Israeli judicial reform is tit-for-tat over Gaza Disengagement

On February 14, Finance Minister Bezalel Smotrich met with the heads of Israel’s largest banks, who warned that the government’s proposed judicial reforms were already negatively affecting the economy.

Money was already beginning to exit the country, the shekel was beginning to weaken and Israel’s stock exchange was underperforming, the officials said. They pleaded that Smotrich act to pause the reform’s legislative process in order to begin negotiations over a version of the reform that would not damage the economy.

Tit-for-tat

The meeting was tense, according to reports from a number of Hebrew media outlets. And in addition to the back-and-forth on the economy and finance, Smotrich also said something that at first glance seemed rather strange:

“When I protested against [the Disengagement from] Gush Katif and against [the] Oslo [Accords], I didn’t see you. Then, for some reason, you chose to stand to the side,” the finance minister said to the banking officials, referring to Israel’s pulling out of Gaza in August 2005, destroying 21 settlements there and four in northern Samaria.

Why strange? Because the economy was not a major issue during the tense months leading up to the Disengagement. In fact, many economists at the time expected the move to have a positive economic effect, as it was intended to increase security stability and perhaps even jump-start some form of peace talks with the Palestinians.

Rather than being direct criticism of the banks, the comment seemed to express a deeper frustration with Israel’s establishment – its government agencies, financial institutions and civil organizations, many of which are now vocally opposing the government’s policy, but which, in the summer of 2005, remained mum as thousands of settlers’ lives were upended, their homes and livelihoods destroyed by a government many of them voted for.

IN THE past two months, as the schism over the judicial reforms deepened, public figures and politicians referred back to the Disengagement over and over again, in three different contexts.

The first context was claims that the Disengagement led to a rupture in the settlers’ faith in the High Court of Justice’s impartiality and will to defend their rights. In President Isaac Herzog’s impassioned speech to the nation on February 12, in which he called on the coalition to halt the reform’s legislative process in order to arrive at a compromise, the president acknowledged the “pain and deep frustration of an entire political camp, which came to a head during the Disengagement from Gaza and northern Samaria in 2005,” adding that “this pain of our brothers and sisters is real; to reject it or ignore it is a big mistake.”

Smotrich, Knesset Constitution, Law and Justice Committee chairman MK Simcha Rothman, Justice Minister Yariv Levin and other members of the coalition repeated this sentiment many times since Levin first announced the reforms at the beginning of January, specifically mentioning the High Court’s approval of administrative detention for juveniles, sometimes for weeks, as a symbol of its coldheartedness and of the entire law enforcement apparatus’s harsh treatment of the protesters.

The second context was comparing the widespread protests against the judicial reforms to the large-scale right-wing protests in the spring and summer of 2005 against the Disengagement, in an attempt to show that the current protesters were crossing a line that the settlers in 2005 did not. Prime Minister Benjamin Netanyahu made this argument in a speech on March 2.

“Twenty years ago, the debate among us was no less stormy, no less wrenching, and no less all-embracing. An entire public that deeply opposed the government’s policy felt that its world was being destroyed,” the prime minister said. “Twenty years ago, in the Disengagement, the government of Israel decided to uproot over 8,000 Israelis from their homes, to exhume bodies, and to destroy their communities,” he said.

Still, “we did not see then what we see today. The demonstrators did not beat policemen, did not call for civil riots, did not call for refusals [to show up for reserve duty],” the prime minister said.

(The claim is false, as Tovah Lazaroff pointed out in her coverage of the speech. There were those Disengagement protesters who also blocked roads and clashed with police. One of the central themes of the protest was a persistent call for security forces to refuse to obey orders relating to Disengagement, in the hopes that if soldiers failed to act, then the Gaza pullout would not occur.)

Disengagement bill

The third context in which the Disengagement keeps coming up is a bill that on Thursday passed a Knesset Foreign Affairs and Defense Committee vote, and will soon be brought for its first reading on the Knesset floor. The original Disengagement Bill from 2005 created the framework for the evacuation itself, as well as the method of reparations for the evacuees. It included a clause that bars Israeli citizens from reentering any of the evacuated areas. The current bill is an amendment that would erase this clause. While no Israeli civilians would be allowed to reenter Gaza for security reasons, this could enable attempts to resettle the northern Samaria area that was evacuated.

THE DISENGAGEMENT was first presented to the public some 20 years ago, and concluded nearly 18 years ago. Why is it resurfacing now, in a seemingly different context – a reform in the balance of power between Israel’s branches of government, as opposed to a decision by the executive branch at the time?

This question looms even larger when taking into consideration two points:

First, the government that carried out the Disengagement was led by the Likud and then-prime minister Ariel Sharon. Why keep bringing up an injustice that the current governing party committed?

