Part 2 of 2
There Is Still a Chance for ReliefPerhaps reassuringly, most of the policy, procedural, and legislative proposals for fundamental changes to the Supreme Court or the judiciary have not been implemented or passed into law. The fact that so many government policies and legislation are challenged by citizens petitioning the Court reflects the existence of a robust opposition community in Israel. That community consists largely of NGOs and civil society watchdogs that focus on liberal democratic principles and civil and human rights; it also includes regular concerned citizens. Similarly, despite years of rhetorical abuse and accusations, the Israeli legal authorities continue to investigate, indict and try public figures—Netanyahu’s trial for corruption charges opened while he was still prime minister.
Shaked’s failure to advance most of the specific reforms she advocated, other than appointing conservative judges, earned her bitter attacks from voices on the far right, such as Mida.97 The recommendations law stipulating that the police cannot provide recommendations about an indictment based on their investigations into public figures passed in 2017; but following public protests the final version was watered down and was not made retroactive to apply to Netanyahu’s investigations.98
Whether due to political stability or his own qualms, Netanyahu did not advance a retroactive immunity law bolstered by an override clause against judicial review. His own position on the subject was unclear—he has publicly denied that he intended to advance these measures, but the media reported that he made such aims central to coalition negotiations.
Israel’s new government still has the power to halt and reverse some of the damage, but the future course is ambiguous.Israel’s new government still has the power to halt and reverse some of the damage, but the future course is ambiguous. Saar, the justice minister, hails from a lengthy political career serving under Netanyahu in the Likud, breaking away only months before the 2021 elections. He has insisted that he will advance judicial reforms, yet has clearly sought to portray a moderate, professional context for his program. In a careful inaugural speech, Saar explicitly distanced himself from the populist camp seeking to delegitimize the judiciary through “wild conspiracy theories,” and to destroy its independence.99 Saar nicknamed that camp “D9,” a term commonly known in Israel to refer to a bulldozer model, implying that its proponents would raze the legal system entirely. Saar contrasted them to the judicial “orthodoxy”—those who believe the judiciary is above criticism—and portrayed himself as a pragmatist between these two poles. Yet under the terms of the coalition agreement, if the government lasts, Shaked will return to the position of justice minister in 2023; at present she holds a key spot on the nine-member judicial appointment committee (which includes Supreme Court justices).
As this report has shown, the assault on the Supreme Court, other judicial agencies, and even the ambiguity over the authority of the law have historic roots that began well before Netanyahu. The modern incarnation of the judicial argument lives on through populist right-wing nationalist forces distributed throughout a range of social institutions, led by figures whose entire political program hinges on a compliant, subservient judiciary with little power to put human rights ahead of the nationalist agenda. Such figures may be all the more determined in their goals as a result of losing power with the formation of a new government in June 2021.
Further, the social impact of a legislative process does not dissipate if any one bill fails to pass into law. The media coverage, the public debate, and the advocacy for these changes all bolster the story the populist nationalist right wing has been telling: the judiciary is suppressing the true will of the people and suffocating society, and must be constrained. The vitriolic nature of the debate and the relentless repetition of the narrative have penetrated Israeli society. Laws and policies may not have been implemented yet, but groundwork is being laid in the public consciousness.100
The impact is already substantial. The Israel Democracy Index, an annual metric published by the IDI, shows a significant net decline in public trust in the Supreme Court since the Index began in 2003. The Court still enjoys the trust of the majority of the public—52 percent of Jews and 60 percent of Arabs in Israel, numbers that are still well above the trust the public has in politicians. But in 2003, more than 70 percent of respondents in both communities reported trusting the Court. Further, political polarization over the Supreme Court has never been so great. The 2020 index also showed that there were extreme gaps in the amount of trust that Israeli Jews put in the Court, depending on their political orientation. Those reporting left-leaning views were far more trusting than those in the center or on the right.101
In the same survey, only a minority of Israelis reported trusting the attorney general.102 There was also deep polarization on this question according to the political ideology of respondents. Similarly, 44 percent of Jews and just a third of Arabs in Israel trusted the police.103
The numbers are matched by alarming developments. Due to personal threats and incidents of vandalism, Supreme Court justices, the attorney general, and state prosecutors have all required security protection at various times; reportedly, the chief justice has a permanent security detail.104 In June 2020, two Supreme Court justices received right-wing threats within two days of one another.105 Following the announcement of Netanyahu’s indictment in November 2019, his supporters held a large demonstration in Tel Aviv focused almost entirely on key figures in the judiciary. The large majority were religious Jews, both ultra-Orthodox and national-religious, including settlers. The signs read like manifestos, accusing the judiciary of “hubris and breach of trust.” Others equated the exoneration of Netanyahu with the salvation of democracy, and were extremely specific in their demands regarding the judiciary: “change the method of choosing judges; establish an independent commission to oversee the state prosecutor; split the role of the attorney general; pass a Basic Law establishing separation of powers.” A sign in Hebrew and in French read “Democracy of the people, yes! Dictatorship of the judiciary, no! Israel is forever.”
