Israeli democracy at a crossroads

This is an audio transcript of the Rachman Review podcast episode: ‘Israeli democracy at a crossroads’

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Gideon Rachman
Hello and welcome to the Rachman Review. I’m Gideon Rachman, chief foreign affairs commentator of the Financial Times. This week’s podcast is about Israel, which has been rocked by many weeks of anti-government protests. The protesters argue that judicial reforms proposed by the Netanyahu government threaten the country’s democracy. Some are calling this Israel’s biggest internal crisis since the foundation of the state in 1948. My guest this week is Nadav Eyal, a prominent Israeli journalist and author. So is Israeli democracy really in danger?

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(Street protest sounds)

Gideon Rachman
The protesters have been flooding Israeli streets, showing no signs of backing off. But neither does the government, which is pressing ahead with its plans to allow the Israeli parliament, the Knesset, to over-rule the Supreme Court. Efforts by the Israeli president, Isaac Herzog, to broker an agreement have so far gone nowhere. Meanwhile, the Palestinian territories are suffering from an upsurge in violence and killing. Between the beginning of this year and early this month, Israeli forces have killed 65 Palestinians and Palestinians have killed 13 Israelis.

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Tonight, Israeli forces taking their hunt for Palestinian militants deep into the occupied West Bank, killing at least six Palestinian men during a raid on a refugee camp in the northern city of Jenin.

Gideon Rachman
Some connect the upsurge in violence to the inclusion of far-right ministers in the Netanyahu coalition government, one of whom Bezalel Smotrich caused outrage by calling upon the Israeli state to wipe out a Palestinian town involved in the violence. He’s since apologised for those comments. I began my conversation with Nadav Eyal by focusing on the internal turmoil in Israel. What are the origins of Netanyahu’s judicial reforms and why are they so controversial?

Nadav Eyal
So the Netanyahu government is trying a complete overhaul of our judicial system. So in Israel, like in most democracies, and unlike in the UK, the Supreme Court can invalidate laws passed by the Knesset — by the parliament. And not only the Supreme Court can do that. Actually, every court can do that. They do this very conservatively, but they do hold this power. And also, for instance, in Israel, much like in the UK, there is the idea of the civil service of legal advisers within the ministries. And these legal advisers are independent. They are not necessarily nominated by the minister, and they don’t owe him anything. They answer to the attorney-general of the country. And one of the attempts of this government is to change this institution in a way in which these legal advisers will actually be people brought in by the ministers. Another clause will mean that the Supreme Court would be limited in the way that it addresses the reasonability of decisions made by elected officials. In Israel, in many instances, the Supreme Court will say that a decision by can be an elected official or an unelected official of the executive branch is unreasonable and will invalidate that decision and deem it illegal because of that. The point of the Netanyahu government is changing this equation in a way that will make the executive branch and maybe parliament, although not sure, much more powerful than they are today.

Gideon Rachman
So I guess the Netanyahu government will argue, well, we’re making Israel more democratic because it’s more responsive to the elected government and not the unelected judiciary. But that is not an argument accepted by the opposition. Why do they say that this is such a threat to Israeli democracy and how big? Give us a sense of the movement against this.

Nadav Eyal
So indeed, the Netanyahu government says that this would make Israel more democratic and they will use the idea of a decision of the majority and their desire to have an influence on government and policies. They will argue that the courts are involved in every decision in the country and that this should be stopped, this judicial activism. But to that point, it’s not only about opposition resisting what the government is doing. Almost every legal scholar in this country, almost every economist of any sort of statute in this country, will oppose what the government is trying to do. Every expert in the field of either international relations or political science would say that what they’re doing right now is a populist grab of power. So it’s not only about political opposition — it’s not only about right and left. Rightist figures like the former president Reuven Rivlin, who I interviewed or Gideon Sa’ar, a partner of Benjamin Netanyahu for many years and a member of the Likud. They all resist these kinds of reforms because they say that this is in actuality a regime change. And this is the expression used here in Israel, not reforms, but a regime change or even a judicial coup made by the majority in order to grab power away and not give the Israelis the protections in law that they are entitled to. And the protections, of course to minorities, both political minorities, religious minorities and others. And the support that the government is getting right now is rather limited in comparison to the way that people are reacting in the streets. We are seeing hundreds of thousands of Israelis in the streets, mostly on weekends, demonstrating against these reforms, arguing that they are making Israel an authoritarian regime. And what we’re also seeing is the country’s elites, both in the defence apparatus, former generals, former chiefs of staff, former heads of the Shabak, the Israeli Secret Service, former heads of the Mossad. Everywhere that you look at the Israeli Academy of Science, Israeli universities, of course, the high-tech sector that is funding a lot of these activities and is in the streets in a way that we’ve never seen before. And I should explain that for Israeli economy, high tech is, of course, the main driver of the export-import economy. Everyone is recruited to try and stop these reforms from happening. But of course, the government is in power. And I should say that about 40 per cent of Israelis at least support these reforms and support the government.

