A Netanyahu Victory Would Be Bad News for Peace and the Rule of Law

In Israel, winning elections is all about who forms the next government. As the dust settles from Israel’s third election in a year, election night projections of a clear victory for the right-wing parties backing Prime Minister Benjamin Netanyahu have been somewhat tempered since the March 2 vote. Results now show Netanyahu’s bloc holding 58 seats, short of the 61-seat majority needed to form a coalition out 120 seats in the Knesset, Israel’s parliament.

Still, Netanyahu seems to have the upper hand. His Likud party has a three-seat lead over Benny Gantz’s Blue and White party, the closest competitor. The parties that oppose him may hold 62 seats, but they are an ideological hodgepodge ranging from the ultranationalist right-wing party of Avigdor Lieberman to the Joint List, comprising four Arab and Arab-Jewish parties. The large, centrist Blue and White and the fading Zionist left represented by the Labor Party and Meretz only amount to 40 of those 62 seats. Given the ideological incoherence of the opposition, Netanyahu could well be asked to form the next government.

The permutations of how 58 seats can become 61 are already the subject of feverish speculation. Netanyahu would need to either find defectors from the opposition or negotiate a unity government with Blue and White. Both will be difficult; all coalition negotiations have failed following two earlier votes in the past year. The process will be especially fraught as the curtain opens on the Jerusalem District Court on March 17, when Netanyahu’s corruption trial officially begins.

Despite these pitfalls, a new government still seems more likely than a fourth election. If Netanyahu does end up forming and leading a coalition of 58 right-wing and religious loyalists, with a few additional members who are amenable to this base, it is reasonable to assess what such a government might do.

A new right-wing government will almost surely prioritize two things: annexation of Palestinian land and limitations on Israeli courts’ judicial independence.

With a year’s worth of urgent national social and economic priorities waiting to be addressed, including a worrying budget deficit, a new right-wing government will almost surely prioritize two other areas: annexation of Palestinian land and limitations on Israeli courts’ judicial independence. Neither policy direction is new for Netanyahu, but the policies could now move at a fast pace.

Netanyahu is known to be obsessive about security, terrorism, and Iran—but is considered less ideologically driven regarding de jure annexation in the West Bank. While his far-right coalition partner Naftali Bennett has advocated annexing all of Area C (60 percent of the West Bank) since 2012, under Netanyahu’s term of more a decade, no such initiative came to fruition. His policies indicate he prefers quiet expansion on the ground: de facto, creeping annexation.

Campaigns can change everything. Ahead of the April 2019 election, Netanyahu announced his intention to annex all settlements. One week before the September 2019 election, he unveiled his plan to annex the Jordan Valley. Following the release of U.S. President Donald Trump’s plan for the Israeli-Palestinian conflict, Netanyahu insisted that annexation of the Jordan Valley would begin forthwith, then acknowledged he would await Washington’s consent. But he incorporated the mantra of annexation (or “extending sovereignty”) into his campaign stump speech from that point on.

These promises can no longer be dismissed as political posturing. In January, his rival Benny Gantz promised to annex the Jordan Valley as well, clearly in order to keep up. One path to a coalition for Netanyahu involves wrenching Gantz away from Blue and White and bringing his faction into the coalition. In that case, Gantz, who campaigned for a whole year on refusing to sit with Netanyahu while the prime minister was under indictment, will surely focus all negotiation demands on ensuring that Netanyahu cannot avoid prosecution, or insisting on limitations to Netanyahu’s term. Gantz would at that point have no grounds for resisting far-right pressure to advance annexation given his own stated position during the campaign.

Moreover, the legal groundwork is already being laid. A plethora of bills already exist that would advance formal declared annexation over starting points such as a single settlement—Maale Adumim, for example, with its all-Jewish population and air of a Jerusalem suburb. Annexing Maale Adumim would be a tasty appetizer for the far-right, and it would be unlikely to face resistance from the public; in surveys I conducted from 2017, nearly three-quarters of Israelis supported it, including over 80 percent of Jews.

