In the heart of Israel’s turmoil, mayhem has erupted on the streets over the government’s recent decree that strips the Supreme Court of its power to challenge laws on the grounds of reasonableness. Police and protesters clash all over the country, as Israelis who are concerned about the democratic future of their country block the highways while the police respond with force to remove them. Especially over Tisha Be’av, the saddest day of the Jewish calendar marked by internal strife and disunity, it feels like the Jewish nation is again being tested and standing at a crossroads.
Netanyahu’s government began the first phase of their controversial judicial reform that, to many Israelis, challenges the democratic nature of the country. What impact does the reasonableness clause have on the Supreme Court? And, more importantly, how does weakening our Supreme Court affect Israel on a national security level?
What happens if the Supreme Court gets weakened
The reasonableness clause refers to a standard the Supreme Court uses to assess the appropriateness or rationality of decisions made by public officials and authorities. It gained significant attention this year when the High Court disqualified Arye Deri, the chairman of the Shas party, from holding positions as health and interior minister. This disqualification was based on his conviction for tax evasion, corruption as a public official, bribery, and fraud.
On its own, removing the reasonableness standard does not change the nature of Israel’s democracy. Still, many of us concerned about Yariv Levin’s proposed reform see it as the first step taken by an extreme right coalition to upset the balance of power between the executive and judicial branches.
Over 10,000 reservists from across the IDF announced they would not show up for reserve duty in protest of the judicial overhaul, joining around 1,000 Air Force reservists who had already made a similar announcement. This move has been condemned by proponents of the overhaul, who claim their actions are nothing more than a “tantrum” intended to disrupt the processes of a democratic government. Ironically, of my own personal Anglo-olim networks in Israel, many who condemn the decisions of these reservists never served in the army.
No matter where you stand on the overhaul or the decision of these reservists, it is crucial to understand the role of the Supreme Court in safeguarding Israelis from foreign threats.
Since Israel has a strong and independent judiciary, international bodies like the International Criminal Court (ICC) or the International Court of Justice (ICJ) in the Hague have mostly abstained from investigating Israel. The International Criminal Court relies on countries with judiciaries like Israel to investigate wrongdoings or war crimes. The Israel Democracy Institute writes that “even though a relatively large number of allegations and complaints against Israel have been raised, not a single IDF commander or senior Israeli official has been tried on suspicion of war crimes by the ICC or foreign court.” They point out that these bodies have tried to investigate Israel in the past to prosecute IDF commanders in foreign courts. It is because of Israel’s independent Supreme Court that the ICC has been fended off.
Israel deals with some of the most complex security challenges in the region, especially regarding its military actions in the West Bank. In a war zone region, a country’s ability to be accountable for wrongdoings and investigate itself is crucial for protecting its population.
Then there is the UN, a body dominated by non-democratic human rights abusers who go out of their way to single out Israel in the General Assembly and Security Council. There are also “human rights” NGOs like Amnesty International and Human Rights Watch who will target Israel for condemnation while ignoring the Palestinian terror campaign.
Their resolutions and accusations carry little weight or repercussions because the bodies who make the decisions know that Israel’s judiciary can effectively investigate itself. A well-known example of this is when the Spanish court ordered the termination of investigations into certain senior Israeli personnel who were accused of potential crimes for authorizing an attack in July 2002 against Salah Shehade, commander of the Izz ad-Din al-Qassam Brigades, resulting in the death of 14 civilians. The Spanish court concluded that Israel had conducted thorough investigations at the governmental level, including forming a special committee to examine the incident and within the judicial system to ascertain if any crimes had occurred.
While no one can deny that the International Criminal Court had an active agenda to prosecute Israel when it opened investigations in 2014 over “potential war crimes,” one of the main arguments against the inquiry is what is referred to as the Principle of Complementary, the idea that the ICC only has secondary jurisdiction after national courts and can only act when states cannot prosecute internally.
Without this, Israelis prosecuted and charged can be arrested in over 120 countries.
Like everything in this world, the issue of the judicial overhaul is not black and white. Reforms are not necessarily bad, and I agree with some of the criticisms against the Supreme Court as it stands now. We cannot, however, have such a drastic swing from one side of the pendulum to the next. The executive branch should not have so much power that it can strike down the Supreme Court’s rulings with just a simple majority.
No matter what side of the reform you stand on, considering the Supreme Court’s role in safeguarding Israel against international bodies has to be a crucial part of the conversation. Israel is still a strong democracy, and our changes to its democratic nature cannot be done without consideration and debate.
The writer is a social media activist with more than 10 years of experience working for Israeli and Jewish causes and cause-based NGOs. She is the co-founder and COO of Social Lite Creative, a digital marketing firm specializing in geopolitics.