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In Israel, the rule of law teeters on the brink

Israelis have taken to the streets to protest Benjamin Netanyahu’s plan to gut judicial independence. Biden should join the chorus.

People gather with Israeli flags during a protest against the government's judicial overhaul bill near the Knesset in Jerusalem on Feb. 20, ahead of the first reading of legislation to change the way judges are picked, which they say threatens democracy.AHMAD GHARABLI/AFP via Getty Images

Since its founding, Israel has faced a host of external threats to its very existence. Today, however, the nation is being rent from within — not by the usual fractiousness of its multiparty system, but over threats to the independence of its judicial system.

Hundreds of thousands of Israelis have taken to the streets to protest what have been put forth as alleged judicial reforms by the ruling right-wing coalition headed by Prime Minister Benjamin Netanyahu. Hundreds of military reservists, who make up the bulk of the country’s cyber-intelligence units, and Air Force reservists, critical to Israel’s defense, have waged their own protests — signing letters threatening to refuse to participate in nonessential duties and training missions if the government goes through with its plan.


Israeli President Isaac Herzog said this week that the proposed overhaul of the judicial system “endangers the democratic foundations of the State of Israel” and has created “one of the most difficult moments that the State of Israel has ever experienced.” The nation’s independent attorney general said it would give the government “almost unrestrained power” and “weaken constitutional protection over human rights.”

Watching democracy under siege — even from afar — is never pretty. Watching a nation jettison its basic values under a coalition led by a man who remains on trial on charges of bribery, fraud, and breach of trust strains even the most solid of international friendships.

Friends don’t let friends give up on the rule of law.

The overhaul of Israel’s judicial system put forth by Netanyahu and his coalition of ultrareligious parties would allow the Knesset, Israel’s parliament, to override any judicial decision with a simple majority vote. With 61 votes the 120-member body could overturn decades of jurisprudence or threaten freedom of speech and press. Israel, after all, has no written constitution. When Israel has recognized individual rights and the established principles of human rights, the advances have often originated with its Supreme Court.


The current government has targeted in particular the court-set standard of “unreasonability,” which has allowed judicial review of government decisions and appointments, including the recent case of a minister convicted of tax fraud and subsequently found not fit to serve by the Supreme Court.

Netanyahu’s plan would also change the judicial appointment process, giving the ruling government a majority on the panel assigned to appoint judges — not exactly a prescription for stability in a country that has had five elections in the past four years.

The nine-member appointing panel currently consists of three Supreme Court judges, two representatives of the Bar Association, two government ministers, and two members of the Knesset, one of whom is usually from the opposition party. The selection of Supreme Court judges requires a seven-vote majority.

Herzog is continuing to try to negotiate with both the ruling coalition and major opposition parties over the makeup of that appointing panel and other aspects of the overhaul.

But the fears within Israel of handing its judicial system over to the current government with all its ethical problems are intense. In addition to Netanyahu, who is still on trial, the list of problematic officials in his government is extensive, including Aryeh Deri, the recently convicted and then ousted head of the ultraorthodox Shas party; Itamar Ben-Gvir, a far-right politician convicted of incitement to racism and support for a terrorist group; and Finance Minister Bezalel Smotrich, who was arrested in 2005 for protesting the government-ordered withdrawal of Israeli citizens from settlements in Gaza.


That withdrawal — the first land-for-peace effort with the Palestinian Authority — was ratified by a decision of Israel’s Supreme Court.

Smotrich, now with a bigger platform from which to rail, last week said of a Palestinian village in the West Bank, the scene of a previous attack by Israeli settlers, “The village of Huwara needs to be wiped out. I think the State of Israel should do it.”

He later tried to walk the statement back, but it helps explain the current opposition among much of the military to plans being hatched by a government minister who thinks nothing of proposing Israeli soldiers carry out war crimes.

This week more than 100 American Jewish leaders signed a statement opposing Smotrich’s planned visit to the United States next week, intended to help sell Israeli bonds. Some, like the liberal Jewish lobbying group J Street, urged the Biden administration to deny Smotrich a visa.

“We agree with Israeli opposition leader and former prime minister Yair Lapid that Smotrich’s comments constitute ‘incitement to a war crime,’” the group said in a statement.

Denying a visa to Smotrich would surely send a message that the mindset to which he gave vent is indeed reprehensible. But taking in the welcome mat would also signal to the Netanyahu government that continuing down a path where the law is decreed by people like Smotrich is also unacceptable in a trusted ally.


The US-Israel relationship has long been based on shared values, including a commitment to judicial independence and the rule of law. The Biden administration should make clear how critical that commitment is to the future of the relationship.

Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.