Judicial reform isn’t the only threat to Israeli democracy

2NH31AE Jerusalem, Israel. 20th Feb, 2023. Tens of thousands of Israelis protest for outside the Israeli Knesset, Parliament, against Prime Minister Benjamin Netanyahu's judicial reform in Jerusalem, on Monday, February 20, 2023. Photo by Debbie Hill/ Credit: UPI/Alamy Live News
Jerusalem, Israel. 20th Feb, 2023. Tens of thousands of Israelis protest for outside the Israeli Knesset, Parliament, against Prime Minister Benjamin Netanyahu's judicial reform in Jerusalem, on Monday, February 20, 2023. Photo by Debbie Hill/ Credit: UPI/Alamy Live News

In recent weeks Jewish-Israeli society and diaspora Jewish communities have been galvanized by the Israeli government’s proposed “judicial reforms”. Their concerns that the weakening of Israel’s judicial system will irrevocably undermine Israel’s democracy are, as many have explained, well-placed. However, other steps being taken by the government, which are no less anti-democratic, have received less attention.

On 23 February, the government effectively appointed Finance Minister Bezalel Smotrich (whom the Board of Deputies memorably boycotted due to his extremism) as governor of the West Bank. The government has agreed that control of the Civil Administration – the body which manages civilian matters such as planning, infrastructure and natural resources in the West Bank – will be transferred from the army to Smotrich. The move has immense legal significance.

Ever since 1967, when Israel took control over the West Bank, it has been governed by the Israeli army. This followed international legal practice, under which when land comes under the control of a foreign army during war, it is governed by the controlling army on a temporary basis until the territory’s future is determined.

As Sunday’s Ha’artez editorial points out, whilst past Israeli governments have in practice determined how the army governed the West Bank, they have been careful to maintain a legal structure under which the land is not directly ruled by the Israeli government, but by the army. This reflected the supposedly temporary nature of Israeli control of the area.

Transferring control over the Civil Administration to a government minister is a departure from that practice, and crosses a legal line. It is, as Israeli lawyer Michael Sfard explains, legal (“de jure”) annexation – it effectively renders the West Bank part of Israel, ruled by the Israeli government. It also strips away the pretence that Israeli control is temporary.

This is plainly anti-democratic: Palestinians living in the West Bank, who will now be explicitly and permanently governed an Israeli minister, cannot vote in Israeli elections.

Further, whilst the West Bank is subject to military law, military edicts have applied Israeli law to Israeli citizens and Israeli settlements in the West Bank, but not to Palestinians. The result has been two parallel, unequal, legal systems. The Israeli government now proposes to formalize this, confirming that “legislation on all (settlement) civilian matters will be brought into line with Israeli law” – meaning that Knesset legislation will apply to Israelis in the West Bank. The permanent application of different laws to different groups in the same territory is evidently anti-democratic.

These legal changes will accompany dramatic physical changes designed to ensure, from a practical perspective, the permanence of Israeli control. Whilst such changes have been ongoing for years, they are now being intensified.

Earlier this month the government approved the legalisation of nine outposts, the first such step since 2012. Located deep in the West Bank, these settlements are currently illegal under Israeli law. That many of them are built on land privately owned by Palestinian families poses a legal impediment to their legalisation, and is part of the reason why the government is seeking to limit the powers of the Supreme Court.

Last week, the government approved substantial settlement expansion, largely for settlements deep in the West Bank. It also promoted plans for a new settlement in the sensitive “E1” area just outside East Jerusalem. Such a settlement would separate the northern and southern halves of the West Bank, making a viable Palestinian state all but impossible.

There can also be no doubt that Smotrich will use his new powers over the West Bank to prevent Palestinian development (already extremely restricted), demolish Palestinian homes and promote Israeli settlement.

These physical changes to the West Bank are anti-democratic: they are designed to ensure permanent Israeli control over the area, without granting democratic rights to Palestinian residents.

Meanwhile, the government is advancing legislation which would strip Palestinian, but not Jewish, Israelis of their citizenship if convicted of terror offences, breaching the basic democratic principle of equality before the law. During a committee debate on the bill, the Likud parliamentarian who proposed the law explained “I prefer Jewish murderers to Arab murderers”.

The evisceration of Israel’s justice system is an appalling anti-democratic step which all who care about Israel’s future should protest. But if those of us concerned about Israel’s democratic character do not also protest the legal and physical steps the government is taking to annex the West Bank without granting rights to its Palestinian residents, and to discriminate against Palestinian citizens, we risk supporting democracy for Jews only – which is no democracy at all.

Perpetual occupation, increasingly indistinguishable from permanent annexation, is undemocratic. At a time when Israel’s democratic character is under scrutiny, this must be part of the debate.

About the Author
Anna Roiser is a lawyer who has recently completed an MA in Israeli Studies. She has spent time living in Jerusalem and is a trustee of the New Israel Fund UK.
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