In pushing through his 'judicial overhaul', Netanyahu wasn't destroying 'Israeli democracy'. He was richly exploiting the lack of it.

Bibi & Bezalel
© AFPIsraeli Prime Minister Benjamin Netanyahu looks on as Finance Minister Bezalel Smotrich speaks during a press conference on 25 January 2023.
Israel edged closer to civil war over the weekend than at any point in its history.

By Monday night, in a bid to avert chaos, Prime Minister Benjamin Netanyahu agreed to put a temporary halt to his plans to neuter the Israeli courts.

By then, city centres had been brought to a standstill by angry mass protests. The attorney general had declared Netanyahu to be acting illegally. Crowds had besieged the parliament building in Jerusalem. Public institutions were shuttered, including Israel's international airport and its embassies abroad, in a general strike. That was on top of a near-mutiny in recent weeks from elite military groups, such as combat pilots and reservists.

The crisis culminated with Netanyahu sacking his defence minister on Sunday evening after Yoav Gallant warned that the legislation was tearing apart the military and threatening Israel's combat readiness. Gallant's dismissal only intensified the fury.

The turmoil had been building for weeks as Netanyahu's so-called "judicial overhaul" moved closer to the statute books.

At the end of last week, he managed to pass a first measure, which shields him from being declared unfit for office - a critical matter given that the prime minister is in the midst of a corruption trial.

But the rest of his package has been put on pause. That includes provisions giving his government absolute control over the appointment of senior judges and the power to override Supreme Court rulings.

It is hard to see a simple way out of the impasse. Even as Netanyahu bowed before the weight of the backlash on Monday, the pressure began mounting on his own side.

Far-right groups launched a wave of angry counter-demonstrations, threatening violence against Netanyahu's opponents. Itamar Ben-Gvir, the police minister and leader of the fascist Jewish Power party, initially vowed to bring down the government if Netanyahu did not press ahead with the legislation.

But in the end, his acquiescence to a delay was bought at a typically steep price: a National Guard will be established under Ben-Gvir's authority. In practice, the settler leader will get to run his own fascist, anti-Palestinian militias, paid for by the Israeli taxpayer.

Lack of democracy

Fancifully, coverage of the protests continues to frame them simplistically as a battle to save "Israeli democracy" and "the rule of law". '

"The brutality of what's happening is overwhelming," one protester told the BBC. But if the protests were chiefly about democracy in Israel, the large minority of Palestinians living there, a fifth of the population, would have been the first on the streets.

They have a highly degraded form of citizenship, giving them inferior rights to Jews. They overwhelmingly stayed home because the protests weren't advancing any conception of democracy that embraces equality for them.

Over the years, international human rights groups have slowly come to acknowledge this fundamental lack of democracy, too. They now describe Israel as what it always was: an apartheid state.

In fact, it is only because Israel lacks in-built democratic controls and human rights safeguards that Netanyahu was in any kind of position to bulldoze plans through for the judiciary's emasculation.

Israel's political system permits - by design - tyrannical rule by government, without decisive checks or balances. Israel has no bill of rights, or second chamber, or provision for equality, and the government can invariably call on a parliamentary majority.

The lack of oversight and democratic accountability is a feature, not a bug. The intent was to free Israeli officials to persecute Palestinians and steal their land without needing to justify decisions beyond a claim of "national security".

Netanyahu has not been trying to destroy "Israeli democracy". He has been richly exploiting the lack of it.

The only flimsy counterweight to government tyranny has been the Supreme Court - and even it has been relatively supine, fearful of weakening its legitimacy through interference and attracting a full-frontal political assault. Now that moment may be just around the corner.

Culture war

A superficial reading of events is that the growing protests are a response to Netanyahu's weaponising of the law for his own personal benefit: to stop his corruption trial and keep himself in power.

But though that may be his primary motivation, it is not the main reason his far-right coalition partners are so keen to help him get the legislation passed. They want the judicial overhaul as badly as he does.

This is really the culmination of a long-festering culture war that is in danger of tipping into a civil war on two related but separate fronts. One concerns who has ultimate authority to manage the occupation and control the terms of the Palestinians' dispossession. The second relates to who or what a Jewish society should answer to: infallible divine laws, or all-too-human laws.

There is a reason the streets are awash with Israeli flags, wielded equally fervently whether by Netanayhu's opponents or his supporters. Each side is fighting over who represents Israel.

It is about which set of Jews get to play tyrant: law by the generals, or law by religious street thugs.

For decades, Israel's military-security establishment, backed by a deferential secular judiciary, has set the brutal agenda in the occupied territories. This old guard is only too well-versed in how to sell its crimes as "national security" to the international community.

Now, however, a young pretender is vying for the crown. A burgeoning theocratic, settler community believes it finally has enough muscle to displace the institutionalised power of the military-security elite. But it needs the Supreme Court out of the way to achieve its goal.

First, it views the security-judicial establishment as too weak, too decadent and too dependent on western favour to finish the job of ethnic cleansing the Palestinians - both in the occupied territories and inside Israel - begun by an earlier generation.

