09 November 2023

How the War in Gaza May Upend Israel’s Constitutional Limbo

On October 7, a murderous surprise attack by the Hamas militant group left 1,400 Israelis dead. In response, Israel launched a full-scale invasion of the Gaza Strip in an attempt to end the Hamas rule there. This invasion claimed, up to this point, the lives of almost 10,000 Palestinians, many of them women and children. This war was brought upon Israel following a year of chaos and political turmoil that surrounded the government’s ambitious judicial overhaul. Immediately after the government assumed office, it proposed several extensive reforms in the Israeli judicial system that attempted to quash the judiciary’s powers and diminish checks and balances on the government’s authority. Enjoying an absolute majority in the Knesset, Israel’s parliament, it seemed that the government would be successful in its endeavor – after all, nothing stood in its way, or so we thought. However, a year into the government’s tenure, even before the war erupted, the judicial reform seemed to be struggling, and now, with the war on the way and with total public mistrust of the government, it seems that the war serves as the final nail in the judicial reform’s coffin. The Israeli political climate, and especially the relentless effort by protesters who opposed the revolution, coupled with the surprise attack on Israel and the current war, all stopped the judicial overhaul this time around. However, there are no guarantees that these exogenous factors will still be in place when the populist voices in Israeli politics will attempt to once again undermine the constitutional structure of Israel, and they will try. Therefore, the current failed judicial overhaul should be used as a warning sign for the democracy-seeking public in Israel and lead to a demand for constitutional entrenchment of the democratic values of the Israeli state. As the judicial overhaul of 2023 has shown us – democracy is not safe if it hangs by the thread of a simple majority in parliament.

Before we proceed, a short disclaimer: The piece discusses ongoing events and touches on the political repercussions of the Israel-Gaza war; the full extent of these repercussions obviously remains to be seen.

Is The Reform Done?

A few days following the October 7 attack, Prime Minister Benjamin Netanyahu established a national unity government with a key opposition leader, Benny Gantz. Gantz, former Chief of Staff of the Israeli military and a centrist politician, conditioned his agreement to enter the coalition on Netanyahu’s commitment to refrain from pushing through any legislation unrelated to the war effort, specifically the halt of the judicial reform. Gantz, who enjoys unprecedented approval in the polls and is perceived by many as a uniting and uncontroversial figure, is both a top contender to inherit Netanyahu as Prime Minister and is also a fierce opponent of the judicial overhaul. Thus, with Gantz in government, legislating any bills related to judicial reform would prove impossible. In addition, with the government’s unprecedented disapproval in the public’s eyes, it would not risk alienating the public even further by attempting to make political gains amidst the ongoing war. Finally, critical members of the government, including Netanyahu himself, explicitly stated that the reform “wasn’t on the table” anymore. Yariv Levin, the Minister of Justice and a vital proponent of the judicial overhaul, is rumored to have decided to resign after the war, seeing himself and his reform as at least partially responsible for the October 7 catastrophe. As a result, Levin finally agreed to convene the Committee for Nomination of Judges. Previously, Levin argued that the committee gave unfair representation to members of the judicial branch and thus refused to convene the committee in its current form. The committee’s makeup was a vital part of the judicial reform, as the election of favorable judges was one of the main motivations behind the government’s judicial overhaul. Hence, the decision to convene the committee in its current form, where the coalition would be in the minority, seems like the admission of defeat, especially when the decision comes from Levin himself, probably the most zealous proponent of the overhaul, who declined to convene the committee even in the face of petitions awaiting the Supreme Court’s ruling.

But what about after the war? Won’t it be possible for the government to return to track when the cannons stop firing?

Well, first, it seems that the war will not end anytime soon. The government’s proclaimed goal, eliminating Hamas from Gaza, would ultimately take time to achieve, if at all possible. Furthermore, it is not yet clear that the limited conflict between Israel and Hamas won’t escalate to an all-out regional war with Hizballah in the north and other factions on Israel’s Syrian border. Even after the war has ended, Israel will face yet another challenge: dealing with the post-Hamas Gaza Strip and its 2 million civilian inhabitants. Thus, it is yet unclear just how long will the current conflict take and what Israel will look like in its aftermath. But in any event, it seems pretty clear that the government will struggle to stay in power the day after. Current polls reduce Netanyahu’s Likud party by at least a third, with some of its allies hanging next to the electoral threshold and in danger of being erased from the political map. The Israeli government was unpopular even before the war, where the judicial overhaul alienated many swing voters and predicted that the government would decisively lose the next elections, a prediction that the war made even worse. Even before the war, Israel faced mass protests of hundreds of thousands, demanding the government to stop the judicial overhaul. These protests will only grow if the government fails to resign after the war.

