Editor's Note: The JPC has been adamant about not entering a discussion of Israel’s proposed judicial reforms or any other internal Israeli issue. This article, written by an Israeli, however, is meant to show a side of the stresses in Israeli society that are not appearing in the mainstream media.
Where to begin to describe the origins of Israel’s current woes?
In the United States, rule of law is based on the Constitution. Israel does not have a constitution. It has what are called Basic Laws and a self-appointed Supreme Court that some would say is undemocratic and occasionally hands down mandates on a government that are politically biased against a Likud government but never against a left-wing government.
The problem began with a political judge, Aharon Barak, who became the President of the Israeli Supreme Court in 1995 and began to dictate against decisions and laws of Likud-led governments.
The Courts
For clarity, we need to understand how Supreme Court judges are selected and elected in Israel. Judges are replaced when they die or retire. Traditionally, the court’s president proposes a replacement, and the judges vote that nomination into office. A majority of seven of its nine members must support a successful candidate.
The current Israeli government’s position is that the current method allows judges too much power over the composition of the judiciary, arguing that the system today gives the public a minority in the committee, which gives unelected officials the power to have a self-perpetuating court.
In almost every other democratic country, the system gives the power to the ruling majority to appoint judges, as in the United States, where justices are nominated by the President and confirmed by the Senate. In Canada, the prime minister appoints judges. Ireland, Sweden, Norway, Australia, and New Zealand are the same.
Owing to the Israeli system, judges on the Israeli Supreme Court are overwhelmingly white Ashkenazi males. Rarely do Arabs sit on the Supreme Court bench, and on those very rare occasions they have been exceptionally talented judges. The same goes for Sephardi or Mizrahi judges. It is fair to say that Israel does not and has not had a Supreme Court that reflected the Israeli population.
When Aharon Barak ascended to the presidency, he struck down decisions made by successive Likud governments leading to claims that he was a politically biased judge who interfered with Likud governments causing economic, security, and diplomatic damage to the country.
When questioned, Barak introduced the excuse that his judgment was based on “reasonableness,” which, until Barak, was an unknown legal concept in Israel.
“Reasonableness”
For example, it was “unreasonable,” the court said, for the government to grant an Israeli and a French company an exclusive contract to extract natural gas from Israel’s territorial waters in the Mediterranean, because it eliminated competition. It took the government years to convince the Supreme Court that the contract had been granted in that form in order to compensate the companies for years of exploration and the heavy costs of manufacturing the rigs and the equipment expended as part of that search before coming to the decision that there were sufficient quantities to make the development profitable.
Had Barak not delayed the government with the imposition of his “reasonable” block, Israel might have provided Europe with the energy it desperately needed last winter given its shortage as a result of the Russia-Ukraine war.
A second example may resonate with Americans. Barak delayed a Likud government decision to construct a border fence between Israel and Islamic Jihad terrorists – as well as weapons and drug smugglers – were freely crossing into Israel from a then-Muslim Brotherhood-led Egypt. Adding to the lawlessness of this open border was the increasing flood of African economic migrants who trekked across Egypt in the tens of thousands and into Israel – overwhelming the poorer neighborhoods, depriving them of employment by working for less, and housing by cramming into properties at rental prices beyond the ability of poor Israelis. The migrants also brought with them problems of drugs and crimes not experienced before their arrival.
Despite these dire concerns, Judge Barak imposed a judgment that it was unreasonable to construct a border fence because, perhaps, some of the migrants crossing the border may be refugees fleeing persecution.
Again, it took years before a Benjamin Netanyahu-led government convinced Barak’s Supreme Court to drop its unreasonable objection. Israel is still paying heavily for this imposition.
This explains the “reasonable” claim that a self-elected Israeli Supreme Court is undemocratic and does not reflect the needs of the people in judgements that often reflect a political bias and is in dire need of judicial reform.
Reform
The first major action taken by the new Likud-led coalition in late 2022 was to address the reasonable clause and to discuss the people’s rights to select and elect future judges and decide on the structure of a selection committee to do so.
One would think these were “reasonable” causes for judicial reform, but not to the losing parties in the November national election. They went on the rampage, raising nightmare scenarios, in their words, of a “racist” government, led by a “criminal,” leading Israel into an “undemocratic, fascist dictatorship.” Based on that assessment, anything was justified to bring down this government.
The Demonstrations
And so, the organizers of mass demonstrations began to impose other measures to further their cause. Some, from the wealthy world of Israeli hi-tech, decided on a campaign to withdraw investments from Israel by transferring huge sums of money abroad. An estimated 50 start-up companies moved at least $4 billion out of the country. One recipient was the Silicon Valley Bank (SVB) which declared bankruptcy shortly after receiving Israeli investment money. The CEO of billion-dollar startup Papaya Global ended up thanking Bank Leumi and other Israeli financial institutions for rescuing some of the funds sent to SVB and for stepping into the breach.
The message was clear to the majority in Israel. These people were prepared to bankrupt Israel in the name of democracy.
The government opposition is overwhelmingly based in the rich neighborhoods of northern Tel Aviv, as opposed to the poor neighborhoods of southern Tel Aviv, with a support base in the kibbutzim. The Tel Aviv noise you see on your TV represents the dying cries of the political left in Israel. They are the white Ashkenazi elite who, despite their degrees, their wealth, and their influence in driving Israel to the forefront of the modern world, know they are a growing demographic minority.
Their cries are the cries of political frustration. They feel they should lead the country because they know better than the rabble majority who they despise. However, in the last election and subsequent polls, Labor and the once-Communist Meretz party are disappearing off Israel’s political map. Meretz, in fact, did disappear in the last national election and the Labor Party, the founding Zionist Party of David Ben-Gurion, barely made it across the threshold for representation in the Knesset.
