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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 post Israeli democracy may not survive a ‘reform’ of its Supreme Court appeared first on Jewish Telegraphic Agency.
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Debating Zionism is good for Jews, actually
A group of Jewish Theological Seminary students were furious with the chancellor’s position on Jewish statehood. In protest, they draped flags around campus before graduation, which the administration removed before the ceremony.
The year was 1948. The flags were Israeli. And the dissenting students were protesting Chancellor Louis Finkelstein’s refusal to make support for Jewish statehood part of academic commencement. Some students even arranged for the bells at nearby Union Theological Seminary to play “Hatikvah,” the Israeli national anthem, after JTS officials declined to include it in commencement.
As a historian of American Zionism, I have been thinking about that episode while reading the many vitriolic reactions to a few JTS undergraduates who spoke out in opposition to the seminary’s decision to welcome Israeli President Isaac Herzog as this year’s graduation speaker. Once again, a JTS commencement has become a battleground over Israel, but the sides are now reversed.
Reasonable people can disagree about whether this was the right moment to extend an invitation to Herzog to speak at commencement. What deserves attention is the outraged reaction to a group of students raising objections, and the speed with which those students’ concerns have been cast as a deviation from the historical contours of mainstream American Jewish politics.
A recent Times of Israel blog post, for example, argued that the mere fact that JTS students raised concerns about Herzog was a rupture with Judaism. “Jewish survival without sovereignty is fragile,” wrote the author, Menachem Creditor, adding that “the founders of JTS did not need to debate the necessity of Jewish self-determination,” and that Herzog “represents the state of Israel and the Jewish people.”
These claims erase JTS’s long and sophisticated engagement with Jewish nationalism and the conception of Jewish peoplehood. Reading American Zionism backward risks collapsing peoplehood and statehood, and creating traditions to ratify present assumptions out of a past that never existed.
The relationship between Zionism and JTS was nuanced from the start. Both founding president Sabato Morais and the seminary’s third chancellor, Cyrus Adler, opposed Zionism on religious grounds. Morais believed the restoration of Jewish sovereignty could only come through divine intervention at the dawn of a messianic era. Adler thought of the growth of a non-religious community in the land of Israel “as the greatest misfortune that has happened to the Jews in modern times.”
Solomon Schechter, as chancellor, brought a measure of support for the Zionist movement to JTS; shaped by the cultural Zionism of Ahad Ha-am, Schechter insisted that Zionism transcended statehood. Its primary aim, he argued, was the national regeneration of global Judaism, not the creation of a secular state that would hollow out Jewish life from within.
And the controversies over the 1948 graduation exercises revealed how far Louis Finkelstein stood from political Zionism, even after the establishment of Israel. Where some Zionists celebrated sovereignty, Finkelstein remained focused on the Jewish character of the land and its people. That orientation drew him toward Judah Magnes’s binational vision — that of a federated framework in which Jews and Arabs would each hold recognized rights and a measure of national autonomy within a single shared political entity.
This reticence to conflate Judaism, Zionism and Jewish sovereignty was not limited to the seminary’s chancellors.
Henrietta Szold, JTS’s first female student, a central figure in its intellectual orbit, and the founder of Hadassah, similarly supported a binational vision from her new home in Jerusalem. Mordecai Kaplan — a longtime JTS faculty member, committed Zionist, and one of the most influential American Jewish thinkers of the 20th century — expressed concern throughout his career about the mistake of equating Jewish nationhood with Jewish statehood. In Judaism as a Civilization, he called for a “more ethical conception of nationhood fundamentally as a cultural rather than as a political relationship.”
After Israel’s founding, Kaplan went further, arguing to David Ben-Gurion in 1958 that “the basic assumption that the state of Israel is a Jewish state is itself open to question.” The Israeli government’s task, he insisted, was to establish “a modern state, not a Jewish state, an Israeli state, not a Jewish state.”
These questions did not disappear even as JTS evolved under new leadership.