Gideon Rachman
So it’s a sort of plastic, as you describe it, elite versus populist confrontation. How does the Netanyahu government feel about the fact that it seems to have, by your description, lost the support of the country’s elite? Does it bother them? Do you think they’re gonna try and push on through? And can they?

Nadav Eyal
What, Gideon, they lost the elite support a long time ago. It’s not about only the elites. It’s also about those people who are in the streets. And these people are not necessarily part of the elite. This is the Israeli middle class that they have lost with these reforms. So Netanyahu is having a sort of a guerrilla war against the Israeli elites for many years. But there were understandings, for instance, the Israeli air force pilots continue to serve in the Air Force, the most strategic of all the IDF, the Israel Defense Forces branches. Although this is the case now, these people are saying we’re gonna sign off. Israel has a reserve army. You need to have these people who volunteer, to a large extent, volunteer to reserve service much and well beyond their legal obligation. And what we’re seeing now is that these people, air force pilots, is just one example that I’m giving because it’s so crucial. But these people are saying, not in my name. We’re not willing to have this country change its structure, its democratic structure, and become a sort of a Hungary or even Poland, and remain in our position in which we invest so much in this country. If this is being said not only by air force pilots, but also by the tech sector, people from the tech sector, leaders of unicorns and others have said that they’ll push their money outside of Israel if this continues and they have started moving funds outside of Israel. They’re saying that this is not a political protest. They’re saying that they are protecting the money invested by investors because you can’t trust the government if it becomes the country in which the judicial branch doesn’t control the checks and balances that you would want them to control in a democratic state.

Gideon Rachman
So the stakes are incredibly high for Netanyahu. Why, given all this opposition, is he determined to press ahead? I mean, some see a personal motivation because after all, he is currently on trial or he was for corruption.

Nadav Eyal
So Netanyahu is on trial for corruption charges — severe corruption charges. And I should note that Netanyahu himself, until a few years ago, underlined his support for the independence of the judicial branch. So many Israelis will tell you that the only thing that changed here is that he himself is facing corruption charges. And because of that, he simply wants to make sure that he will never, ever find himself in the position in which the Supreme Court holds a verdict against it. In other words, if these changes go through, the coalition will have full control of nomination of all judges in Israel, beginning, you know, with the lowest level to the Supreme Court. And the meaning of that, of course, is that the man who is standing on trial for corruption will theoretically have the ability to nominate the judges that ultimately, when it comes to the Supreme Court, will decide his case. So many would say it’s personal, it’s about the corruption charges. But there’s something bigger happening here — and this something is, of course, a populist wave. We’re seeing this populist wave saying we want our opinion heard. We’ve been electing rightwing politicians, but we’re not getting a rightwing policy because these judges who are part of the Israeli elite are preventing the rightwing governments from implementing the policies. And because of that, we need to take control of the judicial branch that is not elected and make sure that they focus on keeping and observing the law and not trying to refurbish policies of the government change and morph them into something that they are not.

Gideon Rachman
When you say rightwing policies, what specifically rightwing policies that they feel are being blocked by the courts. And are we talking essentially about a much harsher treatment of the Palestinians or is it a whole range of issues?

