Benjamin Netanyahu Is Indicted on Criminal Charges, and His Defiance Puts Israel’s Democracy at Risk

Prime Minister Benjamin Netanyahu’s defiant response to the three indictments finally brought against him, on Thursday, would, under any circumstances, constitute a crisis for the rule of law in Israel. But Netanyahu’s defiance comes as the climax of a larger crisis for Israel’s democracy, which has been building at least since Netanyahu’s reëlection, in 2015. It places the country’s divided people on unknown and dangerous terrain. The indictments—for bribery, fraud, and breach of trust—are, Netanyahu insists, an attempted “coup” against him, conducted by the police, the state prosecutor’s office, and other judicial authorities—his version of the Trumpian claim that a “deep state” is attempting to overturn the will of the electorate. He seems intent on conducting a preëmptive countercoup using the office of Prime Minister, which he currently occupies only as the head of a transitional government, to appoint potential allies to key government positions, conduct escalatory military operations, collude with an increasingly desperate Donald Trump, and rally his followers against Israeli Arabs, whose parties he tars with the vague charge of “supporting terrorism.” Two close elections this year have not returned Netanyahu to the office, but they have not dislodged him either.

By law, an Israeli minister indicted for a criminal offense is required to resign. By precedent, a Prime Minister must: two already have, and not for crimes committed while in office. Yet Netanyahu seems determined not to relinquish power. “My sense of justice burns within me,” he said on Thursday evening, in a speech that was unprecedented in its pathos and its attacks on state prosecutors, including the Attorney General, Avichai Mandelblit, who had announced the indictments. “I cannot believe that the country I fought for and was wounded for, that I’ve brought to such achievements,” he said, will allow “this kind of tainted justice.” For the rule of law to prevail, he added, “we have to do one thing: to finally investigate the investigators,” which would entail the appointment of an “outside” commission of inquiry into the prosecution’s methods, as if the Attorney General, whom Netanyahu himself appointed, were somehow part of a secret conspiracy against him.

Yohanan Plesner, the director of the Israel Democracy Institute, has called for Netanyahu to resign, saying, “The head of government serving in office under the shadow of indictment harms the public’s trust in the country’s institutions and Israel’s character as a Jewish and democratic state.” The danger, though, is that the defenses of a “Jewish” state, for which Netanyahu claims to be indispensable, and those of a “democratic” state, which presume laws promoting individual sovereignty and equality, are not comfortably conjoined in a country where theocratic power and occupation have been increasingly normalized, at least since 1967. And it is especially difficult to see how surviving leaders of Netanyahu’s Likud Party will see democratic norms as paramount when their political positions depend on not seeing them. Netanyahu’s Justice Minister, Amir Ohana, said that he is “completely confident that the test of history” will vindicate Netanyahu’s remaining in office. The Tourism Minister, Yariv Levin—an attorney and a former deputy head of the Israel Bar Association—defended Netanyahu’s claim that the investigations were “tainted.”

Just twenty-four hours before Mandelblit announced the indictments, Benny Gantz, whose Blue and White Party won a plurality in Israel’s September election, informed President Reuven Rivlin that he had failed to form a governing coalition, which would have made him the next Prime Minister. Gantz blamed his failure primarily on Netanyahu’s determination to escape prosecution. Urged on by Avigdor Lieberman—the leader of the secular, right-wing Yisrael Beiteinu (“Israel, Our Home”) party, who holds the balance of power in the Knesset—Gantz had tried to form a “liberal, national-unity coalition” with Likud. This, Lieberman said, would be a center-right government without either religious “messianic” parties or Arab ones (a slight to Arab leaders, who mainly argue for democratic norms, not Arab-nationalist excesses). Gantz seemed ready to accede to Rivlin’s formula that Netanyahu should be Prime Minister first in such a unity government—with the proviso, to be legally guaranteed, that Gantz would become the acting Prime Minister should Netanyahu be indicted and forced to take a “leave of absence” to defend himself in court.

Netanyahu rejected even this formula, insisting that the Haredi and national-Orthodox parties should join him in a coalition—presumably in exchange for securing Netanyahu’s immunity from prosecution—and that Netanyahu should go first as Prime Minister. Neither condition was acceptable to Blue and White. Frustrated, Gantz quietly floated the idea of founding a minority government resting on the support—actually, the agreed parliamentary abstentions—of the Joint List, composed of parties representing Israel’s Arab citizens. Netanyahu declared, “If a minority government like this is formed, they will celebrate in Tehran, Ramallah, and Gaza the way they celebrate after every terror attack. This would be a historic national terror attack on the State of Israel.”

