Have the Judicial Reform Protests in Israel Crossed the Line?Published on: 9.3.2023
Photo: Save Israel’s democracy protest – (Reuters)
By: David Parsons, ICEJ Vice President & Senior Spokesman
The heated dispute in Israel over judicial reforms reached fever pitch this week when a group of IAF pilots announced they would refuse to show up for reserve duty and were quickly backed by every former Israeli air force chief still living today. Given the importance of the Israeli army and especially the air force to Israel’s defense, such protests could seriously hamper the IDF’s capabilities right when Iran is poised to cross the nuclear threshold.
As I suggested back when the new government assumed power last December and made judicial reform its top priority, this bitter battle has quickly made everyone long for the ‘good old days’ of political deadlock and indecisive elections. And now it is even threatening to ruin Israel’s 75th anniversary celebrations.
THE ROILING dispute centers around the Right’s sense that for three decades now Israel’s self-appointed liberal judiciary has over-reached in usurping power over the elected Knesset and government, and the Left’s sense that the government’s package of judicial reforms now being rushed into law are an over-reach in the other direction.
The debate has an added emotional edge due to the fact that Israeli Prime Minister Benjamin Netanyahu, who previously opposed many of these proposed reforms, is rushing ahead to pass them, giving even some on the Right an uneasy feeling it may be to help him gain a personal advantage in his ongoing corruption trials.
No doubt, both sides are playing a game of brinksmanship right now. Even though there is no urgency, Netanyahu’s coalition is trying to push the bills to a final reading and vote before the Knesset takes its Passover break in early April.
The Left, in turn, has escalated their opposition to a five-alarm fire, insisting this is an attempted “coup” and “dictatorship” which is destroying Israeli democracy. Elite pilots and intelligence officers are refusing to go in for reserve training, while Netanyahu even had trouble finding someone to fly him to Italy for an official visit. Worst of all, some voices are even calling on Diaspora Jews to disown and disinvest from Israel. This has provoked charges from the Right that the “unpatriotic” Left is committing “sedition” and “treason.”
To borrow a line from Shakespeare’s Hamlet, “Me thinks they all do protest too much!”
THE VAST majority of Israelis agree that some measure of judicial reforms are needed, but they should be balanced and reached through broad consensus. President Isaac Herzog has offered a path to compromise, and quiet negotiations are taking place under his auspices, but they are being kept under careful wraps and it is not even clear who is taking part in the talks. Most remain optimistic that a middle ground will eventually be found, though the bickering seems to get worse every day.
The dispute quickly escalated when the Supreme Court ruled in January that Netanyahu had made an “extremely unreasonable” decision to appoint Aryeh Deri as a cabinet minister in light of his recent plea bargain on tax evasion charges. The unelected Court telling the elected Prime Minister who can be in his cabinet was the last straw for the new government, and they accelerated the timetable for passing their judicial reform agenda.
Ironically, Aryeh Deri was at the center of a similar ruling in 1993, when he was a key member of prime minister Yitzhak Rabin’s coalition. Rabin was struggling to hold his government together to keep the fledgling Oslo peace process on track, and he stood to lose Deri’s party Shas because he was about to be indicted for bribery and public fraud. So, Rabin decided to wait until Deri was formally charged before dismissing him.
However, a citizen’s petition filed with the High Court opened the door for Justice Aharon Barak – the champion of judicial hyper-activism – to rule that Rabin was being “unreasonable” in his decision and he must dismiss Deri immediately. This was a major first step in the judicial branch’s efforts to invent for itself the authority to overrule Knesset laws and government decisions.
This power move by the liberal elite is now being met by reactionary elements on the Right who want to appoint more conservative judges and severely limit the courts’ ability to annul laws and veto cabinet decisions. This has triggered protests against the judicial overhaul that some say are setting dangerous new precedents and crossing red lines.
IDF SOLDIERS and reservists of all political stripes have certainly staged protests before. For instance, some on the Left have refused to carry out house demolition orders against the families of Palestinian terrorists, while on the Right some soldiers refused to pull Jewish families from their homes during the painful Disengagement in 2005. Somehow, the Israeli army has always managed to navigate these issues and accommodate the conscientious objections of individual soldiers.
But this week’s pilots protest has brought to the fore very real concerns about the strength, unity and readiness of the IDF, as well as how the judicial reforms now under consideration could expose Israelis to international ‘war crimes’ charges.
Israeli pilots are especially vulnerable to such charges, as they carry out precision missions with highly explosive armaments that could easily inflict massive collateral damage, all from the safety of a distant cockpit. Anti-Israel and antisemitic forces in the international arena are constantly seeking to drag them into the International Criminal Court in The Hague. For this reason, photos of IAF pilots often have their faces blurred to guard their identity.
So, the pilots who protested this week may have a legitimate beef that they could be in greater jeopardy if the judicial reforms are passed, especially by a government with radical far-Right figures like Itamar Ben-Gvir sitting in the cabinet.
This is why respected international jurists like Harvard law professor Alan Dershowitz and former Canadian justice minister Irwin Cotler have weighed in against the judicial reforms. As concerned Jews and proven supporters of Israel, they argue that Israel’s independent, liberal-minded judiciary is the “crown” of Israeli democracy, as it shields Israeli political and military leaders and soldiers from the wolves waiting to pounce on Israel in the international community. They have a point, especially with a permanent probe against Israel underway at the UN Human Rights Commission, and similar actions pending at the World Court of Justice and International Criminal Court in Den Haag.
But the reform protests are starting to harm Israel in other ways. Internally, they are weakening the nation’s accepted social compact on the duty of all families to send their sons and daughters to defend the country and obey orders. In addition, the IDF needs its best units, including pilots and intelligence analysts, in top form if they want to confront the urgent Iranian nuclear threat. The protests also are harming Israel externally, as her enemies need only point to the Left’s criticism that Israel’s democracy is being trampled asunder.
TRUTH BE TOLD, Netanyahu and his government are not choking the life out of Israeli democracy, and this is not a “putsch.” We are far from that! But the debate is heated, emotions are high, the issues are serious and complex, and everyone is voicing their opinion – which means Israel’s vibrant democracy is working.
Hopefully, there are enough leaders on both sides who will urge calm and convince everyone else that it is time to compromise. Press reports indicate there indeed are several members of Netanyahu’s own Likud party who want to resolve this national crisis by building a broad consensus around a set of common sense judicial reforms. Modern Israel has spent 75 years now facing one crisis after another, and always seems to come out better. Let’s pray they can truly celebrate these accomplishments together not many days hence.