Last month, Diaspora Affairs Minister Amichai Chikli sent a public and blunt rebuke to United States Ambassador Thomas Nides: “Mind your own business.” This was a response to the ambassador’s warning that the judicial reform would undermine shared values between Israel and the US.
A few days ago, the ambassador acknowledged Chikli’s message, and didn’t shy away from highlighting US influence. With characteristic dryness, he noted, “I really think that most Israelis do not want America to stay out of their business.”
Nides isn’t alone. Other voices expressing concern include President Joe Biden, the German foreign minister, the United Nations high commissioner for human rights and, reportedly, French President Emmanuel Macron.
Chikli’s message didn’t strike a particularly diplomatic tone for communicating with Israel’s staunchest and strongest ally but his anger is understandable. Israel’s judicial overhaul may be tearing the country in half but the heated debate is, on the surface, an entirely internal one. Democracies generally let other countries work out the independence of their judiciaries on their own.
Why are so many weighing in?
In that case, why are so many international players weighing in on Israel’s reforms? In part, international partners are worried about the image: our allies often portray Israel as a liberal democracy facing unique regional challenges. Without the liberal democracy component, they no longer have a strong basis for our defense.
However, there is much more at stake than moral standing in the court of world opinion. The judicial reforms, as they currently stand, pave the way directly to West Bank annexation.
The Israeli Supreme Court isn’t the first name on any list of champions for Palestinian rights. It has the dubious honor of being despised by both ends of the Israeli political spectrum. The reasons always come back to the conflict: the Left deplores its many decisions to permit home demolitions and settlement construction, while many on the Right are still seething that the court didn’t prevent the 2005 disengagement from Gaza.
At the same time, despite its mixed record, the Israeli justice system presents the only institutional protection available for Palestinians in eastern Jerusalem and the West Bank today.
In the last three years, we have three successive examples of protection:
In 2020, the High Court ruled to revoke the Judea and Samaria Regulation Law, which aimed to retroactively legalize thousands of settlement homes built on private Palestinian land.
In 2021, the deputy attorney-general ordered the public security minister to vaccinate Palestinian prisoners immediately, instead of prioritizing prison staff. The minister implemented the order once the case went to court.
In 2022, the High Court froze demolitions for 38 homes in eastern Jerusalem, creating a time window for Palestinian residents to produce a plan that will regulate the homes in question.
THE JUDICIAL overhaul currently going through Knesset will make it nearly impossible for the court to protect Palestinian rights or Israel’s long-term interest as a Jewish democratic state. Settlement expansion and Palestinian rights will be left to the discretion of the coalition government, with no oversight or legal challenge.
The debate over the reform is sometimes framed within Israel as an argument of pure majority rule versus support for liberal democracy. When one takes into account that the judicial changes will affect millions of Palestinians without a right to vote for the authorities calling the (often literal) shots, the majority argument no longer holds water. As long as the occupation of the territories was a temporary phenomenon, Israel could justify military and administrative control of Palestinian lives on the basis of security.
Under the new government, we have already seen Civil Administration powers move from the military to a civil government ministry, thousands of housing units approved in the settlements and renewed plans for building in the flashpoint E1 area. These are all signs of de facto and in the first case even de jure, annexation of the territories. Security is an internationally recognized legal argument for temporary occupation. It is not an excuse for applying sovereignty without civil rights.
Palestinians who lose any hope of defending their land and property through Israel’s institutions have two additional means of recourse: international forums and violence. Neither of these has proven particularly effective in the past but the strength of arguments for prosecuting Israeli leaders in the ICC increases exponentially in a reality of annexation without representation.
Whether Palestinian resistance is expressed by putting more pressure on international players or through a severe escalation of violence, the world will be forced to get involved. Every vote in the UN will be a referendum on who supports or denies Palestinian self-determination. Every fresh outbreak of violence will demand attention, resources and increasingly disingenuous justifications for how liberal democracies can choose to offer Israel economic and military support in light of interminable occupation.
Those in the international community who are not prepared to accept Israel’s endless and discriminatory presence in the West Bank on the basis of divine right will have to take the place of our Supreme Court in clarifying the red lines.
The accepted international norm is for other democracies to lay off allies’ internal debates about institutions and the balance of power. In this case, however, a weakened judiciary will lead directly to annexation and a true regime change. The end result of the reforms is not just a weakened or illiberal democracy but a government exerting sovereign control over 3.5 million disenfranchised Palestinians.
The supposedly domestic issue of Israeli judicial independence has massive consequences for the Israeli-Palestinian conflict. The resultant chaos will not be an internal matter.
The writer is the deputy director of the Geneva Initiative.