Other laws and bills—a long list, actually—advance quiet harmonization of laws between the West Bank and Israel proper, with special laws for occupied areas. These incremental forms of annexation, more limited and technical in nature, are a convenient substitute for the more dramatic versions, which would risk severe international penalties. By contrast, if Israel advances annexation bit by bit, its 53 years of experience since 1967 show that it can get away with that. And a right-wing Israeli government, therefore, is likely to do it.

A second essential target for the next government will be the Israeli judiciary. What happens in the legal sphere will affect everything from government formation to the future of Israeli democracy. These changes are also directly linked to possible annexation.

Netanyahu is already facing calls to bar him from forming a coalition while under indictment. (Israeli law allows him to serve as prime minister, but apparently the framers never imagined an indicted defendant being asked to create a government, generating a legal conundrum.)

Any ruling would place the Supreme Court in a bind. If the court favors Netanyahu, the entire opposition camp will be inflamed; if it rules against him, the pro-Netanyahu camp will view it as a brutal suppression of the will of the voters and could well take to the streets. The court—and the attorney general—could also bow out of issuing a ruling, as it already did this past December.

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But if Netanyahu clears these hurdles, there is little need to speculate what a new right-heavy coalition would do about the judiciary. The direction can be discerned based on past precedent and present pressures. The courts represent one of the country’s few forces balancing the Knesset’s power in the absence of a constitution or formal bill of rights. Netanyahu’s last two justice ministers have been sworn opponents of judicial activism, and the next will likely have a similar profile.

His right-wing coalition partners and the Sheldon Adelson-funded daily freebie newspaper Israel Hayom denounce the judiciary daily, portraying it as a rapacious band of elites crushing the people’s will. The police, the state prosecutor, and the attorney general are described in right-wing circles—and selectively by Netanyahu himself—as agents of unelected, embittered left-wing aristocrats persecuting the prime minister instead of winning elections.

In 2017, Netanyahu’s government sought to pass a law curtailing the transparency of the investigations into his own corruption cases. His governments have been deliberating bills to end judicial review for years. Although Netanyahu has stated more than once that he will not advance an immunity law to shield himself from prosecution, his presumed coalition partners considered doing just that during the coalition negotiation following the April elections. To be sure, Netanyahu asked for immunity in the framework of existing laws, then withdrew his request. He continues to deny that he would advance such a law.

But times have changed. Netanyahu is now facing the optics of standing trial—and the fear of a future verdict. Israeli commentators have wondered whether he will try to reach a plea bargain to avoid court, or even fire the attorney general (whom he appointed). In the hours after being indicted, Netanyahu himself went on a screed in which he demanded that authorities “investigate the investigators.”

Netanyahu has not ruled out a judicial override law, which would strip the Supreme Court of its judicial oversight powers

More worrying is that Netanyahu has not ruled out a judicial override law, which would strip the Supreme Court of its judicial oversight powers and was also reportedly part of earlier coalition negotiations. His Likud allies have stated that the idea is still in play—specifically in response to a question of what would happen if the Supreme Court rules that Netanyahu cannot form a government while under indictment.

An override law also leads full circle back to annexation. Any law designed to annex territory can be challenged in court; the same is true for human or civil rights violations as a result of annexation. But if an override law is on the books and the court rules against annexation laws, the Knesset would not need to back down.

None of this is inevitable yet. Every day brings new and unexpected developments in the fractious political scene. The anti-Netanyahu parties still hold a 62-seat majority, and on Wednesday Gantz floated passing a law to limit Netanyahu’s ability to form a government under indictment. Naturally, such a law is vulnerable to accusations of being personally tailored to Netanyahu. But the greatest limitation remains the voters themselves; a majority voted for parties that campaigned on getting Netanyahu out.