Second, the Supreme Court is certain to block the right's efforts to ban a handful of "Arab parties" that run for the Knesset. It is only their participation in general elections that prevents a combination of the far-right and religious right from holding permanent power.

Unfinished business

Israel's political tectonic plates have been grinding noisily together for decades. This is why the latest turmoil has echoes of events in the mid-1990s. That was when a minority government, led by a veteran military commander of the 1948 war, Yitzhak Rabin, was trying to drive through legislation supporting the Oslo accords.

The sales pitch was that the accords were a "peace process". There was an implication - though no more - that the Palestinians might one day, if they behaved, get a tiny, demilitarised, divided state whose borders, airspace and electromagnetic spectrum were controlled by Israel. Not even that materialised in the end.

The current upheaval in Israel can be understood as unfinished business from that era.

The Oslo crisis was not about peace, any more than this week's protests are about democracy. On each occasion, these moral posturings served to obscure the real power play.

The violent culture war unleashed by the Oslo accords ultimately led to Rabin's murder. Notably, Netanyahu was the principal player then, as he is now - though 30 years ago he was on the other side of the barricades, as opposition leader.

He and the right were the ones claiming to be victims of an authoritarian Rabin. Placards at the right's demonstrations even showed the prime minister in a Nazi SS uniform.

The political tailwind blew strongly enough in the religious right's favour even then that Rabin's murder weakened not the opponents of Oslo but its supporters. Netanyahu soon came to power and eviscerated the accords of their already limited ambitions.

But if the secular security establishment got a bloodied nose during the Oslo skirmish, the upstart religious right could not quite deliver a knockout blow either. A decade later, in 2005, they would be forced by Ariel Sharon, a general they viewed as an ally, to withdraw from Gaza.

They have been mounting a fightback ever since.

Biding time

During the Palestinian uprising through much of the 2000s, following Oslo's failure, the military-security establishment once again asserted its primacy. So long as Palestinians were a "security threat", and so long as the Israeli military was saving the day, the rule of the generals could not be seriously challenged. The religious right had to bide its time.

But today's circumstances are different. In power for most of the past 14 years, Netanyahu had an incentive to avoid inflaming the culture war too much: its suppression served his personal interests.

His governments were an uncomfortable mix: representatives from the secular establishment - such as ex-generals Ehud Barak and Moshe Yaalon - sat alongside the zealots of the settler right. Netanyahu was the glue that held the mess together.

But too long in power, and now too tainted by corruption, Netanyahu has come unstuck.

With no one in the security establishment willing to serve with him in government - now not even Gallant, it seems - Netanyahu can count only on the theocratic settler right as reliable allies, figures such as Ben-Gvir and Bezalel Smotrich.

Netanyahu has already given both unprecedented leeway to challenge the security establishment's traditional management of the occupation.

As police minister, Ben-Gvir runs the Border Police, a paramilitary unit deployed in the occupied territories. This week he can start building his "National Guard" militias against the large Palestinian minority living inside Israel - as well as the "pro-democracy" demonstrators. No doubt he will make sure to recruit the most violent settler thugs to both.

Meanwhile, Smotrich has hands-on control of the so-called Civil Administration, the military government that enforces apartheid privileges for Jewish settlers over native Palestinians. He also funds the settlements through his role as finance minister.

Both want settlement expansion pursued more aggressively and unapologetically. And they regard the military establishment as too craven, too deferential towards diplomatic concerns to be capable of acting with enough zeal.

Neither Ben-Gvir nor Smotrich will be satisfied till they have cleared the only significant obstacle to a new era of unrestrained tyranny from the religious settlers: the Supreme Court.

Theocratic rule

Were Palestinians - even Palestinian citizens of Israel - likely to be the only victims of the "judicial overhaul", there would barely be a protest movement. Demonstrators currently enraged at Netanyahu's "brutality" and his assault on democracy would have mostly stayed home.

The difficulty was that to advance his personal interests - staying in power - Netanyahu also had to advance the religious right's wider agenda against the Supreme Court. That relates not just to the occupied territories, or even to the banning of Arab parties in Israel, but to Israel's most fraught internal Jewish social questions too.

The Supreme Court may not be much of a bulwark against the abuse of Palestinians, but it has been an effective limit on a religious tyranny taking over Israeli life as varieties of religious dogmatism grow ever more mainstream.

Netanyahu's mistake in seeking to weaken the court was to drive too many powerful Jewish actors at once into open defiance: the military, the hi-tech community, the business sector, academia and the middle classes.

But the power of Jewish religious extremism is not going away - and neither is the battle over the Supreme Court. The religious right will now regroup waiting for a more favourable moment to strike.

Netanyahu's fate is another matter. He must find a way to revive the judicial overhaul promptly if his young government is not to collapse.

If he cannot succeed, his only other recourse is to seek an accommodation with the generals once again, appealing to their sense of national responsibility and the need for unity to avert civil war.

Either way, democracy will not be the victor.