Israeli politics & society

Updated October 21, 2024

Judicial Reform background

Israel’s new coalition government is committed to a programme of wide-ranging judicial reform designed to limit the power and independence of the Israeli judiciary. The speed and intensity with which the process has begun has proven hugely contentious and divisive, with Israel riven by dispute and fracture regarding the issue.

However, although the current crisis is unprecedented, it can be understood as the culmination of long-held Israeli differences on the proper role of the judiciary.

Arguments over Judicial Reform
Both reformers and their opponents assert that theirs is a campaign for the salvation of Israeli democracy.

Reformers have long argued that a democratic deficit is produced by an unelected judiciary capable of overruling the decisions of democratically elected politicians. They claim that since the so-called “judicial revolution” of the Supreme Court under Chief Justice Aharon Barak in the early 1990s it has been engaged in “activist” overreach. Examples given often include: judgements made in 2012 and 2017 ruling that compromises reached with ultra-Orthodox parties over the question of ultra-Orthodox service in the IDF breached principles of equality; decisions from 2013, 2014, and 2015 overruling government legislation concerning the detention and eventual resettlement of illegal migrants and asylum seekers; a 2020 ruling against the retrospective legalisation of illegal West Bank settlements on the grounds that such would constitute harm to Palestinian property, equality and dignity.

Although the Supreme Court has overruled only 20 laws out of around 1300, the nature of some of the issues concerned in such rulings led to an anti-court convergence of interests among the ultra-Orthodox, settlers, and other right-wingers. This is despite the fact that court has, on occasion, intervened in a fashion more likely to please the right-wing than the left; as, for example, in 2005 when it ruled in favour of increasing compensation for settlers evacuated following the disengagement from Gaza and some areas of the West Bank. Reformers also allege that the low figure of Supreme Court interventions is deceptive, and that the self-perpetuating domination of left-wing opinion from both judges and government legal advisors has prevented right-wing governments from even floating desired legislation, so sure are they that it would be prevented by the legal establishment.

Another complaint has been that the Israeli judiciary, and the legal establishment more broadly, functions as a self-elected and self-perpetuating “club”, whose membership is largely restricted to a liberal, Ashkenazi “elite”, and that wider participation is urgently needed to reflect the diversity of Israelis and Israeli opinion.

Opponents of the government’s proposed reforms, some of whom agree with the need for judicial reform in principle or in moderated form, argue that Israel’s democratic culture is unique. Israel possesses no second chamber, nor a written constitution, and the list system (which concentrates power over MKs to party leaders, as opposed to their being parliamentarians answerable to their constituency) ensures that the executive is generally able to exercise de facto control over a majority of the Knesset.

In this context, reform critics claim that the existing system provides for a vital separation of powers and that an independent judiciary, with partial capacity for overruling the legislature and executive, provides a crucial brake on executive power and functions as an essential guarantor of liberal democratic norms and minority rights. The system proposed by the reformers, they fear, provides for the tyranny of the majority, and a blank cheque to this and future governments, of whatever political orientation.

Critics also note that the high esteem in which Israel’s independent judiciary is held internationally functions as a protection on Israelis from subjection to the authority of international courts, and that weakening the judiciary would also weaken this protection.

The Government’s Moves
In early January 2023, Justice Minister Yariv Levin – a Likud MK and long-time proponent of judicial reform – announced the government’s reform agenda. The Knesset’s Constitution, Law and Justice Committee, chaired by Religious Zionism MK Simcha Rothman, then proceeded to deliberate on and refine the details of Levin’s broad proposals. It now plans to roll out a multi-stage judicial revolution. The first elements have progressed sufficiently to hold a first committee vote concerning the makeup of the committee to appoint judges and the Supreme Court’s ability to strike down “Basic Laws” (laws holding quasi-constitutional status).

The reformers are pursuing greater political power on the Judicial Selection Committee, which appoints judges at all levels of the Israeli judicial system. At present the committee is composed of nine members: two government ministers; two other Knesset members; three Supreme Court justices; and two representatives of the Israel Bar Association. For the election of new Supreme Court justices, a majority of seven is required for a confirmation.

Under the proposed new version, the Judges Selection Committee will remain comprised of nine members, but its makeup altered to: the Supreme Court President; two retired justices appointed by the Justice Minister with the approval of the Supreme Court President; the Justice Minister; two other ministers to be determined by the government; the chairman of the Constitution, Law and Justice Committee; one MK from the governing coalition; and one MK from the opposition. Additionally, the majority needed to approve the appointment of a Supreme Court judge will be reduced from seven to five. On February 8th 2023, opposition members succeeded in “running out the clock” on the committee, delaying a first vote on the Judicial Selection Committee and Basic Law reforms until the next week, allowing time for the organising of a mass protest the following Monday.

The next phase in the Constitution, Law and Justice Committee’s reform schedule will involve composing legislation stating that for the Supreme Court to disqualify non-Basic Laws, all fifteen justices must hear the appeal and vote unanimously in favour. After that, the next reform is set to concern the establishment of a Knesset override of Supreme Court decisions. At present, no such parliamentary override exists, and while moderate reformers have long suggested that a safe override could be implemented requiring, for example, two thirds of MKs or a certain percentage of opposition MKs to vote in favour, at this point the government is pursuing an override by a “simple majority” of 61 MKs.

Later reforms will include an alteration of the independent status of legal advisors to government ministers. At present, ministers are bound by the legal interpretation of their legal advisors. The new law would allow ministers to appoint their own legal counsel with a limited advisory role. The abolition of the Supreme Court’s ability to overrule administrative decisions of the government on the grounds of “(un)reasonableness” will also be pursued. (The court cannot strike down Knesset legislation on these grounds.)

The government and Supreme Court clashed on the reasonableness question early after Levin’s announcements, with justices voting 10-1 to bar Shas leader Aryeh Deri from being appointed Finance Minister. The judges’ decision was based partly on the reasonableness principle, and partly on their conclusion that Deri had lied to the Israeli magistrate’s court when accepting a plea deal for a 2021 financial conviction which included the guarantee that he would retire from public life. The verdict required that Netanyahu fire Deri, though coalition figures pledged his return and argued that the appointment of cabinet members is a perfect example of court overreach of on matters that should be the sole purview of the government. Deri’s return could conceivably be facilitated by removal of the grounds of reasonability, but the barring of striking down Basic Laws could, if applied retrospectively, also be used. In late December 2022, Basic Law: The Government was modified to allow for a convicted felon to serve as a minister as long as their offence had not been punished with a custodial sentence.

