Israel at a crossroads after apex court verdict

Vappala Balachandran

Former Special Secretary, Cabinet Secretariat

FOUR developments, directly or indirectly related to the Israel-Hamas war, have taken place this week. On New Year’s Day, Israel’s Supreme Court pronounced the long-awaited judgment on the amendment passed by the parliament on July 24, 2023. In an 8-7 verdict, the court struck down the Netanyahu cabinet’s amendment to the ‘basic law’ that had removed the court’s power to declare the government’s decisions as ‘unreasonable’. This amendment had triggered 10-month-long protests and created unprecedented fissures within the Israeli society before the brutal Hamas attack of October 7, 2023.

On January 2, Israel assassinated Saleh al-Arouri, deputy head of the political bureau of Hamas and co-founder of its military wing Izzedine Al-Qassam Brigades, in a drone attack while he was holding a meeting in Beirut. Some other high-ranking Hamas members were also killed. This made Lebanese Prime Minister Najib Mikati condemn the strike as an ‘Israeli crime’ aimed at dragging Lebanon into a “new phase of confrontations” in the present war. Al-Arouri was second only to Hamas chief Ismail Haniyeh and was the operational link with Hezbollah leader Hassan Nasrallah. Yahya Sinwar and Al-Arouri were reportedly leading the present phase of the war in Gaza.

Israel is considering contesting South Africa’s suit at the International Court of Justice, filed on December 29, 2023, for an urgent order declaring that Israel had breached its statutory obligations under the Genocide Convention during its war in Gaza. The Netanyahu government is particularly sore with South Africa for comparing the plight of Palestinians with that of the Blacks in South Africa during the apartheid era. Israeli paper Haaretz reports that the name of American lawyer Alan Dershowitz is being considered for the hearing.

The fourth development is the reported decision by the US authorities to reduce their naval presence in the region by the withdrawal of US aircraft carrier Gerald Ford and its task force from the West Asian seas, leaving only one carrier, Dwight D Eisenhower, there. Israeli media has attributed this setback to the ‘tense’ Biden-Netanyahu exchanges on the Gaza war, his ‘dismissive’ attitude towards the Palestinian Authority (PA) and the statements of Netanyahu’s right-wing colleagues about the future management of Gaza by excluding PA.

The January 1 court judgment must be studied in the peculiar background of Israel not having a written Constitution, although United Nations Resolution 181 on the partition of Palestine (November 1947) and Israel’s declaration of independence (May 1948) had envisaged the drafting of a Constitution. This was not done due to many reasons. Firstly, the draft prepared by Shalom Zvi Davidowitz, an American rabbi living in Israel, contained many references to God which were opposed by the ‘secular’ lobby.

According to historian Anita Shapira, discussions in 1949-50 did not settle anything and reached a deadlock. Hence, the first Knesset decided on a compromise resolution by Israeli politician Yizhar Harari that instead of a single document, a series of ‘basic laws’ would be written by the future Knessets. This was called the ‘Harari Resolution’. As a result, 11 ‘basic laws’ were written between 1958 and 1992. Israel is guided by these laws.

Shapira also quoted Israel’s founding father David Ben-Gurion, a ‘lifelong’ socialist, who spoke against having a written Constitution due to a peculiar reason — that Israel did not have its ‘Aliyah’ (migration) yet. She also felt that Ben-Gurion was trying to avoid internal quarrels, especially with religious parties.

Suzie Navot, Vice-President of Israel Democracy Institute, quoted Ben-Gurion: “Let them come, let them make Aliyah, and then we’ll see. If all of them come from America, we will have a Constitution like America’s. If all of them come from Russia, perhaps we will have a different Constitution.” She added that the religious parties felt that they already had a “Constitution, the Torah, and there was no need for another one written by human beings”.

Israeli observers do not feel that the court judgment would end the present domestic turmoil. They quote Netanyahu’s statement (July 28, 2023) that Israel would enter ‘uncharted territory’ if the court struck down his amendment to the highly contentious ‘reasonableness’ law. When asked whether he would abide by the court ruling to strike it down, he refused to say anything. But his party Likud said it was “unfortunate that the court decided to issue a ruling at the heart of the societal disagreement in Israel when IDF soldiers from right and left are fighting and endangering their lives”.

The Times of Israel (January 2) said the country could “plunge into a full-scale constitutional crisis”. Justice Minister Yariv Levin, the main force behind this legislation, defiantly said that the court judgment would not “stop PM Netanyahu’s coalition from responding”. He did not say how the government would respond. However, Benny Gantz, who joined the government on a wartime, emergency basis, called for the court’s decision to be respected.

Others were more specific. While one group of Israel watchers felt that Netanyahu’s all-out war against Hamas, despite international opprobrium over civilian deaths in Gaza, was meant to revive his domestic popularity, which was badly scorched by the protests, others said that he was already in the campaign mode. The Jerusalem Post, in an op-ed written before the court verdict, said Netanyahu “has made little secret of his plan to remain in office after the war”. The latest ploy is to declare that only he could stop another Oslo process —he is the only leader who can prevent the Americans (Biden) from imposing the ‘two-state’ solution.

As such, his campaign pitch to the ‘rightist’ lobby would be that if it votes for someone else, such as Yair Lapid, Benny Gantz, Naftali Bennett or Yossi Cohen, it will get ‘another Oslo’. His argument would be that only he can stop that from happening.

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