bias. But a judicial overhaul like this has never enjoyed the full support of the government, nor was Netanyahu previously in favor of it. Now, with a uniformly right-wing government and Netanyahu on trial for corruption, the prime minister’s foremost interest is appeasing his political partners and securing their support for future legislation to shield him from prosecution.
In a system where the majority rules, there need to be mechanisms in place to protect the rights of minorities — political, ethnic and religious. Liberal democracy requires respect for the rule of law and human rights. Yariv Levin’s proposals to fully subordinate the Supreme Court to the Knesset will concentrate virtually unchecked power in the hands of a few individuals — government ministers and party leaders within the coalition who effectively control what the Knesset does. That those individuals were elected in free and fair elections is no guarantee that the changes they make will be democratic.
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The real anti-Zionists are at the highest levels of the Israeli government
The fact that about half of young American Jews favor replacing Israel with a binational Israeli-Palestinian state is indeed a result of anti-Zionism — but not necessarily their own.
Instead, it’s a consequence of the Israeli government’s drive to radically increase Israeli control over the West Bank and Gaza. By ensuring that some 5.5 million Arabs increasingly live under Israel authority, Israel’s leaders have created the demographic reality of a binational state.
We can’t blame young American Jews for just acknowledging reality. Instead, it’s time to acknowledge that a movement to undermine Zionism has taken hold within the Israeli government.
If Zionism is the movement for a secure homeland for the Jews, then any forces that reject or undermine that homeland’s legitimacy or security are anti-Zionist. That includes the people whose positions and policies actively undermine the existence of a Jewish homeland.
The democratic Jewish state enshrined in the country’s Declaration of Independence has given way to something that looks a lot more like a herrenvolk democracy, in which democratic rights apply only to the dominant ethnic group. History has many examples of such arrangements, and — spoiler alert — they don’t end well for the majority. French Algeria until 1962, Rhodesia until 1980, South Africa until 1994 — all eventually faced one of three fates: negotiated transition to full democracy, violent collapse or ongoing instability and international isolation. To date, none have stabilized permanently.
Just recently Israeli Prime Minister Benjamin Netanyahu boasted that Israel will soon control 70% of Gaza, well beyond the 53% allotted to the country in the Gaza ceasefire framework to which Israel is still supposed to adhere.
When an audience member at his talk shouted out that Israel should take 100% of Gaza, Netanyahu responded, “First 70%. We’ll start with that.”
Then there’s the West Bank, where settlers tried to expel 2,000 Palestinians from a village south of Nablus earlier this month, and where settlers and an IDF soldier wounded nine Palestinians on a June 5 rampage through Hawara.
Since Oct. 7, 2023, Israel has established at least 59 new illegal outposts in the West Bank — compared to an annual average of seven in the preceding three decades. It has appropriated a record amount of land, and displaced more than 8,700 Palestinians through demolitions and settler violence.
There’s also East Jerusalem, where some Israeli Jews are actively trying to remove 20,000 Palestinians from the Silwan neighborhood.
Each act of seizure, harassment and expulsion is anti-Zionist. These Palestinians will not fade into Egypt or Amman or Los Angeles. Mass expulsion isn’t happening, and neither is mass immigration. A Jewish state is giving way to a state that is effectively equal parts Arab and Jewish — except the Jews have all the rights. As the anti-Zionists in the Israeli government seize control of more Palestinian land, they undo all of Zionism’s hard-fought gains. A nondemocratic Jewish state will be neither safe nor secure.
If this sounds like diasporic Jewish garment-rending over morality and Jewish values, it’s not. The people who live in a fantasy world are not those who point out the necessity of finding a way toward coexistence, but those who think Israel can survive and flourish if it trashes its founding principles and its democracy.
Logic and history are not on Israel’s side. No minority- or bare-majority-rule system over a large disenfranchised population has proved durable. I know from my many conversations with my fellow Jews who support a “Greater Israel” incorporating Gaza and the West Bank — or just want to ignore or get rid of Palestinians — that they think time, power or God will bend the iron laws of demography in Israel’s favor. History would beg to differ.