The more the Israeli public internalizes the narrative against the Court, the more willing it will be to support judicial constraints in the future.The more the Israeli public internalizes these arguments, the more willing it will be to support judicial constraints in the future. The result will advance slow suffocation of judicial independence in the absence of a comprehensive, permanent constitutional order or protections. This is a grave concern in a country marked, from its beginnings, by undemocratic practices such as martial law and occupation, including the authority it has exercised over occupied territories since 1967. The collapse of constraints will give more leeway to right-wing forces to deepen policies that violate constitutional principles, and democracy itself.
It would be complacent and inaccurate to conclude that the threat subsided with the change of government and Netanyahu’s exit. The last decade should be understood as a critical phase in the erosion of democratic values and institutions, and very possibly a prelude to the next.
As a new government moves into power, there is no way to know if it will last or give way quickly to a resurgence of the right-wing forces led by Netanyahu or someone else. The new government represents a seesaw of parties, with the centrist party Yesh Atid at the fulcrum. The new justice minister is a right-wing former Likud member, but has portrayed himself as bringing the debate back to the professional arena, and out of the ring of conspiratorial populist arguments. If the discussion does not become more professional and measured, or if the farther-right returns to power, the impact on the judiciary will be dire.
The judicial system has not entirely been a bulwark sustaining liberal values, nor has it truly reined in occupation policies. But it is still the lynchpin of efforts in those directions. Anyone committed to making Israel more democratic should be disappointed that the judiciary has not been able to do more over the years, but devastated should this branch of government sustain mortal damage.
This report is part of “Transnational Trends in Citizenship: Authoritarianism and the Emerging Global Culture of Resistance,” a TCF project supported by the Carnegie Corporation of New York and the Open Society Foundations._______________
Notes1. This report uses “the judiciary” to refer to the judicial branch as a whole, and specifically those agencies under the rubric of the Ministry of Justice, including the Supreme Court, the attorney general, the state prosecutor, and sometimes law enforcement (which, however, is organized under a different ministry).
2. Dahlia Scheindlin, “Netanyahu, Indicted, Takes Israel’s Institutions Down with Him,” The Century Foundation, December 4, 2019,
https://tcf.org/content/commentary/neta ... titutions/.
3. In general, the institution is referred to here as “the Supreme Court,” but “High Court of Justice” is used when referring to specific cases when the Court ruled in that capacity.
4. “About the Supreme Court,” State of Israel, Judicial Authority, Supreme Court,
https://supreme.court.gov.il/sites/en/P ... rview.aspx.
5. In a highly pertinent insight, Pnina Lahav demonstrates that the Zionist anticolonial struggle prior to independence depended on a utilitarian view of the law to facilitate the Zionist cause and undermine colonial rule through, for example, illegal immigration and the revolutionary spirit. At the same time, she observes that the mandatory legal system did not include or even aspire to a separation of powers in the sense of liberal democracies. Pnina Lahav, “The Supreme Court of Israel: Formative years, 1948–1955,” Studies in Zionism 11, no. 1 (1990): 45–66.
6. “Constitution for Israel,” the Knesset,
https://knesset.gov.il/constitution/ConstIntro_eng.htm.
7. Alexander Kaye, The Invention of Jewish Theocracy: The Struggle for Legal Authority in Modern Israel ( Oxford: Oxford University Press, 2020), 73. (Chapter 3, in general, provides a comprehensive review of this phase.)
8. David Kretzmer, “The Constitutional Debate in Israel,” Constitutional Forum Constitutionnel 1, no. 1 (1989): 13.
9. Any given Basic Law might contain a specific “entrenchment” clause stipulating a higher threshold needed to overturn that specific law. Regular Knesset laws are determined on the basis of a majority of members present. (See “Basic Law- The Knesset—1958—Updated Translation,” Israel Ministry of Foreign Affairs,
https://www.mfa.gov.il/mfa/mfa-archive/ ... latio.aspx.
10. “Basic Laws,” the Knesset,
https://m.knesset.gov.il/en/activity/pa ... claws.aspx.
11. Israel has laws with regular status (not Basic Laws) guaranteeing equality in specific areas of life, and for specific groups, such as gender equality, but not as a generalized principle applied to all citizens, and not at a constitutional level.
12. Kaye, The Invention of Jewish Theocracy, 138.
13. Daniel Rothstein, “Adjudication of Freedom of Expression Cases under Israel’s Unwritten Constitution,” Cornell International Law Journal 18, no. 2 (Summer 1985): 247–86.
