Will Israel's next gov't harm High Court, risking BDS, ICC issues? - analysis

Most democracies have such a power for their legislature. However, most democracies also have a constitution that restrains the legislature and makes it unnecessary for the judiciary to intervene.

 Likud party leader Benjamin Netanyahu gestures to his supporters at his party headquarters during Israel's general election in Jerusalem, November 2, 2022. (photo credit: REUTERS/AMMAR AWAD)
Likud party leader Benjamin Netanyahu gestures to his supporters at his party headquarters during Israel's general election in Jerusalem, November 2, 2022.
(photo credit: REUTERS/AMMAR AWAD)

One of the declared top priorities of multiple parties making up the incoming government is finally completing an approximately 15-year-long campaign to give the Knesset a veto of High Court of Justice vetoes.

In the past, opposition head Benjamin Netanyahu has stopped these efforts multiple times.

Will he finally pave the way for this massive reordering of the separation of powers? Will he and his coalition partners take into account the potential consequences before the International Criminal Court, the BDS movement and criticism from Western allies when they consider how to undertake such a change?

The debate on Israel's Knesset vetoing High Court vetoes

In debating whether the Knesset should be able to veto High Court vetoes, one of the first claims of supporters is often that most democracies have such a power for their legislature.

This is absolutely true.

 A NEARLY-EMPTY Knesset plenum debates the dispersal of parliament, in June. In the upcoming election, be a strategic and principled voter, not a tactical and cynical one, says the writer.  (credit: OLIVIER FITOUSSI/FLASH90) A NEARLY-EMPTY Knesset plenum debates the dispersal of parliament, in June. In the upcoming election, be a strategic and principled voter, not a tactical and cynical one, says the writer. (credit: OLIVIER FITOUSSI/FLASH90)

However, most democracies also have a constitution that restrains the legislature and usually makes it unnecessary for the judiciary to even intervene.

Also, many democracies set a high supermajority number for the legislature to override the judiciary, often ranging around a two-third’s vote.

Further, many democracies have a culture of deference to their courts.

The legislature rarely uses its power to circumvent the judiciary, even if the power exists, due to cultural norms.

Israel has no constitution, many key players seem to have no compunction about using a Knesset override of the High Court as a matter of course, and many would like to be able to trump the High Court with a simple 61-vote majority.

So if the new initiative really does move forward, the first thing to watch will be whether those who support a simple majority Knesset veto will win, or whether the threshold will be set at somewhere between 70 and 80 votes.

These higher vote numbers have been suggested by former chief justice Aharon Barak and former attorneys-general Avichai Mandelblit and Elyakim Rubinstein and have gotten implied support from current Supreme Court President Esther Hayut.

Outgoing-Justice Minister Gideon Sa’ar and former president Reuven Rivlin have supported a 65-vote majority – an interesting number with the incoming coalition coming in at 64 votes.

If this does not happen, or if it happens with a supermajority provision, it will likely be because Netanyahu understands the international risks of eviscerating the court’s reputation for independence.

In early 2021, then-ICC chief prosecutor Fatou Bensouda initiated a full-fledged war-crimes probe against Israelis relating to any conflicts or the settlement enterprise dating back to mid-2014.

Although Bensouda’s successor, Karim Khan, has left Israel alone to date, there are serious concerns that he may be waiting for an opportune moment of an unforced error by Israel to go in for a legal ambush.

Alternatively, he may be undecided about whether to take Israel on, and an Israeli decision to defang its High Court could push him over the fence to go after the Jewish state.

Netanyahu does not always please his Western allies, but he usually tries to if possible and is highly sensitive to the risks posed by the ICC and the BDS movement.

In contrast, it is unclear if the Religious Zionist Party, Shas or United Torah Judaism realize the international consequences that could harm Israel, and eventually themselves by extension, if the world views the Israeli High Court as having lost its independence.

One top former official who has discussed these issues with a number of politicians in closed forums has told The Jerusalem Post that sometimes these officials may understand there are international consequences, but they may be much more motivated by the short-term domestic gains.

For one, many officials from the RZP, Shas and UTJ have less to do with the wider world, so their understanding of the consequences may be more of an intellectual one than one which internalizes that Israeli businesses could be deeply harmed by boycotts or soldiers arrested while traveling overseas.

In 2017, during a debate over the Settlement Regulations Law, Deputy Attorney-General for International Affairs Roy Schondorf told the Knesset that it “cannot pick and choose” which parts of international law it likes and which it does not regarding the West Bank.

Despite Schondorf’s stern warnings of consequences before the ICC, RZP leader Bezalel Smotrich and others pushed the law through.

When the High Court nixed the law in 2020, Smotrich said the court had lost its shame, had waited for a weak government to issue a left-wing extremist ruling and had been trampling the rights of residents of Judea and Samaria for too long.

Based on those past experiences, whether Netanyahu’s coalition partners understand the risks before the ICC and BDS or not, it seems that only he, if anyone, will prevent those risks from transpiring.