Prosecuting Netanyahu Undermines Israel’s Democracy and Rule of Law

Israeli Prime Minister Benjamin Netanyahu, now 75 and in declining health, will not be in power much longer. Yet, instead of waiting him out, his opponents are pursuing a misguided prosecution that sets a dangerously idiotic precedent. Beyond the immediate political battle, Netanyahu is shielded by long standing principles of executive immunity rooted in both natural law and common law traditions. Executive immunity exists to prevent the chaos that would arise from prosecuting a sitting leader. Netanyahu’s status as prime minister grants him this protection, and any attempt to undermine this principle threatens not only his tenure, but also the stability of the Israeli state itself. The court should uphold the doctrine of executive immunity and dismiss the charges against Netanyahu.

Common law jurisdictions have long recognized the necessity of immunity for heads of government to prevent politically motivated legal challenges that could obstruct governance, and lead to an executive succession crisis. This principle originates from English common law, where sovereign immunity prevented the king from being prosecuted while reigning. Over time, this doctrine evolved into the modern understanding of executive immunity, and almost every democratic nation now recognizes some form of prosecutorial immunity for their executive leaders.

For example, U.S. constitutional jurisprudence has continuously maintained that a sitting president cannot be criminally prosecuted. The French Constitution provides the President of the Republic with immunity from prosecution, and proceedings can only occur after a president has left office. The German Basic Law implicitly protects the federal president from criminal prosecution while in office. Italy has granted immunity to sitting prime ministers in various forms over the years.

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Israel, with its deeply polarized political landscape, would be particularly vulnerable to a simultaneous legitimacy and succession crisis. If Netanyahu were to reject a court ruling against him, the right could argue that judicial overreach threatens democratic governance, while his opponents would insist that the rule of law demands compliance. The result could be a breakdown in Israeli society, with neither the judiciary nor the executive capable of enforcing its authority without risking civil unrest or military intervention. This could be disastrous given that it was a political succession crisis that led to the downfall of the Second Jewish Commonwealth.

The institutional left’s leadership has handled Netanyahu disastrously. He is a political juggernaut who will remain in power for as long as he chooses, but his time is limited by age and declining health. Instead of wasting energy on futile attacks, his opponents should negotiate with him. The secular must act with foresight rather than impulse. Prosecuting Netanyahu is shortsighted and devoid of long-term strategic thinking. Instead, they should cut deals with Bibi in order to protect the secular way of life, which Netanyahu is probably sympathetic to. This should include federating Israel into discrete entities exercising local police control (which would castrate future Haredi religious criminal prosecutions), and finalizing a classically liberal constitution that protects the pluralistic Israeli nation. Netanyahu could be enticed by raising the threshold for a no confidence vote, which would secure his leadership until the next scheduled election while reducing his reliance on the Haredi block.

The prosecution of Israeli Prime Minister Benjamin Netanyahu while he remains in office represents a dangerous challenge to the stability of both Israel’s government and the broader principles of democratic governance. Executive immunity is a critical safeguard against legal challenges that could destabilize the functioning of the state, as seen in numerous democratic systems worldwide. Netanyahu’s immunity is not a hypothetical, but already exists through the philosophy that undergirds the Israeli and Jewish common law traditions. By pursuing such a prosecution, Netanyahu’s opponents risk plunging Israel into a constitutional crisis, undermining both the separation of powers and the legitimacy of Israeli institutions. Rather than pursuing futile legal battles, Israel’s political actors should focus on negotiating a constructive path forward to give Netanyahu a legacy (which he desperately wants) while safeguarding the nation’s future. It is essential that the court upholds the doctrine of executive immunity and dismisses the charges against Netanyahu without prejudice to prevent the country from collapsing into the abyss.