14. The Labor-led coalitions had essentially nurtured the first decade of the settlement project from 1967 to 1977; with Likud now in power, many settler leaders presumed the path to expansion would be easier. For a detailed analysis of the first decade in which the settlement project was entrenched under the tolerance, ambiguity, and partial support of the Labor government, see Gershom Gorenberg, The Accidental Empire: Israel and the Birth of Settlements, 1967–1977 (New York: Holt, 2007).
15. The first quote in the sentence comes from Moshe Hanegbi, Hakvalim shel Tzedek (Jerusalem: Yavneh Publishers, 1981), 11. The second quote comes from “Government to Seek Alternative Site for Elon Moreh, Special Cabinet Session Thursday to Discuss Issue,” Jewish Telegraphic Agency, October 29, 1979.
16. Michael Sfard, The Wall and the Gate (New York: Metropolitan Books, 2017), 178.
17. “Israel’s Supreme Court Rules Elon Moreh in Samaria Must Be Removed,” Jewish Telegraphic Agency, October 23, 1979,
https://www.jta.org/1979/10/23/archive/ ... be-removed.
18. Quoted and reported in Yehuda Shaul and Dror Etkes, “The Settlers and the High Court of Justice—Elon Moreh” (in Hebrew), Haaretz, November 27, 2018,
https://www.haaretz.co.il/opinions/.premium-1.6696589.
19. Ibid.
20. Sfard, The Wall and the Gate, 179, quoting Avigdor Feldman.
21. See Sfard’s overall thesis. See also David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (New York: SUNY Press, 2002).
22. The Court had already ruled on government decisions on censorship from the 1950s, but overall such interventions were sparse until later years (Rothstein, “Adjudication of Freedom of Expression).
23. Menachem Hofnung, “The Unintended Consequences of Unplanned Constitutional Reform: Constitutional Politics in Israel,” The American Journal of Comparative Law 44, no. 4 (1996): 585–604; 592. For a detailed discussion on legislative supremacy, with the exception of the 1969 Bergman vs. the Ministry of Finance case, see Rothstein, “Adjudication of Freedom of Expression”, 251.
24. Both laws were changed to include a clause defining “Basic Principles: these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel.” From full text of the 1994 Basic Law: Freedom of Occupation,
https://knesset.gov.il/review/data/eng/ ... on_eng.pdf, and full text of Basic Law: Human Liberty and Dignity,
https://www.ilo.org/dyn/natlex/docs/ELE ... R39134.pdf (1992, with 1994 amendment).
25. Suzie Navot, Constitutional Law of Israel (Netherlands: Kluwer Law International, 2007), 43. The term was used very shortly after the laws were passed, by Aharon Barak in writing, and reportedly by Dan Meridor, a key Likud figure who had supported the legislation. Other sources say the first person to use the term was the professor Claude Klein, in a newspaper article published two weeks after the passage of the law. Referenced in Yehoshua Schoffman, “The Constitutional Revolution of 1992” (in Hebrew), Ministry of Justice, March 28, 2019,
https://www.gov.il/he/Departments/publi ... _1992_1#17.
26. Daniel Friedmann, “Judicial Activism and the Wonders of Statistics” (in Hebrew), Daniel Friedmann’s personal website, May 23, 2017,
http://danielfriedmann.com/blog/judicia ... tatistics; Daniel Friedmann, The Purse and the Sword: The Trials of Israel’s Legal Revolution (Oxford: Oxford University Press, 2016).
27. Ofer Aderet, “Israeli Legal Scholar, Rights Activist, Prof. Ruth Gavison Passes Away at Age 75,” Haaretz, August 15, 2020,
https://www.haaretz.com/israel-news/.pr ... -1.9074795. See also a discussion of Gavison’s understanding of the relationship between the elected institutions in a democracy and individual human rights, which led her to oppose Court limitations on the legislature, in Frances Raday, “The Huge Legacy of Ruth Gavison . . .” (in Hebrew), ICON-S-I Blog, 2020,
https://israeliconstitutionalism.wordpr ... 020/11/15/הירושה-הענקית-של-רות-גביזון-והמלכוד-של/. On Gavison’s thinking specifically about judicial review and judicial activism, see Ruth Gavison, “The role of Courts in Rifted Democracies,” Israel Law Review 33 (1999): 216.
28. Friedmann, The Purse and the Sword.
29. Amir Fuchs, “How Many Laws Were Struck Down by the Israeli Supreme Court?” Israel Democracy Institute, June 22, 2020,
https://en.idi.org.il/articles/31874. On May 23, 2021, the Court issued a ruling containing a strong rebuke against a Basic Law amendment that had been passed in 2020 to head off new elections in the midst of the country’s two-year long political crisis—setting off an intense debate about the potential precedent of the Court intervening in a Basic Law rather than a regular law. However, the Court’s rebuke did not actually annul the law. See Yonah Jeremy Bob and Gil Hoffman, “High Court Slams Knesset for Budget Delay-Law, Warns of Unconstitutionality,” Jerusalem Post, May 24, 2021,
https://www.jpost.com/israel-news/high- ... time-66890.