But what about the Palestinians, you might ask: don’t they bear responsibility? For decades of rejectionism and terror? For elevating kleptocratic and ineffective leaders? For glorifying violence and cheering on Hamas in its slaughter, kidnapping and rape of Israeli civilians on Oct. 7, 2023? For wanting, as many of them do, an end to Jewish sovereignty in the land?
Yes. Palestinian rejectionism and embrace of violence has been a disaster for Jews, as well as for generations of Palestinians. But those facts don’t change the demographic reality.
Of Americans Jews under 35, 51% support a binational state, according to a recent Jewish Voters Research Center poll. What they see is that there are 15 million people between the Jordan River and the Mediterranean Sea. About half of them are not Jews, much less Zionists, and one government is not just intent on holding and controlling all that territory, but well on its way to doing so. If a binational state already exists in practice, the best hope for the region, these young people are saying, is to accept that fact, and direct all our efforts toward making that state just.
They may be completely mistaken about the chances of that happening peacefully or even in their lifetimes, but they’re not the ones who got us to this point. The ongoing settlement of territories with a vast non-Jewish majority was the most anti-Zionist thing Israel could have done, and continues to do, and yet here we are.
The Jewish communal obsession with policing who is and isn’t a Zionist misses the larger point. The State of Israel exists. What’s in question is its character — whether it will be democratic and secure, or calcify into something modern history has repeatedly shown the world rejects.
Land comes with people, and demographics is destiny. A government intent on holding and controlling all the territory between the river and the sea is undermining Zionism from within.
The post The real anti-Zionists are at the highest levels of the Israeli government appeared first on The Forward.
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‘Odessa’ wants to use your empathy against you
The short film Odessa begins with what its director Harald Swinkels calls an “empathy trap.”
The film opens with a German couple and their young son hiking across the Dolomites; the woman seems anxious, the man much more energetic. They approach a church, where they are greeted suspiciously by the twins who take care of it, until they say the passcode: “Odessa.” They later try the codeword again with an innkeeper — but this time they are sent running as she calls on the village to attack them. It’s a heart-pounding scene as the family the viewer has been so closely tied to runs for their lives from a loud, angry mob.
Interspersed through the scenes of the family’s flight are blurry white and black clips of a hazy figure approaching a camera. Even with the obscured shot, the viewer can make out train tracks and recognize the setting as a concentration camp, a flashback to the world they’re leaving. It feels like your typical Holocaust film, showing the risks Jewish refugees faced at every turn and the way the trauma of the camps haunted them.
At the end of the film’s 20-minute run, however, the shadowy figure finally comes into focus. It’s the husband, but not in the striped clothes of a camp prisoner: He’s wearing an SS uniform and ordering twins to be placed in a separate line. He’s Josef Mengele.
“People take first impressions as character,” Swinkels told me in an interview. “That’s not character. You should look behind that.”
Contemporary politics inspired Swinkels, the founder of the Dutch production company Exosphere, to make the film.
“One of my most conservative friends started arguing that ‘these people’ should be kept in their own region, as he called it, and certainly not taken in by us,” Swinkels said, of debates over Syrian immigrants in the Netherlands. “And then we had this discussion about if you would feel the same about these refugees, if they look like him and me.”
Wanting to make a film about Northwestern Europeans fleeing led Swinkels to think about World War II. After an election in Denmark resulted in a right-wing shift in politics, he also became interested in exposing how charisma can hide someone’s darker nature.
Swinkels had long been interested in Josef Mengele, but when he discovered the Nazi’s duplicitous relationship with the kids in Auschwitz — survivors have testified that Mengele would bring them candy in order to gain their trust — that solidified him as the main character. The film features a quote from a Jewish prisoner forced to work for Mengele, Miklós Nyiszli, stating that the doctor “was capable of being so kind to the children” as he prepared to torture them and send them to their deaths.
“Arendt once called it the banality of evil,” Swinkels said. “But with Mengele, it’s even more dangerous because it’s the charm of evil.”
The bread crumbs leading to the family’s true identity are there for history buffs. Over the course of the film, we slowly learn their names — Josef, Irene, and Reif. “Odessa” was the American name for Nazi’s underground escape networks, although there is no historical consensus that this term was used by the Nazis or was an actual organization.
