Analysis

Before Dismantling Democracy, Israeli Right Breaks Rule of Law

Police probe of Breaking the Silence spokesman is part of overall campaign to politicize Israel’s legal system

Justice Minister Ayelet Shaked speaks with fellow Habayit Hayehudi party member Bezalel Smotrich, March 2017.
Olivier Fitoussi

A few weeks ago, Justice Minister Ayelet Shaked called on Israel’s attorney general to investigate claims made by Dean Issacharoff, the spokesman of anti-occupation group Breaking the Silence, about an incident during his army service in which, by his own admission, he beat up a Palestinian detainee.

Two weeks later, the investigation was launched. The State Prosecutor’s Office denied any connection between Shaked’s call and the decision to launch an investigation but if you believe that, I’ve got a great bridge to sell you.

Shaked has no legal standing to ask for an investigation. While the function of justice minister entails some administrative control of Israel’s legal apparatus, it has no authority in matters relating to actual investigations and prosecutions. Nonetheless, Shaked used her position to press for an investigation of a dissident group that she and her Habayit Hayehudi  party, along with much of Benjamin Netanyahu’s government, routinely describe as traitors who must be silenced.

Shaked is being lauded on the far right and defended by purists who claim that Issacharoff’s “confession,” which should rightly be viewed as whistleblowing, merits an investigation in any case. Nonetheless, the mere appearance that police investigations are now being launched to settle political scores is a symptom of a democracy in decline.

Shaked’s improper intervention against the spokesman of Breaking the Silence is only the latest skirmish in the war that Netanyahu has declared on NGOs that oppose the occupation. He frequently describes Breaking the Silence and B’Tselem activists, who report on human rights abuses of Palestinians under occupation, as turncoats who serve Israel’s enemies.

He refuses to see foreign visitors who meet with Breaking The Silence and other dissident groups. He has supported laws that seek to curtail the tax-exempt status of civil society NGOs, has passed a law that requires them to report their foreign funding in every official communication and has now suggested banning them from receiving support from foreign governments altogether, a move he know will cripple them.

But when the German government compares such proposed legislation to identical anti-NGO laws that exist in Russia and China, Netanyahu and his cohorts wax indignant.

But Netanyahu, Shaked and their colleagues aren’t making do with suppressing NGOs. Their steps against Breaking the Silence and others are not an aberration. They are part and parcel of a comprehensive campaign being waged by Israel’s ruling coalition to seize control of the country’s legal system and to exploit it for political ends. Netanyahu and his colleagues are out to curtail judicial independence, suborn Knesset legislation to the right’s political agenda, inhibit public protest and demonstrations and stifle dissent.

Not only is Shaked openly jockeying to pack the Supreme Court with conservative judges, she has refused to confirm the appointment of its next president, ostensibly because of objections to its long-held custom of appointment by seniority, but in reality because the nominee, Judge Esther Hayut, does not conform to Shaked’s political views.

In a coordinated pincer movement, Netanyahu has signaled his own support for laws aimed at circumscribing the Supreme Court’s ability to nullify Knesset laws and to restrict the right of human rights NGOs to petition the Court on behalf of Palestinians in the West Bank, a move which seriously limit the court’s scrutiny of the occupation.

Under Netanyahu’s tutelage, his coalition has advanced laws that aim to “strengthen Israel’s Jewish identity” at the expense of its pluralistic and democratic character, sidelining and angering the country’s Arab minority in the process.  The Knesset has also approved an unprecedented law that enables it to expel its own parliamentarians by a 90-member majority, a sanction that everyone knows can and will only be used against Arab legislators.

It has also legislated measures that define support for a boycott on Jewish settlements in the territories as a cause for damages and as grounds to refuse entry to Israel. And the Knesset is increasingly extending its reach into the West Bank, circumventing the military authorities and legislating de-facto annexation.

Cabinet ministers are also using their administrative powers to chill expressions of dissent and to advance their political agendas.  Culture Minister Miri Regev threatens to cut off funding to art and culture she deems not sufficiently patriotic. Shaked’s party leader, Education Minister Naftali Bennett, injects religious indoctrination to elementary schools and floats suggestions for an “ethics code” in universities, which even right-wing academics describe as blatant politicization.

The list of proposed measures is nearly endless, with right-wing ministers and legislators competing against each other who can propose the most draconic anti-democratic measures, most of which are connected, one way or another, with either protecting Jewish settlements or silencing their opponents.  Netanyahu comes out against this or that proposal every once in a while, to keep up appearances, but then relents when outside pressure or media scrutiny abate.  The leftist dogs may bark, one Likudnik told me, but Netanyahu’s caravan keeps moving forward.

It is true that public opinion, which has shifted to the right after years of anti-leftist incitement, is hardly exercised by the assault on freedom of speech and the rule of law. This is not the case when it comes to the blatant procrastination of legal authorities in completing the investigations of Netanyahu’s suspected misdeeds and corruption, especially when compared to the swift and seemingly callous persecution of his convicted predecessor, Ehud Olmert.

Police probes of Netanyahu’s wrongdoings have proceeded at a snail’s pace, delayed for months on end by Attorney General Avichai Mendelblit, who previously served as Netanyahu’s close adviser and cabinet secretary. Protests against the foot dragging held near Mendelblit’s home in Petah Tikva have been quickly and often violently dispersed by the police and only High Court intervention prevented the police from barring the demonstrations altogether.

Some people believe that the tough police suppression of these protests is not unconnected to the fact that its commander is a former deputy head of the Shin Bet who does not seem to recognize the police’s role in securing civil liberties and who was reportedly promised the post of head of the Mossad if he does his job well, in Netanyahu’s eyes, of course.

But in inverse proportion to the lenience and patience shown to Netanyahu, the state’s legal authorities and the Israel Prison Service have come down harshly on Olmert. Just as his sentence was up for review for possible early release for good behavior, as is customary for all prisoners, the police suddenly launched an urgent investigation into alleged security violations by the former prime minister in connection with a book he’s been writing in prison.

In an unprecedented step, they even raided the Yedioth Ahronot publishing office, seizing materials connected to Olmert as well as – lo and behold – manuscripts of two unconnected books that purport to expose Netanyahu’s misdeed in connection with the purchase of German submarines and other alleged infractions.

Taken together, these actions by legal authorities and their political superiors have created deep unease on the Israeli left. By using the law to further their political ends, the Israeli right is now moving from the rule of law to what political theorists describe as rule by law. The right-wing usually dismisses these concerns, describing them as leftist hysteria or malicious defamation, but that’s neither here nor there, akin to white Southerners dismissing allegations of discrimination.

Broadly speaking, there are two schools of thought about the very concept of the rule of law. The formal approach emphasizes structural and procedural elements of the rule of law, devoid of moral considerations: by these standards, apartheid South Africa could also qualify as adhering to the rule of law.

The substantive approach views the rule of law as the infrastructure of freedom and democracy. According to the late British constitutional expert Ivor Jennings, "In a proper sense, rule of law implies a democratic system, a constitutional government where criticism of the government is not only permissible but also a positive merit and where parties based on competing politics or interests are not only allowed but encouraged. Where this exists, the other consequences of rule of law must follow."  Israel, by this standard, is rapidly moving in the other direction.

The concept of rule of law is problematic enough in a country that has maintained a military occupation over Palestinians for half a century. But even the imperfect model of democracy, freedom of speech and the rule of law that existed a few decades ago are now under siege. Instead of exporting democracy to the West Bank, Netanyahu and his coalition are increasingly importing repression into Israel proper.