Why the Israeli judicial protest movement is bound to fail

On July 24, the Netanyahu government succeeded in passing the first piece of legislation in its so-called “Judicial Reform,” taking away the power of the courts to overturn governmental legislation, appointments, or actions that are seen as manifestly “unreasonable.” This action was undertaken in the teeth of massive popular demonstrations by literally hundreds of thousands of Israeli citizens who see in the proposed moves an existential threat to democracy, the turning of Israel into a dictatorship by a narrow right-wing majority that could endanger the rights of secular Israelis and other minorities. Attempts to reach a compromise or consensus on judicial reform had failed, and endless postponements of the feared legislation had not produced consensus but only polarization and entrenchment. Now, the government has acted, using its thin majority to proceed with its plans. Elections would not break the impasse either since Israel has had five different governments in the span of two years without any clear resolution.

The crisis is enhanced by the fact that there does not exist within the Israeli government a proper separation of powers. The legislative and administrative branches are basically one and the same. Nor does there exist an Israeli constitution (or anything equivalent to a bill of rights) to restrain even a razor-thin parliamentary majority from trampling the rights of all others. Only the courts appear to be the last bastion of restraint on governmental overreach. The fact that some of the more extreme parties in the ruling coalition are calling the shots, insisting on a program that a majority of Israelis may well oppose, only made the crisis so much more threatening.

Behind the intensity of the conflict between the parties lie a number of elements ensuring that the conflict will not be easily resolved. First and foremost is the increasing number and political involvement of Israeli religious parties. For many years, these parties were essentially neutral players in Israeli politics, supporting either block (Labor or Likud) in order to maintain their privileges and ensure funding for their institutions. In recent years, however, they have become active players, throwing their weight and increasing numbers behind the right-wing block, involving themselves in settlement activities and against any possible compromise with the Palestinians (such as a two-state solution).

Secular liberal Zionist parties, compromising the class of those who founded the state, leaders in the economy, the high-tech sector, the elite units of the army, and most of the productive activities of the state, found themselves increasingly in the minority and being overtaken by previously marginalized populations. The new players, however, found power in the voting booth and wielded it to promote an openly and unabashedly racist Jewish supremacism unattuned to world opinion, international law, or even the views of the majority of American Jews—who have favored the facade of a liberal nation that was somehow both Jewish and “democratic.” Reducing the power of the courts removes the last vestiges of power and control this elite felt it possessed in the face of a more openly fascist and less-nuanced Israeli government.

A crucial decision taken in this confrontation came when the leaders of the opposition deliberately decided to wrap themselves in the Israeli flag, doubled down on their Zionist and Jewish identity, and discouraged, or outright prohibited, the introduction of Palestinian flags, Palestinian issues, and discussions about the Occupation from their protest movement. In their attempts to capture some of the middle ground of the Israeli political spectrum, they ignored, if not totally alienated, 20% of the Israeli population who are Palestinians, and who, in reality, could have provided them with the only chance of defeating the fascist right wing. Yet, to involve those Palestinians would have forced a different conversation, as those Arabs would have raised critical issues of equality and challenged the exclusivist Jewish identity of the state—not to mention the Occupation, the settlements, and the rights and future of Palestinians living under Israeli control in Gaza and the West Bank, including East Jerusalem. The desperate attempt to return to the situation that existed before the current government came into power and restore a state that is both explicitly Jewish and ostensibly democratic was the stated goal for most of the demonstrators. But, it was bound to fail.

This moment of crisis can also be an opportunity for new thinking, even for redemption.

The truth is that Israel can no longer pretend to be both Jewish and democratic, even without the aggressive, fascist, openly-racist pronouncements of the current government. The pretense can no longer be maintained, and the time has come for Israeli Jews and their supporters to face the facts. They must answer the question of whether they believe in human equality or if they will continue to insist on Jewish supremacy. Yet this moment of crisis can also be an opportunity for new thinking, even for redemption. A Jewish state, promised by Zionists, can no longer be maintained in innocence but must either be openly racist and take its place as an apartheid regime that denies equality to its own citizens, as well as to the subject population under its control. Or, it must think of a new paradigm where it can seek out its Jewish identity within a multicultural, multi-ethnic society in which Jews can flourish but not dominate as supremacists. Equality, an idea so threatening to those seeking privilege, exclusion, and supremacy, can also provide the context for a thriving community confident in its identity but not demanding exclusivity or the subjugation of others to fulfill its destiny.

This is the true challenge and promise of the current crisis. Jewish Israelis now realize the importance of a constitution, an independent judiciary, separation of powers, and protections for the rights of minorities and individuals from the tyranny of a numerical majority. These are also key complaints that Palestinian citizens of Israel have been raising for years. Israelis also see that they cannot exercise oppression over Palestinians living in the territories under their control without having the same policies come back to plague them as well at home.

As Israeli Jews and their supporters wrestle with these existential questions, we need to find ways to communicate with them, engage them in conversations, and urge them not only to seek what is good for them as Jews but also to remember the Palestinian Arabs living amongst them and under their control. A better future awaits both Jews and Palestinians if they are willing to abandon their exclusivist claims, genuinely accept the humanity of the other, and seek creative new formulae for coexistence—formulae based not on the negation of the Other but on accepting their full humanity in dignity and equality. Such an approach challenges nationalist, supremacist views, and it rejects the tyranny of religious extremists as well as the dictatorship of a numerical majority. It provides for an outcome where the individual, as well as substantial minorities, can survive, thrive, and be fully protected and mutually invested in their joint society. This is a bold vision that challenges current ideologies, narrow nationalisms, and exclusivist demands and claims, but it is one which more closely resembles an ideal, just vision to be sought after and struggled towards.

Jonathan Kuttab is a Palestinian attorney, and human rights activist. He is a founding a number of human rights organizations including Al Haq, the
Premier Palestinian Human Rights organization, the Mandela Institute for Palestinian Prisoners, and the Holy Land Trust – and a recognised authority on international law, human rights and Palestinian and Israeli affairs.