30. Guy Lurie, “Invalidating Legislation: Is Israel an Anomaly?,” Israel Democracy Institute, April 26, 2018,
https://en.idi.org.il/articles/23372.
31. Simcha Rothman, “No Brakes: Judicial Activism Doesn’t Stop” (in Hebrew), Mida, April 23, 2018,
https://mida.org.il/2018/04/23/איבדו-את-הבלמים-האקטיביזם-השיפוטי-של-ב/.
32. Maoz Rosenthal, “A Unitary Actor? Invitation to an Empirical-Conceptual Discussion about HCJ as a Public Institution” (in Hebrew), ICONS-IL Blog, June 26, 2019,
https://israeliconstitutionalism.wordpr ... 019/06/26/האמנם-שחקן-יחידתי-הזמנה-לדיון-אמפירי-מ/#_edn8.
33. Basic Law: The Judiciary, 1984 (Amendment 45, 2007),
https://www.nevo.co.il/law_html/law01/0 ... htm#Seif9; see also Yuval Yoaz, “Will Term Limits Strengthen the Courts, or Weaken the Top?” (in Hebrew), Haaretz, August 21, 2007,
https://www.haaretz.co.il/misc/1.1435771.
34. Evelyn Gordon, “The Creeping Delegitimization of Peaceful Protest,” Azure 3 (Winter 1998),
http://www.daat.ac.il/daat/ezrachut/eng ... rdon2.htm; Lee Hockstader, “Israeli Court Sharpens Discord between Secular, Ultra-orthodox Jews,” Washington Post, February 14, 1999,
https://www.washingtonpost.com/archive/ ... c2ecaf842/. These rulings were not all explicitly against the power of religious authorities, but involved indirect challenges—including rulings upholding gender equality and LGBTQ equality, perceived as direct threats to the religious authority over family law, for example. See for example Frances Raday, “Women’s Human Rights: Dichotomy between Religion and Secularism in Israel,” Israel Affairs 11, no. 1 (January 2005): 78–94; and Margit Cohn, Eli Linder, and Mordechai Kremnitzer, “Religion and the High Court of Justice (Part 1): Image and Reality,” Israel Democracy Institute, Policy Paper 39, 2003,
https://en.idi.org.il/publications/7854.
35. Yuval Ginbar, and Jessica Montell – Btselem, “Legitimizing Torture: The Israeli High Court of Justice Rulings in the Bilbeisi, Hamdan and Mubarak Cases,” Btselem, January 1997,
https://www.btselem.org/sites/default/f ... eng_0.pdf; “Judgements of the Israeli Supreme Court: Fighting terrorism within the law,” vol. 2, Supreme of Israel and Ministry of Foreign Affairs, 2004–05,
https://mfa.gov.il/MFA_Graphics/MFA%20G ... error2.pdf. These represent two examples out of numerous others.
36. It is worth observing that the idea of the Court as an elite minority that imposes its will on the majority is ironic with relation to religious-secular issues. Just a minority of Israel’s population defines itself as religious Jews—ultra-Orthodox and national religious combined are fewer than one-quarter of the adult population. Semi-religious or “traditionalists” generally lean toward less intervention of religion in state and public life, regardless of their private forms of religious observance (based on the author’s research).
37. See for example, Dahlia Scheindlin, “The Logic Behind Israel’s Democratic Erosion,” The Century Foundation, May 29, 2019,
https://tcf.org/content/report/logic-be ... -erosion/; “Anti-Democratic Initiatives Advanced by the 20th Knesset,” Association for Civil Rights in Israel,
https://campaigns.acri.org.il/democracy/.
38. Amir Fuchs, Dana Blander, and Mordechai Kremnitzer, Anti-Democratic Legislation in the 18th Knesset (2009–2013) (Jerusalem: Israeli Democracy Institute, 2015, in Hebrew), 16–17.
39. Most of the challenges to the 2011 boycott law were rejected, See “Dispatches: Israeli Supreme Court Upholds ‘Anti-Boycott Law,” Human Rights Watch, April 18, 2015,
https://www.hrw.org/news/2015/04/18/dis ... oycott-law. For background on the Court’s rejection of petitions against the citizenship law, see Mazen Masri, “Love Suspended: Demography, Comparative Law and Palestinian Couples in the Israeli Supreme Court,” Social and Legal Studies 22, no. 3 (2013): 309–34. in fact, the Citizenship and Entry into Israel Law was not passed by the Eighteenth Knesset but much earlier, in 2003—however, it was passed via a temporary order and renewed annually. However, the High Court of Justice debate during the term of the Eighteenth Knesset generated related arguments against the Court—which ultimately ruled in favor of the law. On the Court hearing against the nation-state law, see Aaron Boxerman, “In First, High Court Mulls Voiding Quasi-Constitutional Nationality Law,” Times of Israel, December 22, 2020,
https://www.timesofisrael.com/in-first- ... ality-law/. See the 2011 draft: “Draft Basic Law: Israel—the Nation-State of the Jewish People,” the Eighteenth Knesset, August 3, 2011, accessed through ACRI,
https://law.acri.org.il/en/wp-content/u ... ll-ENG.pdf.
