“Supporting Israel means opposing the hostile takeover of Israel”

The interview was conducted by Bauke Baumann, the Heinrich Böll Foundation Middle East Desk Officer - with Frances Raday, Professor of Law and President of the Concord Research Center for Integration of International Law in Israel at the Haim Striks School of Law.

Bauke Baumann: You have dedicated your professional life to three causes – Human rights, law and Israel. How do you look at these in light of the current government’s policy making?

Frances Raday: All of these three causes are at stake right now. The design of the current Israeli government is to override democracy and human rights. It’s important to understand that democracy and human rights are inseparable. There cannot be democracy without basic human rights, like the right to equality, the right to freedom of thought and conscience, the freedom of religion, the freedom of expression, and of course, free and fair elections. All those things are under attack in the present government.

Netanyahu’s government coalition misrepresents democracy as merely requiring a parliamentary majority. The Coalition got 64 of the 120 mandates in the last elections. This is due to the short-sighted and tactically disastrous behaviour of the centre and centre-left parties. However, it is also due to the populist lies and arousal of ethnic hatred that Netanyahu has been spreading for years and representing the legal system as the dictatorial enemy of the religious and of Sephardi Jews. He has (ironically as being himself Ashkenazi) incited resentment of the Ashkenazi Jews, who came from Europe, as more privileged than other Jewish groups in Israel. So you have distrust of the legal system and an urge for revenge against the so-called elites being justified by the parliamentary majority.

Despite massive protests, the Knesset eliminated, with the government majority of Netanyahu’s coalition, the “reasonableness” clause that allows Israel’s Supreme Court to overrule government decisions. What does this mean for Israel?
According to the legislative amendment, the High Court of Justice can no longer judge government or ministerial decisions on the basis of their being extremely unreasonable. Previously, it could invalidate a decision made either by the Government or by the Prime Minister or the Government Ministers, where the Court found it to be extremely unreasonable.

This power of the Supreme Court was mainly used in relation to social affairs and to government appointments. For example, when it was decided that schools near to the Gaza strip needed to be reinforced so that there would be shelters for schoolchildren during the day, the government decided to implement this measure only partially. And the people of Sderot (a small town near Gaza) went to court and said, what is this, partially? This endangers our children. And the court said, listen, it's unreasonable. They obliged the government to do it properly and provide full protection to all children in the area. That was a social measure. But the role of the High Court’s power to check the reasonableness of government decisions most clearly lies behind the legislative amendment related to governmental appointments. The perfect example of this is the appointment of Aryeh Deri from the Shas party as minister in Netanyahu’s new government. Deri was found guilty several years ago on fraud and corruption charges, and then was found recently guilty on tax evasion charges while he was a minister in one of the previous governments. Therefore, the court held that is extremely unreasonable to appoint him as a minister, a person who has been found guilty of stealing from the public purse.

These examples show that the reasonableness clause is very important. And we have to remember that there is no body other than the Court that can review and invalidate government decisions. There is no separation of powers between the executive and the parliament. Parliament cannot come along and say, it's not reasonable that the Prime Minister appointed a person who is totally unqualified, because in Israel the coalition governs both the government and the Knesset.

However, the Netanyahu government has even more far-reaching plans for restructuring the judiciary and curtailing the independence and competences of the Supreme Court. What else is in the legislative pipeline of the government?
There are 250 pieces of new legislation the government is working on. I spend hours every day following these things. It's hard for all of us to keep up with them and follow where they are in the legislative process.

I would like to point out three legislative projects relating to the legal system and the rule of law that I find especially dangerous.

Firstly, the coalition wants an override clause. What they are suggesting is that 61 out of the 120 members of Knesset can override any Supreme Court decision. That would make the Supreme Court irrelevant in terms of being the guardian of human rights and the rule of law in Israel.

Secondly, the coalition wants to change the procedures for appointing judges. The Judicial Appointments Committee, which appoints justices at the moment, has a balance between the government, the judges themselves and the Law Society. It's been very successful in keeping the court fairly free of direct political intervention in the appointment of judges. They tried to pass legislation that the traditional Appointments Committee would have only politicians in it. However, the demonstrations did seem to succeed in making them hesitate on this. So they took another track. They put up their candidate to be the head of the Law Society, which appoints two representatives to the Judicial Appointments Committee. Except they lost. The lawyers voted 80% against the candidate put up by the Coalition government. In response to this failure, the coalition pulled out a plan for removing the statutory powers of the Law Society and setting up a politicised Legal Council in its stead.

