A lot of ink has been spilled during the recent months defining Netanyahu’s reform of Israel’s judiciary as an “assault on Israeli democracy” and a “judicial coup.” The Israeli Supreme Court began hearing arguments against the reform on Tuesday in what is being described as a “constitutional crisis.” But a closer look at the political-legal agendas and historical development of some of the most ethno-nationalist sectors of the Israeli government reveals a more complicated relationship between the judicial overhaul, the Occupation, and Israel’s settler democracy.
In 2010, the two of us were in Palestine researching different aspects of Palestinian land claims, when we came across Regavim: the Organization for the Protection of National Land. Regavim is a far-right, settler-led “public movement” dedicated to the “prevention of the seizure of state land.” The movement was born as a response to Ariel Sharon’s 2005 disengagement plan and evacuation of Zionist colonies from the Gaza Strip. It subsequently galvanized opposition to the intermittent obstacles that the Israeli regime’s Supreme Court placed before a handful of the illegal settlements in the West Bank. That very Supreme Court is today, the site of the current political struggle surrounding judicial reform.
In progressive Israeli and international discourses, the settler movement is generally portrayed as a radical religious minority hijacking Israel’s democratic state and disabling the two-state solution by establishing “illegal outposts” in the heart of the Palestinian territory. However, this representation is misleading. In fact, supposedly “liberal” Israeli groups and the ultra-nationalist settler movement all take part in the upholding of an apartheid state. Their political proximity is such that after Sharon’s 2005 disengagement, Regavim and other “non-governmental” organizations of the ultra-nationalist settler movement began to appropriate liberal legal logic and formally mirror human rights legal cases; rightist reform and progressive anti-reform are carried out through the same channels and using the same language. They started fighting “in the public, parliamentary, and judicial spheres” with the same kinds of advocacy usually utilized by local and international anti-Occupation NGOs (opinion and research papers, reports, media communication, and court petitions).
These groups take a rights-based approach to the return of the settlers evacuated by Sharon during the disengagement and promote untrammeled settler rights to further colonize Palestinian lands. In our encounter with Regavim and similar organizations, we were stunned by the rhetorical and practical inverting of the reality between the dispossessed and the perpetrator. For this movement working to control all areas of the West Bank in the wake of Sharon’s disengagement, Palestinian villages, towns, and cities are labeled as “illegal construction” to be surveilled, monitored, and litigated within the colonial court system. Regavim began a practice of “mirroring” petitions by left and liberal Israeli NGOs such as Peace Now, Settlement Watch, and Yesh Din to present the invading settlers — rather than the Palestinians — as victims. Leading Israeli human rights attorney Michael Sfard told us it was “a stunt” designed to cause “havoc,” but nevertheless a “revolution in the use of the legal system” with the end goal of operationalizing law and liberal discourse about minority protection to dispossess Palestinians and to extend Israeli civil jurisdiction into its Occupied territories.
However, while Regavim purports to be concerned with what it argues is the “scandalous” and “anti-Jewish character” of the Supreme Court, its goals are not to subvert democracy or destroy the court, or even primarily to target liberal Jewish citizens. Instead, Regavim uses the tools of liberal democracy to reform and redress the court’s post-disengagement “perversion,” to return to and fulfill a settler-Zionist vision of Israel at the expense of Palestinian existence.
From movement to government
On the 1st of November 2022, the Religious Zionism and the Kahanist Otzma Yehudit parties secured 14 seats in the Israeli parliament. Between the 2021 and 2022 elections, political formations for whom colonization of Palestinian lands in the 1967 territories is a primary goal and 1967 settlers a primary constituency, more than doubled their votes, becoming one of the major forces in the Knesset. The success of these parties is also the success of some of the leading figures of the post-2005 disengagement settler nationalist-liberal transformation we began to observe in 2010.
