Top 10 headlines of 2018: Legal system

A year of highlights and lowlights in Israel: The legal arena.

The entrance of the International Criminal Court (ICC) is seen in The Hague (photo credit: REUTERS)
The entrance of the International Criminal Court (ICC) is seen in The Hague
(photo credit: REUTERS)

Five highs match five lows for the year, with each one presenting opposing narratives:

Top Highs

1 - The Netanyahus’ prosecutions
Recommendations by the Israel Police to indict Prime Minister Benjamin Netanyahu in all three public corruption cases against him, followed by the prosecution team’s endorsement of those recommendations, can be viewed as a high for the rule of law. While former prime minister Ehud Olmert went to jail for corruption, some have said he might not have been pushed out of office if he still had political support. Moving forward to indict a prime minister as popular as Netanyahu, who even now is predicted to win reelection to a fifth term, would truly send a signal that no one is above the law.
This year also saw Sara Netanyahu indicted and her trial for fraud begin, though it is dragging at a turtle’s pace. Attorney-General Avichai Mandelblit still has the final say over the prime minister’s fate, but as The Jerusalem Post reported in June, he is expected to announce his intention to indict the prime minister in the coming months.
2 - The High Court of Justice decision to hear petitions to deem the Jewish Nation-State Law as unconstitutional
Those opposing the Nation-State Law as an attempt to destroy Israeli democracy – especially regarding minority rights – expand incremental annexation of the West Bank and devalue non-Orthodox streams of Judaism, were heartened that the High Court decided to even hear the case. As the High Court will not even hold a hearing on the issue until January 28, the initial decision to hear the case signals the court will seriously consider striking all or part of the law. Critics of the law would view this as an unprecedented victory against a government they believe has tried to eviscerate the rule of law and the authority of the court.
3 - Justice Minister Ayelet Shaked’s High Court revolution
Justice Minister Ayelet Shaked completed a multi-year process this year in which she appointed 40% of the current justices on the High Court, including adding slightly more conservatives than liberals. She and supporters on the Right have called this a revolution that they hope will bring the court’s values back in line with the voting public, which has repeatedly elected right-wing governments in the last decade. They say their own revolution is necessary to reverse what has been dubbed the revolution of former High Court chief Aharon Barak during the mid-1990s, in which the court became more assertive about vetoing Knesset laws it viewed as unconstitutional.
4 - International Criminal Court Prosecution versus Israelis
Time may no longer be on Israel’s side with International Criminal Court Prosecutor Fatou Bensouda nearing a decision on Israel, Hamas and war-crimes allegations, but the US is more firmly on Israel’s side than in years. Both US President Donald Trump and his national security adviser, John Bolton, threatened the ICC with a variety of consequences if it goes after either the US or Israel. Further, in the recent ICC report, there was a first sign that the ICC may give Israel a broad pass on the 2014 Gaza war-crimes allegations. This would be a stunning turnaround from a 2015 UN Human Rights Council report which condemned the IDF as having systematically perpetrated war crimes. The ICC also suggested that since Hamas has not undertaken any probes of its own actions, there would be no obstacle from Fatou Bensouda investigating its fighters for war crimes. Such a criminal investigation against Hamas would be a first.
5 - High Court orders state to let Lara Alqasem into the country and freezes similar proceedings
For some, the High Court’s decision, overruling two lower courts and Public Security Minister Gilad Erdan, to let Palestinian-American Lara Alqasem leave Ben-Gurion Airport for studies at Hebrew University of Jerusalem was a major victory for free speech. The case centered around two debates. One was whether Alqasem was currently or will be a boycott, divestment and sanctions campaign activist. The second was whether someone with Alqasem’s history of having supported BDS – at least for part of 2017 – should be permitted to attend Hebrew University, since unsalvageable BDS activists would never have applied, in the spirit of confronting BDS’ closed-mindedness with open-mindedness. By letting Alqasem attend Hebrew University, supporters of the decision said the High Court embarrassed the BDS movement with Israel’s openness, even to someone who had been a significant critic. Since the case also froze many similar proceedings against other BDS activists, they also viewed the High Court decision as a broader victory for free speech and showing off the robustness of debate in Israeli democracy.
