In a recent article, you compare Israel, Poland, and Hungary, looking at measures directed at limiting the power of the judiciary and civil society. What are the main differences and similarities between Central Europe and Israel? Can we identify some ideological affinity?
Numerous measures pursued by Netanyahu’s coalition in 2015-2019 bear striking resemblance to measures adopted around the same time in Hungary and Poland in that they were part of a political effort to reallocate political power in the country, concentrating it in the hands of elected politicians at the expense of unelected officials, such as the judiciary and senior civil servants.
Such efforts were accompanied in Israel, like in other places, with populist rhetoric, juxtaposing the ‘true representatives of the people’ against liberal, cosmopolitan or foreign-controlled ‘elites,’ sharply criticizing and delegitimizing parts of the political opposition, the media, the academia and civil society groups Among the specific legislative measures proposed by members of Netanyahu’s ruling coalition one can find attempts to politicize the method for electing judges, restrict the powers of judicial review, designate foreign funded civil society groups as ‘foreign agents,’ shut down the politically independent public broadcasting authority and impose a code of conduct relating to political activity on Israel’s high education institutions. It may be noted in this regard that some anti-liberal measures, including measures taken against NGO and ‘illegal migrants,’ precede the rise of political populism in Israel, and they were not regarded at the time of their adoption part of a broader populist agenda.
Significantly, however, Israel’s brand of populism appears to have been less successful than its Central European counterparts. All of the aforementioned legislative proposals failed to pass or passed in a diluted manner. Their harm was thus mostly symbolic – creating a chilling effect for critics of the government – and not representing an actual power shift. Two notable exceptions – highly problematic measures that were successfully passed – are the Basic Law: Israel as the Nation State of the Jewish People, that was adopted in 2018 and underscored the identification of the state with the Jewish dominant ethnic group (resembling the emphasis on Christian values and identity in Orbán’s Hungary and Kaczynski’s Poland) and the 2016 Removal Law, which allows a super majority in the Knesset to depose a Member of Knesset (MK) for rejecting the existence of Israel as a Jewish and democratic state, or espousing racism or terrorism. This latter law was broadly understood as a measure directed against Israeli Arab/Palestinian MKs.
Arguably, the limited success of Israel’s populism – up until now – is attributable to the rather robust framework of democratic institutions which enjoyed enough public support to withstand the government’s anti-liberal push. It may also stem from the weak ideological underpinnings of Israeli populism: Before 2015, Netanyahu himself showed a limited interest in this ideology, and his growing interest in promoting an anti-liberal agenda appears to have been linked to the corruption allegations made against him first in the media, and eventually by the state police and prosecution service (revealing a deep connection between populism and political corruption).
Some of his political allies supported his populist policies for strategic regions – out of interest in weakening the legal system’s push against preferential treatment for the ultraorthodox (including, exemption from mandatory military service) and for application of some rule of law constraints on settlement activity in the West Bank. The multiplicity of political agendas behind anti-liberal measures in Israel makes it hard to discern clear ideological contours of an Israeli populist movement – notwithstanding the resemblance between the measures taken and the ‘populism playbook.’ What’s more, Israeli populists do not typically define themselves as anti-liberal – rather, many consider themselves as liberals, genuinely concerned about threat to liberty from unelected elites or merely calling for the rebalancing of liberal values against security interests.
Another complicating factor for Israeli populism is the heterogeneity of Israeli society – including the Jewish majority – and its high level of division and polarization. Against this background, a putative claim by politicians to act as sole authentic representatives of the entire people is hardly convincing. The ambivalence displayed towards the Arab minority – delegitimization of its political involvement in matter relating to the Israeli-Palestinian conflict combined with increased reliance on its political support for other domestic agenda items – also has unique features which impede its perpetual designation as an ‘enemy from within’ against which the entire ‘true people’ can unite.
Still, the populist measures taken and the rhetoric resorted to do appear to have a long term negative impact on Israeli society: They erode trust in unelected state organs, such as the judiciary and the prosecution service, and negatively stigmatize central pillars of civic society, such as NGOs and the media. They also convinced large parts of the Israeli public of the view that democracy is only tantamount to majority rule without any constraints on political power.
Going beyond Netanyahu’s figure, many observers have commented on the latest election result, seeing there a global shift to the right of the Israeli political landscape in terms of identity and culture. Would you agree?
The Israeli political landscape is in the process of realigning itself in the post-Netanyahu era (although we should note that Netanyahu is still politically active, and remains, simultaneously, the most popular and most reviled politician in the country). Whereas the anti-Netanyahu bloc which currently rules the country has a number of right wing parties – reflecting the clear majority the right enjoys in the Knesset (72 out of the 120 seats belong to right-leaning parties), the dividing lines between left and right are shifting from positions on the Israel-Palestinian conflict and Jewish-Arab relations inside Israel to positions on rule of law, state and religion and the embrace of liberal values (The conservative and progressive blocs currently have almost equal representation in the Knesset).
In addition, the unprecedented participation of an Islamic party in the present ruling coalition could potentially change dramatically the future voting pattern of Arab voters (who are currently underrepresented in the Knesset), yet entrench conservative position on social justice issues, such as LGBT+ rights. In short, Israel is at a crossroads between competing cultural forces – traditional and liberal – and it is too soon to predict its future course of action.