The third project of the government that I would like to point out is the status of the legal advisors to the government. Until now, the Attorney General and the legal advisors to government ministries function on the basis of professional independence. They have a great deal of weight. They are independent arbiters of whether a ministerial plan is compatible with legal requirements. The coalition plans to turn all legal advisors into what they call loyalty appointments. This means that the minister appoints his legal adviser, and that the job of the legal adviser will be to find a way to get the plan of the minister through rather than to examine its legality. They also plan to either dismiss or weaken the authority of the current Attorney General, Gali Baharav-Miara, who has been very strong in her professional independence and decision-making, for instance criticising the judicial reform program as threatening to give uncontrolled power to the government, and determining that Netanyahu cannot be involved in this program as it is a conflict of interests with the criminal prosecutions against him. The government now want to split her role so that the decisions of criminal prosecution will be removed from her. This would mean that she is not going to have the power to make decisions relating to Netanyahu’s criminal cases.

In the demonstrations in Tel Aviv and elsewhere we saw all those pictures of women protesting in the gear of “the handmaiden’s tale”. How do you assess the current government’s anti-feminist, anti-queer, anti-gender agenda?
I'm a feminist, and I was one of the handmaidens in the demonstrations. And it's very important. Women's rights are human rights. It's a part of a whole human rights agenda that is being attacked by the government. They are driven by religious fundamentalism. And this is quite definitely result of putting the ultra-orthodox parties into a stronger position of power than they ever have been.

Israel previously had domination of all three religious courts, Jewish, Moslem and Christian, over questions of marriage, and divorce status, so we were never in a good position as regards women’s right to equality in the family.

The Netanyahu government is now extending the powers of the Rabbinical court. This court does not have female judges, it has only male judges. Up to now, the Rabbinical courts have had jurisdiction over marriage and divorce status. They want to extend their jurisdiction to other matters of family law and also to other civil issues.

In addition, they want to extend the number of public venues in which there can be segregation between the sexes. They say separate, but equal. But that’s not possible. It's men who are getting preference in the public space.

They are also trying to introduce, - with a potential effect on Arabs, homosexuals, and women - impunity for discrimination in the provision of services to the public, where it is on grounds of religious conviction. So it means that a shop owner will be permitted to refuse to serve me as a woman, because my arms and shoulders are immodestly revealed. Or he could refuse to serve a gay couple who comes in holding hands. Or, if it's a wine shop, the ultra-orthodox have a rule that wine cannot be touched by a non-Jew if it's to remain kosher, so the shop owner can say to an Arab, no, you can't come into my shop.

What drives the different parties in the heterogeneous coalition of Netanyahu’s government to go for this massive restructuring of politics and society?
There are three main groups in the government. The first group are the corrupt who are driven by power and money. The second group are the religious parties that strive for the theocratic rule of Jewish law. And the third group are the ideological settlers.

The first group seeks impunity for criminal liability for corruption. That includes Netanyahu who wants to escape his very annoying prosecutions, Deri, who wishes to avoid the consequences of his criminal convictions and Itamar Ben-Gvir who was convicted in the past for encouraging terrorism against Arabs, and has been made the Minister for National Security now.

The second group are the ultra-orthodox. That is where the theocracy comes in. They want a fully halachic state - that means a state ruled by Jewish law. Already, there are numerous special rules for the ultra-Orthodox community in Israel. Marriage and divorce is under the jurisdiction of the Rabbinical courts. Public transport stops on Saturday. The ultra-orthodox youth who are studying don't serve in the army and this was already an enormous concession by secular Israel, which took the burden on themselves of defending Israel, with its risk to life. But this is not enough, because this bunch that is in the present coalition wants even more.

They strive for the things we have just spoken about: segregation and discrimination on the basis of religious conviction. In addition, they want the ultra-orthodox schools and other religious schools to be allowed to get full state subsidy for school education without having a core syllabus in maths, in civics and in English. Finally, they are preparing a law in order to equate Torah study and military service. This is what they're fighting for. I mean, it's going far beyond the enormous concessions made previously.