Backlash to the Reforms
Opposition to the proposed reforms has been intensive since Levin’s announcement. Regular protests have been held on Saturday evenings throughout January and early February, while a number of high-profile Israelis have made public interventions. And, while pushback from Supreme Court chief justice Esther Hayut and from the political opposition was to be expected, the variety of sectors of Israeli society from which reform critics have been drawn has also been striking.

Bank of Israel Governor Prof. Amir Yaron warned Netanyahu in late January of the likely negative economic impact of the reforms, citing a probable decline in foreign investment and damage to Israel’s international credit rating. His warnings came days after two of his predecessors, Karnit Flug and Jacob Frenkel, had made similar predictions. Israel’s hi-tech sector – responsible for some 15% of GDP – has also baulked, en masse, and become an influential element in the protest movement. Nine prominent hi-tech firms, including WIZ, Papaya Global, Verbit, Disruptive, and Skai have announced withdrawal of operations and funds worth billions of US dollars from Israel. Hi-tech workers have already joined protest walkouts, while over 200 companies are expected to follow venture capital firm TLV Partners’ lead in allowing employees to strike next Monday.

Medical professionals have also joined strikes; during one walkout in late January, Sheba Hospital was the only Israeli hospital operating at full capacity. Meanwhile, protests by IDF reservists have been joined by a number of formerly high-ranking officers, including former Mossad head Tamir Pardo, former IDF Deputy Chief of Staff Matan Vilnai and Maj. Gen. (res.) Tal Russo. Moshe Yaalon, Ehud Barak, and Yair Golan – all former generals as well as political figures – have been at the forefront of opposition to the reforms. In a column published by Yediot Ahronot, Barak called on Israelis to engage in unprecedented levels of protest in the coming days, even suggesting that opposition MKs commit to a hunger-strike. Dozens of former Directors General of government ministries, as well as significant numbers of civil society organisations have also been vocal in opposition. Israel’s closest international allies, too, have signalled their concern.

The Process Moving Forward
The initial vote of the Constitution, Law and Justice Committee on the two concrete elements of the reforms will occur next week to be followed, if affirmed, by a Knesset plenum vote on a first reading. The government’s majority in both the committee and the plenum means that an affirmative vote is certain in both cases; the best the opposition can do is to use procedural motions to delay, though they might decide that boycotting the vote is a more powerful means of symbolising their disdain.

While the usual Saturday protest will continue – including, in an unprecedented development, in the Etzion bloc settlement of Efrat – larger demonstrations are likely to be seen on Monday, outside the Knesset. Large-scale strikes are expected, though Israel’s largest labour union, the Histadrut, has so far not committed itself. Its reasoning is that judicial reform is not a labour issue, while it also remains locked in delicate negotiations with the government over a public sector pay-rise.

President Isaac Herzog has sought to pursue a mediating function, warning of the possibly irreparable damage to the unity of Israeli society if the divide over judicial reform continues. He has suggested forming a cross-parliamentary committee to consider alternative reforms more representative of an Israeli consensus, though his efforts have so far proved unsuccessful. Hayut has made similar suggestions, with the crucial caveat that any changes only become effective from the next Knesset.

Some retain hope that Netanyahu – in the past a vocal supporter of an independent judiciary – will opt to moderate the reforms after the first Knesset reading. He is, however, under pressure from within the coalition to stand firm. Senior United Torah Judaism party figures have been quoted as threatening to withdraw from the government if Netanyahu either backs down or else agrees to concessions which significantly alter the content of the reforms. While such a threat should be treated with scepticism, it is reflective of the strength of feeling from within the other factions in the coalition. Meanwhile, Attorney General Gali Baharav-Miara, another critic of the proposed reforms, has argued, by letter to the Prime Minister, that his involvement with judicial reform is a conflict of interests given his ongoing personal legal case.

Levin has stated that these reforms are only the first stage. Speculation abounds that future reforms could include removing automatic seniority of the President of the Supreme Court, lowering the retirement age of judges, and the splitting the role of the Attorney General

February 6, 2023

Fifth week of reform protests

For the fifth consecutive week, tens of thousands of Israelis demonstrated at multiple locations across Israel on Saturday night, protesting the judicial reform being advanced by the government.

Once again, the main demonstration was held on Kaplan Street in Tel Aviv. According to organisers, around 100,000 people turned out to demonstrate, despite the inclement weather.
One of the key speakers was Tel Aviv Mayor Ron Huldai, who told the crowd: “We are determined to continue to fight for the State of Israel’s image. They’re trying to frame us as being out-of-touch instead of listening to our principled positions. I want to warn the government: if you take things to the extreme, you’re liable to produce extreme counter-reactions. This is an opportunity to reach broad agreements, and if the words end, actions will begin. We won’t be indifferent. We won’t respond with acceptance.”
At a second rally in Tel Aviv organised by the Movement for Quality Government at Habima Square, the former police commissioner, Roni Alsheich, related to the proposed reform, saying: “This plan doesn’t contain a single element that is designed to correct. They’re trying to remove all of the checks and balances today at once. All the power is to be given to the executive branch without any constraints. Things that are illegal will become legal within days and, if need be, they’ll be enshrined in a basic law. The proposal is a regime coup, nothing short of that. As an observant Jew I have to admit that there isn’t anything Jewish about what is being proposed at present.”
Yesterday, President Isaac Herzog called on the government to, “Stop the whole process for a moment, take a deep breath, allow dialogue to take place, because there is a huge majority of the nation that wants dialogue.”
He also called on opponents of the judicial reform to stop their incitement and threats.
Justice Minister Levin’s responded bluntly to the President on Channel 13: “Let there be no doubt, we will not suspend the legislation for even a minute.”

The government is prioritising judicial reform, as a consensual issue shared by all the coalition partners.