Gerson Cohen, whose chancellorship beginning in 1972 marked a shift toward a more pro-statist posture, embraced the state’s significance for Jewish life and identity in ways his predecessors had not. Yet even Cohen insisted that commitment to Judaism must rest “not on political statehood or upon geography but solely on the idea of covenant and commitment to ethos.” He argued that a flourishing diaspora was a necessity for Jewish civilization as a whole, not adjunct to Israeli interests.
His successor, Chancellor Emeritus Ismar Schorsch, was more direct, saying in a recent warning that Jews must ensure that “Judaism qua religion is not submerged and shredded by the power of the Jewish state.”
One can disagree with any of these perspectives. In fact, the disagreement itself is the point.
The leaders who built JTS debated Jewish self-determination, Zionism and statehood while living through the Holocaust, the collapse of European Jewish life, existential danger in Palestine, and the precarious birth of the state of Israel. They were not naïve about antisemitism, indifferent to Jewish survival, or ignorant of Jewish sources. Nor were they unsophisticated about Zionism.
Instead, they offered a more demanding account of Zionism: one that affirmed a Jewish homeland and insisted that Jewish power remain answerable to Jewish ethics, all without diminishing Jewish life in the diaspora.
This is precisely the perspective that has been crowded out of our contemporary discourse, not because these questions were answered, but because the space to ask them has collapsed. As the boundaries of acceptable Zionist discourse have narrowed, issues that arose from within Zionism itself — the potential dangers of equating the Israeli state with the Jewish people, the risks of elevating political statehood above other ethical and communal commitments, and the need to have diaspora Jewish life be seen as carrying independent religious and moral weight — have come to be treated as anti-Zionist rather than part of a living internal debate.
The furor over the JTS undergraduates’ letter objecting to Herzog is a troubling sign that, across American Jewish life, it has become harder to think honestly about the risks of treating support for the state of Israel not merely as a Jewish commitment, but as one that takes precedence over other all other Jewish commitments. When the past is rewritten so that the equation of peoplehood and statehood appears inevitable, American Jews are left with a false choice: either embrace the state as an unquestioned and unquestionable expression of Jewish identity, or abandon Jewish life altogether.
JTS has offered its students a richer education because, in its halls, the relationship between the Jewish people and the Jewish state has been debated and contested. That discourse is not a failure of Jewish commitment, but an expression of it. The sustained engagement with the hardest questions of Zionism is one of the best things JTS has given American Jewish life, and one of the most important gifts it still has to offer.
The post Debating Zionism is good for Jews, actually appeared first on The Forward.
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ICC Prosecutor Karim Khan Sidesteps ‘Genocide’ Accusations Against Israel
International Criminal Court Prosecutor Karim Khan speaks during an interview with Reuters in The Hague, Netherlands, Feb. 12, 2024. Photo: REUTERS/Piroschka van de Wouw
Karim Khan, the embattled chief prosecutor of the International Criminal Court (ICC), has cast fresh doubt on accusations that Israel committed “genocide” in Gaza, arguing in a new interview that no legal conclusion has yet been reached in the ongoing legal battle.
In a lengthy interview with anti-Israel journalist Medhi Hasan this week, Khan refused to engage in the popularized rhetoric labeling Israel’s military campaign against Hamas terrorists in Gaza as genocidal, even as pressure mounts on the ICC by activists to pursue more sweeping charges against Israeli officials.
When asked directly whether Israel’s conduct amounted to genocide, Khan emphasized the need for sufficient evidence to level charges against Israeli officials and that prosecutors must follow evidence and legal standards rather than political narratives.
“So, you’re not ruling out that there could be a warrant in the future?” Hasan asked.
“Everything is a function of evidence,” Khan responded, arguing that accusing Israel of genocide for political purposes would be “reckless.”
“You’re saying in the past three years there hasn’t been evidence of genocide in Gaza?” Hasan asked, visibly flummoxed.
Khan lamented the “suffering” in Gaza but reaffirmed that the ICC could not proceed in making final judgements about the nature of Israel’s military operations in Gaza without sufficient evidence. He asserted that officials within the ICC are vigorously analyzing the case and that he cannot reveal more about the nature of the investigation.
“So, genocide is not off limits?” Hasan pressed.