Lieberman, a nationalist bigot, didn’t need Netanyahu’s demagogy to scotch any such government; key members of Gantz’s own party who were once associated with Netanyahu threatened to sink the idea of a government requiring Arab support. These are not simply tactical moves by sly politicians; they testify to an atmosphere in which an embattled Netanyahu seems certain that he would have the backing of the majority to subordinate liberal democratic institutions. He thus seems, in his own way, to join the ranks of Recep Tayyip Erdoğan, in Turkey, and Viktor Orbán, in Hungary. The attacks on Israeli Arabs are telltale.

Gantz’s response to Netanyahu’s “investigate the investigators” speech was immediate. The country is not “undergoing a government coup,” he said, but rather “an entrenchment.” Yet, as a former Army chief of staff who conducted the 2014 war in Gaza under Netanyahu, Gantz could not fully lay out how brazen Netanyahu’s acts of entrenchment have been. On November 8th, while Gantz was trying to reach a political agreement with the Joint List, Netanyahu appointed the ultra-rightist Naftali Bennett as Defense Minister, reportedly admitting to Likud ministers that inviting his younger rival into the transitional cabinet was a political maneuver, meant to keep his bloc of rightist and Orthodox allies from bolting. Then, on November 12th, Israeli air strikes in Gaza killed Baha Abu al-Ata, a commander of Islamic Jihad, which is backed by Iran.

The Ata assassination was predictably followed by escalating exchanges of fire between Islamic Jihad and Israeli forces, along with new exchanges between Israel and Iranian-backed Syrian forces, culminating in Israeli air strikes on dozens of Iranian and Syrian military targets in Syria, which killed as many as twenty Iranians. Michael Oren, the former Israeli Ambassador to Washington, wrote in The Atlantic that, should war break out in Israel’s north, the country could be hit by as many as four thousand missiles a day. No one should doubt the mounting Iranian threat in Syria. But no one should doubt, either, how convenient the timing of the assassination was for Netanyahu. His and Bennett’s decision to kill Ata came just as Gantz was trying to form a government, arguably, a coincidence: Ata was, Netanyahu said, “a ticking bomb.” Inarguably, however, the ticking must have seemed louder to Netanyahu just as Gantz entertained the idea of coöperating with Israeli-Arab political leaders, many of whom have routinely condemned Israeli military actions in Gaza.

Netanyahu’s remaining in office would mean continued concessions from the Trump Administration, which is apparently eager to show itself a faithful ally to pro-Israel forces in America, and is willing to accommodate Netanyahu with escalating shows of devotion to his rightist base. On November 18th, before Gantz gave up trying to form a government, Secretary of State Mike Pompeo announced that the State Department will no longer abide by its 1978 legal opinion that Jewish settlements in the West Bank are illegal. “The establishment of Israeli civilian settlements in the West Bank is not, per se, inconsistent with international law,” he said. The United States has always accepted the argument that the settlements violate the Geneva Conventions and are, in any case, an obstacle to peace. Pompeo, increasingly embroiled in Trump’s impeachment hearings, seemed more concerned with handing Netanyahu a vote of confidence, in spite of the Prime Minister’s own legal woes.

There are ways out of this crisis, though it’s hard to see how any of them will be taken unless Israeli democrats can mobilize public opinion, which remains sharply divided. A recent poll revealed that slightly fewer than half of respondents think Netanyahu should resign because of the charges pending against him. That’s more than the proportion opposed to or ambivalent about a resignation. The country’s political divide is, in part, geographic. Anti-Netanyahu forces are concentrated in affluent Tel Aviv and along the Mediterranean coast, and pro-Netanyahu forces are focussed in poorer areas—Jerusalem, the settlements, and peripheral towns—and resent the coastal élites about as much as they revere Netanyahu.

The immediate question is how senior Likud leaders will respond. The former Education Minister Gideon Sa’ar has called for a leadership primary and announced that he would run. But others, still cowed by Netanyahu, or just afraid of alienating the increasingly populist rank and file when a primary eventually does come, have argued against any leadership contest now. There seems little doubt that Netanyahu could win a preëmption of a primary from the party’s thirty-seven-hundred-person Central Committee. Earlier this week, he and Haim Katz, the Central Committee’s chair, said that they will advance a joint proposal to cancel a primary in the event of a third general election.

Reports have circulated that Netanyahu would resign in exchange for a Presidential pardon. But this seems an underestimation of the crisis he has precipitated. No one knows what might happen if Netanyahu remains the head of Likud and wins a new election, and the President, reinforced by the courts, refuses to grant an indicted member of Knesset the mandate to form a government. Nor is it known what might happen if another election produces a deadlock or a Blue and White coalition with the Joint List, and Netanyahu supporters take to the streets. The good news, perhaps, is that Tel Aviv’s business leaders and Israel’s police and security establishment—now identified with Blue and White—will also have their say.