Confidence in Israel’s justice system, once so high, has slumped, and the time has come for the system to stop blaming everyone but itself. – Prof. Yuval Elbashan, in Justice – The public’s loss of trust, Dec 30, 2021.
This is a black day for the state of Israel…A day on which an Israeli court set its hand to convicting a man whose innocence cries out to the heavens—The defense team, after the conviction of Amiram Ben-Uliel for murder in the Duma arson case, May 18, 2020.
There would seem to be less and less reason for the Israeli people to bother electing a legislature and executive; the attorney general, with the backing of the Supreme Court can decide almost everything for them… Robert H. Bork, in Coercing Virtue.
The recent revelation of allegedly grave abuse of spyware by the Israeli police, has—despite the frenetic (and partisan) efforts to diminish its profoundly perturbing impact— at long last, thrown into sharp relief, the grim foreboding many have expressed for years as to the functioning of Israeli law enforcement in general, and the Israeli judiciary, in particular.
Documented erosion of trust
Indeed, several verdicts passed down by the courts have been clearly at odds with the common-sense perception of natural justice across wide swathes of the Israeli public.
This assessment is not a reflection of the subjective bias of the author, but an accurate account of the findings of numerous surveys, conducted by institutions, whose political leanings generally tend to the Left of the political spectrum—and which portray a highly unflattering (to be charitable) level of confidence, not only in the judiciary but also in the police and the state prosecution. For example, see:
Significantly, a November 2021 poll by Haifa University showed that while almost a third of the public expressed low to very low confidence in the judicial system, only 7% (!) had high to very high confidence in it.
This erosion of public trust in the justice system has been ongoing for over a decade. Indeed, as early as 2004, Prof. Ran Hirschl, wrote in his Towards Juristocracy (Harvard University Press): “Over the past decade, the public image of the Supreme Court as an autonomous and impartial arbiter has been increasingly eroded….“
Three instructive instances
According to Hirschl: “… as political arrangements and public policies agreed upon in majoritarian decision-making arenas are likely to be reviewed by an often hostile Supreme Court…the court and its judges are increasingly viewed by a considerable portion of the Israeli public as pushing forward their own political agenda.”
It is, therefore, possible to trace the emergence of this dwindling public confidence in, the judiciary in general, and the Supreme Court in particular, over a considerable period of time, and to cite numerous studies and surveys gauging its development.
However, three prominent episodes will suffice to illustrate just how grave the situation has become and just how detached judicial decision-making is from the everyday criterion of fair play and equitable administration of justice.
- The first is the determination by the court of the eligibility of candidates and party lists of the dominantly Arab anti-Zionist factions to participate in the Knesset election.
- The second is the conviction of Amiram Ben Uliel for the deaths of the Dawabshe family members, who perished when their house in the Arab village of Duma was set ablaze on July 31, 2015.
- The third is the decision of the court not to dismiss the indictments against former Prime Minister Benjamin Netanyahu by invoking the legal principle of “abuse of process“.
The letter of the law
With regard to the first case, the eligibility for participation in elections for the Knesset—or lack thereof—is laid down in Article 7A of Basic Law: The Knesset, according to which:
“A candidates’ list shall not participate in elections to the Knesset, and a person shall not be a candidate for election to the Knesset, if the objects or actions of the list or the actions of the person, expressly or by implication, include one of the following
(1) negation of the existence of the State of Israel as a Jewish and democratic state; (2)
incitement to racism; (3) support of armed struggle, by a hostile state or a terrorist organization, against the State of Israel.”
Even a cursory perusal of the official platforms of the dominantly Arab anti-Zionist parties in the current Knesset—the Joint List and the United Arab List (Ra’am)—will reveal a rejection of Israel as the nation-state of the Jewish people that is both unabashed and undisguised—i.e. both factions are in unequivocal violation of the explicit letter of the law. Yet, astonishingly, their participation in the Knesset elections —as well as that of individual candidates, who show seditious support for Israel’s enemies—is invariably, and inconceivably, approved by the Supreme Court.
For example, in its founding platform, the United Arab List (Ra’am), today the sine qua non of the Bennett-Lapid coalition, brashly declares Israel must be a “state of all its citizens” and calls for “drafting a constitution which recognizes the Arabs as national [not an ethno-religious-MS] minority and changing the [Jewish] symbols of the state to reflect this.“—i.e. for the purging of any Judaic signs in public life in the country. In later elections, Ra’am explicitly touted “the conversion of Israel into a [non-Jewish] state of all its citizens.”
Blatant violation of the letter (and spirit) of the law
In similar vein, the platform of the Joint List proclaims that the legislative initiatives to secure Israel’s status as a Jewish state are “discriminatory and anti-democratic” endeavors that are both “racist” and “fascist” in nature.