Both reformers and preservers are claiming to defend democracy. For the reformers it means giving extended power to elected representatives. For the protestors it’s about keeping checks on the absolute power of the majority.
Last month Justice Minister Yariv Levin outlined stage one of his reform proposals which include:
- An override law that would allow the Knesset to reinstate legislation annulled by the Supreme Court, by a simple majority of 61 votes.
- To alter the committee that selects judges, giving politicians more control.
- Abolishing ‘reasonability’ as grounds for the court to cancel government decisions.
- Altering the role of ministerial legal advisors, allowing ministers to appoint their own advisers.
President Herzog has suggested forming a cross-parliamentary committee, so that any changes can be moderated and receive wider consensual support. So far he has been rebuffed by both sides.
Herzog was referring to various incidents of incitement posted online over the weekend, including a 76-year-old retired air force colonel Zeev Raz who appeared to endorse a post calling for the assassination of Prime Minister Netanyahu.
In addition, former prime minister Ehud Barak shared an image comparing Herzog to prime minister Neville Chamberlain, as if his calls for dialogue with the government was the equivalent of appeasement of Hitler.
Also over the weekend J.P. Morgan, along with Barclays Bank issued new forecasting assessments that the proposed judicial reform might have a negative impact on Israel’s economic growth and its credit rating.
Prime Minister Netanyahu will dispatch his key ally Minister for Strategic Affairs Ron Dermer to engage with the banks and credit agencies. This type of dialogue is usually handled by finance ministry officials, but due to the sensitivity Dermer – who earlier in his career served as economic attaché at the Israeli Embassy in Washington – is expected to deal with this issue.
Netanyahu was in Paris this weekend. Following his meeting with President Macron he met with about 60 business and corporation executives who claimed control a combined total of about €150 billion. “What they are saying about ‘investor flight’ is rubbish. We want to increase investment in Israel,” Netanyahu told them.
However, more prominent economists, including Nobel Prize and Israel Prize laureates, added their signatures to the more than 300 others who had already signed a public warning about the economic damage that the proposed judicial overhaul might cause.
In addition, over 50 CEOs of retail chains and large companies in Israel sent a letter yesterday to the political leaders calling for dialogue on the proposed reforms

This week, the Knesset Constitution, Law and Justice Committee will continue deliberations on the reforms. The objective of the committee chair, MK Simcha Rothman is to pass the entire reform by the end of the winter session in another two months’ time.

Some analysts have predicted that only after the bill passes in its first reading in the Knesset will genuine negotiations begin, which could include mediation by President Herzog.
The government also plans to introduce “the second Deri bill,” which will claim that the court can have no judicial oversight over the appointment of ministers. The aim of the bill is to allow Shas leader Aryeh Deri to be reinstated as a minister.

January 29, 2023

Attack in Neve Yaakov

Attack in Neve Yaakov: Seven people were killed and at least three others injured in a shooting attack near the Ateret Avraham synagogue in Jerusalem’s Neve Yaakov neighbourhood on Friday evening.

Five victims were declared dead at the scene and another two succumbed to injuries after reaching local hospitals.
The shooter was later named as Alqam Khayri, 21, an East Jerusalemite with no prior record of terror activity.
Khayri arrived at the busy synagogue, around the end of Shabbat evening prayers. He first shot an elderly woman in the street before beginning shooting at worshipers emerging from the Synagogue. He then fled the scene by car and headed for the nearby Arab neighbourhood of Beit Hanina. When faced with police officers, Khayri opened fire before being shot dead.
Security officials told the Walla news site that Khayri had displayed considerable skill with a weapon and that they were investigating the possibility that he had received training.

The aftermath: On Saturday, Israeli police arrested over 40 of Khayri’s friends, acquaintances, and family members.

Meanwhile, widespread celebrations were seen in the Gaza Strip and in several West Bank cities, including Ramallah, Nablus and Jenin.
A second shooting attack occurred on Saturday morning. An Israeli father and son, were said to be in a serious but stable condition after being shot near the Old City of Jerusalem. The Palestinian attacker, who was shot and wounded was identified as a 13-year-old Muhammad Aliyat.
There were two more attempted shooting attacks later on Saturday: One at Almog junction close to Jericho, where the assailants gun jammed, and a second attack thwarted at the entrance to the settlement of Kedumim.
US President Joe Biden called Netanyahu on Friday night. “The president made clear that this was an attack against the civilised world,” and “stressed the ironclad US commitment to Israel’s security,” the White House revealed.
Statements of support were also forthcoming from other Israeli allies including the UK and the UAE. A Jordanian statement condemned the attack but also included a thinly-veiled criticism of the Jenin operation.
Organisers of the anti-government protests on Saturday night decided that the demonstrations would begin with a minute’s silence for the victims of the terror attacks and would avoid the playing of music.

The Security Cabinet convened on Saturday night and announced a series of measures including:
- “National insurance rights and additional benefits for the families of terrorists that support terrorism will be revoked.”
- “Legislation on the revocation of Israeli identity cards of the families of terrorists that support terrorism will be discussed at tomorrow’s Government meeting.”
- “Firearm licensing will be expedited and expanded in order to enable thousands of additional citizens to carry weapons.”
- “In response to the abhorrent attacks and the celebrations in their wake, Prime Minister Netanyahu has decided on steps to strengthen settlement that will be submitted this week.”
Police also fear potential price tag revenge attacks against Arab Israelis. Prime Minister Netanyahu appealed for restraint in his immediate comments. “Our hearts are with the families,” he said. “I commend the police officers who took action so quickly. We must act with determination and composure. I call on people not to take the law into their own hands.”
On Sunday morning the mapping and sealing of Khayri’s home was expediated ahead of its demolition.
Five people remain hospitalised but in stable condition following the two attacks in Jerusalem.

The death toll of seven makes the Neve Yaakov attack the deadliest suffered by Israel since 2011, and the costliest Palestinian-perpetrated attack since 2008, when an East Jerusalemite terrorist killed eight Israelis at the city’s Mercaz Harav yeshiva.

No group has claimed responsibility for the attack, though Hamas and Palestinian Islamic Jihad praised it as a response to Friday’s IDF raid in Jenin in which nine Palestinians, including seven combatants, were killed.
The first intifada (late 1980s) was characterised as a popular uprising and the second (from 2000) was notable for being led by organised terror organisations. This latest period which began in March 2022 has neither of those features and is led by localised cells and ‘lone wolf’ attackers.
Security experts are divided over the effectiveness of swift demolitions of terrorist homes; whether this disincentives future attacks or encourages them.
Since last March there have been several deadly terror attacks that have resulted in 30 Israelis killed. In the same period 150 Palestinians have also been killed, though over 90% were engaged in some form of combat.
The second attack’s perpetrator being a thirteen-year-old child is particularly shocking, both as testimony to his exposure to incitement and indoctrination as well as his ease of access to an illegal weapon.

