Netanyahu’s trial – To mediation

The coalition continues, even during the war, to bombard the public sphere with various bills, which, if enacted into law, would change the character of the country. In doing so, it is laying the foundation for a public outcry calling for general elections in wartime. A government that is not trusted by two-thirds of the public must not “hijack” the country and steer it on such an extreme journey without receiving a public mandate to do so – through elections.

But in the meantime, a spectacle that is tantamount to system-wide madness is unfolding before our eyes: amid a historic earthquake that is changing the face of the region, the most central actor of all, the prime minister of Israel, appears in the basement of a Tel Aviv courthouse three days a week to testify in his own trial. A whole array of circumstances, each of which can be explained on its own, has led to an untenable outcome that could come with a heavy cost.

It is foolhardy to wage a war with a prime minister who, on the one hand, is extremely dominant with a political vacuum alongside him, and on the other hand, is devoting a significant portion of his time to the personal matter of proving his innocence. This threatens the security of us all and also impedes the prime minister’s ability to defend himself.

Although he has testified that the trial does not detract from his performance as prime minister, and has even convinced the Supreme Court of this, these assessments belong to the past. The current state of war and regional upheaval have radically changed the circumstances.

It is precisely those who, like me, care about preserving the status of the judicial system in Israeli public life, who must consider whether it is reasonable to insist on the prime minister’s regular and protracted presence in a Tel Aviv basement in the midst of such fateful days. This insistence is likely to cause many to turn against the State Attorney’s Office, claiming that it is disconnected from reality.

At the same time, postponing the prime minister’s testimony until after the war is also unreasonable: a recent survey by Hebrew University’s aChord Center revealed that less than a third of the public (!) believes that the main consideration guiding Netanyahu since October 7 is the security of the state. Some fear that postponing his testimony until after the war might encourage Netanyahu to prolong it and avoid a hostage deal, which an overwhelming majority of the public supports.

We are trapped in a paradox. The trial cannot be conducted, and the trial cannot be stopped. As a solution, which is also a good idea its own right, it can be proposed that testimony be suspended for a fixed period of time, which will be used to conduct criminal mediation in the Netanyahu case. This is a procedure held before a sitting judge who is not part of the current trial panel, in which the parties – the plaintiffs and the Prime Minister’s lawyers – try to reach a plea agreement. 

The Prime Minister himself does not need to be present during the proceedings and will be free to fulfill his duties without interruption. If the mediation is successful, it will be determined in a quick process whether there was a violation of the law in the three cases against Netanyahu, and if so, the appropriate punishment will also be proposed. This would be the right way to bring an end to a case that has caused great harm – to society and the state. If the mediation fails, there will be no choice but to resume testimony.

The state has previously opposed criminal mediation in the prime minister’s cases. But it should reconsider this position in light of the special circumstances of the war. The state is rightly concerned that the Prime Minister and his entourage would use the mediation process to manipulate public opinion. They will seek to portray the move to mediation as a “surrender” by the prosecution because it recognizes that the chances of proving guilt in court are slim. But the state prosecution must take a broader perspective and consider the good of the country. It is the entity with the power and is responsible for the public good. And in fact, its willingness to go to mediation may be viewed by the public as a courageous and correct choice under the circumstances and could strengthen the standing of the prosecution.

Although a mediation process is supposed to take place behind closed doors, with a ban on publicizing what takes place during the procedure, there is concern about damaging leaks. There is a basis for this concern, given the deep lack of trust between the parties, but it can be minimized in various ways, such as limiting the mandate given to the mediating judge. I do not know if the prime minister is amenable to mediation, but who among us wants to be subjected to grueling cross-examination week after week?

The situation we find ourselves in is a tragedy. The Netanyahu trial is an all-consuming black hole that threatens statehood, tears apart Israeli solidarity, undermines trust in state institutions, and now, in a time of war, may also jeopardize national security. Criminal mediation could offer a path out of this destructive spiral.