Significantly, both the Joint List and Ra’am concur on several points that would inexorably undermine the ability to maintain the dominantly Jewish character of Israel.
For example, both parties endorse the “right of return” for the millions of Palestinian-Arabs living in the “diaspora” into the pre-1967 borders of Israel, which is a certain formula for flooding the country with inimical Muslims, and inevitably would imperil its ability to endure as a Jewish state.
Moreover, both parties call for the release of all Palestinian-Arabs imprisoned for participation in acts of terror, including perpetrators of the most brutal and bloodcurdling acts of slaughter, which will—as less radical prisoner releases in the past have tragically shown—undermine both the national security of Israel and the personal safety of Israelis.
Furthermore, a number of members of the Joint List have —by word and deed—expressed overt support for, and solidarity with, some of Israel’s most vehement enemies in times of conflict—see for example here & here. Yet despite this being a glaring contravention of Article 7A of Basic Law: The Knesset, the Supreme Court repeatedly refused to disbar them from participation in the parliamentary elections—by overturning decisions of the Central Election Committee of the Knesset.
The failure to enforce the law (cont.)
But perhaps the most blatant and brazen disdain for the law was the 2018 attempt by
Referring to the attempted Joint List legislation, the Knesset’s legal counsel, Eyal Yinon, noted that this was a “proposal…that seeks to deny Israel’s existence as the state of the Jewish people [and] includes several articles that are meant to alter the character of the State of Israel from the nation-state of the Jewish people to a state in which there is equal status from the point of view of nationality for Jews and Arabs.”
Moreover, Yinon underscored that the proposed bill opposed the principle according to which the state symbols reflect the national revival of the Jewish people, and rejected making Hebrew the principal language of the state.
Apart from this explicit determination by the Knesset legal counsel, it is hard to conceive of how any rational person could avoid the following conclusion: The deeds and the declarations of both the Joint List and the United Arab List (Ra’am) prove irrefutably that these parties—and their individual candidates, who presumably subscribe to their parties’ ideas and ideology—are in grave breach of the conditions laid down by law for the participation in Knesset elections.
They should therefore be barred from taking part in them. Inexplicably, the Supreme Court has refrained from taking action that is clearly demanded.
It has, thus, clearly failed to uphold the law.
In conclusion: It is important to underscore that banning the Joint List and Ra’am in no way implies that the Arab citizens of Israel should not be permitted to vote, only that they will not be able to vote for parties that reject the very basis on which the state was founded.
Duma, Dawabshe & presumption of guilt
The hearing (on March 7) of the appeal in the Supreme Court by Amiram Ben Uliel against his conviction for the deaths of the Dawabshe family—who died when their house, in the village of Duma, was torched in mid-2015—has once again propelled the tragic incident into the headlines.
What has also piqued media interest in the case is the participation of the prominent left-wing human rights lawyer, Avigdor Feldman, in the defense team. As a rule, Feldman usually defends Palestinian-Arabs and Left-wing causes. Accordingly, his involvement in the defense of a member of the radical “hilltop youth”, a settler group perceived to be on the extreme Right, is surprising, to say the least, and adds to the sense of skepticism as to the validity of the verdict. [Some have suggested that Feldman has a vested interest in the acquittal of Ben Uliel, which he might be able to use to overturn convictions of previous offenders he represented].
As will be recalled, in July 2015, the Dawabshe family’s home was gutted after being attacked with Molotov cocktails. An 18-month-old infant was killed together with his parents while his 4-year-old brother suffered severe burns. Hebrew graffiti on the walls of the charred house led to the conclusion that Jews—i.e. Jewish settlers—were responsible for the arson and the deaths.
Towards the end of 2015, Amiram Ben Uliel was arrested. For almost 20 days he denied any involvement in the deaths of the Dawabshe family. However, refused access to a lawyer and after being subjected to harsh interrogation (a.k.a. torture), he confessed to carrying out the arson. In January 2016, Ben Uliel was indicted for the deadly attack based on his coerced confession and convicted in May 2020. He was sentenced to three consecutive life sentences (and 20 months for attempted murder and arson). Significantly, he was acquitted of membership in a terrorist group.
Duma, Dawabshe & presumption of guilt (cont.)
The troubling aspect of the conviction is that Ben Uliel’s confession, on which it is based, diverges sharply from the evidence provided by eyewitnesses, and from testimony given during the trial.
Thus, while Ben Uliel told his interrogators that he perpetrated the attack on his own, according to eyewitnesses, at least two individuals were involved in the arson. According to the New York Times: “Two witnesses said they saw two masked men outside the house watching as the family burned…The hardest thing for me, was that there were two burning people on the ground, and two people were just standing over them,” said a neighbor, Ibrahim Dawabsheh, who like many in this Palestinian village shared a common last name. “They didn’t even care that the child was still crying inside.”