Second, the reform seeks to strengthen the executive and legislative branches and weaken the judicial branch. If, indeed, the High Court failed in its defense of the settlers’ rights in 2005, shouldn’t the response be to strengthen the court so that in future cases it can provide stronger defense, instead of weakening the court?

Journalist and publicist Shlomo Pyuterkovsky addressed these questions succinctly, in an article in Makor Rishon on January 17.

Pyuterkovsky argued that the High Court was correct in its decision not to prevent the Disengagement itself, since it was a legitimate policy decision based on national security and diplomatic considerations. Rather, what crushed the settlers’ faith in the court was its ruthlessness.

“The High Court justices were the ones who provided the broad and general legal umbrella that law enforcement used to trample the Disengagement’s opponents. The years that passed have blurred the memories, but those who were arrested in those days for long periods (despite the Basic Law: Human Dignity and Liberty, which was in effect); those who were taken to Shin Bet interrogations even though they never planned a terrorist attack, and whose rights were declined during interrogation and imprisonment, do not forget.

“The entire system deployed to break the resistance, and all methods were approved to do so. And the High Court of Justice led by Aharon Barak was the body that gave the approval and backing for all of this – the same court that just a decade earlier declared that the State of Israel had entered into a new age of constitutional revolution, an age of the defense of human and civil rights.

“We did not expect that the High Court would stop the Disengagement. We didn’t even expect it to stop then-prime minister Ariel Sharon when he trampled every basic standard of fairness and democracy. Those are the Knesset’s role, and even if it failed, the High Court should not have taken its place. We did expect fairness, morality, consistency and the defense of individual rights of the opposers of the Disengagement. We expected that the High Court would stand by the side of the weak, whose rights were trampled by a system that was entirely against it, and would be a beacon of the rule of law and justice. We were fooled.

“The High Court was revealed, and not for the first time, as a political body, which assists the government when it promotes policies that are to its liking, and stops it when they are not to its liking. And this is also the reason that, since the summer of 2015... we simply do not believe you, retired High Court justices, and as such we are not worked up over your cries of anguish,” Pyuterkovsky concluded.

INDEED, RESEARCHERS, such as Prof. Boaz Sanjero of the Ramat Gan College of Law and Business, argued in the years following the Disengagement that the entire law enforcement system erred in its handling of the opposition protest movement. Sanjero, in a comprehensive article in 2008, listed as examples unnecessarily harsh punishments, including jail terms, for relatively minor infractions; repeated attempts to try protest leaders for sedition; the arrest of nonviolent protesters, including the administrative detention of teenagers; blocking said teenagers from taking matriculation exams while imprisoned; police violence; and more.

In addition, a state commission of inquiry led by a retired High Court justice in 2010 published its findings, whereby the state failed in its treatment of the evacuees after the fact, and that five years after the evacuation, a majority of them were still living in temporary mobile homes, and many remained unemployed.

Furthermore, the Disengagement was just one among a long list of High Court violations of settlers’ rights, National Missions Minister Orit Struck, a member of Smotrich’s Religious Zionist Party, said in a conversation with The Jerusalem Post. She argued that, since the Disengagement, the court consistently ruled against settlers, despite the majority of public opinion shifting toward opposition to evacuations. In fact, at certain points the High Court was the only party that seemed to believe in evacuations, including in appeals against settler construction on private Palestinian land even when the Palestinian owners were unknown, Struck argued.

There is no doubt that the protests leading up to the evacuation, the evacuation itself and the following years were a major trauma, first and foremost for the nearly 10,000 evacuees themselves, but also to the many thousands of their supporters, who opposed the government’s policies and felt that they – both the evacuees and their supporters – were hounded for this opposition.

Today, many of those thousands are senior members of the government. Smotrich himself was arrested during the protests ahead of the Disengagement, and many other ministers and coalition members participated in the protests at differing degrees.

The intellectual roots of these ministers’ and MKs’ support for the judicial reforms, as has been widely reported, hearken back to Barak’s famous ruling in 1995, in which the High Court first opined that it had the power to strike down Knesset laws if they violated Israel’s Basic Laws – which it determined had the status of a constitution.

But the emotional roots began to spread in earnest only 10 years later, in that summer of 2005, when hundreds of thousands of Israeli civilians perceived the court as the defender of human rights for only one side of the political divide.

Finally, although the partial repeal of the Disengagement Law is not directly connected to the judicial reforms, the celebrations at Homesh and elsewhere over its passing its preliminary reading on February 15, and the emotion and passionate speeches prior to it passing the Knesset committee vote on Thursday, were indicative of a deep feeling that many of the judicial reform supporters share: The government, finally, is rectifying the wrongs of that summer.