40. Fuchs, Blander, and Kremnitzer, Anti-Democratic Legislation, chapter B/3. Among the authors of the bill to ensure government-friendly representatives on the judicial appointment committee were legislators from several right-wing and religious parties, including Yariv Levin and Zeev Elkin, two Likud members. These two alone were the authors of the bill increasing control of the Knesset committee over judicial appointments.
41. The most thematic and comprehensive examination of legal struggles against occupation policies is found in Sfard, The Wall and the Gate.
42. “Basic Law: Justice (Amendment to public petitioners),” the Knesset, National Legislation Database, 2011,
https://fs.knesset.gov.il/18/law/18_lst ... 67223..doc. The bill was proposed by Danny Danon and Yariv Levin.
43. The specific attacks against nongovernmental organizations (NGOs) criticizing occupation policy were prompted in part at this time by the 2010 “Goldstone Report” investigating war crimes in the recent war between Israel and Gaza (“United Nations Fact Finding Mission on the Gaza Conflict,” UN General Assembly, September 25, 2009,
https://www2.ohchr.org/english/bodies/h ... -12-48.pdf). The Israeli government refused to cooperate with the international investigating commission, which drew on material from these human rights organizations instead—sparking outrage from right-wing activists who launched a bitter campaign publicizing their role.
44. Fuchs, Blander, and Kremnitzer, Anti-Democratic Legislation, 115.
45. Mordechai Kremnitzer and Amir Fuchs, “Basic Law: Legislation—A Lethal Blow to the Supreme Court,” Israel Democracy Institute, April 30, 2012,
https://en.idi.org.il/articles/10280.
46. The Basic Law: Freedom of Occupation is entrenched and requires an absolute majority of all Knesset members to be overturned (61 out of 120). The Basic Law: Human Dignity and Freedom defines clear protections of the rights specified, but has no entrenchment clause. “Basic Laws of the State of Israel,” Israel Ministry of Foreign Affairs,
https://www.mfa.gov.il/mfa/aboutisrael/ ... srael.aspx.
47. Dahlia Scheindlin, “New Bill Would Let Knesset Crush the Court,” +972 Magazine, April 8, 2012
https://www.972mag.com/new-bill-would-l ... the-court/.
48. Omri Efraim and Moran Azulay, “Author of the Infiltrator Law, Interior Minister Gideon Saar: ‘Constrain the Court’s Authority, We Have Nothing Left” (in Hebrew), Ynet, September 22, 2019,
https://www.ynet.co.il/articles/0,7340, ... 30,00.html.
49. “Domestic Affairs Committee Reveals: The Attorney General Will Oppose an Override Clause” (in Hebrew), Knesset News, October 6, 2014,
https://main.knesset.gov.il/News/PressR ... 014-2.aspx.
50. “The Minister of Justice, Ayelet Shaked,” Ministry of Justice,
http://www.justice.gov.il/En/about/Saar ... stice.aspx.
51. Ayelet Shaked, Yariv Levin, and Robert Ilatov, “Proposed Basic Law: Israel—The Nation-State of the Jewish People,” the Nineteenth Knesset,
https://law.acri.org.il/en/wp-content/u ... glish.pdf; Aeyal Gross, “Appointment of Shaked to Justice Minister Could Threaten the Independence of the Judiciary” (in Hebrew), Haaretz, May 7, 2015,
https://www.haaretz.co.il/news/law/.premium-1.2631665.
52. Lahav Harkov, “Shaked Mulls Splitting Attorney General into Two,” Jerusalem Post, August 4, 2015,
https://www.jpost.com/israel-news/polit ... two-411092.
53. Suzie Navot, The Constitution of Israel: A Contextual Analysis (Oxford: Hart Publishing, 2014), Chapter 6. Navot also examines the professional critique of the attorney general position in Israel, which is not defined or anchored in law and has evolved largely in concert with specific personalities filling the position or in accordance with political preferences. Note that some legal scholars question whether the attorney general’s opinions are binding, but the Israeli government states that they are. See “The Attorney General,” Israel Ministry of Foreign Affairs,
https://www.mfa.gov.il/MFA/AboutIsrael/ ... neral.aspx.
