Netanyahu's Controversial Judicial Overhaul Sparks Alarm over West Bank Annexation

For close to nine months, a large number of Israelis have been protesting weekly against Prime Minister Benjamin Netanyahu's proposed judicial reforms. They are concerned that these reforms could significantly limit the authority of the Supreme Court, which is the only entity that serves as a check on the executive and legislative branches of government.

Many Palestinians are concerned about the possibility of a weakened Supreme Court leading to an increase in Jewish settlements in the occupied West Bank and eventual annexation of the territory they are seeking for their future state. While Israelis have protested the overhaul citing the erosion of democracy and human rights, the potential impact on the over three million Palestinians living under Israeli occupation in the West Bank has not been a significant part of public discussion.

Sawsan Zaher, a human rights lawyer from Israel, who works for the Legal Center for Arab Minority Rights, expresses deep concern about the potential repercussions of the recent changes. She characterizes these changes as a "judicial takeover" that could lead to the West Bank being annexed without any scrutiny from the Supreme Court. Zaher's apprehension stems from both the words and actions of the Netanyahu government, which assumed power at the end of the previous year. Notably, the cabinet includes influential figures who are West Bank settlers, and the government's agreement aims to expand Israel's authority over the West Bank, essentially calling for annexation.

Under Netanyahus far-right government, Israel has approved a record number of housing units in West Bank settlements, Peace Now said in a July report.

Israeli Prime Minister Benjamin Netanyahu eats an apple slice to mark the upcoming Jewish New Year holiday at a weekly meeting of his Cabinet in Jerusalem, Sunday, Sept. 10, 2023.

Ohad Zwigenberg/AP

Israel's democracy is facing a critical juncture as its highest court deliberates a legislation that seeks to curtail its authority. Here's all you need to be aware of:

The majority of nations, along with the United Nations, acknowledge the West Bank and East Jerusalem as occupied territories, deeming Israeli settlements in these areas unlawful according to international law. In contrast, Israel asserts that the land is subject to dispute and maintains that its settlements there are not in violation of any laws.

A significant number of Israelis back their government's endeavors to expand into the occupied territories. According to a 2020 survey conducted by the Israel Democracy Institute in Jerusalem, over 50% of Jewish Israelis support the extension of Israeli sovereignty in the West Bank, a goal that Prime Minister Netanyahu has openly expressed.

The revamp encompasses several legislations, with the initial bill being approved in July through a unanimous 64-0 vote, as the entire opposition exited in protest prior to the voting. This law diminishes the authority of the Supreme Court to declare government decisions as unreasonable.

Advocates for the reform argue that Israel's judicial system is flawed and grants excessive authority to the court. For years, proponents have been advocating for judicial reform in order to restore the equilibrium among all three branches of government. In a groundbreaking event, the Supreme Court recently examined legal challenges to the reasonableness law, gathering the entire panel of 15 judges for the first time.

Both sides' lawyers were intensely questioned by the justices, who gave no clear indication of their ruling. The timing of the court's decision on the reasonableness law remains uncertain.

The significance of the ruling lies in the fact that the reasonableness law is an amendment to one of the 13 Basic Laws of Israel. Unlike many democracies, Israel does not possess a written constitution but relies on Basic Laws and court precedents that could potentially form a constitution in the future. To date, the court has never invalidated a Basic Law or its amendment.

"If you analyze the fundamental essence and objectives of the judicial coup, its primary purpose is essentially to prevent the Supreme Court from conducting any form of judicial review on Basic Laws or governmental decisions," Zaher expressed to CNN.

A narrow avenue for legal recourse

According to experts, the Supreme Court has mostly backed Israel's settlement expansion, but at times has afforded limited options for Palestinians to pursue legal action. Eliav Lieblich, an academic in law at Tel Aviv University, stated that the court has never impeded the settlement movement and has refrained from making a comprehensive ruling on the legality of these projects.