Top Lows
1 - The Netanyahus’ prosecutions
From his perspective, Benjamin Netanyahu is being hunted for having wealthy friends and for trying to get fair coverage in the media, just like other politicians who have varied dealings with media outlet owners. This would be a low, since he argues that the Left has not been able to beat him in elections, and is therefore trying to unseat him through trumped-up charges. His tune on this may shift once Mandelblit, as expected, announces his intent to indict. Mandelblit cannot be accused of being a left-winger or of bias against Netanyahu – having served as his cabinet secretary immediately before the prime minister got him his current job. In that case, Netanyahu is likely to argue that Mandelblit was overcome by pressure from the allegedly left-wing legal establishment that surrounds him.
2 - The High Court of Justice decision to hear petitions to strike the Jewish Nation-State Law as unconstitutional
Those pushing for the law, especially Justice Minister Shaked, were furious that the High Court did not reject the petitions against it with no hearing. They say that since the law was passed as a Basic Law, it has quasi-constitutional status and that it is beyond the court’s authority. Shaked and others did not even beat around the bush and threatened a variety of measures to reduce the court’s powers if it decides to strike the law. For them, the law finally begins to strengthen and define Jewish values in cases where they think that courts have used the state’s democratic character to stomp on its Jewish character. There have already been some lower court decisions which cited the law as a basis for new precedents.
3 - Justice Minister Ayelet Shaked’s High Court revolution
For critics of the governing coalition who regard the High Court as the last remaining guardian over the rule of law, Shaked’s revolution could spell an end to High Court interventions on controversial legislation. This could mean laws relating to the settlements, African migrants, politicizing government ministry legal advisers, and a host of other landmark laws going into effect that until now have been beaten back or slowed by the High Court. In the view of government critics, altering the shape of the court is more important than any single objectionable law on the agenda. They fear the court will lose its independent streak and its global reputation as a strong defender of minority rights.  
4 - International Criminal Court Prosecution versus Israel
Four years after launching a preliminary review, International Criminal Court Prosecutor Fatou Bensouda reported this month that she is close to a decision on whether to open a full-fledged criminal probe against Israel and Hamas for alleged war crimes. This could be very bad news for Israel legally and diplomatically. Until now, the best thing about the ICC, as opposed to other UN-type bodies, was that it had not rushed to judgment against Israel about war-crimes allegations dating back to the 2014 Gaza War. The war-crimes issue was continuously pushed off despite Palestinian Authority demands for a decision years ago. A decision in the near future would nix a scenario Israel would have preferred, in which Bensouda might wait to decide until November 2020, and a possible new US president less hostile to the ICC. Also, Bensouda has issued multiple real-time public warnings to Israel about potential war crimes relating to the settlements, house demolitions and the ongoing conflict on the Gaza border. Finally, the ICC Pretrial Chamber bizarrely tried to resurrect a war crimes case against Israel relating to the 2010 MV Mavi Marmara flotilla despite Bensouda herself rejecting prosecuting it multiple times.
5 - High Court orders state to let Lara Alqasem into the country and freezes similar proceedings
For critics of the decision, this was a major self-inflicted wound. After being hit for years by the BDS movement, the Knesset and Public Security Minister Gilad Erdan finally conceived of ways to fight back. One way was to deny BDS activists entry to Israel so they could not use the country’s freedom and openness for their propaganda. Moreover, some BDS activists or those considering such activism, have strong ties to aspects of Israel, and despite their critical views do not want to be barred from visiting. Critics said that Alqasem had tried to cover up her past and that she would return to her BDS roots as soon as she left Israel with renewed propaganda from her time here. They said that BDS must be fought with strength and not naiveté, which the two lower courts had agreed with. For them, losing the case weakened the entire policy of limiting BDS activists access and left Israel more vulnerable.
Edited by Natan Rothstein
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