Israel’s “regime change”: Where does it stand a year after October 7? - David Kretzmer

1. Introduction

For nine months that ended on October 7, 2023, hundreds of thousands of Israelis were demonstrating every week against the government’s proposals for what it termed “legal reform”. The main aim of these proposals was to concentrate all power in the hands of the executive branch of government that would not be subject to checks and balances that are meant to ensure that the government acts within the law, respects human rights and is free from corruption. This aim was to be achieved by enacting legislation that would give the executive branch of government effective control over the appointment of judges, weaken both the status of government legal advisers and the binding nature of their legal opinions, allow passage by a simple Knesset majority of legislation that will not be subject to judicial review, demand a special majority of judges of the Supreme Court to rule a statute unconstitutional, and limit judicial review of executive action by abolishing or restricting the grounds of unreasonableness. Opponents of the proposals, who came from all sectors in Israeli society, justifiably saw the proposals as a plan for a regime change that would spell a death blow to Israel’s democratic institutions.

By the time of the murderous October 7 Hamas attack, the government had only managed to implement one part of its legislative plan: an amendment to a Basic Law that freed the Cabinet and its members from judicial review over their decisions on grounds of unreasonableness. In January 2024 the Supreme Court held that this amendment was unconstitutional, and therefore invalid.

One would have thought, and hoped, that given the extreme security and social crisis in Israel since the October 7 attack, and the ongoing war on a number of fronts, the government would have shelved its divisive plan, at least until such time as relative calm returns to the country (assuming, of course, that at some stage that will happen). But the government has not abandoned its plan. Quite the contrary. It is now mounting an attack on all the democratic institutions of the state.

Until the new session of the Knesset was convened in late October the government adopted alternative ways of implementing its plan. Since the Knesset reconvened there began a blitz of legislative measures, usually submitted as private member’s bills, that aim to destroy the democratic foundations of the state and turn the regime into an autocratic regime that will be able to perpetuate its hold on power. The minister of communications, one of the most extreme members in an extreme right-wing and racist government, recently declared quite openly that since the government enjoys a parliamentary majority it represents the public and can institute a regime change.

2. The interests behind the government proposals

Support for the government proposals came from various interest groups, each of which had reasons for undermining judicial independence, giving unbridled power to the government that has effective control over the Knesset, and weakening the status of government legal advisers. One group was the “ideological group” led by the Kohelet Policy Forum. This group, which is strongly influenced by right-wing American Republican views, and was, until recently at least, heavily financed by two Republication billionaires, have long argued that the Supreme Court is a “left wing” institution that has pursued an agenda that is antagonistic towards Israel’s self-definition as a Jewish state. Members of this group were instrumental in drawing up the plan for “legal reform” presented by Minister of Justice Yariv Levin a week after Netanyahu’s new extremist right wing government was sworn in. The second group is the “hatred group”. Led by Levin and the chair of the Knesset Constitution and Law Committee, Simcha Rotman, members of this group have a deep and unwavering hatred towards Supreme Court judges, who, they claim, belong to a liberal elite that does not represent the people. Even the conservative judges appointed during the term of the former right-wing minister of justice, Ayelet Shaked, are too liberal for this group. The third group is the “settler group”, headed by the ministers Betzalel Smotrich and Itamar Ben Gvir. This group is determined to go ahead with its plan of pushing Palestinians out of Area C in the West Bank, taking control of all the land there, and formally annexing the area to Israel, and, more recently, pushing Palestinians out of Gaza and setting up Israeli settlements there. While the Supreme Court has not been active in halting policies in the West Bank that are incompatible with international law, it has placed some restraints on the authorities, especially when it comes to protection of private property rights of Palestinians. Members of the “settler group” wish to remove any chance that the Court, or legal advisers, will put brakes on implementation of their plan. The fourth group is composed of those, foremost amongst whom is PM Netanyahu, who have a personal vendetta with the law and legal institutions, and are determined to weaken these institutions and to achieve unfettered power, so that they can escape criminal or other censure. Hiding behind the unfounded and misleading claim that the lawyers constrain “governability”, this group’s problem is not only with judicial institutions; it is with the law and democracy. Members of this group, many of whom blindly support Netanyahu, see no reason why the government, which was democratically elected, should be constrained by the law or accepted norms in a democratic society. They attack any institution that may enforce the law against them, and will do anything required to undermine the status of government lawyers and professional civil servants who may serve as gate-keepers against government corruption. Members of this group are involved in exploiting their parliamentary majority to suppress opposition and to perpetuate their own political power.

3. The regime change proceeds at full pace

Having failed to enact legislation to further their plan before October 7, members of all these groups joined forces in order to undermine the rule of law in Israel, without formally changing the law. Let us now see how they did this.

One of the major proposals of the government was to change the composition of the judges’ selection committee so as to give control over judges’ selection to the governing coalition. Having failed so far to pass legislation that will effect this change, since the Court’s president deputy president and one other judge all reached the mandatory retirement age, the minister of justice has exploited his position as chair of the judges’ selection committee to prevent selection of new judges and election of a new president of the Supreme Court, who is not to his liking. The result is that we are now in the unprecedented situation in which the Supreme Court has no president or deputy president, and has to deal with its huge case load with only 12 of the required 15 judges.