According to Lieblich, it provided specific protections for cases where Palestinians' private property has been violated or utilized for settlements. Zaher, however, believes that Palestinians have never seen the Supreme Court as supportive and Netanyahu's overhaul could eliminate any existing mechanisms, regardless of their size, that can counter policies seen as infringements on their rights.

Zaher estimated that the Supreme Court did not protect Palestinian rights in the West Bank in 95% of cases.

Palestinians living in the West Bank are governed by a distinct set of laws from Israelis. They are under the jurisdiction of various authorities, such as the Palestinian Authority and Israeli military laws. Despite the slim likelihood of success, West Bank Palestinians can still choose to petition Israeli courts to oppose evictions, demolitions, or land seizures.

According to human rights organizations, the Supreme Court frequently approves requests to demolish the homes of Palestinians involved in attacks against Israelis, while rarely considering petitions filed by Palestinians against these measures. This practice has been condemned by rights groups as a form of collective punishment. Israel argues that it serves as a deterrent for future attacks.

Despite this, Palestinians have experienced some uncommon victories. In 2005, the Supreme Court mandated the government to devise a new path for a section of its security barrier in the northern West Bank, aiming to minimize the hardships faced by Palestinians. The International Court of Justice in The Hague had previously declared the entire barrier to be illegal.

Right-wing Israelis rally in support of Prime Minister Benjamin Netanyahu's government plans to overhaul the judicial system, in Tel Aviv, Israel on July 23

Ariel Schalit/AP

Most Israelis oppose the court overhaul. But a minority is backing Netanyahu to the hilt

In 2012, the Supreme Court of Israel ruled in favor of a group of Palestinian landowners, ordering the removal of five settler buildings located above the Palestinian village of Dura al-Qara in the West Bank.

More recently, in 2017, Israeli security forces demolished nine homes that were constructed on privately owned Palestinian land in the West Bank settlement of Ofra. The decision to destroy the homes followed the rejection by the High Court of Justice of an appeal made by the settler residents of Ofra, who requested the evacuation of the homes without their destruction. The court had issued the demolition order in 2015, seven years after the legal aid group representing the Palestinian landowner initiated the case in 2008.

Fears of speedy annexation

In contrast, in some instances, decisions that were initially in support of Palestinians have been overturned. In an exceptional turn of events, the supreme court determined that a settlement outpost, which refers to Israeli residences constructed without official government approval on privately owned Palestinian territory in the West Bank, can stay intact, even though it had previously been instructed to be dismantled almost two years ago.

Palestinians argue that the expansion of settlements during the Netanyahu administration implies that there will be even fewer obstacles to expansion once the Supreme Court no longer poses bureaucratic challenges for the government. Zaher commented that this could potentially lead to a swift acceleration of annexation, unlike anything witnessed before.

Ahmed Tibi, a Palestinian-Israeli member of the Israeli parliament and leader of the Taal party, claimed that proponents of the reasonableness law consist of far-right ministers Bezalel Smotrich and Itamar Ben Gvir, both of whom are settlers. Tibi accused these supporters of seeking to gain control over the judicial system in order to expedite the annexation of occupied territories.

According to Tibi, "Numerous proposals within the judicial overhaul would favor the settlers. Any measures that bolster the settlers tend to undermine the Palestinians."

Gershon Baskin, the director of Holy Land Bond, a recently established investment fund specializing in housing projects for Palestinians in East Jerusalem, believes that the expansion of settlements lies at the core of Prime Minister Netanyahu's judicial strategy.

During a protest rally in Tel Aviv on Monday, demonstrators forcefully pushed an Israeli riot policeman standing behind a metal fence.

Baskin warned that if Netanyahu succeeds in implementing the reform, Palestinians will no longer have access to the limited opportunities they currently have within the Israeli High Court.

Diminishing judicial review, according to Lieblich, would empower the executive in an already zero-sum game between Israel and the Palestinians. This would make the formal annexation of the West Bank, although an extreme scenario, more feasible. Additionally, it would facilitate the implementation of incremental measures that could effectively lead to annexation.