The immediate period following lone wolf attacks is one of the most tense, as in the past deadly attacks have served as increased motivation for copycat attacks.

Kobi Shabtai, Israel’s police commissioner, ordered officers from the elite Yamam counterterrorism unit to deploy to Jerusalem after the two attacks.
IDF Chief of Staff Herzi Halevi, meanwhile, ordered extra troops to be stationed in the West Bank and along its security fence.
US Secretary of State Anthony Blinken is due to arrive in Israel on Monday. Yesterday he said, “We mourn those killed in the attack, and our thoughts are with the injured, including children. The notion of people being targeted as they leave a house of worship is abhorrent.”

January 23, 2023

Shas Leader Deri fired

Prime Minister Netanyahu fired Shas leader Aryeh Deri in accordance with last week’s High Court ruling.
In a move coordinated in advance Netanyahu handed Deri his official letter of termination at yesterday’s weekly cabinet meeting.
Netanyahu noted that he viewed Deri “as an anchor of experience, wisdom and responsibility” but was obliged to conform to the court ruling and “with a heavy heart, great regret and a very grim feeling to remove you from your post as a cabinet minister.”
Deri reiterated his “iron commitment to the 400,000 people who elected me and Shas. No judicial decision will prevent me from serving them and representing them.”
A second political challenge was also evident at the cabinet meeting yesterday, when ministers from the Religious Zionist Party boycotted the meeting. They were angry over what they perceive as a violation of coalition agreements.
On Friday a new settler outpost “Or Haim” in the West Bank was dismantled under orders of Defence Minister Yoav Galant. The decision was made without the knowledge of Minister Bezalel Smotrich.
Over the weekend public demonstrations once again protested the legal reforms being advanced by the government.
More than 100,000 people demonstrated in Tel Aviv. The organisers deliberately did not invite any politicians, including from the opposition to address the crowd. Instead the main speaker was author David Grossman, who said that in Israel’s 75th year, the current moment is an “hour of darkness.” There were smaller demonstrations in Jerusalem, Haifa, Beer Sheva and Herzliya.
Despite heavy criticism of the proposed judicial reform the Wall Street Journal published an editorial supportive of the reforms
Deri’s reference to 400,000 Shas voters was recognised during the High Court’s hearings, however the judges made the distinction that his right to represent them in the Knesset did not include a right to sit as part of the executive branch.
The “Or Haim” outpost was established in memory of the late Rabbi Haim Druckman. Despite being dismantled on Friday, attempts were made again yesterday to rebuild two structures that were again taken down.
According to the coalition agreement, civilian affairs in the West Bank are due to be handed over to Smotrich. However, according to MK Orit Struck from the Religious Zionist Party, “There is an unreasonable foot-dragging in the transfer of powers to Minister Smotrich.”
Minister Ben-Gvir, who did attend the meeting, had asked Galant to hold off on the evictions and demanded equality, claiming that Civil Administration officials don’t enforce the law when Arabs build illegally. “When it comes to Jews, the Civil Administration enforces the law brutally; within hours it seeks to demolish and destroy the outpost.”
Galant responded saying, “illegal construction on private Palestinian areas will be removed immediately. If we hadn’t removed it today, we would have removed it on Sunday after being dressed down by the Americans. Establishing the outpost and the unpreventable clashes over it are liable to set the whole area on fire.”
So far the prime minister has given his full backing to Defence Minister Gallant, also perhaps signalling that he is not looking to clash with the Biden administration. According to his office: “The government supports settlement only when it is done legally and it is coordinated with the prime minister and defence officials. That was not done in this case. The prime minister will hold deliberations on this matter at the beginning of the week.”

Deri’s dismissal will go into effect tomorrow. Shas is expected to appoint existing MKs to temporarily serve as health and interior ministers.

Despite the dismissal Netanyahu is keen for Deri to continue to attend cabinet meetings – even the security cabinet – as an observer.
Deri is looking for a way to circumvent the ruling and return to his role. One option being explored is for the coalition to pass new legislation to formally prevent legal intervention into cabinet appointments as an additional component of the legal reforms being advanced.

January 20, 2023

High Court votes to bar Deri from serving as a minister

What happened: Fallout continues from the High Court’s decision on Wednesday, by a vote of 10-1, to bar Shas leader Aryeh Deri from serving as a minister.

The decision affirmed that allowing Deri to serve would be both “unreasonable” and in violation of the legal principle of estoppel.
The court did not vote to strike down the amendment itself, passed recently in the Knesset to Basic Law: Government, which intended to allow for Deri to circumvent the bar on those with a criminal conviction serving in cabinet on the grounds that his second, most recent conviction, did not involve “moral turpitude”.
The dissenting judge, Justice Elron, made clear that he was not voting to uphold Deri’s appointment; rather that he felt advice should be sought from the chair of the Central Elections Committee.
Shortly after the decision was announced, Prime Minister Benjamin Netanyahu drove to meet with Deri at his home. In his first statement after the announcement, Deri was defiantly promising to find a way to continue to serve: “When they close the door on us, we’ll get in through the window. When they close the window we’ll break through the ceiling, with God’s help.”
On Thursday, Attorney General Gali Baharav-Miara wrote to Netanyahu demanding that, in light of the court’s decision, he fire Deri from his roles as Interior and Health Minister.
Coalition members are angrily citing the court’s decision as evidence of the need for judicial reform. Shas officials are also stoking the flames of a Sephardi-Ashkenazi divide, by asserting – without evidence – that the court’s decision had sectarian motivations.

What comes next? The most likely outcome seems to be that Deri will either resign or be fired by Netanyahu. The government will then move for a future reinstatement of Deri by pressing ahead with its efforts at judicial reform, which include the removal of the grounds of reasonability as justification for the court intervening.

Reports this morning indicate that should Netanyahu equivocate, the Movement for Quality Government is planning to file a legal petition ordering him to fire Deri immediately.