54. Yonah Jeremy Bob, “The Coming Legal Revolution—Will the A-G’s Position Be Split in Two?” Jerusalem Post, March 21, 2021,
https://www.jpost.com/israel-news/the-c ... sis-662722. While Netanyahu was still prime minister and facing corruption charges, critics believed he supported the split out of purely personal motives, to weaken the authority of the attorney general. Saar has argued that his support reflects professional considerations rather than the self-interest of a defendant against corruption charges.
55. See Yedidia Stern, “The End of Delegitimization of the Supreme Court,” Jerusalem Post, March 3, 2018,
https://www.jpost.com/Opinion/The-end-o ... rt-544108; also Guy Luria, “The Committee for Conservative Appointments” (in Hebrew), Globes, March 20, 2019,
https://www.idi.org.il/articles/26075 Accessed June 17.
56. “The Principles of the New Right Party” (in Hebrew), the New Right, led by Bennett and Shaked [sic], 2019, 10,
https://www.idi.org.il/media/12268/הימין-החדש-מצע.pdf.
57. Yaki Adamkar, “Cancel the Judicial Appointment Committee, Limit the Attorney General: Shaked’s Plan for the Judiciary” (in Hebrew), Walla! News, March 18, 2019,
https://elections.walla.co.il/item/3225102.
58. Raoul Wootlif, “Shaked Vows to Scrap Panel That Appoints Judges, as Right Takes on Supreme Court,” Times of Israel, March 19, 2019,
https://www.timesofisrael.com/right-mov ... -upheaval/.
59. Makhlouf Miki Zohar, et al. “Proposed Amendment to Basic Law: Justice—Limiting the Right of Standing” (in Hebrew), the Knesset,
https://fs.knesset.gov.il/20/law/20_lst_381879.docx. The 2017 bill, specifically focused on limiting petitions against West Bank settlements, is distinct from the 2011 bill, sponsored by different legislators also advancing a right-wing agenda—in that case, the explanation targeted left-wing NGOs that received foreign funding; the bill overlaps with the early drafts of the bill to restrict such NGOs, which would pass later, in 2016.
60. Kremnitzer and Fuchs, “Basic Law: Legislation.”
61. Shimon Cohen, “Hotovely: HCJ Legitimizing Traitors among Us” (in Hebrew), Arutz 7, October 20, 2014,
https://www.inn.co.il/news/285736.
62. Shirit Avitan Cohen, “Between Lawfare and Politicization: The Escalation in Yesha Reaches the Government” (in Hebrew), Makor Rishon, December 16, 2018,
https://www.makorrishon.co.il/news/100199/.
63. See for example: Akiva Bigman, “The Supreme Commander: HCJ and the War on Terror: The Supreme Court and the Restrictions on Israel’s War on Terror—the Full Story” (in Hebrew), Mida, October 22, 2015,
https://mida.org.il/2015/10/22/המפקד-העליון-בגץ-והמלחמה-בטרור/. In the article, Bigman argues that the Court’s constraints on Palestinian home demolitions earned a cluster of homes later used in terror attacks the nickname “HCJ Homes.”
64. Lyrics, The New Right, Music: Nir Gadasi, Arrangement, Nir Gadasi and Udi Simhon, “Special duet of Ayelet Shaked and Naftali Bennett, dedicated to the mothers of IDF soldiers,” April 6, 2019,
https://www.youtube.com/watch?v=SeBdnbn4s6E65. Dahlia Scheindlin, “Netanyahu, Indicted, Takes Israel’s Institutions Down with Him,” The Century Foundation, December 4, 2019,
https://tcf.org/content/commentary/neta ... itutions/; and Dahlia Scheindlin, “Netanyahu’s Response to His Indictment? Play the Victim and Weaken Israel Even More,” The Forward, November 21, 2019,
https://forward.com/opinion/435293/neta ... -onto-his/.
66. Raoul Wootliff, “Netanyahu Said to Plan Bill to Override High Court, Safeguard His Immunity,” Times of Israel, May 13, 2019,
https://www.timesofisrael.com/netanyahu ... -immunity/.
67. Dahlia Scheindlin, “Legal Bullying in the service of the Prime Minister,” +972 Magazine, December 1, 2017,
https://www.972mag.com/legal-bullying-i ... -minister/.
68. Alexander Fulbright, “Tens of Thousands Turn Out in Tel Aviv for Anti-corruption ‘March of Shame,’” Times of Israel, December 2, 2017,
https://www.timesofisrael.com/thousands ... -of-shame/. The bill did pass into law, but only after the aspects that would have personally protected Netanyahu had been removed.
69. These include: Makor Rishon, Arutz 7, Channel 20, in addition to those mentioned.
70. Simcha Rothman, “The Supreme Court Sitting as the Thought Police” (in Hebrew), Mida, November 21, 2016,
https://mida.org.il/2016/11/21/בית-המשפט-העליון-בשבתו-כמשטרת-מחשבות/.
71. “Israeli Government Angered by Landmark Supreme Court Asylum Seeker Ruling,” i24 News, August 28, 2017,
https://www.i24news.tv/en/news/israel/1 ... ker-ruling.