Therefore, you see huge signs of “Crime Minister” in their Kaplan Street protests every week. Accusing the prime minister of being a criminal is one of their justifications for bringing down his government even though Netanyahu has not been found guilty of anything and, as much as we can judge from his various trials, the cases against him are collapsing through lack of evidence.
The irony of the “Crime Minister” signs is that former Prime Minister Ehud Olmert is regularly seen whipping up the crowds. Olmert served a sixteen-month prison sentence on convictions of accepting bribes and for obstruction of justice. Now Olmert has inserted himself onto CNN and BBC screens trashing Israel.
In Israel, as in America, it is less about justice and more about a political coup to remove the man standing in their way.
Bibi’s Trials & Israel’s Elections
There have been five national elections in the past five years: two in 2019, and one each in 2020, 2021, and 2022. After years of political malaise marked by unstable coalitions, continuing efforts to remove Netanyahu through a series of legal charges exacerbated by the failure to govern to the satisfaction of the voters, the November 2022 Israeli election returned Netanyahu to power by his Likud Party forging a coalition with the various religious and other right-wing parties.
Much of what drove voters to return Bibi to power was the sympathy of the voting public who watched as the cases brought against him floundered on the rocks of troubling and possibly illegal methods employed by the prosecution and the police. People with a traditional sense of justice believe a person is innocent until proven guilty in a court of law. The fact is that Netanyahu has not been proven guilty on any charge.
The Israeli left, mainly the parties of Yair Lapid and Benny Gantz, had the opportunity of linking with Likud to create a balanced left-right government but they refused. Their distaste for Benjamin Netanyahu overruled a more dispassionate reasoning.
The result has been street protests, wild accusations of the end of democracy in Israel, and actions that are deeply troubling to the silent majority of Israelis.
We witnessed in the body of the Tel Aviv protesters their outrageous signs and theatrical political performances such as the silent procession of hooded, red-robed women performing a dystopian version of the characters in The Handmaids’ Tale which, in the fictional story, depicts the enslavement of fertile women to the ruling elite into become their sex slaves.
But far from being slaves to the ruling elite, they are the elite, and they are upset at no longer being the ruling elite.
The Kaplan Street protesters are not the hard-working Israeli majority. They are not the Mizrahi or Sephardic Jews that fled the persecution and deportation from Arab and Muslim lands. They are not the Ethiopians and Yemenites that also fled persecution in their native lands as they struggle to build new lives in Israel. They feel, however, that they have the right to rule over them because they know better than the “masses.” These are the commanders who gave orders to the foot soldiers and are now ordering them not to serve.
They feel deeply that they are entitled to rule the country and that one man is stopping them – Benjamin Netanyahu. The November election results made them realize that they must try to depose him by all means possible – going beyond demonstrations – and they will not make a pact with the Likud Party if he remains the favored leader of the country.
This, in a nutshell, is what all the noise is about. All the rest, as Hillel once said, is commentary.
How do I prove that? With their own words.
Behind the Movement
The most vocal and active opponent of Netanyahu is former Prime Minister Ehud Barak. He helped finance the protest movement which he sees more as a coup attempt than an attempt to remove judicial reforms from the government’s agenda.
In a July 2020 Zoom event, Barak addressed a closed Forum 555, a group of retired air force pilots and navigators, detailing his covert master plan to take over the government that included:
Deliberately igniting civil disobedience.
Highlighting a false representation of the dangers to Israeli democracy of a Netanyahu government because, according to Barak, the grievances and slogans are catchy, they speak to everyone, and they are the fuel that can ignite a civil war.
Barak stressed the need to invest a lot of money in promoting and developing a mass protest movement, listing equipment, flags, banners, stages, hiring or buying audio-visual equipment, etc., required to stage a major coup.
In this Zoom event, Barak talks in gruesome terms of Jewish corpses floating on the Yarkon River in Tel Aviv, slaughtered by other Jews.
The video ends with Barak telling his Zoom audience that he is the only person who can save the nation, as he outlined his coup attempt.
Barak appears at every anti-government protest rally and in every foreign television studio using the most untamed political language heard in this country in decades. He savaged Prime Minister Netanyahu and anybody to the right of him as “dark and dangerous ultra-nationalists who are undermining the foundations of Zionism and Israeli democracy.”
In one speech, Barak hurled the epithet “fascist” at Netanyahu three times, “dictator” at Justice Minister Levin four times, and “apartheid” three times at Jews living in Judea and Samaria.
He portrayed Israelis to his political right as wearing Nazi-style “selection eyeglasses” while calling for subversion of the IDF through mass refusal-to-serve by Israeli soldiers and reserve duty officers.
Others in Barak’s circle admitted – including in an interview with a Ha’aretz journalist – that the plan to sow internal conflict was hatched in mid-December 2022, three weeks before the government was formed.
In other words, the riots, protests, acts of political violence and intimidation that have swamped Israel since January were not spontaneous responses to the government’s legal reform proposals. They were planned and financed weeks before Justice Minister Yariv Levin was appointed to his position and well before the government took any position on anything.
It is important to reiterate that the original impetus for the protests and actions against Netanyahu was not his government’s judicial reform agenda, nor any other policy the government has launched. Rather, the protests were a preconceived program to paralyze and destabilize the government, even to undemocratically overthrow any government headed by Bibi. The anti-judicial reform banner was attached to the protest movement after his latest coalition government was formed and this became its first major initiative.
It is surely time they step back from the brink but, as of the time of writing this report, there is little sign they will do so.
Barry Shaw is the Senior Associate for Public Diplomacy at the Israel Institute for Strategic Studies. His writings include Israel Reclaiming the Narrative and Fighting Hamas, BDS and Antisemitism.