Deri’s willingness to consider this course remains unclear, however, and he told a Sunday Shas meeting that he would not resign in the event of an adverse court decision.
Nor would judicial reform necessarily smooth his return. The court was careful to invoke another legal reason in its ruling, alongside reasonability. Deploying the principal of estoppel, the court upbraided Deri for going back on his commitment to the magistrate’s court, as part of his plea deal in his most recent conviction, not to seek further involvement in public life.
Five of the judges – including three recognised as the court’s most conservative – cited this principle as decisive. Court President Hayut declared that Deri’s dissimulation in this regard “reinforced the conclusion that this appointment clearly crosses the line.”
This factor complicates Deri’s potential return, since revocation of the court’s reasonability prerogative would not be sufficient to overturn its ruling. Estoppel, meanwhile, is a foundational principle of Israel’s legal system, and attempts to remove it would be risky in the extreme.
Some cabinet members, such as Jewish Power’s Amichai Eliyahu and United Torah Judaism’s Yisrael Eichler are calling on Netanyahu simply to ignore the court’s decision. “The High Court has no right to demand that it be obeyed — it’s a dictatorship like Putin,” Eichler said on Thursday. This is a minority view in the cabinet, however, with Likud members resigned to Netanyahu having to comply with the law as it stands before trying for reform.
Deri’s removal, whether by resignation or sacking, would bring its own immediate complications. By default, his health and interior briefs would pass to Netanyahu. However, Netanyahu is himself under indictment in three cases and is thus also barred from holding a ministerial portfolio.
Channel 12 reported a proposal that Deri replace Knesset Speaker Amir Ohana, who would then assume a cabinet role. The role of speaker would likely not face the same legal challenges, were Deri to be appointed, as a cabinet role. Deri, however, is said to consider the position too junior.
Some reports have speculated that Deri might consider appointing his son Yanki to his cabinet roles in in his stead. Yanki appeared to inflame these suggestions when he tweeted “No stranger will sit in his seat.” More likely scenarios are that former Covid commissioner Moshe Bar Siman Tov and former Shas minister Ariel Attias will be appointed health and interior minister respectively.
Some ministers have reportedly proposed a scenario whereby Deri be appointed alternate prime minister, a role which, they hope, might give him greater freedom from judicial oversight. Reports this morning suggest that this is now Deri’s preferred option.
The role of alternate prime minister was created by the Netanyahu-Benny Gantz government in 2020 and also used by the Bennett-Lapid government. Netanyahu had pledged to scrap it, arguing that a nation must have only one leader.
Deploying this gambit to retain Deri would be hugely complex and risky. The government would have to move for a no confidence vote in itself, before than presenting a new power-sharing government. Netanyahu is not keen for anyone to hold this position again.
Also, since the High Court has never ruled on the question of a person with a criminal conviction serving in the still new alternate prime minister role, it is likely that opponents would file a case requesting that it do so.
Another option said to be being mulled by Netanyahu is to strip Deri of formal ministerial position but keep him close to the decision-making process by appointing him an observer to the security cabinet and retaining him in the informal “kitchen cabinet” of close confidants to the Prime Minister. Whether this would satisfy Shas members remains to be seen. “Netanyahu knows that if Deri isn’t in the cabinet, there’s no government,” welfare minister Yaakov Margi threatened shortly before the verdict was announced.

Looking ahead: the addition of the estoppel complicates the coalition’s plan to reinstate Deri once judicial reforms are passed.

The court’s decision is likely to further intensify the already high tensions between the coalition and the judiciary and further exacerbate the rancorous split in Israel between supporters of the coalition and its reforms and their opponents.
More protests against the government are planned for tomorrow night, with organisers suggesting the possibility of an even larger demonstration than last Saturday’s, which saw 80,000-100,000 people attend.

January 18, 2023

Hamas releases hostage video

Hamas released a video recording of Avera Mengistu who has been imprisoned by Hamas for the last eight years after he crossed the border fence into the Gaza Strip in 2014.

In the short clip he is seen on camera saying: “I am the prisoner Avera Mengistu. How much longer will I be here, I and my friends, in captivity after long and painful years? Where are the Israeli state and people to care about our fate?”
The video also quotes outgoing IDF Chief of Staff Kochavi, saying that he regretted having failed to bring the MIAs and civilian captives home before the end of his tenure.
The Hamas video then shows footage from the IDF handover ceremony, with the message: “Your predecessor left you lies.”
The clip was being studied by Israeli experts to ascertain its authenticity. It appears to be the first indication of proof that the Israeli civilian is still alive eight years into his incarceration.
Yesterday Prime Minister Netanyahu related to the clip saying: “Israel has not ceased its efforts to bring back Avera Mengistu and our other captives and MIAs. Yesterday we received additional confirmation of what we have known all along – that Avera is alive. He is a young man, not in the best of health, and Hamas is entirely responsible for his fate.”
The Mengistu family issued a statement: “It’s more urgent for us to get him back than to see him in a video. This is further proof that he is alive. The state needs to act quickly to bring him home. He appears to be healthy and taken care of. There’s no reason for him to remain in prison for even one day longer. Beyond that, it was very moving to see him. This is the first time that we’ve seen him.”

The release of the recording appears to have been deliberately timed to coincide with the first day of the new IDF Chief of Staff Herzi Halevi.

The assessment in Israel is that the release was designed to divert attention from the occasion and embarrass the IDF.
However, by releasing the video for “free” others have concluded that the recording attests to the pressure Hamas is feeling. In the past such videos confirming “proof of life” have come at a price. For example, Israel released several female Palestinian prisoners before Hamas agreed to release a video recording of Gilad Shalit.
According to Mengistu’s family he suffered from mental health issues and crossed over into the Gaza Strip on his own volition, before being captured and held by Hamas. He went missing on September 7, 2014, leaving his home in Ashkelon with only a rucksack, walking ten km to the border and crossing the fence and entering the Gaza Strip.
Last summer Hamas released a similar video of Hisham al-Sayed, the second Israeli citizen held captive by Hamas, who also crossed the border into the Gaza Strip in 2015.
In addition Hamas still hold the remains of Hadar Goldin and Oron Shaul, IDF soldiers killed in 2014.
Beyond assessing that the footage is authentic, questions remain as when it was filmed.
Foreign Minister Eli Cohen is sending letters to the Pope, UN Secretary-General Antonio Guterres, the Red Cross president, and the head of the World Health Organisation asking them to intercede to secure the release of Mengistu and the other captives.

