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Israeli “Democracy” in Two Court Cases

It’s a telling paradox: Israeli prime minister Benjamin Netanyahu has been indicted for corruption — even as Israel pursues a systematically criminal occupation and Zionism’s authoritarian tendencies continue to grow.

Supporters hold up banners as thousands of people attend a rally against the Netanyahu indictment on November 26, 2019 in Tel Aviv, Israel. Amir Levy / Getty

On July 20, 2019, Benjamin Netanyahu became Israel’s longest-serving prime minister, surpassing the country’s founding father, David Ben-Gurion. By any measure, this was a monumental feat, though Netanyahu wasn’t in the mood to celebrate. He had a September election to focus on, having been thwarted in his efforts to form a government five months earlier by his old friend Avigdor Lieberman. He also had a set of corruption indictments hanging over his head like a sword of Damocles.

Those indictments have now been filed, closing the first chapter on a three-year process that has implicated family members and colleagues, and exposed incestuous complicity between Israel’s politicians and its press. Netanyahu is charged in three cases that span decades, incriminating him at various points of his political career. Two involve him colluding with Israeli news outlets, promising to either damage their rivals or pay them millions of shekels in return for more favorable coverage. The other is more prosaic: it is alleged that Netanyahu intervened to extend the US visa of Arnon Milchan, an Israeli billionaire, and perform a similar, unnamed favor for the Australian billionaire James Packer. And for these crimes, for which he might serve time in Maasiyahu Prison, Netanyahu received champagne, cigars, and $3,000 worth of jewelry for his wife, Sara.

Despite his arraignment, Netanyahu remains the prime minister, and in March will be allowed to lead Likud into its third election in the span of a year, having overcome a leadership challenge in late December. Talk that he might accept a plea deal was quashed by the announcement that he is seeking parliamentary immunity, which will likely delay his trial until after the election. Most Israeli pundits think he will lose the election to his rival, media-friendly security pervert Benny Gantz. But you’d be foolish to count on it — Netanyahu has the survival skills of a barnacle. And besides, like Donald Trump, he has cultivated the undying loyalty of a significant portion of his base, who interpret his indictment as the work of a malign deep state hell-bent on sacrificing Israel to the Arabs.

The man who delivered Netanyahu’s indictment, attorney general Avichai Mandelblit, could hardly present a starker contrast with the prime minister. As well as being an austere and soft-spoken Orthodox Jew, Mandelblit is almost puritanical when it comes to the law. “Law enforcement is not a choice,” he told the press when making his announcement. “It is not a matter of right or left. It’s not a matter of politics.” Ideologically a Likudnik, he possesses qualities that bring liberals out in hot flashes: a stubborn commitment to democratic norms, principles that transcend party loyalty, and an obsession with the intricacies of the Israeli legal system. He is also smart — he earned a PhD in legal studies — and has military bona fides, having served as the Israel Defense Forces’ chief advocate before becoming attorney general. In a previous era, before Israel strayed from its preordained righteous path, these qualities would have made him a hero to the American as well as the Israeli media. But the tides are shifting in Washington, and Mandelblit has had to make do with the veneration of his more democratically minded countrymen, for whom he has become a James Comey–esque figurehead — a totem of procedure in a sea of strongmen. For supporters of Netanyahu, he is a central node in that vast conspiracy network of shadowy elites plotting to depose the king.

The liberalism of Avichai Mandelblit is not a quintessentially Israeli one — a dry preoccupation with rules and process is what keeps any judicial system functional. But his case does help to trace the limits of Israeli liberalism, and of Israeli democracy, which has had a rough time under ten years of Netanyahu rule. Much of this is down to the prime minister’s indulgence of twin destructive forces: an ultra-Orthodox Rabbinate that longs to institute Halacha (Jewish religious law), and a highly motivated settler class who have been leading a long march through the country’s institutions. The latter have had a particularly corrosive effect on the independence of Israel’s judiciary, often bypassing the traditionally liberal-leaning Supreme Court. Netanyahu’s announcement in April that he intended to annex parts of the West Bank was the culmination of their efforts, which intensified considerably after Donald Trump’s election. Working through the courts, this group of settler-politicians passed a flurry of annexationist legislation, including bills unifying the Israeli and West Bank criminal registers, transferring control of higher education in the settlements to the Israeli government and prohibiting Israeli businesses from refusing to sell their services in settlements.