72. Yair Altman and Efrat Porsher, “HCJ Is Overstepping Its Authority” (in Hebrew), Israel Hayom, August 31, 2017,
https://www.israelhayom.co.il/article/501191.
73. “May Golan,” the Knesset,
https://knesset.gov.il/mk/eng/mk_eng.as ... _id_t=1002.
74. Shuki Segev, “The Attorney General Must Explain His Double Standard” (in Hebrew), Israel Hayom, October 29, 2019,
https://www.israelhayom.co.il/opinion/702305.
75. Itamar Fleischman, “The State Prosecutor’s Distress Call” (in Hebrew), Israel Yahom, October 29, 2019,
https://www.israelhayom.co.il/opinion/702679.
76. Amnon Lord, “If HCJ Rejects Netanyahu, an Investigation Is Needed” (in Hebrew), Israel Hayom, December 22, 2019,
https://www.israelhayom.co.il/article/717881.
77. Chaim Shain, “HCJ Presents: The Effort to Cut Us off from Our Jewish Symbols” (in Hebrew), Israel Hayom, May 1, 2020,
https://www.israelhayom.co.il/opinion/756631.
78. Chaim Shain, “Yehoshua Testimony Proves: The Bonfire of the Rule of Law Has Been Extinguished,” Israel Hayom, May 26, 2021,
https://www.israelhayom.co.il/news/law/article/1483952.
79. True as of this writing, May 2021. The left-wing independent media website +972 Magazine displays all donors for every year since its establishment as a fundraising NGO, updated quarterly through 2021. See “How We Are Funded,” +972 Magazine,
https://www.972mag.com/how-we-are-funded/. (Disclosure: the author is among the founders of +972 and the first chair of the board; since 2018 she has no further position within the NGO and remains an occasional columnist). Other left-wing organizations routinely attacked by Kohelet and targeted by the NGO law Kohelet’s founder helped to draft include B’Tselem, which similarly publishes its donor and fundraising data prominently on its website: “Donors,” B’Tselem,
https://www.btselem.org/about_btselem/donors; “Foreign Government Funding,” B’Tselem,
https://www.btselem.org/hebrew/about_bt ... t_funding; “Public Council,” B’Tselem,
https://www.btselem.org/about_btselem/public_council.
80. Kohelet Policy Forum,
https://en.kohelet.org.il/.
81. Emmanuel Navon, “Israel’s High Court of Justice Undermines Democracy and Sovereignty,” Kohelet Policy Forum, October 5, 2014,
https://en.kohelet.org.il/publication/i ... overeignty.
82. The video is rife with manipulation and half-truths. For example, it rails against the Court for interpreting the 1992 Basic Law in a constitutional manner, although the laws were “passed in the 1990s with just 32 MKs [members of the Knesset]”—implying that the age of the laws makes them less authoritative, or that the laws ought to hold less force because they did not win a larger portion of Knesset members. The video asserts that the Court has been striking down laws endlessly, including a law targeting political boycott, divestment, and sanctions (BDS) activity. In reality, the High Court of Justice in fact upheld most of the BDS law, while ruling that a single clause was disproportionate. See “Are Israeli Supreme Court Justice Super-heroes,” published to YouTube by Kohelet, May 9, 2018,
https://www.youtube.com/watch?v=Ixg6RiFmtzU&t=74s. On the High Court of Justice ruling, see Amir Fuchs, “How Many Laws Were Struck Down by the Supreme Court in Israel?,” Israel Democracy Institute, July 22, 2020
https://en.idi.org.il/articles/31874.
83. “Zvi Hauser,” the Knesset,
https://knesset.gov.il/mk/eng/mk_eng.as ... id_t=1017; “Zvi Hauser,” Kohelet Policy Forum,
https://en.kohelet.org.il/author/zvi-hauser.
84. Moshe Koppel, Eugene Kontorovich, “Why All the Outrage over Israel’s Nation-State Law?,” Kohelet Policy Forum (originally published in Mosaic), October 8, 2018,
https://en.kohelet.org.il/publication/w ... -state-law.
85. “Live: Conference on the Pompeo Doctrine,” Kohelet Policy Forum, January 7, 2020,
https://en.kohelet.org.il/event/confere ... o-doctrine.
86. Netanel Slyomovics, “The U.S. Billionaires Secretly Funding the Right-Wing Effort to Reshape Israel,” Haaretz, March 11, 2021,
https://www.haaretz.com/israel-news/.pr ... -1.9611994.
87. Israel Law and Liberty Forum,
https://lawforum.org.il/about-the-law-a ... m/?lang=en.
88. Ibid.
89. Simcha Rothman, Supreme Rulers: How Israel Became a Legalocracy (Tel Aviv: Sela Meir Press, 2019, in Hebrew). Note that Rothman has stated that this is the English working title, though the book jacket lists “The Ruling Party of Bagatz: How Israel Became a Legalocracy.”
