Historian Martin Kramer cites paradox behind Israel’s judicial reform controversy
AIJAC’s latest webinar featured eminent historian Professor Martin Kramer, past Director of Tel Aviv University’s Middle East Centre and Fellow at the Washington Institute for Middle East Policy.
Professor Kramer, whose topic was “75 years young – Israelis celebrate amidst domestic controversy”, started with a paradox.
He noted that Israel is ranked 29th on the world democracy index out of 165 countries after an almost unbroken linear rise, and last year entered the top 20 for GDP per capita and was fourth in growth from OECD countries. So we might think it’s freer and richer than ever and has a lot to celebrate as it turns 75, he said.
Martin Kramer
However, he said, there’s a counter-narrative on Israel’s margins that the country has become unfree, ruled by a “self-selecting cohort of judges,” or a judicial dictatorship for the benefit of privileged elites. This view comes from the Religious Zionists, their ideological allies in Likud, and the ultra-Orthodox.
He explained that the flagship project of the Religious Zionists is to incorporate all of the Land of Israel into the State of Israel. However, the Palestinian Authority forms the potential nucleus of a Palestinian state, so the Religious Zionists want the status quo broken so the West Bank no longer has an Arab collective with nationalistic ambitions. They also want to “improve” the demographic balance there, so some Arabs leave, and the others will have no vote but will have other democratic rights.
The notion of equality under the law, upheld by the courts, is, Kramer noted, an obstacle to these aims, so the Religious Zionists are spearheading this campaign against the courts, even though the courts haven’t actually been an obstacle to the Jewish West Bank settlement.
Their ideological allies in the Likud share these aims but are secular, Kramer added. Likud Justice Minister Yariv Levin, who is pushing the reforms, began his political career campaigning against the “black stain” of the 2005 Gaza withdrawal and condemns the courts for refusing to uphold the Gaza settlers’ appeal against the Government’s decision but continuing to protect Palestinians. He wants to prevent the dismantling of West Bank settlements, which he thinks the judicial system may permit and also fears the Supreme Court will prevent Israeli sovereignty being imposed over the West Bank.
For the ultra-Orthodox, Kramer explained, their whole way of life is based on inequalities in their favour, including their exemption from military service. Yet the courts uphold equality. No court would allow the right to vote to be based on ethnicity or allow funding of gender-segregated activities, for example, so ultra-Orthodox critics want the courts’ powers curtailed.
However, he said, the initial effort to push through these reforms failed, which put the Government on the defensive. So why was there such an extensive and intense reaction against the proposals? It was primarily because of mistakes by proponents, Kramer stated. Advocates for the reforms acted to try to undermine basic freedoms, introducing around 100 other laws around the same time, giving the religious sector more control over the secular sector, leading to what Kramer called an “awakening” of secular Israel.
Moreover, he added, having an extreme figure like Itamar Ben-Gvir taking centre stage, together with other Government figures tinged with a reputation for “borderline lawlessness”, cast a pall over the Government’s legitimacy. The reform proposals were also not properly thought through, so they lacked coherence, with proponents contradicting each other about which were the top priorities.
Now, Kramer noted, there are calls for adopting a constitution based on the values in the Israeli Declaration of Independence – which could be said to “contain the DNA of Israeli principles that can’t be over-ridden by a passing majority.” These include affirming that Israel is a Jewish state; its citizens are equal regardless of religion, race or sex; the state guarantees freedom of religion and conscience, language, education and culture; and is peace-loving and faithful to the principles of the UN charter. If Israel was to deviate from any of these, he added, it would cease to be the state it was founded as in 1948.
He said Israel had created something remarkable, the envy of much of the world, but must take a conservative approach to change, treading carefully and slowly. The point of departure must be the Declaration of Independence principles because there is no Israeli alternative.
Asked what Israel’s founders would make of the country today, he said they mostly came from another world and would be impressed that Israel is a flourishing and strong democracy. The economy would astonish them, as they had no reason to suspect Israel would become an economic powerhouse, and they would be surprised it had made peace with so many Arab countries. They would, however, be disappointed by the role religion plays in politics, especially in terms of military service exemptions.
Asked about concerns that Australia’s Government may recognise a Palestinian state, he said, “Well, I don’t think it would be advisable. And it’s recognising [an entity] which has yet, I think, to meet some of the fundamental obligations that the Palestinian Authority undertook in the Oslo Accords… recognition of a Palestinian state would immediately raise a whole host of issues regarding the borders of that state, the authority of that state, the military capabilities of that state, all sorts of state-related issues which are actually supposed to be negotiated through a solution and not unilaterally declared… Any step taken now on a unilateral basis will make it absolutely certain that [final status talks between Israel and the Palestinians] will never happen. So the best way to deliver the coup de grace to Israeli-Palestinian discussions on their future is to take pre-emptive action that would put the two parties in oppositional mode instead of a future cooperative mode.”
Asked about the political prospects of the current Israeli Government, Kramer said he believes Netanyahu is not personally deeply interested in the judicial reforms, but Levin came first in the Likud primaries, so Netanyahu needs to keep him and his supporters happy, as well as the coalition partners – if this Government falls, Netanyahu’s political career is over.
It’s unlikely, he said, that there will be another election soon because polls show the Government in dire straits. Still, it is possible the Religious Zionists might find Netanyahu too moderate and break with him. If the fissures in the Government become cracks, Netanyahu may explore linking up with Benny Gantz instead.
He said the tragedy is that Netanyahu had a positive agenda for this Government, including galvanising world opinion against Iran and normalisation with Saudi Arabia, but this was forestalled by the Government’s political composition.
The Saudis, when considering normalisation with Israel, he said, see as a problem that Israel’s relationship with the US is less strong than it could be, with even other Arab states able to get an invitation to Washington whenever they want, while Netanyahu can’t. This is in addition to concerns about the composition of the Israeli Government and the Palestinians being back in the news. Therefore, the Saudis and others are hedging their bets by signing an agreement with Iran and allowing Syria back into the Arab League. This, he said, may result in Arab countries starting to object to Israel’s operations in Syria, which doesn’t bode well for Israel.
The Abraham Accords were always going to have ups and downs, he added, and Israel’s current trajectory and images of violence against Palestinians are disturbing to Israel’s partners.
He said there is no question Washington’s attention is not as focussed as previously on the Middle East, but there are still military exercises to show it is engaged, and diplomatic exchanges, and the US will not go below a certain level of engagement.
However, he continued, Israelis have no doubt the US will be there when Israel needs it. There will be tremors though, when Israel veers towards policies that the US thinks will undermine its position, and it’s important Israel’s leadership understands and acts to contain these. However, US support for Israel is hard-wired because Israel is a powerful ally, and great powers seek powerful allies – yet the now eroding consensus for supporting Israel among US Jews could undermine the moral side of the relationship, he concluded.