The video suggests Hamas is keen to reach an agreement with Israel for a prisoner exchange deal.

As with most aspects of Israel’s approach to the Gaza Strip, negotiations over a potential deal are facilitated by the Egyptians, who reiterated this morning that they are ready to renew their role.
Israel will need to appoint a new chief negotiator after Yaron Blum resigned at the end of October.
Hamas continues to demand that Israel release several dozen murderers and prisoners who were released in the Gilad Shalit deal and re-arrested on terror charges.
Hamas’s aim is to restart a public debate in Israel and pressure the government to move forward with a prisoner exchange deal.

January 16, 2023

Largest yet planned protest against judicial reforms

The latest, and so far largest, protest against the new government’s planned reforms to Israel’s judicial system took place in Tel Aviv on Saturday night.

Police estimate that 80,000 Israelis gathered in Habima Square in a demonstration organised by the Movement for Quality Government, while smaller protests were also held in Jerusalem and Haifa.
After an hour-long delay due to the heavy rain, the tens of thousands of protesters (organisers put the figure at closer to 100,000) proceeded in the direction of the Azrieli Mall and Hashalom Interchange.
Although police were forced to prevent around 150 protesters from advancing in the direction of the Ayalon Highway, the event took place peacefully.
While opposition leader Yair Lapid and other members of his Yesh Atid party agreed to stay away to avoid charges of politicisation, several opposition figures as well as retired senior legal figures were in attendance, including National Unity Party head Benny Gantz, MKs Mickey Levy and Chili Tropper, Tel Aviv Mayor Ron Huldai, Former Supreme Court Justice Ayala Procaccia, former Prime Minister Ehud Barak, and former Justice Minister Tzipi Livni.
Addressing the crowd, Procaccia said “We’re in a period in which the foundations of the building are being destroyed. A country in which judges and publicly-elected officials head out to protest against a change in the system of government is a country in which all boundaries have been crossed”.
In her remarks, Livni asserted that: “A government in Israel has gone to war against the democratic institutions themselves in order to gain unbridled rule… We are in historic times that will determine whether Israel remains an advanced democracy or becomes a backward and closed totalitarian state.”
In comments on the protest, Netanyahu stated they did not alter the government’s clear mandate for judicial reform. “Several months ago”, he told Sunday’s cabinet meeting, “there was a huge demonstration, the mother of all demonstrations. Millions of people went into the streets in order to vote in the elections. One of the main topics that they voted on was reforming the judicial system.”
Meanwhile, President Isaac Herzog, himself the target of criticism at the protest, continued his “nonstop” attempts to mediate a solution on judicial reform. His interventions have moved beyond calls for respect and unity and now include dealing with the specifics of the reforms themselves.
Herzog said Sunday that “We are in the grips of a profound disagreement that is tearing our nation apart. This conflict worries me deeply, as it worries many across Israel and the Diaspora… I am now focused on … two critical roles that I believe I bear as president at this hour: averting a historic constitutional crisis and stopping the continued rift within our nation.”

Judicial reform was a central component of the electoral platform of all factions in Netanyahu’s coalition and is a key legislative priority for the new government.

Justice Minister Yariv Levin detailed his reform proposals on January 4th, which included:
- An override law that would allow the Knesset to reinstate legislation annulled by the Supreme Court, by a simple majority of 61 votes.
- To reform the committee that selects judges, giving politicians more control.
- Abolishing ‘reasonability’ as grounds for the court to cancel government decisions.
- Altering the role of ministerial legal advisors, allowing ministers to appoint their own advisers (like in the UK).

In an impassioned speech in Haifa last Thursday, Supreme Court president Esther Hayut condemned the proposals as amounting to a government “blank cheque”, and as “a plan to crush the justice system.”
Regarding Herzog’s mediations, his own comments, together with statements from coalition sources, suggest that while there may be some appetite for compromise, the government and its critics remain some way apart.
Levin and the government seem adamant that no compromise will be made on their changes to the election of judges, though the potential for a reduction of the proposed 7 political figures on the selection committee of 11 to 6 has been floated.
Reports in the Israeli media suggest there may be room for compromise in some areas:
- On the court potentially keeping a narrower remit of “reasonableness” as grounds for intervention.
- On the majority of judges required to be in agreement for the annulment of a Knesset decision.
- On a possible increase of the proposed override majority from the 61 currently proposed by Levin.

Keen not to allow the process to drag on past the end of the Knesset’s Winter session, Levin is seeking a speedy progression of reforms.

Today the Knesset’s Constitution, Law and Justice Committee will begin “marathon” meetings in order to flesh out the details of Levin’s proposals. Its first order of business will be the question of legal advisors.
Meanwhile, the Supreme Court’s judgement is expected in the next few days on Shas leader Aryeh Deri’s appointment as a minister.
An amendment passed to Basic Law: Government allowed for Deri’s criminal conviction to be overcome and his appointment ratified. Should the court choose to exercise its existing right to annul the amendment on the grounds of reasonability, tensions between the executive and the judiciary are likely to reach even greater heights.
Potential compromises on Levin’s proposals could be affected, with a Likud source quoted as saying that such a decision would “speed up the steps against the justice system and the legislation of the reforms… Deri’s disqualification will be our ‘case’ against the Supreme Court, since this decision will conflict with the democratic process and the election results. It will become a lot easier for us to support legislation to rein in the justice system.”
Senior figures within the Justice Ministry are also set to respond to Levin’s proposals soon and are likely to flag up various legal and technical objections to implementing the reforms.
Protests are set to continue, with another large demonstration set for next Saturday. Roee Neuman, a spokesperson for the Black Flags Movement, predicted both a larger next protest and possible increased involvement from Israel’s commercial sector, while former deputy IDF chief of staff and a former deputy minister for Meretz Yair Golan recently called for more consequential acts of civil disobedience.
Lapid, meanwhile, is said to have met on Sunday with Arnon Bar-David, head of the Histadrut, in an effort to gain the support of the powerful labour union for the opposition to the new government.

January 11, 2023

Jewish Power party attacks Lapid and Gantz

A new Knesset member from the Jewish Power faction, Zvika Fogel, spoke out harshly yesterday against leaders of the opposition Yair Lapid and Benny Gantz, as well as former MKs Yair Golan and Moshe Yaalon.

