Attempts to Reform the Israeli Judiciary Aren’t a Threat to Democracy

The platform of Israel’s incoming government will almost certainly include proposals to weaken the immense power of the supreme court. Among them would be a law that would empower the Knesset, with a simple majority, to override the court’s rulings. Last week, the outgoing prime minister Yair Lapid declared that the so-called “override clause,” if implemented, would “crush Israeli democracy,” and various academics and journalists have issued similarly dire warnings. Ruthie Blum, drawing heavily from an open letter (in Hebrew) by Gadi Taub, rebuts these criticisms:

There is no dispute that in Israel there is no structural separation between the legislative and executive branches. This is not unique to Israel; it characterizes the parliamentary system everywhere. Does this mean that separation of powers only prevails in a presidential system? Certainly not. It means that the separation of powers is not hermetic in the parliamentary system, and thus the nature of its checks and balances is also different. But the remedy cannot be the authorization of a court, with no defined limit to its power, to have the final decision-making authority in all matters, when its members are not appointed by elected officials, but rather, in practice, by their peers.

The definition of democracy is, indeed, the “sovereignty of the citizens.” This should be stressed in the face of the misleading discourse adopted by jurists following [the former chief justice, and architect of the court’s radical expansion of its own powers] Aharon Barak, who reduced the expression of this sovereignty—elections—to the rank of “procedure.”

The idea that the will of the people is a fascist monster, and thus needs to have an unchallengeable authority placed over it, is misleading and, in any case, undemocratic. If the people do not want democracy, there will be no democracy. No court will be able to impose democracy—or liberalism (i.e. human rights)—from above, without the sovereignty of the people.

Concentration of power in the hands of the court does not constitute insurance against the danger of the trampling of human rights. . . . In the Dred Scott ruling, the U.S. Supreme Court supported slavery, while the elections that brought Abraham Lincoln to power led to its abolition in a bloody war.

Read more at JNS

More about: Israeli politics, Israeli Supreme Court, Yair Lapid


The ICJ’s Vice-President Explains What’s Wrong with Its Recent Ruling against Israel

It should be obvious to anyone with even rudimentary knowledge of the Gaza war that Israel is not committing genocide there, or anything even remotely akin to it. In response to such spurious accusations, it’s often best to focus on the mockery they make of international law itself, or on how Israel can most effectively combat them. Still, it is also worth stopping to consider the legal case on its own terms. No one has done this quite so effectively, to my knowledge, as the Ugandan jurist Julia Sebutinde, who is the vice-president of the ICJ and the only one of its judges to rule unequivocally in Israel’s favor both in this case and in the previous one where it found accusations of genocide “plausible.”

Sebutinde begins by questioning the appropriateness of the court ruling on this issue at all:

Once again, South Africa has invited the Court to micromanage the conduct of hostilities between Israel and Hamas. Such hostilities are exclusively governed by the laws of war (international humanitarian law) and international human-rights law, areas where the Court lacks jurisdiction in this case.

The Court should also avoid trying to enforce its own orders. . . . Is the Court going to reaffirm its earlier provisional measures every time a party runs to it with allegations of a breach of its provisional measures? I should think not.

Sebutinde also emphasizes the absurdity of hearing this case after Israel has taken “multiple concrete actions” to alleviate the suffering of Gazan civilians since the ICJ’s last ruling. In fact, she points out, “the evidence actually shows a gradual improvement in the humanitarian situation in Gaza since the Court’s order.” She brings much evidence in support of these points.

She concludes her dissent by highlighting the procedural irregularities of the case, including a complete failure to respect the basic rights of the accused:

I find it necessary to note my serious concerns regarding the manner in which South Africa’s request and incidental oral hearings were managed by the Court, resulting in Israel not having sufficient time to file its written observations on the request. In my view, the Court should have consented to Israel’s request to postpone the oral hearings to the following week to allow for Israel to have sufficient time to fully respond to South Africa’s request and engage counsel. Regrettably, as a result of the exceptionally abbreviated timeframe for the hearings, Israel could not be represented by its chosen counsel, who were unavailable on the dates scheduled by the Court.

It is also regrettable that Israel was required to respond to a question posed by a member of the Court over the Jewish Sabbath. The Court’s decisions in this respect bear upon the procedural equality between the parties and the good administration of justice by the Court.

Read more at International Court of Justice

More about: Gaza War 2023, ICC, International Law