Israel prides itself on being the only democracy in the Middle East, and that democracy is very much alive.1 The government of Benjamin Netanyahu nonetheless takes initiatives that all point in the same direction: restricting liberties. But this Israeli-style populism, which also targets Israeli Arabs,2 runs up against the resistance of public figures and of broad segments of public opinion.
If we are to believe Pierre Mendès France, “democracy is first of all a state of mind.” One might say as much of the offensives waged against public liberties, which for some years now have occupied a significant part of the agenda of the Israeli government and of the parties that support it. Very significantly, this orientation is directed first of all against a judicial system deemed too powerful.
A judiciary too powerful?
The Israeli Supreme Court is one of the most powerful in the world. It exercises two missions corresponding to the two institutions served by the fifteen judges who compose it. It is at once the country’s highest Court of Appeal and the High Court of Justice, which any citizen may petition concerning government decisions that it can modify or overturn. The Supreme Court also exercises a review of the constitutionality of laws. Strong in these prerogatives, the Court has thus handed down resounding decisions, among which one may cite the suspension of the expulsion of 415 Hamas activists to Lebanon during the first Intifada (1992), the right of an Arab family to buy land hitherto reserved for Jews (2000), and the rectification of the route of the security barrier (the famous “wall” surrounding the West Bank) at a spot where it encroached too far on the lands of a Palestinian village (2010). In the recent period, the Supreme Court’s decisions concerning illegal immigrants aroused the ire of the Israeli right: after declaring illegal the detention without trial for three years of illegal foreigners (2013), the Court reduced this period from 20 to 12 months (2015), and ordered the release of those held in a detention center for more than a year. In this domain, the criticisms addressed to the Supreme Court insisted on the fact that the concentration of illegal immigrants — among whom the rate of delinquency is high — in the poor neighborhoods of southern Tel Aviv provokes tensions with the local population. In 2016, the Supreme Court’s annulment of a provision of the framework agreement by which the government had committed itself, to the private companies exploiting Israeli gas off Haifa, not to modify the legislation for ten years, was presented by the right as an arbitrary decision harming the country’s economy and the consumer’s interests.
The Court, according to its detractors, is said to be indifferent to the fate of the most disadvantaged owing to its social composition: its members are indeed for the most part drawn from the privileged classes inhabiting the upscale neighborhoods of northern Tel Aviv. This impeachment overlaps with a criticism regularly made about the system of judicial selection, against which the Justice Minister of the government issuing from the 2015 elections, Ayelet Shaked, intends to act.
At present, the judicial appointments committee, chaired by the Justice Minister, has nine members: three Supreme Court judges, two members of the Israel Bar, two Knesset deputies (one from the opposition and one from the coalition) and two ministers. Since a majority of seven votes is required to appoint a judge, this gives de facto to the three Supreme Court members a right of veto over any appointment… including over the appointment of their own future colleagues within the institution! The Justice Minister’s plans, against what is presented as a system of co-optation, could result in an enlargement of the committee’s composition to eleven, or even fifteen members.
The Justice Minister also intends to take on the review of the constitutionality of laws,3 by limiting the Supreme Court’s right to annul legislative provisions voted by the Knesset. As in the United States and in France, in Israel the decisions of the Supreme Court are final. The aim would thus be to grant the Knesset the right to adopt laws that do not conform to the Supreme Court’s decisions, possibly by instituting a qualified-majority procedure. The Knesset having 120 deputies, an absolute-majority vote must gather 61 votes. The aim would be to provide for a special majority of 70 votes, for example.
Human rights associations in the pay of foreign governments?
Israeli NGOs receiving subsidies from foreign governments will henceforth have to disclose this. A bill tabled in the Knesset by the government in 2016 obliges these NGOs to mention on all their public documents that they receive the majority of their funds from foreign governments. The initial bill even provided for compelling their representatives to wear a special badge when they come to the Knesset. In the end, that provision was set aside. Even so. With this initiative, the government intends to combat a whole series of human rights associations marked as left-wing.