Nadav Eyal
That’s an excellent question, because when you ask these rightwing politicians, what do you want to do that the courts prevent you of doing right now? The answers are rather personal. For instance, the nomination of Aryeh Deri, a former minister convicted for corruption charges as a minister in this government. The courts in Israel have a verdict saying specifically that a man with this history cannot be nominated to specific positions. They want to change that, or, for instance, elements that indeed have something to do with the West Bank and with Israeli occupation. I’ll just give you one example. A few years ago, I interviewed an Israeli politician — a young, aspiring politician — and during the interview in TV, he accused the Supreme Court that they are responsible, the judges are responsible for the deaths of Israelis that were murdered by Palestinian terrorists, by Hamas in the Gaza Strip. Why? Because the Supreme Court did not allow the IDF to demolish a few houses near the place that these Israelis were killed. So his conclusion was that the Supreme Court judges were responsible for the deaths of these Israelis because they didn’t allow the IDF to do what it wanted to do in order to prevent such a terror activity to ever occur. Of course, his argument was completely false, factually. But I’m bringing this story because it exemplifies the arguments that they are making. They are saying that the courts are holding back the IDF from winning against Palestinian terror, sometimes, or they are saying that the courts are holding back the government, for instance, from having more settlement activity in the West Bank. In other words, the Israeli Supreme Court is one of the most important checks and balances for Israel’s rule of law. And by proxy, it’s one of the most important checks and balances on Israel’s power in the region and the way that it employs its rather immense power, both in the sovereign state of Israel and in the West Bank.

Gideon Rachman
But of course, at the moment there is an escalation of violence in the West Bank — I think 65 Palestinians killed by early March, 13 Israelis — and many people associate that with a radicalisation that is already taking place because the new coalition government includes far-right figures like Mr Smotrich, Mr Ben-Gvir, who, you know, many Israelis would have regarded as totally unacceptable before, but who are now in the government.

Nadav Eyal
Yes, that’s absolutely true. We have here a collision of sorts of many trends within Israeli society. One of them is purely populist: the idea that the elites rule the country and not the people. And this is an idea that Mr. Netanyahu has brought to Israeli politics many years ago. And other elements are purely nationalist and far right. And we have seen the pogrom in Huwara in the West Bank by settlers after a terror attack there in which two sectors were murdered in the way that they tried to burn down as many houses in that village in which that terror attack happened in order to revenge the deaths of their friends. Now I’m using the term pogrom, Gideon, because the IDF general responsible for the West Bank used himself the term pogrom to describe what happened in Huwara, a pogrom made by Israeli settlers. And then afterwards, the Israeli finance minister, Mr Smotrich, that you just mentioned, was asked about Huwara, and he said that he thinks that Huwara should be erased from the face of the earth. But it shouldn’t be done by individuals, it should be done by the state of Israel. Now, what he said is such an extreme, vicious statement. It was condemned almost everywhere around the political spectrum, and he needed to take these words back. But you can understand that these people are enemies of Israeli liberal democracy and they are taking their inspiration from places like Hungary. And you’re seeing that with the way that it’s being transformed by their supporters in the media that supports the government, the way that they talk about Viktor Orbán, the way that they talk about a non-liberal democracy. So these far-right figures are on a march to transform Israel to something that it is not at the moment. And in that sense, Netanyahu is very handy for them. He is using them to stay in power and, of course, maybe make sure that he won’t get a guilty verdict against him in these criminal offences. But they are using him in order to implement their bigger project of the larger state of Israel and of course, transforming a very vibrant democracy in which people right now are fighting for their rights in the streets to a traditionalist non-liberal democracy, if such a thing exists.

Gideon Rachman
As you point out, they may be taking inspiration from Hungary, Poland, et cetera. But is there a specific Israeli element to this, which is the occupation? I think you’ve written that we’re getting the evidence that the occupation has corroded Israel’s democratic principles. In other words, you can’t really separate the kind of liberal democracy that’s operating behind the separation wall and the occupation, which then bleeds into the efforts to be a liberal democracy in other respects.

