Dahlia Scheindlin writes:

Since the war in Gaza began, there have been proliferating signs that Israel’s institutions of state are under severe stress. Netanyahu has ignored repeated warnings from Israel’s attorney general that his government’s actions have violated the law; in response, government ministers have called for the attorney general’s dismissal. Israel’s legal system is in disarray. For over a year, the government held up dozens of judicial appointments, including on Israel’s Supreme Court; and in September, Netanyahu’s justice minister escalated his efforts to stymie the appointment of a chief justice to the Supreme Court, even defying a court order requiring that the position be filled.

Israeli law enforcement has become highly erratic. The murder rate among Israel’s Arab community has more than doubled under the current government, largely because of organized crime, yet in 2023, only 17 percent of such murders were solved. Even worse is the situation in the West Bank: despite soaring attacks by settlers against Palestinians, the state is now detaining only a quarter of the number of Jewish suspects it did in 2022. The Israeli military—which is responsible for enforcing the law in occupied territories—has ignored or even participated in the violence.

At first glance, this accelerating lawlessness, including from Israel’s own government, may appear to reflect the extraordinary pressures of a country mired in the longest and most challenging war since the war of independence. As of late September, Israel was not only continuing its year-old, devastating war against Hamas in Gaza amid dimming prospects for more than one hundred Israeli hostages still held there. It was also embarking on a precipitous escalation with Hezbollah in Lebanon, even as it confronted growing threats from the Houthis in Yemen, militants in the West Bank, Iranian-backed Iraqi militias, and from Iran itself.

But the assault on Israel’s institutions began long before October 7, 2023. At the time of Hamas’s attack, Israel had been racked for months by a huge protest movement that aimed to stop the Netanyahu government’s sweeping effort to weaken judicial independence. This plan was crafted to allow the ruling coalition to fill the courts and other key civil offices with ideologically aligned justices and political loyalists. Along with consolidating its own power, the government was seeking to institutionalize higher status for Jewish citizens and strengthen the influence of Jewish religion in public and private life. But perhaps above all, the reforms were designed to give the government unfettered power to extend sovereignty—a euphemism for annexation—over the West Bank, a longtime goal of Israel’s far right.

When Israelis began protesting the judicial overhaul in January 2023, they were stunned by the government’s extreme plans and blatant power grab. But they were at least as shocked to realize that Israel’s institutional checks and balances were so vulnerable, or even absent, a problem that stems directly from the country’s incomplete democratic foundations. Foremost is the lack of a constitution. Despite repeated attempts since the country’s founding, Israel has consistently failed to adopt a formal constitution that defines the balance of powers and a complete bill of rights that guarantees fundamental human rights, civil liberties, and the equality of all citizens. Instead, it has relied on piecemeal legislation, court rulings, and ad hoc arrangements that have evolved through custom or committee. The country has only the most tenuous human rights legislation, anchored in hotly contested laws passed in the early 1990s. As recently as 2018, a controversial law gave Jews alone the right to self-determination in Israel. Unlike with almost any other democracy in the world, many of the country’s borders are not concretely defined. Israel also maintains control over millions of Palestinians who have few basic rights.

For decades, various Israeli lawmakers—along with generations of legal scholars—have recognized the core defects in Israel’s democratic foundations and have sought to address them through a constitutional process. It has also long been acknowledged that Israel faces a growing crisis of legitimacy as a result of its occupation of Palestinian lands and control of a large population of noncitizens, policies that the International Court of Justice has ruled illegal. Today, the problem is intensified by the devastating human cost of Israel’s war in Gaza. Yet even now, Israelis tend to treat these two issues—the country’s lack of constitutional order and its ongoing military occupation of Palestinian people and territories—as wholly separate phenomena. In reality, they are inseparable: it is Israel’s weak or missing democratic foundations that have enabled successive Israeli administrations to pursue and continually expand the occupation. [Continue reading…]