When it comes to the “rule of law” the situation is even more serious. Netanyahu appointed Itamar Ben Gvir as his minister of police (with the bombastic title “minister of national security”). Ben Gvir, a man with multiple criminal convictions who is an admirer of Meir Kahane and the mass-murderer Baruch Goldstein, has managed to convert the police into a totally political body that has been acting outside the law. Without cause and the required judicial warrant the police arrests people (especially Palestinians) who express opposition to the war and the ongoing destruction of human life and of property in Gaza, while at the same time it refrains from enforcing the law against violent supporters of Ben Gvir (such as people who broke into an army camp in an attempt to prevent the arrest by the military police of soldiers suspected of sexual abuse of Palestinian prisoners). The police are in charge of enforcing the law against settlers on the West Bank, but they systematically refrain from doing so. According to a press report, when asked in a Cabinet meeting why violent settlers who attacked a Palestinian village had not been arrested, the head of Israel’s Security Agency replied “there is no police in Israel.”

According to the jurisprudence of the Supreme Court, confirmed in a recent unanimous judgment of 9 justices, the legal opinion of the Attorney General binds the government unless the courts have decided otherwise. Netanyahu and his government have displayed consistent disregard for the law and the opinions of the Attorney General. This forced the Attorney General to write a series of letters to the cabinet secretary protesting the government’s refusal to abide by the law, and its resort to legal opinions of outside lawyers rather than the opinion of the Attorney General. One of these letters related to the decision of the prime minister in a serious security matter (apparently assassinating the political head of the Hamas in Teheran without the required Cabinet approval); others related to financing members of the ultraOrthodox community who refused to be conscripted, and to unlawful appointments in the public service, including the appointment of a political hack as head of the Civil Service Commission, and promotion of a police officer who is on trial for using violence against demonstrators. In one case, in which the Attorney General had given a legal opinion that the government did not have the required legal authority to fund day-care centres for the ultraOrthodox community, the minister of finance wrote that the Attorney General had exceeded her authority and that he would continue with the funding.

Finally, there is no rule of law of any kind in the West Bank. Under the coalition agreement between the Likud and the “Religious Zionist” party, the head of the party serves not only as minister of finance, but as a minister in the Ministry of Defence where he is in charge of civilian matters in the West Bank. The powers of the Civil Administration in the West Bank, until now headed by a senior IDF general, have been transferred to a civilian political appointee of the said minister. Rather than receiving legal advice from IDF lawyers who are versed in the rules of international law relating to occupation, this appointee receives legal advice from lawyers especially appointed in his department. If one wants to read about the results of this policy one can read the numerous accounts in 972 Magazine, such as this one.

4. Calls for return to the original plan

Using the means described above, many of the parties interested in the “regime change” have achieved some of their aims. But a few of their decisions were thwarted by the Supreme Court, and petitions challenging other decisions are still pending. The Attorney General has become an irritant for the government and a few ministers have called on the government to fire her. In response Minister of Justice Levin declared that the government should return to its legislative plan for “legal reform” as “the starting point must be the change needed in the Supreme Court.”

Levin is oblivious to the ongoing war, its toll on Israeli society and the need to maintain some semblance of national unity at this critical stage of Israel’s existence. His hatred for the judges is apparently far stronger than any sensitivity to the fact that many of the hundreds of thousands of people who were demonstrating in the streets before October 7 are now serving in Gaza and in the north.

The prime minister’s interest in the “regime change” has increased since October 7. If at some stage the government is forced to decide on a commission of inquiry into the October 7 disaster, according to the law the president of the Supreme Court will appoint the members of the commission. From Netanyahu’s point of view, based solely as it is on his desire to remain in power and to keep out of jail, it is essential that a president will be elected who will appoint a “Netanyahu friendly” commission.

5. New Legislative Measures

A group called “Political Scientists for Israeli Democracy” recently published a list of 153 pieces of proposed anti-democratic laws (here). I cannot possibly mention them all. Here is a short description of the most worrying proposals, some of which have already passed a preliminary or first reading in the Knesset: widening the grounds and changing the procedure for disqualification of parties in Knesset elections, so as to enable politicians to excludeArab parties from participation in the elections; suppressing media that criticize the government and providing extra funding for a television channel (channel 14) that serves as a propaganda channel for Netanyahu and his government; constraining freedom of expression in the universities; preventing equality in conscription; politicization of the post of judicial ombudsman; interference in the independence of the Israel Bar; interference in the autonomy of universities; allowing separation between men and women in universities; and changes in the criminal law so as to abolish crimes with which Netanyahu is charged. Alongside the legislative proposals are threats against the liberal newspaper, Ha’aretz, (including a decision forbidding government ministries to publish notices in the paper), and threats to fire the Attorney General and the head of Israel’s secret service. A recent government decision will force legal advisers in government ministries to retire. They will be replaced by lawyers appointed on a personal basis by the ministers, rather than on the professional basis that was the system up to now.

6. The bleak future

Israel is in the most serious situation it has been in since it was established 76 years ago. There is an uncertain and shaky cease-fire agreement with Lebanon, but the war continues in Gaza, while Israeli hostages remain there in life-threatening conditions; the international standing of Israel is at an historic low; the economy is about to collapse; and we are faced with a concerted and growing attack on the democratic institutions of the state. As long as the present government remains in power there is little chance that there will be an improvement on any of these fronts. Israel is no longer in a situation in which it is judicial independence that is threatened: we are facing an existential threat to all the democratic institutions of our society without which we shall find it difficult, if not impossible, to meet the other serious challenges that confront us.