“No crime is off limits if the evidence is there,” Khan responded.
Khan has come under fire for making his initial surprise demand for arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his former defense minister, Yoav Gallant, on the same day in May 2024 that he suddenly canceled a long-planned visit to both Gaza and Israel to collect evidence of alleged war crimes. The last-second cancellation reportedly infuriated US and British leaders, as the trip would have offered Israeli leaders a first opportunity to present their position and outline any action they were taking to respond to the war crime allegations.
Nonetheless, Khan’s latest remarks are likely to reverberate through international legal and diplomatic circles, where the genocide accusation has become one of the most contentious aspects of the war between Israel and Hamas. Over the past two years, an array of humanitarian organizations and human rights experts have accused Israel of “genocide” in Gaza. These accusations have been controversial and widely contested, with critics alleging these groups and individuals lack sufficient evidence.
Khan’s comments come as the ICC faces intense scrutiny over its investigation into the conflict. In November, the ICC issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu, his former defense minister, Yoav Gallant, and now-deceased Hamas terror leader Ibrahim al-Masri (better known as Mohammed Deif) for alleged war crimes and crimes against humanity in the Gaza conflict. The ICC said there were reasonable grounds to believe Netanyahu and Gallant were criminally responsible for starvation in Gaza and the persecution of Palestinians — charges vehemently denied by Israel, which has provided significant humanitarian aid into the war-torn enclave throughout the war.
US and Israeli officials issued blistering condemnations of the ICC move, decrying the court for drawing a moral equivalence between Israel’s democratically elected leaders and the heads of Hamas, the Palestinian terrorist group that launched the war in Gaza with its massacre across southern Israel on Oct. 7, 2023.
Israel says it has gone to unprecedented lengths to try and avoid civilian casualties, noting its efforts to evacuate areas before it targets them and to warn residents of impending military operations with leaflets, text messages, and other forms of communication.
Another challenge for Israel is Hamas’s widely recognized military strategy of embedding its terrorists within Gaza’s civilian population and commandeering civilian facilities like hospitals, schools, and mosques to run operations and direct attacks.
The ICC has no jurisdiction over Israel as it is not a signatory to the Rome Statute, which established the court. Other countries including the US have similarly not signed the ICC charter. However, the ICC has asserted jurisdiction by accepting “Palestine” as a signatory in 2015, despite no such state being recognized under international law.
Genocide is among the most difficult crimes to prove under international law because prosecutors must establish specific intent to destroy, in whole or in part, a national, ethnic, racial or religious group.
Hasan, one of the most prominent anti-Israel critics in media, has spent the past two years unleashing an unrelenting barrage of criticism against the Jewish state, repeatedly accusing the Israeli military of pursuing a “genocide” in Gaza.
In the interview, Khan also forcefully denied allegations of sexual misconduct that have engulfed his office in recent months, accusing critics of politicizing the claims amid the ICC’s high-profile investigations into Israel, Russia, and other global conflicts. He dismissed suggestions that his pursuit of Israeli leaders was intended to distract from the allegations against him, saying that he did not have evidence to substantiate the claim.
Khan further alleged that senior Western officials attempted to pressure the ICC over its investigation, including what he described as warnings from prominent American and British political figures about the geopolitical consequences of targeting Israeli officials.
The ICC’s investigation has placed the court at the center of an increasingly bitter international divide over the Gaza war. Khan’s comments won’t settle the debate, but the ICC prosecutor appeared to signal a more cautious legal approach than some of Israel’s fiercest critics have demanded.
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UK Police Charge Two Men in Connection with Filming Antisemitic TikTok Videos
The TikTok logo is pictured outside the company’s US head office in Culver City, California, US, Sep. 15, 2020. Photo: REUTERS
British police have charged two men with religiously aggravated harassment offenses after they were alleged to have traveled to a Jewish area of north London to film antisemitic social media videos.
The two men, Adam Bedoui, 20, and Abdelkader Amir Bousloub, 21, are due to appear at Thames Magistrates’ Court, a statement from the Crown Prosecution Service said on Saturday.