Nadav Eyal
The prophecy that a day will come in which the occupation will destroy Israeli democracy was made right after 1967, after the six-day war in which Israel seized the West Bank, East Jerusalem, the Golan Heights and of course the Sinai Desert that it later returned to Egypt. That prophecy was that at the end, these mechanisms that you need to keep in place to control the West Bank and the millions of Palestinians that live there and supply security to Israelis living there or Israelis living within the sovereign state of Israel, these mechanisms will transform themselves into a radical change within the state of Israel. And Israel has been warned by leftwing figures again and again and again that its democracy would be at stake if it keeps on with occupation. But let me surprise you here. There is absolutely no doubt that there was a very sinister influence of occupation on the Israeli democratic soul. But Israel could have stayed and could stay a democracy and maintain what it has today in the West Bank simply because, I remind the people who are listening to us, that there is the Palestinian authority. There were the Oslo Accords. Israel is in the process of having more and more peace agreements with the Arab world. And at the end, there is an understanding within the Israeli public that Israelis do not want to control the lives of Palestinians. And this understanding was shared by Prime Minister Netanyahu, who himself declared that he supports a two-nation state solution for the conflict with the Palestinians. So, no, I don’t think it’s only about occupation. I think that Israel could have maintained its conflict with the Palestinians and its presence in the West Bank without turning out to be a nationalist populist regime. And I still think that it is possible. You can look at the Israeli society, its vibrance, the fact that a year-and-a-half ago we had the government with both a rightwing party and an Arab Islamist party sitting together in government. Now, I know that many critics of Israel are looking at this and are saying, oh, you know, this moment has come and we have long seen this moment. And actually Israel has never been for them a democracy and I, of course, must resist this kind of approach. I think that factually, it’s possible for Israel to maintain a conflict with the Palestinians and remain a liberal democracy if it understands that the endgame is the end of occupation and Palestinians ruling themselves.

Gideon Rachman
So the conflict some are now describing as the most intense internal crisis in Israel — ie, not wars — that they’ve faced since the foundation of the states in 1948. How do you see it being resolved? Do you think Netanyahu will get his way or do you think he’ll have to back down or is there some other resolution?

Nadav Eyal
Unless something very unpredictable is going to happen and Mr Netanyahu is going to wake up one morning and say, oh, I’ve been mistaken, he’s not going to climb down and he’s going to follow through with these kind of reforms, maybe moderated, watered down, so that he’ll be able to at least argue politically that he did something to have some sort of reconciliation. This would not be accepted by the opposition at all. It will not be accepted by the experts or by the protesters in the streets. And then the next move after this passes the Knesset — and they do have the votes right now — the next step would be the Supreme Court. There would be petitions to the Israeli Supreme Court saying strike down these laws; these laws are illegal. And of course, in Israel, again, unlike in the UK, the Supreme Court has done this before. It has the power to do this and it will strike down. Gideon, in this I can promise you: if this passes through, the Supreme Court will strike down a lot of this legislation and then we will have that question. And the question would be whether or not Netanyahu and his government will do as ordered by the Israeli Supreme Court. Will they accept a verdict by the Supreme Court accepting some petitions saying that these laws are illegal? This is where we are marching into: a full-blown constitutional crisis of the sorts I have to say, Gideon, that we have not seen I think in democracies in many, many years, if at all in modern era in which, you know, you simply do not know, this is just terra incognita. You know, for instance, they’re saying we’re going to nominate Aryeh Deri, who’s a very important ultra-Orthodox politician in this country, we’re going to nominate him again to the government according to the laws we pass. The Supreme Court is going to say, oh, no, these laws are illegal. So his nomination doesn’t exist. Now he’s going to start issuing decrees as a minister. These decrees are gonna be illegal by nature. What’s gonna be the showdown of this? And some people are saying in the opposition side, there is no compromise on democracy. It’s not gonna be a tenth of a democracy. We’re not going to compromise 10 per cent on these issues. We need to press on this issue, bring it to the Supreme Court, have the Supreme Court make its decision, have a constitutional crisis, and then Netanyahu will back down or we’ll have a showdown about the future of this country, you know, liberal democracy or not.

Gideon Rachman
What do you think the timeframe is?

Nadav Eyal
OK. So in two weeks’ time, the government — unless it backs down, which would be a surprise — in two weeks’ time, they will have these laws passed through the Knesset and made into the law of the land. Then we’ll see petitions to the Supreme Court the same day. The Supreme Court will probably issue decrees saying, “stop implementation of this legislation until we make a decision”, and then we will see a full-blown constitutional crisis in the next couple of months, including during Independence Day, and I suspect that we will see very unfortunate scenes and events in Israel in the months ahead.

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Gideon Rachman That was Nadav Eyal ending this edition of the Rachman Review. Thanks for listening. Please join me again next week.

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