Israel’s current Finance and Settlement Administration Minister, Bezalel Smotrich, has frequently called for the ethnic cleansing of Palestinians. Most recently, he called for illegal settlers to “wipe out” the Palestinian town of Huwara. Smotrich is one of the founders of Regavim and served as its “activities director.” Another of the co-founders, Yehuda Eliyahu, has become Smotrich’s right-hand man at the Settlement Administration Ministry. Orit Strock, the former head of an organization with similar remit and purpose as Regavim’s, the Yesha Human Rights Organization of Judea and Samaria, is the current Minister of Settlements and National Missions. These figures have now entered government and found themselves in positions of centrality and power there.
This influential faction of the 1967 settler movement has injected movement legal work into the legislative and executive branches in the form of political-legal reform. One of the most important moments in this turn towards settler rights advocacy occurred in 2017, following a confrontation between police agents of the Israeli Occupation Forces and illegal settlers in Amona, a West Bank outpost evacuated by Sharon in 2006. Amona is a major touchstone in radical settler political identity: the actions of the Israeli police became known as “the Amona pogrom.” In response, Smotrich, by now a member of Knesset, initiated the “Judea and Samaria Settlement Regulation Law,” which allows the expropriation of Palestinian land on which Jewish settlements were “built-in good faith.” The law, which was approved by the Israeli parliament, was meant to reconquer Amona and grant “the owners” (illegal settlers squatting on Palestinian lands) “alternative land or compensation” for their troubles. Without irony, this is both a revanchist, right-wing, ethno-nationalist project — as well as a civil rights movement — carried out through the logic of minority protection designed to further dispossess and eliminate the Indigenous Palestinian population.
As that law was being contested by anti-Occupation petitioners, the Netanyahu government argued that regularization was “a humane, proportionate and reasonable response to the real distress” settlers experienced during the 2006 evacuation. This was a moment when what pro-Palestinian attorney Sfard defined as a “stunt” became firmly established as a rhetorical and ideological basis for reform. Previously emanating from the most reactionary elements of the settler movement, Regavim and its fellow travelers’ discourse about the “human rights of the settlers” and the need to remedy the “illegal conquest” of Jewish lands by Palestinians became a core claim within Israeli institutions.
The current political struggle hinges on the Supreme Court, for two primary reasons: The first is that liberals defend it as a bastion of “Israel’s democracy.” And second, because it is one of the few sites for minuscule checks on settlement expansionism. So when, in 2020, liberal NGOs and the anti-reform bloc prevailed upon the Supreme Court to invalidate Smotrich’s regularization law on the grounds that it “disproportionately violates the rights of Palestinians to property, equality, and dignity,” this “perverted” court became the primary target for attack because of the limited barriers it placed on illegal Israeli settlement expansionism. and prerogative had already been translated into discrimination against Jewish national rights.
This time around, it wasn’t Regavim and the NGOs of the radical settler movement carrying out the struggle for judicial reform from the margins… rather, it was their MKs, their parliamentary supporters, and the Netanyahu government. When the Supreme Court invalidated the Regularization Law, Smotrich argued for a new bill “allowing the Knesset to override the courts immediately.” Meanwhile, Yariv Levin, Israel’s Justice Minister and the main architect of Netanyahu’s judicial overhaul, attacked the Supreme Court, saying that its decision “trampled [on] Israeli democracy and the basic human rights of many Israeli citizens.”
The anti-judicial overhaul protesters struggle with a fundamental contradiction. Liberal Israelis have, for decades, tried to present the colonization of the 1967 Palestinian territories as the initiative of a few bad apples, while knowing that the state, a settler apartheid state according to Amnesty International and other prominent human rights organizations, was structurally invested in it, including through Supreme Court sanction. Liberal defense of the judiciary and focus on citizenship and democracy is somewhat dissonant: although there have been some notable pro-Palestinian decisions, they are anomalies within a sea of judgments that ultimately formalize Israel’s colonies, settler state, and occupation.
Protestors are faced with two options. On the one hand, protecting the status quo — as they are trying to do — means supporting the judicial institutions of a settler democracy that denies Palestinian human rights, with occasional Supreme Court sanctions against criminal excesses as a gesture for the sake of the international community. On the other hand, perhaps they think that surrendering to the reform would mean adapting to an even more radical version of the already existing settler colonial democracy, one that would exist without even the fiction of the Supreme Court.