The argument invoked by the government is that of transparency: every citizen would have the right to know that such-and-such an association is supported by foreign powers. In presenting the bill, the Justice Minister thus declared: “The flagrant intervention of foreign governments in Israeli internal affairs by means of funding is unprecedented, widespread, and encroaches on the norms and rules accepted in relations between democratic countries.”
But, in fact, the law creates a discrimination between associations. Whereas right-wing associations are funded essentially by donations from private individuals (frequently by wealthy Jews of the diaspora), the associations close to the left are very often subsidized by foreign institutions. The European Union thus brings its political and financial support to a dozen Israeli associations that campaign notably in favor of the defense of human rights in the occupied territories. The best known of these associations are B’Tselem (information center on human rights in the occupied territories) and Shovrim Shtika (Breaking the Silence, an association of former Israeli soldiers denouncing the abuses committed by the army in those same territories).
The European Union, moreover, criticized the bill, as did several foreign governments. German officials warned Benjamin Netanyahu that the adoption of this law would make harder the task of Israel’s friends who, in Germany, combat the boycott of the products of the Jewish State. As a result, certain coalition deputies, such as Michael Oren (of the Kulanu party, center-right), made known their concern: “This bill on NGOs is one that could harm Israel’s image and diplomatic relations.” But for the government’s adversaries, the task is not easy. Organizations like Breaking the Silence do not enjoy a good press among an opinion that identifies with an army founded on conscription: while the denunciation of abuses seems well accepted in the country (the press exercises this right daily), the dissemination of these testimonies abroad is judged by many citizens as contributing to the delegitimization of Israel on the international scene.
Cultural institutions too autonomous?
Cultural institutions and artists are henceforth the object of very particular surveillance on the part of the Minister of Culture and Sport, Miri Regev: the subsidies granted to cultural institutions and creators are henceforth subject to criteria that give pride of place to raison d’État. From the moment she took office, Miri Regev made known her intention to stop subsidizing institutions — such as an Arab theater in Haifa, which was presenting a play recounting a day in the life of a Palestinian prisoner sentenced to life imprisonment for the abduction and murder of an Israeli soldier in 1984. The play had already had a subsidy withdrawn by the Minister of Education, Naftali Bennett, head of the far-right party HaBayit haYehudi (The Jewish Home). But the State prosecutor opposed extending the financial sanction to the theater’s entire activity. The Minister of Culture also made known her intention to reduce the subsidies to the Tel Aviv Cinematheque, which organizes each year a festival devoted to the Nakba (“catastrophe,” in Arabic) — that is, to the consequences of the creation of the State of Israel for the Arab population.
Miri Regev does not intend to limit herself to case-by-case interventions. She has therefore presented a bill entitled “loyalty in culture” (sic!): excluded from all public financing would be those artists and cultural institutions that disfigure the flag or other national symbols, incite to racism, violence or terrorism. The whole skill of the government consists in presenting as natural the protection of the public’s interests against the ever-present threat of incitement to terrorism and to the destruction of the State. Hence the rulers’ insistence on presenting these initiatives as partaking of the defense of Israel as a Jewish State.4
A press too far to the left?
Benjamin Netanyahu does not like the press, and the feeling is mutual. He has often expressed the reasons for his vindictiveness: the Israeli press is said to have always been dominated by the left. Which is not entirely false, but less and less true. As in every country in the world, in Israel journalism studies attract more young people of the left, whereas other training (such as management and finance) is more prized by young people of the right. Moreover, broadcasting was for a long time controlled by the State — that is, until 1977 by the Labor Party. The older journalists of the public audiovisual service are therefore, as is common knowledge, very often on the left. But things began to change a decade or two ago, with the entry into the profession of new generations more marked to the right and belonging notably to the national-religious camp: on the screens, it is no longer rare to see a journalist wearing the knitted kippa, the sign of belonging to that current of thought.
But, for Benjamin Netanyahu, the changes in this regard are still not coming fast enough. Holder, in addition to his charge as head of government, of the communications portfolio, he decided in 2016 to abolish the broadcasting authority (the equivalent of the former ORTF) and to dismiss its 1,500 employees. A new body was to have far more limited human resources. Moreover, in order to limit the audience of the major television channels that he considers hostile to his policy, he intends to favor the emergence of new competitors, by authorizing the broadcasting on national territory of media until now turned toward abroad, such as the French-language channel i24 News (whose programs are in English, Arabic and French).