In an interview to Kan News Fogel said: “The four of them need to be arrested now. They’re the most dangerous people out there right now…..because they’re calling for war. If they were calling for demonstrations I’d give them every right to demonstrate. But they’re talking in terms of me as an enemy…From my perspective that’s treason against the homeland, if I wasn’t sufficiently clear. Yes, those are grounds for arrest.”
His party colleague, Deputy Minister Almog Cohen later added, “If Lapid and Gantz don’t stop with their invective, incitement and their desire to shed blood in the streets of Israel—they’ll be arrested and handcuffed.”
In response to rising tensions, President Herzog wrote on twitter yesterday: “The values of the Declaration of Independence act as the moral compass of our country – I will not let them be harmed. This is a sensitive time among the Israeli public. I hear the concerns being voiced from all directions, the cries, the worries and the fears.”
He continued: “In recent days, I have been acting and holding discussions with many officials and doing everything in my ability to bring about a respectful dialogue, in hopes of reaching the broadest possible understandings. I turn to you, the elected officials and citizens of Israel from all ranges of the public and political spectrum – practice restraint and responsibility. We need to calm the spirits and put out the flames.”
Yesterday in Beer Sheva a man drove his car onto the pavement, shouting and threatening university students protesting against the government’s planned judicial reform. No one was injured and the driver was arrested by the police.
Leader of the Opposition Lapid commented saying : “Netanyahu, in a democratic country you don’t run down citizens and the justice system. You’ve become a weak prime minister who trembles in fear of his extremist partners. They’re scornful of you and are leading the State of Israel to collapse.”
Later Prime Minister Netanyahu spoke to the president, telling him: “In a democratic country, one does not arrest the leaders of the opposition just as one does not call government ministers Nazis and a Jewish government the Third Reich. Neither does one call on citizens to launch a civil rebellion.”

Context: Less than two weeks after the new government was sworn in, there is already heighted concern among opposition groups over the anticipated legal reforms.

The core arguments revolve around the right of a democratically elected government to rule without constraint or whether minority rights should be protected by intervention from the judiciary. For more details on proposed reforms.
At the end of last week President Herzog held a long meeting with Justice Minister Levin in an effort to soften their planned reforms.
Regarding Fogel’s comments, his party leader and National Security Minister Itamar Ben-Gvir said he does not support a call to arrest opposition leaders. He explained, “Fogel heard them inciting against the government and calling for civil dissent, calling us Nazis. That is why he reacted as he did.”
There has also been a public dialogue about how the police should handle demonstrations. Ben Gvir has called for equal treatment of left and right wing protests, but said he supports “maximum free expression.”
His concern over inequality is seen for example with the use of water cannons deployed by the police in Jerusalem against settlers or Ultra-orthodox, whilst left wing demonstrators in Tel Aviv are treated with “kid gloves”.
Police have explained that the nature of disturbances are of a different magnitude. A senior police officer told Channel 12 News that the difference is the crowd. He explained that in Tel Aviv, “When we talk to them, we agree that the demonstrators can protest. If a road is blocked, it will be for a set time.” In Jerusalem the demonstrators tell the police, “We won’t do what you ask. We’ll demonstrate as much as we want, whenever we want, and have no intention of listening to any of your instructions.” That is when we immediately use force, said the senior officer.

The Knesset will soon begin to debate the proposed legal reforms.

Further demonstrations are expected this Saturday night. The police are intent on continuing to exercise restraint.
There is a consensus that police show no tolerance for attacks on police officers and will not allow incitement, particularly the use of Nazi symbols (last week, a tiny minority held banners making comparisons between Nazism and the new government). However the police also said that there is no law prohibiting the waving of Palestinian flags, (also seen at last week demo in Tel Aviv) as long as there is no incitement.

January 9, 2023

Security Cabinet discusses international lawfare

Israel’s new Security Cabinet convened for its first meeting and issued a range of responses to the Palestinian Authority’s (PA) decision to target Israel in international forums.

Following a Palestinian initiative, the UN General Assembly passed a resolution for the International Court of Justice (ICJ) to open an investigation into Israel’s “prolonged occupation, settlement and annexation of Palestinian territory.”
In response, the Security Cabinet decided:
- To use around NIS 139 million (£23.6m) of PA tax funds to compensates the families of victims murdered in Palestinian terrorist attacks, offsetting the payments made by the PA to terrorists and their families last year.
- To prevent illegal Palestinian construction plans in Area C (where, according to the Oslo agreements, Israel retains full civil and security control).
- To revoke Palestinian officials’ VIP access if they are leading the political and legal campaigns against Israel.

Finance Minister Bezalel Smotrich commented yesterday saying, “Nothing could be more just than deducting funds from the PA, which acted in support of terrorism, and to turn them over to victims of terrorism. The government of Israel is changing its policies, and on this day we are beginning to make a correction. There isn’t any consolation here for the families of the murdered, but there is justice.”
Yesterday Israel suspended Palestinian foreign minister’s Riyad al-Maliki’s VIP pass. He was briefly detained when entering via Jordan and his VIP travel card confiscated.
Last week Karim Younis, the longest-serving security prisoner in Israel, was released from prison. An Israeli-Arab affiliated with Fatah, he was convicted in 1983 for the murder of IDF soldier Avraham Bromberg.
Since his release there have been days of celebration in his village of Arara in northern Israel, where he has been visited by prominent religious and Arab political figures. Three PA officials who visited him also had their VIP travel documents revoked.
In addition, National Security Minister Itamar Ben-Gvir has also instructed police to remove Palestinian flags from public spaces, seen prominently amid the celebrations in Arara.

The new government is emphasising zero tolerance for support for terrorism and lawfare initiatives that seek to delegitimise Israel in international forums.

Israeli law does not outlaw Palestinian flags, but police and soldiers have the right to remove them in cases where they deem there is a threat to public order. Under Ben-Gvir’s leadership, the definition of “a threat to public order” could be more broadly interpreted.
In addition, the family of the murdered Bromberg are appealing to Interior Minister Aryeh Deri to rescind Karim’s Israeli citizenship.
Palestinian officials are concerned that the withholding of the tax income will have an adverse effect on the Palestinian economy, which is already struggling to meet its commitments in paying public service employees.
As of now the Palestinian security forces are maintaining security coordination with the IDF, as both sides share concern over Hamas, Islamic Jihad and Iranian efforts to activate terror cells in the West Bank. However, some Israeli officials are concerned that the PA will be less motivated to make arrests and take action against terrorists.