Israel’s autocratic drift is also observable in the NGO sphere, where pro-peace organizations like B’Tselem and Breaking the Silence are subject to intimidation and legal censure. The “transparency” law, passed almost three years ago, forces any NGO receiving half their funding from foreign governments to declare themselves. Its wording — “foreign governments,” rather than “foreign funding” — is a clever sleight of hand, because it means the law discounts the numerous right-wing NGOs funded by private individuals like American billionaire Haim Saban. A similar bill, drafted in 2015, proposed to legally designate any NGOs receiving such funding as shtulim — a Hebrew word meaning moles.

These anti-democratic efforts may have been led by a few malign characters — namely former justice minister Ayelet Shaked and former culture minister Miri Regev — but their causes are perfectly structural. The occupation is an illegal endeavor; upholding it requires illegality. And, as the most clear-eyed Zionists have long understood, administering colonial rule on one side of the Green Line inevitably erodes democracy on the other. As Amos Oz put it in 1967, “Even unavoidable occupation is a corrupting occupation.”

Mandelblit himself has been intimately involved in steering Israel toward its current autocratic moment: while serving as chief military advocate during Operation Cast Lead, he approved the bombing of a Gazan police academy and then skillfully defended Israel against charges of war crimes after the conflict had ended. This mastery of the law impressed Netanyahu, who tapped Mandelblit to be his cabinet secretary, tasking him with finding retroactive justifications for the seizure of West Bank land. It might seem paradoxical that Mandelblit’s understanding of the law cannot tolerate corruption, yet can accommodate land seizure and war crimes. But such are the vagaries of Israel’s Jewish democracy, which requires even the most rigorous legalist to have his blind spots.

Israel Makes Its Choice

Only a few days after Mandelblit announced his indictments, a second long-running court case was concluded, bringing the limits of Israeli democracy into even starker relief. Omar Shakir is still officially the director of Human Rights Watch in Israel-Palestine. Only now he operates from neighboring Jordan, having been deported by Israel following a year-long legal battle. Argue the case online and an Israeli will pop up to defend the decision on the grounds that Shakir had endorsed the Boycott, Divestment, and Sanctions movement — what other country would tolerate a threat to its very existence? There is a kernel of truth here: Israel does have regressive anti-BDS laws, and these were employed to refuse the extension of Shakir’s visa. But delve deeper into the case and you discover that what Israel labels “BDS” includes calls to boycott the occupied territories, and that it was this — Shakir’s history of anti-settlement tweets and statements — that was primarily cited in the case for deportation. In other words, Omar Shakir was deported for opposing the occupation, not the state itself.

The conflation of the occupied territories with Israel proper is not merely Hasbaric deception. Israel and Palestine really do form a single, unified state, where nearly 9 million inhabitants live in settlements, cities, Kibbutzim, and refugee camps, and civil rights are meted out according to ethnic and religious background. The ambiguities in Israel’s “Jewish and democratic” mission were for a long time obscured by the peace process, but the one-state reality has rendered them entirely literal. If a Palestinian state were viable, Israel could plausibly hope to maintain both its Jewishness (demographic supremacy between the river and the sea) and its democracy (the civic equality of its Arab minority). But it isn’t, and via deportation and annexation, Israel is making its choice.

The Achievements of the Ethnocracy

If Shakir’s case illuminates those aspects of democracy that cannot survive the occupation, Netanyahu’s demonstrates what even an ethnocracy with an apartheid constitution and a disenfranchised internal minority can accomplish. It is almost too obvious to say that these indictments can’t change anything — not the occupation, nor the Gaza blockade, nor who gets a voice in Israel’s elections. But it would be no small feat to jail a sitting prime minister, especially one who has ruled for so long. Plus, Netanyahu is a preternaturally corrupt politician, whose rap sheet includes stealing patio furniture from the prime minister’s residence to furnish his private home in Caesarea, and being investigated for the extraordinary amount of public money he was spending on Cuban cigars. Not a triumph of democracy, then, but a fitting end.