Moreover, according to Ben Uliel, he walked to the village, infiltrated it, and exited it on foot. However, eyewitnesses attested that the attackers fled the scene in a vehicle.
In addition, Duma is a village that has been plagued by numerous cases of arson, with houses being burnt down, both before and after the incident for which Ben Uliel was convicted. In none of the other cases was there any hint that Jews were involved.
Indeed, as mentioned the only indication that led to the assumption that the perpetrators of the 2015 Dawabshe arson were Jewish, was two graffiti slogans spray-painted at the scene of the fire. Experts, who examined the graffiti lettering, testified that the two slogans were not written by the same person—which again is inconsistent with Ben Uliel’s “confession” that he acted alone.
The “ticking bomb” trick
The use of torture in this case is also perturbing. Indeed, as Ben Uliel’s legal team alleged, the authorization for the use of “enhanced interrogation” by the Attorney General Yehuda Weinstein lacked proper legal grounds and hence, was illegal.
After all, the only legal grounds for the use of “enhanced interrogation” is to prevent an impending “ticking bomb” terror attack. But in the Duma case, the “ticking bomb” claim rings decidedly hollow in light of the fact that Ben-Uliel remained un-apprehended for around six months, during which he never engaged in—and was never accused of engaging in—any other terror-affiliated activity. This, together with the fact that he was acquitted of belonging to any terror organization, leaves concerned citizens to ponder over just what “bomb”—if at all— was “ticking” anywhere outside the interrogators’ unbending resolve to bring about a conviction.
After all, as Avigdor Feldman states, but for the torture, Ben Uliel would have been acquitted!
So what we have is a Jewish citizen, convicted of brutal murder, despite the fact that:
- His confession was extracted from him by “enhanced interrogation” (aka infliction of physical pain);
- His confession contradicted all eyewitness evidence at the scene;
- He was denied access to legal counsel for an extended period during his interrogation;
- Before and after his alleged crime, numerous similar attacks have been repeatedly perpetrated; and
- All reasonable doubt and alternative accounts of the event were totally disregarded in assigning his guilt.
Clearly, in any other country, such a case of blatant anti-Jewish bias would be expected to elicit dismayed outrage and virulent protest from Israel as the Jewish nation-state, whose very raison d’etre is, largely, to shield Jews from precisely such Judeophobic prejudice and prevent such flagrant cases of anti-Jewish abuse from taking place.
A choreographed coup with the law as a prop?
Of course, no discussion of the ailments afflicting Israel’s legal establishment can be undertaken without referring to the trial of former PM, Benjamin Netanyahu. For it embodies virtually every procedural and substantive lacuna conceivable—from invented infractions to selective prosecution, from extortion of witnesses to illicit leaks detrimental to the defendant. Indeed, it is difficult for anyone who is not a devout Bibi-phobe to avoid concluding that the entire process of investigation and indictment is little more than a carefully (read “cunningly”) choreographed coup using (read “misusing”) the law as a prop.
In fact, even questions as to the legality of the very decision to initiate the investigation against Netanyahu have been raised.
In this regard, Clause 17 (a) of Basic Law: The Government stipulates: “Criminal proceedings shall not be commenced against the Prime Minister save with the agreement of the Attorney General.” Without such authorization, any investigation against a Prime Minister has no legal basis.
When Netanyahu’s legal team demanded to see confirmation that such agreement had indeed been given, the prosecution was unable to produce any corroborating document, claiming that the law did not require such authorization to be given in writing and was, in fact, given orally and recorded in the prosecution’s internal correspondence.
It is, of course, true that the law does not explicitly call for written authorization by the AG. But in the case of an unprecedented and sensational investigation involving the longest-serving prime minister in the nation’s history and easily the most popular politician in the country, it is hardly unreasonable to expect that the authorization of such a momentous decision would be carefully documented.
The fact that this was not the case, together with the prosecution’s marked reluctance in producing any evidence that such authorization was given, cannot but help generate grave skepticism as to the authenticity of the charges brought against Netanyahu and the motivation behind them.
As the trial unfolds, with every additional hearing, the picture becomes increasingly clear. The “creative” legal precedents that allowed contrived novel allegations against the Prime Minister, the undeniable discriminatory prosecution and selective enforcement, together with the persistent and perturbing testimonies of interrogatory excesses and extortion of witnesses, as well as illegal and tendentious leaks to the media, all combine to form a disturbing mosaic of abuse of power, designed to exploit the law to achieve what could not be accomplished at the ballot box: The removal of Benjamin Netanyahu from office.
I have written repeatedly on the flagrant abuse of the legal system and how the unrelenting drive to bring an indictment—any indictment—against Netanyahu has long exceeded the bounds of reasoned and reasonable law enforcement. See for example: here; here, here; here; here and here.
