Defending rule of law, enforcing apartheid: Israeli judiciary’s double life

The Israeli government’s plans for a judicial overhaul continue to face intense opposition. On 12 September 2023, Israel’s Supreme Court (sitting as the High Court of Justice) began hearing petitions against the first piece of overhaul legislation, which was passed by the Israeli Knesset in July. Since the overhaul was first announced at the beginning of 2023, hundreds of thousands of Israelis have taken part in protests against the plans. Israeli police have in some cases responded with excessive force and have carried out dozens of arbitrary arrests.

The overhaul is designed to erode judicial review and weaken the oversight powers of Israel’s Supreme Court. It has alarming implications for human rights, particularly for Palestinians, as well as other marginalized groups in Israel.

Dangerous though these plans are, the fact remains that Israel’s judiciary has regularly upheld laws, policies and practices which help to maintain and enforce Israel’s system of apartheid against Palestinians – the Supreme Court has signed off on many of the violations that underpin the apartheid system.

Below is a brief guide to what’s happening, why the overhaul could make things even worse – and why, despite its serious flaws, Israel’s judiciary must not be made subordinate to the government.

What are the Israeli government’s plans for reforms?

In January 2023, Israel’s Justice Minister announced plans to overhaul the country’s judiciary. The proposed overhaul includes a series of initiatives to amend Israel’s legislation around things like judicial independence and the Supreme Court’s powers of oversight. The plans include:

• Giving the Israeli government absolute power over the appointment of judges and prosecutors;
• Allowing government ministries to appoint their own legal advisors;
• Preventing the High Court of Justice from reviewing or challenging Israel’s 13 Basic Laws (which have a quasi-constitutional status);
• Limiting the judiciary’s ability to review other laws and government decisions, including by allowing the Knesset to override Supreme Court rulings with a simple majority vote.

If they are all passed, these plans would mean the wholesale removal of checks and balances on the Israeli government’s actions.

The UN Special Rapporteur on the independence of judges and lawyers has warned that the proposed judicial overhaul “would seriously undermine the independence of courts in Israel, including the Supreme Court”.

Have any of the proposals been approved yet?

On 24 July 2023, all 64 members of Israel’s ruling coalition voted for an amendment to Israel’s Basic Law: The Judiciary. This amendment abolished “reasonableness” as grounds for courts to challenge government decisions, and was the first part of the judicial overhaul package to be passed into law.

Previously, Israel’s administrative courts and the Supreme Court could review and strike down government decisions if they found them to be “unreasonable”. For example, in January 2023, the Supreme Court ruled that it was “unreasonable in the extreme” for Aryeh Deri, the chair of the Shas party, to be appointed as a cabinet minister, due to his past criminal convictions and the terms of his 2022 plea bargain.

The reasonableness amendment, which is just the first step in the government’s plan, has stripped Israel’s courts of a crucial tool for challenging arbitrary or discriminatory decisions, or decisions which involve a conflict of interest .

Whose rights does Israel’s judiciary protect?

Not everyone’s. It’s impossible to talk about Israel’s judiciary without highlighting its ongoing role in enforcing and maintaining apartheid against Palestinians. Over the years, the Supreme Court has issued numerous rulings which paved the way for the Israeli government and military to commit human rights violations against Palestinians.

The court has greenlighted the demolition of thousands of Palestinian homes, and approved the destruction of entire villages. In 2018, for example, it ruled that the village of Khan al-Ahmar in the occupied West Bank could be razed to make way for illegal settlements. In 2022, the court approved the demolition of nine villages in Masafer Yatta in the occupied West Bank and the forcible transfer of the 1,150 Palestinians who live there.

Israel’s Supreme Court has upheld countless administrative detention orders, under which Palestinians can be detained for months or years without charge or trial. It upheld Israel’s unlawful policy of withholding Palestinians’ bodies for use as bargaining chips, and a law which permits the force-feeding of prisoners on hunger strike. In 2021, the Supreme Court upheld the 2018 “nation state law”, which has become a pillar of Israel’s apartheid system. The nation state law constitutionally enshrines the oppression and domination of Palestinians – it defines Israel as the exclusive “nation state of the Jewish people”, and calls settlement expansion a “national value” which the Israeli state should promote.

In 2022, the Supreme Court upheld a law which imposes arbitrary, racially-motivated restrictions on Palestinian family unification. And just a few weeks ago, the court ruled that the Israeli military could punitively demolish the occupied East Jerusalem home of a child detainee, putting his entire family at risk of displacement.

The establishment of Israeli settlements in the OPT amounts to a war crime under the Fourth Geneva Convention and the Rome Statute of the International Criminal Court. Collective punishment, such as punitive demolition, also constitutes a war crime, as does the forcible transfer of civilians in occupied territory.

How does this link to apartheid?