The third group are the ideological settlers. They believe in the greater Israel. The new government wants to annex the West Bank. They're quite open about the fact that they have no interest in negotiating or allowing a Palestinian State. Not only that, they want to get rid of a lot of the restraints on the acts of settlers and the army in the West Bank. They want to provide higher levels of impunity for damage done by the army or the settlers.

The last two agendas, that is those relating to the ultra-orthodox and the settlers, express themselves already in allocations of  the budget, because along with all these laws, they're handing out the budget as if there was no tomorrow. Millions of shekels go to all kinds of obscure ultra-orthodox Jewish foundations, settler projects and support for both those groups.

For months, we see mass demonstrations in Tel Aviv and other cities opposing against the planned judicial overhaul and other projects of the government. Who are the social groups, organisations and parties supporting the protest movement? And how coherent is this movement?
The protest movement has been amazingly coherent. At the same time, it is rather spontaneous. The night when Netanyahu dismissed the Defence Minister (on 26 of March 2023), I went out and to my amazement, at 11 pm at night, found masses of people had poured spontaneously out of their houses to demonstrate near the Prime Minister's residence.

The protest movement contains, first and foremost, concerned citizens. But there is as well the astounding expression of resistance from reserve pilots, from special forces units, from the intelligence community. And this refusal to serve in the army, not to serve when you're conscripted, has an enormous impact. The government is accusing those in the military who are refusing to serve of violating their obligations. But it's all volunteers. It's volunteers who say we're not volunteering anymore. We're not volunteering to this government. There is also civil resistance from professionals, from doctors, professors and academics and lawyers. Then, there is the high-tech sector who are moving their start-ups out of Israel, taking projects out of Israel, because of what the government is doing.

So this is an enormously wide sector. People come out resisting not just once a week, but all week, every week on different demonstrations. Every Saturday evening there have been enormous demonstrations.

The biggest problem now is the division between the protest movement and the political branch and the President. The President from the beginning involved the political opposition in discussions about seeking dialogue and consensus. However, when the agenda of the government is for absolute and unrestricted power, there is no place for compromise. Thus, there is a disconnect between the resistance movement, which is clearly against compromise, and the political opposition which has been cooperating with the President, trying to find consensus. That's one thing. But also within the resistance movement there is a difference of agenda between those who are openly against the occupation and those who say, we've got to have the widest possible participation, including those who are what they call “soft right” - and so we cannot put the settlement issue or the occupation issue on our agenda. However, even these latter are living alongside demonstrations, which have the settlement and occupation issue at the top of the agenda. There have been a few points of a friction, but on the whole, I think they're living side by side.

What about the Israeli Palestinians, which make up about 20% of the Israeli citizens, do they participate in the protest movement?
I'm in a group with Israeli Arabs. It's very small group. Dan Halutz, who was the commander of the Air Force, and was the chief of staff, is on the Israeli Jewish side of this group, and on the Israeli Arab side is Ayman Odeh who was the head of the Joint List. Now, the discussion we have is, what is the place of the Arabs in this protest movement. And it is very difficult, because they say, listen, the wonderful democracy that you were talking about didn't work for us. In my view this is only partly true although the system was far from perfect, especially after the Nation State Law, which was passed by a previous Netanyahu government in 2018, which reinforced the Jewish nature of the state of Israel. Nevertheless, not even the Nation State Law removed the democratic nature of the political system, because it did not repeal what was written in the basic laws that Israel is a Jewish and democratic state. Nevertheless publicly, in terms of the public psychology, it was a vicious law, and it really destroyed a lot of the advances that has been made in Jewish-Arab cooperation within the green line of the State of Israel.

And what is the problem? So the Arab contingent say, it wasn't a democracy for us. Even though we realise that the coalition is worsening the situation, especially for us, how can we go out waving the Israeli flag? So I asked them in the last meeting of our group, if it would help for demonstration purposes that we put on the Israeli flag an olive tree or some other symbol. They said it would not help. Despite this, Ayman Odeh does participate in the demonstrations, but he's in a minority in the Arab community.