90. Adam Gold, “Introduction,” in Simcha Rothman, The Party of the High Court: How Jurists Conquered the Israeli Government (Tel Aviv: Sella-Meir, 2019). The Hannibal directive refers to the practice of Israeli soldiers firing indiscriminately in the event that enemy forces attempt to kidnap a soldier, in order to avoid long-term hostage situations and negotiations—including at the risk of killing the hostage.,
91. Zvi Sadan, “In the Land of Humpty Dumpy [sic],” Israel Today, December 15, 2019
https://www.israeltoday.co.il/read/in-t ... pty-dumpy/. The mystery and controversy surrounding Adam Gold’s identity (some believe him to represent more than one person) is convoluted and Facebook has declined to state reasons for the ban, but he has been accused of posting attacks on individual figures within the judiciary, of being a fictitious person (a team, rather than a genuine individual). One target of Gold’s attacks sued Facebook for libel. Racheli Malek Bodeh, “Inside Adam Gold’s Head,” Makor Rishon, November 18, 2018,
https://www.makorrishon.co.il/magazine/92201/.
92. “Projects,” Israel Independence Fund Website,
http://www.fundisrael.org/Projects.
93. Yair Kratman, “In the Current Age, Everyone Can Have an Influence,” interview with Yehuda Amrani, Arutz 7, December 24, 2019,
https://www.inn.co.il/news/422166.
94. Simona Weinglass, “Meet the Conservative Activists Who Want to Override the Supreme Court,” Times of Israel, June 5, 2019,
https://www.timesofisrael.com/meet-the- ... me-court/; and Orly Harari, “Yehuda Amrani Appointed as Spokesperson of the Benjamin Council,” Arutz 7, January 21, 2020,
https://www.inn.co.il/news/424916.
95. “Knesset Conference: Foreign Government Funding for NGO Political Activity in Israel,”
NGO Monitor, December 1, 2009,
https://www.ngo-monitor.org/presentations/13//., and Slyomovics, 2021
96. Shuki Sadeh, “The Right-Wing Think Tank That Quietly ‘Runs the Knesset,’” Haaretz, October 5, 2018,
https://www.haaretz.com/israel-news/.pr ... -1.6514722.
97. Moshe Ifargen, “The Revolution That Wasn’t: Ayelet Shaked Is Fooling Everyone” (in Hebrew), Mida, January 27, 2019,
https://mida.org.il/2019/01/27/המהפכה-שלא-הייתה-אילת-שקד-עובדת-על-כולכ/.
98. Marissa Newsman, “Police Recommendations Law Passed after 2-Day Filibuster,” Times of Israel, December 28, 2017,
https://www.timesofisrael.com/knesset-p ... ilibuster/.
99. “Ceremony—Changing the Justice Minister,” published to Facebook by Gideon Saar,
https://www.facebook.com/GideonSaarIL/v ... 3/?__cft__[0]=AZVC0b3vuWGex7-ucJW1Pcc0Yov_7Jb3CCOGzIwlYhF_7wKX3l_qGvy7N0wtXDXTtNXETeltFQZBZRXfDzZpepxaAZ12EC8MPP3u1tLZVmZJT6lvH1vAUZkiJL04zE0U09K2DRQnr8KELlzzhEAPM_9SpBafbHJBbtDdpqLQi0R5Kg&__tn__=%2CO-R
100. Similar points about laying the groundwork, or practice for overthrowing authority—in the form of a coup—have been made in Zaynep Tufekci, “This Must Be Your First,” The Atlantic, December 7, 2021,
https://www.theatlantic.com/ideas/archi ... pt/617309/. Masha Gessen develops a related argument at greater length in Surviving Autocracy (New York: Riverhead Books, 2020).
101. “Israel Democracy Index 2020,” Israel Democracy Institute,
https://en.idi.org.il/media/15562/the-i ... 020-en.pdf, 63.
102. The survey did not provide an individual name for the attorney general in its question.
103. Israel Democracy Institute, “Israel Democracy Index 2020,” 56–57, 65.
104. Yonah Jeremy Bob, “Israel’s Criminal Justice System under Threat of Attack,” Jerusalem Post, June 16, 2020,
https://www.jpost.com/israel-news/israe ... ack-631643.
105. Yair Altman, “Within One Day: Another Supreme Court Justice Threatened” (in Hebrew), Israel Hayom, June 15, 2021,
https://www.israelhayom.co.il/article/771087.
Dahlia Scheindlin, Fellow. Dahlia Scheindlin is a fellow at Century International, based in Tel Aviv. She is a public opinion expert and an international political and strategic consultant, as well as a scholar and a writer. She is the author of The Crooked Timber of Democracy in Israel, published in September 2023.