Amnesty International’s research has shown that Israeli authorities systematically commit gross human rights violations, including war crimes and crimes against humanity, in order to maintain their system of oppression and domination against Palestinians. By ruling that violations can go ahead, Israel’s judiciary plays a key role in providing a veneer of legality to crimes under international law, and in upholding and strengthening the apartheid system.

What would the planned overhaul mean for Palestinians?

Appalling as the current situation is, the planned overhaul would likely make things even worse.

The Supreme Court has occasionally offered a modicum of protection for Palestinians, and for other minorities in Israel. For example, it has intervened in some instances to strike down the Israeli government’s attempts to ban Palestinian political parties from running for Israeli parliamentary elections. Judicial reviews have allowed Palestinians facing forcible eviction or forcible transfer to obtain temporary injunctions, and in a small number of cases the Supreme Court has ruled against the government’s attempts to violate Palestinian rights.

Instances of Israel’s Supreme Court intervening to protect the human rights of Palestinians have been few and far between, and the protections provided have tended to be partial. But if Israel’s judiciary loses its power to challenge the government, it is likely that even this slim and inconsistent margin of protection would evaporate.

Stripping Israel’s courts of their oversight powers would give Israeli authorities even greater licence to commit crimes under international law, with no trace of restraint.

Does Israel’s Supreme Court ever protect human rights?

The Supreme Court has been more consistent in defending the rights of Jewish Israelis, particularly those who are marginalized, as well as the rights of asylum seekers and migrants.

On some occasions, the Supreme Court has intervened to advance and protect the rights of LGBTI people. In 2006 for example, it ruled that same-sex couples who wed abroad should have their marriages recognized in Israel; and in 2022 it annulled parts of a law banning same-sex couples from having children through a surrogate.

The Supreme Court has also overturned some of Israel’s most dangerous policies impacting asylum seekers and migrants. In 2013, for example, it struck down a law which authorized Israeli authorities to detain anyone who entered the country irregularly for up to three years before deportation. The court has also played a role in protecting women’s rights in Israel, including by making the retirement age for men and women the same, and ruling that gender segregation on public transport is illegal.

Why is judicial independence important?

The 1948 Universal Declaration of Human Rights – the bedrock of international human rights law – states that everyone is entitled to a fair trial “by an independent and impartial tribunal.” A number of subsequent international treaties, conventions, and guidelines have stressed the importance of judicial independence as a prerequisite for a fair justice system.

A government with the power to appoint judges based on political allegiance, or to overrule the rulings of the country’s highest court, is effectively unaccountable. It has free reign to consolidate its own power, rip up laws, and punish political opponents; and it can enact whichever arbitrary, cruel, or even nonsensical policy it likes.

In Israel, fears that the erosion of judicial oversight will lead to a backslide on human rights have been heightened by the anti-human rights agenda of the current government. This is displayed most starkly in the treatment of Palestinians.

Since December 2022, the Israeli government has escalated longstanding racist rhetoric and systematic violations against Palestinians. It has tabled a bill that introduces the death penalty for “terrorists,” – a word which the government almost exclusively uses to refer to Palestinians. It is advancing a proposal to create a “national guard” – a volunteer militia with powers to exercise force against civilians, and it is stepping up plans to annexe more of the occupied West Bank, in violation of international law.

Meanwhile, there have been several alarming proposals by ministers which threaten the rights of some of the most vulnerable groups in Israel. These include a bill to stop children under 14 from engaging in any lesson or even conversation about sexual orientation or gender identity, and a call to allow doctors to refuse to treat LGBTI people.

And earlier this year, a bill proposing to expand the powers of Israel’s all-male rabbinical courts, which have a history of discriminating against women, passed its first reading earlier this year.

What is Amnesty International calling for?

Israeli authorities must drop their plans for judicial overhaul. They must uphold the rights to freedom of expression and peaceful assembly of all those protesting against the proposals.

It is also crucial that the legitimate concerns of protesters and political opponents do not sideline the suffering of Palestinians, nor detract from the urgent need to dismantle Israel’s apartheid system.

The protests in Israel have garnered huge international media attention, and many states have condemned the government’s plans. While this scrutiny is welcome and necessary, it is a stark contrast from the international community’s ongoing reluctance to condemn Israel’s apartheid system.

If the international community truly values the rule of law and justice, it must take action to hold the Israeli authorities accountable for their many violations and crimes against Palestinians. It should not accept the status quo, where Israel’s Supreme Court signs off on war crimes and human rights violations. Instead, the international community should be using this moment to pressure Israeli authorities to end, for example, the military’s relentless unlawful killing of Palestinian children and other civilians, landgrabs through settlement expansion, and the blockade of the Gaza Strip.

Israel should indeed reform its judiciary – but those reforms should be part of a comprehensive dismantling of the apartheid system and upholding international human rights standards for all.