It may also be noted that the diversity of the current coalition militates in favor of preserving the status quo on most issues constituting traditional left-right bones of contention, and it remains to be seen whether and for how long it will withstand the aggressive delegitimization campaign and parliamentary trench warfare orchestrated against it by the Likud and its political allies. The fact that the left has fewer long-term options in the current constellation of power in Israel does provide however a political advantage to the coalition’s rightwing components, and some of them have tried to use it in order to pursue anti-liberal initiatives (such as extending measures against naturalization of Palestinians in Israel and advocating broad personal and national security restrictions on online contents).
Going back to your long-term research on the relationship between fighting terrorism and being a democracy, how do you assess the evolution of Israel’s legal culture regarding the ‘war on terror’ argument?
The Israeli legal system has long confronted the tension between democratic values and the alleged security dictates of the ‘war on terror’, effectively settling for a half-way position that tends to authorize most security measures sought by the government, while insisting that they be applied with due process and some degree of restraint. This has left the court in the unenviable position of being criticized simultaneously from the political left and right.
The jurisprudential dogma on the balance between security and democratic values has been applied in recent years to new and old challenges, such as the use of lethal force in Gaza border riots, punitive house demolitions, hunger strikes of administrative detainees and release of terrorist bodies back to their families. Attempts by some judges to upset the status quo and challenge existing precedents on certain issues (especially, house demolitions), were largely resisted by the Court leadership, as were attempts to authorize harsher counter-terrorism measures.
The court’s timidity in upholding liberal values can be explained, in part, in the hardening of positions in Israeli public opinion against the application of humanitarian considerations in counter-terrorism, manifesting itself, inter alia, in public calls to shoot to kill wounded terrorists on the scene of terror attacks. It may also reflect the persistence of security concerns in Israel in light of recent conflagration of inter-communal violence between Jews and Arabs in mixed cities in Israel (in May 2021), the spike in violent crime in the Arab sector in Israel, and the ongoing violence between Palestinians and extremist settlers in the West Bank.
By and large, it may be noted that security issues have lost their dominance in the public discourse to the political crisis and the COVID-19 pandemic, and the legal issues they generated. A notable exception – bringing together security and the pandemic – is the lively legal and political debate over the utilization by the government of the Israel Security Agency for assisting it in COVID contact tracing in the early stages of the pandemic.
Our Program is called Illiberalism Studies Program. How do you interpret that term for the Israeli context globally, and Israeli legal culture more specifically? Can we see a trend of backlashing against some forms of liberalism(s), and if, which ones?
Significant parts of Israeli society resent liberalism on principled grounds, as they associate it with anti-traditionalism, as a challenge to the Jewish ethnic nation state project and as a cultural symbol of progressive policies which are over-sensitive to discrimination and injustice inflicted on Palestinians in Israel and the Occupied Territories. Whereas some right-tilting political movements in Israel are anti-liberal for all of the above reasons (e.g., the ultra-orthodox and the extreme religious right), others embrace only some of them.
It may be noted in this regard that many of Israeli critics of liberalism – including most members of the Likud party – do not reject liberalism in a wholesale manner. In fact, they do express support, in principle, for basic human rights and political freedoms, including progressive causes such as LGBT+ rights and gender equality, and they consider Israel part of the “global West”. Still, they consider these principles as subservient to competing values – ethnic and religious identity, security interests, national sovereignty etc.
Ultimately, Israel is a unique “case study” for global populism in that it simultaneously confronts political dynamics informed by populist methods and rhetoric aimed at concentrating unlimited political power in the hand of the political majority, while retaining a prolonged occupation which result in the deprivation of political rights from millions of individuals in the occupied territories and in the political marginalization of Israel’s own Palestinian minority. This fundamental tension between democratic principles and undemocratic practices results in a unique brand of illiberal policies that tend to be more nationalistic than populists.
Prof. Yuval Shany is the Hersch Lauterpacht Chair in International Law and former Dean of the Law Faculty of the Hebrew University of Jerusalem. He was a member of the UN Human Rights Committee from 2013 to 2020, where he also served as the Chair of the Committee. He currently serves asa senior research fellow at the Israel Democracy Institute, the Chair of the Hebrew University’s Minerva Center for Human Rights’ academic committee, co-director of the Faculty’s International Law Forum and transitional justice program, and the head of the CyberLaw program of the Hebrew University CyberSecurity Research Center.
Mordechai Kremnitzer is Vice President of Research at the Israel Democracy Institute, where he heads the Constitutional Principles, National Security and Democracy, and Arab-Jewish Relations projects. He is Professor Emeritus and former Dean of the Law Faculty at The Hebrew University of Jerusalem. Prof. Kremnitzer has advised the governments of Canada, Hungary, Finland, and Thailand on reform in criminal and public law. Prof. Kremnitzer has published extensively in the fields of criminal, military, and public law. His books deal with judicial activism; the offence of sedition, libel, official secrets, revocation of citizenship, disqualification of parties and lists, targeted killings, offences against the state, the offence of breach of trust, administrative detention, and Israel’s Basic Law: The Army. He also co-authored a proposal for a new section of Israel’s penal code, which has been adopted by the Knesset. In 2012, he was awarded a five-year European Research Council grant for a project entitled “Proportionality in Public Policy: “Towards a Better Balance between Interests and Rights in Decision-Making.”