Israel has not yet decided what its approach will be to the ICJ, or if further steps will be taken against the PA.

Similarly, the PA is also assessing its next move and whether to ramp up further pressure on Israel by looking to join other international forums.
Israel will face similar challenges Younis’s cousin, Maher Younis, and his co-conspirator released from prison next week as scheduled.

January 8, 2023

Deri’s appointment discussed in court

Yesterday an 11-justice High Court of Justice panel began a hearing to discuss the legality of Shas leader Aryeh Deri’s appointment as a government minister.

Deri is today serving as acting prime minister while Netanyahu underwent a medical procedure and was briefly incapacitated.
The hearing was prompted by three petitions to the court:
- The first argued that the Deri Law is a personalised law, abusing the Knesset’s authority to legislate Basic Laws.
- The second that Deri’s appointment as minister is ‘unreasonable’ because of his recent conviction and criminal record.
- The third petition stated that Deri’s appointment contradicts terms of his plea bargain, whereby he would retire from public life in order to avoid the categorisation of moral turpitude.

One of the laws passed prior to the governments swearing in, made the distinction between a suspended and custodial sentence allowing Deri to serve as interior and health minister.

Last year In a plea bargain last year, Deri confessed to tax offenses and was given a suspended sentenced on condition that he resign from the Knesset, which he did.
In the leadup to the hearing Attorney General Gali Baharav-Miara clarified that she had no objection with the Knesset’s authority to change the basic law, but nevertheless thought it “extremely unreasonable” for Deri to serve as a minister. As such she would not defend the government in court but allowed Deri and Prime Minister Netanyahu to appoint their own legal counsel.
Not only was Deri found guilty of tax offenses last year, twenty years ago he served a prison sentence for bribery. After being released, he spent the requisite seven years away from public office.

Justice Stein, took issue saying, “You can’t say ‘I resign’ for the benefit of a convenient plea bargain and after a very short time say ‘I want to become minister.’”

Deri’s lawyer said this was “a rare case of misunderstanding.”
His lawyer argued that his appointment expressed the will of over 2 million Israeli citizens, including 400,000 Shas voters.
President of the Supreme Court Esther Hayut retorted that they have the right to choose representatives to the Knesset, but not ministers.
Netanyahu has argued that he values Deri’s “great wisdom and experience” and his appointment was vital for foundation of this government.

On Wednesday evening (the night before Deri’s hearing) the new Minister of Justice Yariv Levin (Likud) held a press conference.

He outlined four significant changes he is looking to bring in.
- An override law that would allow the Knesset to reinstate legislation annulled by the Supreme Court, by a simple majority of 61 votes.
- To reform the committee that selects judges, giving politician more control. Levin explained, “There will no longer be a situation in which judges elect themselves in closed rooms… Instead, there will be equal representation for all three branches of government on the Judges Selection Committee. The justice minister will appoint two public representatives to the committee instead of the sectarian representatives of the Israel Bar Association, and full transparency by means of public hearings in the Knesset Constitution, Law and Justice Committee for Supreme Court candidates.”
- Abolishing ‘reasonability’ as grounds for the court to cancel government decisions. Levin said, “There is no such thing as a grounds of reasonability. No more will the government be subordinate to an unelected echelon.”
- Altering the role of ministerial legal advisors, allowing ministers to appoint their own advisers (like in the UK).
Levin argued, “Confidence in the justice system has fallen to a dangerous nadir. We went to the polls, but time and time again people who we never elected made choices for us. That is not democracy. The governance reform will strengthen democracy and will restore the balance between the three branches of government. We will discuss at length and in great depth, and the opinions of all MKs from every faction will be heard, as will those held by members of the justice system.”

Leader of the Opposition Yair Lapid said, “Like a gang of criminals, a day before the High Court of Justice hearing on the Deri law, the government placed a loaded pistol on the table. What Yariv Levin presented today isn’t judicial reform; it’s a threatening letter. They are threatening to destroy the State of Israel’s entire constitutional structure. I am announcing here and now: on the day we return to power all of these changes will be abolished. The reckless reform will be abolished; the extortionist override clause will be abolished; judges won’t be elected by corrupt politicians who want to have the cases against them closed.”

The former Justice Minister Gideon Saar said, “Minister Levin cited Menachem Begin, the legendary and first leader of the Likud, this evening at the beginning of his remarks. But his statements were nothing short of killing Begin’s democratic and regime doctrine. Without doubt, Menachem Begin would have rejected every one of the sections of this plan to change the regime in Israel. His real disciples bear the duty of fighting against that, and that is what I will do.”
Saar’s party leader Benny Gantz suggested establishing a bipartisan committee to debate and reach a consensus on reforming the judiciary. For example regarding the override law, a more restrained version would require a larger Knesset majority in order to overrule Supreme Court decisions.

The timing of Levin’s announcement angered Deri, who believes that under the threat of intimidation the judges could actually toughen their stance against him.

Israel is a uniquely fragile democracy, it does not have a constitution, a second chamber or a presidential veto.
The separation of powers is a founding principle but there is only a limited distinction between the legislative and executive branches.
In the last 30 years there has been numerous examples of an activist Supreme Court challenging government decisions. The court uses the precedent of the Basic Laws to overrule government decisions.
Levin and his supporters have long argued that overruling government decisions works against the values of democracy, when the Knesset is the only elected body.
Others have argued that these Basic Laws protect Israel from international criticism as they recognise the standing of an independent Supreme Court.
Defenders of the reforms point to the example of the US legal system and other democracies where all judges are selected by elected officials.

Following Levin’s announcement he will be completing preparation to bring the bills to the Knesset in the next month or two.

Netanyahu has not commented publicly on Levin’s plan it is thought that he does not necessarily agree with it all and elements could be softened. Speaking recently on his podcast Ron Dermer, perhaps Netanyahu’s closest ally and newly minted Minister of Strategic Affairs though the reforms should be made “with a scalpel and not sledgehammer.”
The verdict in Deri’s hearing could still take some weeks, but will have profound repercussions for the government and its relationship with the court.

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