Accordingly, I will gloss over both the discussion of much material and of many arguments, and focus mainly on a few more recent developments that have come to light since the trial began.
But no discussion of the Bibi-phobic legal assault is complete (or as revealing) as the bald and brazen admission of State Prosecutor Shai Nitzan, who unabashedly conceded that the bribery charges against Netanyahu were without any legal precedent—and then, self-contradictorily, claimed that he did not “think that this decision involves a widening of the charge of bribery or breach of trust.” After all, if a charge is unprecedented (i.e. included what was previously excluded), how can it not involve “widening” the definition of the infraction???
But more to the point, if charges against Netanyahu were, by the prosecution’s own admission, “unprecedented”, obviously up until then, his actions were not considered criminal. Thus, in order to indict him, new charges had to be concocted! So that what previously was not illegal, now was!
Invented infractions, anybody?
“A stunning setback for the prosecution”
This then, is probably the reason that one of the key witnesses for the prosecution, former Netanyahu advisor Nir Hefetz, testified in what the Jerusalem Post—hardly a pro-Bibi outlet—described as “a stunning setback for the prosecution” that the former PM did not believe that he had committed an act of “bribery”—thus indicating that he “had no criminal intent“. Hefetz told the court: “…treating positive coverage as a bribe is delusional”, insisting that: “Neither I nor Netanyahu had any awareness of anything criminal.”
Hefetz expressed his misgiving as to the bribery charges against Netanyahu: “Both the media and law enforcement agencies had extremely high motivation to get an indictment. To this day, I believe that Case 4000 would never have come about if Netanyahu was not prime minister.” (See also here. & here ). According to the media watchdog “The 7th Eye”, Hefetz felt that the accusations of bribery in Case 4000 were in fact “trumped up charges” without any real basis, and that the authorities handled the case more like a “persecution than an investigation.“
Hefetz also attested to the treatment, to which he was submitted during his police interrogation, prior to agreeing to become a state witness and to testify against Netanyahu. He described the pressure as “draconian”, “horrific” and “monstrous”, and recounted how police interrogators threatened to destroy his relationship with his family if he did not testify against his former boss. He stated: “The threat was clear. If I did not give a version [they were looking for], they would destroy my family.” He was consigned to a cell with a flea-infested mattress and was denied timely medical treatment when he collapsed from the stress.
Stunningly, the prosecution claimed it has accompanied and supervised Hefetz’s interrogations. Something to worry about???
“How can we know when what you say is true or false?
Another key witness, Ilan Yeshua, also proved to be of questionable credibility.
Yeshua is the former CEO of the Walla! channel, which was controlled by Israeli businessmen, Shaul Elovitch, a co-defendant in the Netanyahu trail, and whose allegedly favorable coverage of Netanyahu comprised the bribery for which he was indicted.
Yeshua, the first witness to take the stand, testified for a full 33 court sessions over a six-month period. Under questioning from the defense, it turned out that the prosecution attempted to conceal evidence showing that numerous other prominent (past and present) politicians have conducted close contacts with Yeshua—and contradicted his statement to the court that he had not intervened on their behalf regarding publications in the Walla! site. The list included figures such as Isaac Herzog, Naftali Bennett, Miri Regev, Ofir Akunis Yinon Magal, Moshe Kahlon, Avigdor Liberman, and Dalia Itzik (see also here). Clearly, this severely undermined the prosecution’s allegations that Walla!’s response had been so “unusually forthcoming” towards Netanyahu so as to warrant indictment.
Indeed, it seems that the judges had a rather dim view of Yeshua as a reliable witness. Thus, one of them, with evident frustration, stated he had difficulty in separating out truth from untruth in Yeshua’s testimony. He asked: “Perhaps you could give us a sign so we can know what is true and what is not?”
In view of Yeshua’s decidedly shaky testimony, one legal correspondent posed the following irksome question: “when a major witness for the prosecution falls apart on the witness stand, along with the prosecution’s basic thesis – the question arises of whether the judges will find the courage to admit that the case before them was stitched together carelessly, and continues to fray.
Scant regard for the law
Thus a grim picture emerges.
An effective and equitable legal system is meant to be the bulkhead that separates civilized society from Hobbesian man-eats-man brutality. With eroding public trust in faith in law enforcement and its ability to administer justice fairly, this role is being severely undermined in Israel. Indeed, for the layman, it appears—not infrequently that legal proceedings are being carried out with scant regard for the law. Indeed some cases, the law is blatantly disregarded; in others, factual evidence is ignored; in yet others, infractions are invented to fabricate charges. Sadly, all cases have been approved by the courts.
There is just so long that a democratic society can endure this.