As regards the print press, it disturbs the government less and less, for several reasons. First, because, as in every country in the world, faced with the competition of the internet, the major newspapers distributed on paper (Haaretz, Maariv and Yediot Aharonot) are less and less read. Next, because a widely distributed free newspaper, Israel haYom, funded by the very right-wing American Jewish billionaire Sheldon Adelson, is totally devoted to the person and policy of the Prime Minister. Finally, a number of internet sites defend the government’s policy.
Israeli Arabs too nationalist?
Benjamin Netanyahu, a great professional of politics and communication, knows perfectly the motivations of his electors. It was notably by playing on the anti-Arab fiber of a good portion of them that he was able, to general surprise, to be re-elected in 2015.5 He knows that on this terrain he has little to fear from a political class often ill at ease with regard to the Israeli Arabs, who make up 20% of the population.
This minority has all civil and political rights, and the principle of the equality of all citizens has been proclaimed since the creation of the State. More than that, it enjoys great religious freedom: the Christian and Muslim Arabs of Israel can practice their religion without fear, a situation that presents a striking contrast with those of a good many religious minorities in the region (one thinks notably of the situation of the Christians of the East and of the Yazidis). One observes, however, that in terms of real equality (income, education, and so on), there are great differences between Jews and Arabs. This is owing to discrimination, notably in the labor market, but also to cultural characteristics of the Arab community (such as the low participation of women in the labor market). The differences between Arabs and Jews tend, moreover, to attenuate over the long run.
In political matters, the malady is deeper: it is not easy to be an Israeli Arab, first of all because it is never easy to live in a country where one is a minority. For the Israeli Arabs, this difficulty is reinforced by the conflict that pits their cousins on the other side of the Green Line against the majority population — the Jews — of the country of which they are citizens. Moreover, the political representatives of the Arab minority, the thirteen deputies elected in 2015 to the Knesset on the “Joint List” that grouped the nationalist, Islamist and communist parties, sometimes adopt extremist positions.
Thus, the three deputies of the Balad party (Arabic acronym for the National Democratic Assembly)6 went, in February 2016, to visit the Palestinian families of terrorists shot dead while attacking Israeli citizens during the “Intifada of the knives.” They explained their gesture by declaring that they wished to intervene with the Israeli authorities so that the latter would return the terrorists’ bodies to their families, but had more difficulty justifying the fact that they observed a minute of silence in memory of the attackers… This escapade earned them suspension from their parliamentary mandate for a time, almost all the Jewish members of the Knesset refusing to defend them. The Labor opposition even went so far as to characterize their attitude as “encouragement of terrorism.”
Not content with this decision, Benjamin Netanyahu proposed in the wake of it to be able to suspend a deputy permanently for “inappropriate behavior.” This “suspension” bill would make it possible to remove from the Knesset any deputy justifying terrorism, for example. Such a decision would have to gather a majority of 90 votes (i.e. three-quarters of the deputies). This time, the opposition vigorously contested the bill, underlining that no one could guarantee that in future such a power would not be used against any dissenting elected official.
Populism against democracy
These threats against democracy owe nothing to chance. In Israel, as in the United States or in Europe, populism now has fertile ground: a population traumatized by the attacks and the threats of the Islamist movements. For the Israelis, the fear is all the keener in that the enemy is present at the southern border, with Hamas controlling Gaza, in the north with the Lebanese Hezbollah, and in the west with cells of Daesh implanting themselves in the West Bank. Populism could even endow itself with a party structure. Not through the constitution of parties built on this theme, as in Europe, but rather following the American model: the election of Donald Trump shows that, from now on, the populist discourse can lay claim to the conquest of the parties of government.
