Law enforcement in Israel - Something to worry about.

• Published date: 08 March 2022

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:

A majority do not trust the judiciary: Public confidence is at an unprecedented low (Hebrew).

Public trust in police, attorney general sinks to lowest ever in poll;

One affair after the other: How the police crushed public trust (Hebrew).

Public trust in the Attorney-General and the police at unprecedented low (Hebrew).

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-Israel 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...