Israel’s Election: Netanyahu’s Attempt To Evade Justice


The single most important factor that has shaped the Israeli political landscape over the past year is Prime Minister Benjamin Netanyahu’s attempt to evade prosecution. As Israelis enter the final days of their unprecedented second election of 2019, it is worth remembering that Netanyahu’s battle for survival is not only for his political career but potentially for his personal freedoms as well.

If Netanyahu fails to snatch victory from the jaws of defeat on Tuesday, he faces the very real possibility of a trial and potentially prison time. Cornered, Netanyahu is deploying all means at his disposal, with profound implications for Israeli democracy, rule of law and governance.

As a reminder, on February 28, Attorney General Avichai Mendelblit delivered a draft indictment to Netanyahu announcing his decision, pending a hearing, to indict him in three separate cases on charges of fraud, breach of trust and bribery. Netanyahu’s pre-indictment hearing is scheduled for October 2, two weeks after the election. The Attorney General is expected to issue his final decision by the end of the year.

Since the end of 2017, when the Attorney General was advancing towards his conclusions in Netanyahu’s legal cases, Netanyahu and members of his Likud party unleashed a calculated and systemic campaign designed to undermine the integrity and authority of the judicial system. Netanyahu and his closest aides, including his eldest son Yair, have constantly depicted the legal process against him as a collaborative effort by the “deep state” – a fictitious alliance between the “old elites,” the Israeli Left, the police, the media, and several international NGOs – to topple him.

Netanyahu has also directly attacked Israel’s legal gatekeepers, mainly the police, State Attorney’s Office and the Attorney General, by portraying them as foes of the right, despite the fact that he personally selected the police chief and current AG, who both have a right-wing orientation.

But Netanyahu cannot win this battle alone. Israeli politics gravitates around political coalitions. Hence, to evade prosecution, Netanyahu must assemble a 61-seat majority in Israel’s 120 seat parliament, the Knesset, comprised solely of right-wing and ultra-Orthodox religious parties who have already expressed their willingness to vote for granting him immunity from prosecution.

An appeal, however, will surely be submitted to the High Court of Justice. In the past, the High Court has ruled that immunity can only be given for minor offenses. Therefore, the High Court will most likely repeal the Knesset’s decision to grant Netanyahu immunity. To surmount this hurdle Netanyahu plans to get his coalition partners to legislate an override clause providing the Knesset the authority to re-legislate laws that the High Court annulled with a simple majority of 61 votes.

Such an override clause will blur the democratic principle of separation of powers, harm minority rights and could lead to a constitutional crisis. Netanyahu, in his attempt to evade justice, is liable to shake the very foundations of Israel’s democratic institutions.

In the past, Netanyahu opposed such overtly anti-democratic efforts by the more extreme members of his coalition, fully aware of the harm it will cause to Israel’s independent judiciary.  But Netanyahu of 2019 is engaged in the ultimate fight for his survival and everything for him is now fair game.

Netanyahu’s natural allies on the right believe the High Court already wields too much power and independence and subverts the will of the people. They certainly won’t object to ‘reforms’ that will play in Netanyahu’s favor. In exchange, they will demand far reaching concessions as they are fully cognizant of Netanyahu’s predicament and will exploit it to serve their own interests. They view Netanyahu as a convenient instrument to promote their own agenda and their leverage over him could bring about radical change to Israel’s domestic and foreign policies.

For example, on the Israeli-Palestinian front, Netanyahu will face immense pressure from the powerful pro-settlement constituency, represented by the Yamina (“Rightwards”) party headed by Ayelet Shaked, to act on an explicit declaration he made on Tuesday to apply Israeli sovereignty to all the 132 settlements in the West Bank. Netanyahu made similar promises in the past and didn’t follow through so many in the political establishment view Netanyahu’s latest announcement as another election ploy.

If Netanyahu succeeds in forming a narrow coalition with a 61-seat majority, he will be left with no choice but to act on his promise. In that scenario, Israel will annex 60 percent of West Bank land that the settlements are built on. An official annexation of the majority of land designated for a future Palestinian state will lay the legal and political infrastructure of a binational state. In the short term, annexation risks the collapse of the Palestinian Authority and eruption of violence. In the longer term, eliminating Palestinian hopes for national independence will further embolden the growing number of Palestinians calling for ‘one man one vote.’ This will completely shatter Israel’s demographic composition, make it a de-facto binational state, and violate the essence of the Zionist idea.

In the previous election campaign, Netanyahu worked tirelessly to orchestrate a merger of the far-right party Otzma Yehudit (Jewish Power) with the Union of Right Wing Parties, in order to strengthen the right wing bloc and ensure his victory. Members of Otzma are the successors of the outlawed Kach party and its leader, Itamar Ben Gvir, reveres the Jewish terrorist, Baruch Goldstein, who killed 29 Palestinian Muslim worshippers at the Cave of the Patriarchs in Hebron in 1994. Among other things, the party’s platform calls for annexing the entire West Bank and deporting Palestinians who aren’t loyal to the state. Four recent polls show the party, running on its own ticket this election cycle, passing the minimum electoral threshold of 3.25 percent.

Yet, Netanyahu’s closest allies are the ultra-Orthodox parties. These parties represent Israel’s fastest growing sector with a staggering natural growth of more than seven children per women on average. Ultra-orthodox curriculum is based only on Jewish religious texts with little to no exposure to the sciences and the humanities. Haredi men are mostly exempted from military service and very few join the labor market. Under Netanyahu, state funds to support ultra-Orthodox institutions reached a record high. If Netanyahu emerges victorious in next weeks’ election, the ultra-Orthodox will be even more emboldened in their demands.

Despite his best efforts, recent polls show Netanyahu struggling to attain a right-wing bloc of 61 seats. Though it’s worth remembering former Israeli President Shimon Peres’ quip about treating polls like perfume – one should smell them, but not drink them.

Nevertheless, a lot can happen in the remaining few days to turn the tables. It’s no longer far-fetched to imagine a scenario where Israelis wake up Wednesday to find out that Netanyahu can form a government that will redefine Israel’s trajectory in significant ways.

From Israel’s founding father, David Ben Gurion, to contemporary politicians, Israeli statesmen have placed a premium on the unity of the people and the resilience of the country’s democratic institutions. Maintaining these two elements of Israel’s character has been a source of pride and strength for the Jewish people. In his pursuit of power and immunity, Netanyahu is deliberately shattering them both.

Yoni Komorov is vice president at the S. Daniel Abraham Center for Middle East Peace, based in Washington, DC. Moran Stern is a PhD candidate in Political Science at the University of Maryland