Benjamin Netanyahu, a great connoisseur and great admirer of the United States, would dearly like to have a party representing the whole right, on the model of the Republican Party. The head of government is, moreover, credited with the plan to merge the candidate lists of his party, the Likud, the traditional party of the right, with those of HaBayit haYehudi which, to the right of the right, develops a discourse that gives pride of place to the colonization of the occupied territories, to the monopoly exercised by Orthodox Judaism over religious life, to the restriction of any expression calling into question the Jewish character of the State, and so on. In any case, the most right-wing government in all of Israel’s history is already largely aligned with these theses — a form of single-mindedness — and fully intends, as we have seen, to inscribe in Israeli law a whole series of provisions that would restrict the questioning of its orientations.
This Israeli-style populism raises keen concerns, and an opposition that does not come solely from the left. Besides, the left, which numbers no more than 29 deputies out of 120, is less and less listened to. Within the government coalition itself, political leaders such as Moshe Kahlon, Minister of the Economy and founder of the Kulanu party, or the deputy Benny Begin, son of the former Prime Minister Menachem Begin, are not prepared to vote for all the government’s bills. Outside Parliament, other voices make themselves heard, such as that of the President of the State, Reuven Rivlin — himself issuing from the ranks of the Likud — who, concerning the bill on the “suspension” of deputies, was keen to declare that this initiative reflected “a problematic understanding of parliamentary democracy… For them, democracy is nothing other than the law of the majority.” Which is another way of saying what we have known since Montesquieu: the law too can be oppressive.
Beyond the political leaders, many Israelis do not intend to let the government undermine public liberties, notably when artists are at stake. Thus, when the Minister of Education decided to remove from the schools’ curriculum the reading of a novel featuring a love story between a Palestinian and an Israeli woman, Gader Haya (Borderlife) by Dorit Rabinyan, the public reacted very clearly — by rushing to the booksellers to buy the incriminated book. More than that, vigorous protests prevented a right-wing association, Im Tirtzu (If You Will It), from carrying out a campaign denouncing the opinions of a number of celebrities of Israeli culture by underlining their ties with associations presented as subversive. Faced with the emotion aroused by the posting online of the portraits of these figures accompanied by disobliging comments, the association had to apologize and halt this campaign. The leaders of Im Tirtzu had forgotten the Israelis’ attachment to freedom of expression, to dissent, and even to polemic. One of the figures impeached, the writer Amos Oz, had moreover underlined that this attachment was not unrelated to the characteristics of Jewish thought, which he describes thus: “a culture of doubt and dispute, an open game of interpretations and counter-interpretations, of reinterpretations, of contradictory interpretations…”
Faced with democrats imbued with this noble tradition, one would like to believe that Israeli-style populism has not yet won the game. That would be to forget that, for a great many Israelis, these attacks on democracy seem derisory compared with the Islamist danger that threatens the Jewish State, a few dozen kilometers from Tel Aviv.
Notes
Proof of this vitality, the justice system does not hesitate to send the highest officials of the State to prison: the former President of the State, Moshe Katsav, was sentenced in 2011 to seven years in prison for rape and sexual harassment. The former Prime Minister Ehud Olmert was incarcerated in 2016 for a period of 19 months on various charges of corruption.↩︎
We will not deal here with the situation of human rights in the occupied territories, a subject that by itself would justify a separate study, all the more so as the law in force beyond the Green Line is not that applicable in Israel.↩︎
Israel is a country without a constitution, but the Knesset has adopted twelve basic laws. The Supreme Court, in order to annul certain laws, has also referred to unwritten principles. On these questions, see the works of Prof. Claude Klein, as well as his presentation and translation of the article by the former President of the Supreme Court, Aharon Barak: La révolution constitutionnelle : la protection des droits fondamentaux (The Constitutional Revolution: The Protection of Fundamental Rights), Pouvoirs no. 72, 1994.↩︎
Philippe Velilla, “Israël ‘État juif’ : les enjeux d’un adjectif” (“Israel, the ‘Jewish State’: the Stakes of an Adjective”), Diplomatie no. 78, January–February 2016.↩︎
Philippe Velilla, “Les élections israéliennes du 17 juin 2015, vote de classe, vote ethnique et vote identitaire” (“The Israeli Elections of 17 June 2015: Class Vote, Ethnic Vote and Identity Vote”), Pouvoirs no. 156, January 2016.↩︎
A nationalist party considered close to Hamas and Hezbollah.↩︎