Israeli Prime Minister Benjamin Netanyahu
Israeli Prime Minister Benjamin Netanyahu (Lior Mizrahi/Getty Images via JTA)

The idea that Israel’s current high court defends democracy is a facade.

When world crises the likes of Covid-19 strike, it is inevitable that people will seek out a scapegoat. In the case of Israeli politics, Prime Minister Benjamin Netanyahu has been accused of abusing his authority, using the current pandemic to retain his seat in office and forming a government (after three elections) at a time of national insecurity. NGOs like the New Israel Fund are demanding that the Israeli Supreme Court overturn the most recent elections, claiming PM Netanyahu is ineligible for reelection because he is currently facing criminal charges.

According to Israeli law, a Prime Minister who is charged with a criminal offense can continue to serve his term until he is found guilty in the court of law. This law prevents a majority-elected Prime Minister from being ousted by high powered officials in the justice system and police. Imagine a similar scenario in the United States: If it wasn’t for this law, the Supreme Court could essentially override election results and hinder the democratic process simply because they disagree with an elected person’s polices. Or perhaps they feel that they know better than the average voter. Alan Dershowitz, who studied the allegations against Netanyahu, recently said, “To bring down a duly elected prime minister on the basis of an unprecedented application of a broad and expandable criminal statute endangers democracy.”

This is certainly not the first time that the ethics of the Israeli Supreme Court have been called into question. Israel’s Supreme Court is by far the most powerful among the western democracies. Only in Israel do Supreme Court judges elect their own successors. This means that the same small group of judges decide year after year and decade after decade who will make the laws for the country. As you might imagine, Supreme Court judges elect other judges who share their same agenda. Those qualified individuals whose opinions differ drastically have no chance of serving on the bench. Aharon Barak, past Judge and President of the Supreme Court summarized it perfectly: “The Supreme Court is family, you can’t bring someone in from outside the family”. This undemocratic way of electing judges has historically resulted in a Supreme Court that maintains a left wing agenda at all costs – even when that agenda is so different from the current majority-elected government. The Supreme Court holds so much power, in fact, a common saying in Israel is “Why go vote if the Supreme Court runs the show anyway?”

With its ability to overturn any decision made by the Knesset, the Supreme Court wields power over all aspects of Israeli society. The Supreme Court overruled the Knesset’s decision on the location of Israel’s security wall, which protects Israelis from Palestinian terrorists. The Court allowed the wall, but shrunk the borders, thus ceding more Israeli land and taking it into their own hands to determine the country’s boundaries.

The Supreme Court also has the final say on who enters the country. When the Knesset passed a law to ban leaders of the anti-Israel Boycott, Divestment and Sanctions movement (BDS) leaders from entering Israel, the Supreme Court reversed the decision, allowing them to enter freely.

The Supreme Court also dictates Israel’s ability to defend itself. In the early 2000s, during the Second Intifada, when Palestinians were murdering Israelis on a daily basis, the IDF requested the State to allow the army to seal off (for a hefty compensation) buildings belonging to suspected Palestinian terrorists in Gaza. These particular buildings overlooked main Israeli roads and served as a convenient place to shoot from.

The Knesset approved the IDF’s request, but the Supreme Court overturned the decision. Not long after, a pregnant Israeli mother by the name of Tali Chatoel and her four daughters were murdered in their car by Palestinians sniping from those very buildings the Supreme Court insisted stay open. And it is a sad irony that soon after the murder, eight thousand Jews, including Tali Chatoel’s husband, pleaded to the Supreme Court to reverse the government’s decision to uproot them from their homes during the disengagement from Gush Katif. The Supreme Court dismissed their request, another instance of the court negating the basic human rights of Israeli Jews.

The idea that the Supreme Court defends democracy is such a façade that even publicly criticizing the Court is risky: It was recently discovered that the Supreme Court had been keeping a secret log of its critics on social media.

Of course, an independent Supreme Court is necessary for a democracy to thrive, but in Israel, the Supreme Court has been abusing its power to the point that the core democratic value of electing officials to represent the will of the people has become obsolete. Israel must reform its Supreme Court to resemble those in the United States and other western democracies. Supreme Court judges should not have the power to elect their own successors and a law should be passed that allows the final decision on Israel’s policies to be placed in the hands of the seven million Israeli voters. Benjamin Netanyahu, whether you like him or not, was fairly elected by the majority of Israeli voters. The people have spoken and fifteen judges representing the minority opinion should not have the right to overturn the will of the people.

Kobi Erez is the Executive Director of the Zionist Organization of America-Michigan Region
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