But the clues are easy enough to miss — by the time the audience learns these details, we have already formed assumptions that the protagonists of the story are likely Jews or members of another group persecuted by the Nazis.
The fact that Mengele had darker features and his wife had fairer ones adds another misleading layer. At one point, the wife abandons the journey and insists that it’ll be safer for the son to stay with her while the husband flees. It seems as though this is because she is Aryan and the husband isn’t. But, as it turns out, it’s because he is a wanted war criminal.
The short film also nods to a few other historical figures. One of the brothers at the church is named Alois, in reference to Alois Hudal, an Austrian Catholic Bishop who was a Nazi sympathizer and aided in the escape of several Nazi leaders, including Adolf Eichmann. He did not have a twin brother in real life, but this detail alludes to Mengele’s fascination with twins.
The inn-keeper who sets the village after the family, Frau Scholl, is named after Sophie Scholl, a member of the White Rose Nazi-resistance group, hinted at by white roses outside of her house in the film. They even shot the film in the Dolomites, the same mountain range Mengele crossed during his escape.
Swinkels noted that details like this can be easy to miss. “But I think you can still feel it, that we put so much detail in the film to make all these kinds of historical references,” he said.
He hopes that the film makes viewers think more carefully about charismatic figures.
“History has taught us that monsters don’t come dressed as monsters,” Swinkels said. “They come as protectors, visionaries, or loving fathers. And by the time we find that truth, it’s most often too late.”
“If a viewer walks out of Odessa and looks a little bit harder at the next person who charms them, and even better at the next person they’re about to vote for, then the film will have fulfilled its purpose.”
The short film Odessa is showing at the Tribeca Film Festival on June 13.
The post ‘Odessa’ wants to use your empathy against you appeared first on The Forward.
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Graham Platner, anti-Israel progressive, locks up Democratic Senate nomination in Maine
(JTA) — Graham Platner, the anti-Israel progressive who took Maine’s political establishment by storm this spring, has officially prevailed in his state’s Democratic Senate primary.
Multiple news outlets called the race within 90 minutes of the polls closing, with only a fraction of the votes counted.
The victory was seen as a foregone conclusion after Platner’s primary opponent, Gov. Janet Mills, suspended her candidacy in late April, saying her campaign could not afford to continue.
Still, the final tally suggested that not all Mainers had embraced the political neophyte whose campaign was dogged by controversies, including the revelation that Platner had a Nazi Totenkopf tattoo on his chest for nearly two decades until he drew criticism for it on the campaign trail. He denied knowing it was a Nazi symbol.
Mills, who remained on the ballot, drew about one in five votes in the first 10% of ballots counted, according to the tally published by The New York Times.
The result sets Platner up to face off in November against incumbent Republican Sen. Susan Collins, who has received substantial support from pro-Israel donors. The latest polls suggest a tight race.
“I’m humbled and proud to officially be your Democratic nominee for the U.S. Senate to take on Susan Collins and the billionaire class she represents. Together, we will win this seat back for working Mainers,” Platner tweeted on Tuesday night. “Thank you, Maine.”
While Democratic leaders officially threw their support behind Platner after Mills halted her campaign, many of them remained circumspect about him. Their balancing act grew more delicate in the final days of the primary race, as Platner drew allegations of antisemitism over his characterization of donations channeled to Collins by the pro-Israel lobby AIPAC and as he faced new allegations of misconduct toward women. (He said he had been a “far from perfect boyfriend” during some periods of his life but denied engaging in misconduct.)
Now, top Democrats will have to decide how hard to gun for Platner, who has become a standard-bearer in the party’s anti-Israel shift at a time when the chamber is narrowly divided.
They are already facing pressure to disavow him. “Chuck Schumer, the highest-ranking Jewish elected official in America, and every Senate Democrat propping up Platner’s campaign, should be ashamed,” the Republican Jewish Coalition said in a statement after the polls closed. “Their continued support of Graham Platner, who wore the symbol of Hitler’s SS on his chest for 18 years is an outrage. Schumer must withdraw his support immediately.”
This article originally appeared on JTA.org.
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