How are the progressive forces of the Israeli political left acting in the current situation? What is their relation to the protest movement?
Some of the civil society organizations supporting the resistance, and some of the political parties like Meretz, are busy trying to write up alternative constitutions for the future. I say, forget it. For years, I've been involved in attempts by progressive politicians and civil society organisations to write a full and entrenched constitution. But we failed because of the religious lobby. And now the religious lobby is stronger than it ever was.

My view is that all forces have to be directed to stopping the initiatives of this government. I see it as a resistance, not as a building-the-future-movement. A lot of people disagree with me. They say, you have to have a positive agenda. I said to them, the positive agenda for me is the universal declaration of human rights. Just hold it up on a stick. That's it. That is the positive agenda.

Many observers see Israel on a trajectory to an illiberal democracy and warn that the current government could permanently undermine Israel's democracy. How resilient do you think Israeli democracy is in the face of this threat and what kind of support from the outside is needed?
I do think that the resistance of high-level military air force and intelligence personnel and negative economic repercussions of the government’s policy give us a chance with the support of the street. I regard the demonstrations in the street as a supporting wind, a backup wind. Something that gives support to the decision-makers, to those who hold non-governmental power within the country and to the Civil Service. We still do have people in the Civil Service who can resist from within. The current Attorney General is the most wonderful example of this.

Nevertheless, I think we need all the help we can get. I do think that the American President Biden has a real role to play. I think he has only played it partially until now. He should be far more consistently insisting on the Israeli government dropping all its legislative plans, reversing the already adopted legislation and holding new elections. Biden should be saying to Netanyahu, hold new elections, no American aid or support until you hold new elections. I think that Europe and the United Nations, similarly should push for new elections. Now, the problem with Europe is that you've not done this with Hungary and Poland. Thus, you're not in as a strong position as you would have been had you stood up to your own illiberal democracies. But we're outside the European block. With Hungary the European Union has tried to use economic levers. I think with Israel you should do the same, even though we're not part of the European block.

Recent polls in Israel show that there's a big drop for the government coalition – even though I am sad to say, not nearly big enough. Compared to the 64 seats that they won in the last elections they now have only between 52 and 54 seats in the polls. So we have hope. But it's going to take everything we have. And in my view it has to be new elections now. We certainly should not wait till they have a chance to distort the rules for the following elections. If they stay in power for four years, there may well not be free and fair elections any more.

What does this mean for Germany? How should the German government deal with the current Israeli government?
In my view, every member of this Israeli government should be a persona non grata in Berlin. That should be the government position in Germany. Stop talking to them until they go back to elections. Tell them, go back to free and fair elections. And before you do that, these are not legitimate representatives of the State of Israel as we know it. It's an illegitimate government even though it was democratically elected.

The judicial overhaul is just the front page of a mass of things that are taking place day by day. It's the undermining of every sector of civil society. It's the universities, it's the National Library, it's the media. It's everything, not just the judicial reform.

The Israeli society is highly polarized. Government supporters and the protest movement are irreconcilably opposed to each other and it is difficult to imagine how the different camps could be reconciled – even if the current government would fall. What is your take on this, is there a prospect for societal reconciliation?
I think yes, there is a prospect for reconciliation. One of the ways is getting rid of the unbelievable fake news. We have a Channel 14, which is worse than Fox News by far in terms of its absolute bias towards the right-wing political forces. It is the unbelievable daily spreading of lies, as regards Arabs, as regards the Supreme Court, and as regards women. These lies have to be stopped. They are highly financed by interests like Kohelet which is funded by American millionaires. They have to be stopped in their tracks. They have even distorted the school curriculum surreptitiously.

I think once the lies are stopped, there will be a natural reconciliation.

What is your outlook for Israel in the coming weeks and month?
I think the protest movement will keep on going. I think the Government will keep on doing its nefarious acts. We have to really hope for pressure from abroad, to hope that there is a realization from abroad that supporting Israel means opposing the hostile takeover of Israel.

Frances Raday is a professor of law, emerita, and teaches at the Hebrew University. She is on the legal team of the Israel Civil Democracy Movement and president of the Concord Research Center for Integration of International Law in Israel at The Haim Striks School of Law, College of Management. She has held appointments as an independent human rights expert of UN treaty bodies and Human Rights Council Special Procedures.