Furthermore, just days before the war, Israel’s Supreme Court heard arguments over the constitutionality of a part of the judicial reform, and it was predicted by many that a court decision that would declare the reform unconstitutional might not be adhered to by the government plunging Israel into a constitutional crisis. It now seems that if the government enjoyed any mandate disregarding the court’s ruling before the war, this mandate is gone. Overall, it seems that the government’s reform was struggling even before the war erupted, with many arguing that Netanyahu and his allies had already begun to discuss ways to halt the overhaul without disappointing their political base. These hurdles that the reform faced before the war were only exacerbated by it, where now it seems that the government’s days are numbered, and the judicial overhaul is little more than a distant memory of the past.

Another aspect of the day after the war is the pending investigation into the causes of the strategic failure that led to the October 7 catastrophe. The Israeli army, one of the strongest in the region, was caught in complete surprise by an unsophisticated and relatively small threat – the Hamas militant group. This surprise came at a terrible human cost to civilian and military personnel alike. The Israeli public will demand an investigation into this failure, and political leaders – including Netanyahu – have already committed to conducting a complete and thorough investigation after the war. This investigation would ultimately surface multiple moments in the past year that the government would prefer to be forgotten, among them Netanyahu’s decision to decline the IDF’s Chief of Staff’s request to meet and discuss the repercussions of the judicial overhaul on the integrity and strength of the military, as well as Netanyahu’s decision to dismiss his Minister of Defense, after the last warned that the judicial overhaul might harm Israel’s defense capabilities and expose it to security threats. Netanyahu will not find himself alone, as other senior public officials explicitly dismissed the security concerns raised by the military. While military generals are also expected to come under scrutiny in this investigation, it can hardly be seen how the government could keep its hands clean. Of course, the makeup and independence of the investigatory body would significantly shape the investigation. Still, it seems that even without an official report, the fingers will be pointed at Netanyahu and his judicial overhaul in the aftermath of the war. Even if Netanyahu were to survive politically somehow – which seems highly unlikely – the already crippled judicial overhaul would not endure, as what remained of it died with the victims of the October 7 attack.

Will the Judicial Overhaul Be Back?

Even if the current attempt to reform the judicial system had failed, the populist voices that initiated it will not be erased from the Israeli political map. It is yet to be seen how the power dynamics in Israel would play out in the days after the war, but it is pretty clear that the strong base of support for populist policies is not going anywhere. With that in mind, the unique, almost extraordinary, exogenous factors that prevented the current judicial overhaul are not sure to repeat themselves: the current protests, accompanied by the political strength that the protesting groups enjoyed this time around through their relative influence over the military, the academy, the high-tech industry, and other vital institutions in Israel, may not be as effective in the future. Similarly, the dire security situation that Israel faces today is – hopefully – not sure to return the next time populism attempts to hijack Israeli democracy. Thus, even if the Israeli political structure withstood this current attack, there is no guarantee that future attempts to undermine the independence of the judiciary won’t succeed.

Therefore, proponents of democracy in Israel cannot wait for the next crisis to come. The judicial overhaul of 2023 showed just how fragile Israeli democracy is and how easy it would be for a simple parliamentary majority to demolish the already weak separation of power structure in Israel. Maybe in this time, the exogenous, informal checks on the power of the political branches managed to stop the judicial overhaul. Still, there are no assurances that they will always manage to protect Israel’s democracy, especially considering the unforeseeable consequences of the current war. Thus, if one lesson can be learned from the attempted constitutional revolution in Israel, it is that constitutional rights and protections cannot be left to the whims of a simple parliamentary majority. Therefore, Israel needs to enshrine its constitutional structure in entrenched constitutional provisions, protected by stability clauses, that cannot be changed with just a simple and incidental parliamentary majority. These constitutional protections will need to, inter alia, specify the power dynamics between the different branches and set the framework for the judicial review of legislative and constitutional acts. While the full political repercussions of the current Israel-Gaza war remain to be seen, without an entrenched and complete constitutional text, it would be surprising if Israel wouldn’t find itself in yet another constitutional turmoil in a few years.

SUGGESTED CITATION  Kozlov, Noam: How the War in Gaza May Upend Israel’s Constitutional Limbo, VerfBlog, 2023/11/09, https://verfassungsblog.de/how-the-war-in-gaza-may-upend-israels-constitutional-limbo/, DOI: 10.59704/43f0a8e179ad0f08.

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