Democracy and Accountability

18 February 2021

In America and Israel, citizens are asking fundamental questions about democracy and systems of accountability.

On February 8, Prime Minister Benjamin Netanyahu formally pleaded not-guilty in the Jerusalem District Court in his long-simmering corruption trial. Israel’s prime minister stands accused of bribery, fraud and breach of the public trust.

The prime minister’s lawyers argue that the trial’s critical evidentiary phase, in which witnesses will begin to give testimony, must be postponed until after Israel’s March 23 election. Yet the very fact that Israelis must return to the polling booth next month to vote in Israel’s fourth parliamentary contest in the span of two years is not unconnected to Netanyahu’s long-postponed trial. His refusal to comply with the terms of his own coalition agreement and agree to a government budget triggered these new elections. Now Netanyahu has another roll of the dice, a fourth chance to assemble a majority in Knesset that may deliver him immunity from prosecution.

Over many months the prime minister has sought to discredit and cast doubt over the process of legal accountability. He has called the state’s case against him illegitimate – a witch hunt – and used the trial as an opportunity to stoke populist grievances. In Netanyahu’s fantastical version of reality, Israel’s elites—the media, the judiciary, and law enforcement—are persecuting him, the champion of the disempowered masses. (Never mind that Netanyahu himself hails from the very same elite or that the crimes he stands accused of involve taking bribes from billionaires to exercise undue influence over those very same media outlets.)

Whether this trial will be seen through to its conclusion depends in large part on whether or not Netanyahu prevails in the election and assembles a Knesset majority willing to pass a special law that shields him from prosecution. Therefore, at stake is not only the basic question of whether the prime minister is guilty or innocent of the crimes for which he stands accused; but whether Israel’s most powerful citizen, the prime minister, can be held accountable to the law at all.

Sound familiar? Here in America, we are also questioning the ability of our political system to hold the powerful to account.

Last month, we witnessed a president incite a mob of loyalists in broad daylight to engage in an act of insurrection against the United States. Last week, we saw the Senate chamber transformed into another kind of courtroom, as House impeachment managers presented their case, seeking to convince their Senate colleagues that the president had deliberately attempted to overturn the legitimate results of an election.

Unlike Netanyahu’s trial, this was a political proceeding – not a judicial one. Yet, as the Senate deliberated over whether to convict a former president for this crime, Americans asked a similar a set of questions about democratic government and accountability. Can a former president be held accountable for crimes he committed while in office—or is he a man above the law? As we watched all but seven Republican Senators vote to shield the former president from accountability, despite the vote by an overwhelming majority of their fellow Senators to convict, we were left wondering what limits can be imposed on those who wield great power.

Meanwhile, at the very some moment, questions of accountability were presenting themselves in an altogether different context. As the Pre-Trial Chamber of the International Criminal Court in the Hague issued its preliminary ruling on the jurisdiction of the Court over alleged war crimes perpetrated by Israelis and Palestinians in the West Bank and Gaza, those of us who are committed to ending Israel’s occupation to save its democracy are presented with a related conundrum around power and accountability. The Court was founded to hold individuals accountable for grave violations of international laws when a country lacks the capacity or will to do so itself. And after over 53 years of prolonged military occupation and settlement, the ICC’s decision around jurisdiction calls into question who is capable of—and responsible for—holding individuals accountable for potential violations of international law in the West Bank and Gaza.

Even as Israel’s judiciary comes under sustained assault by Israel’s populist right and by a prime minister who seeks to undermine its independence and its power to hold him accountable, the ICC’s decision about its jurisdiction turns our attention to the role Israel’s own courts play in holding Israeli decisionmakers accountable for the state’s alleged actions in Gaza and the West Bank. Israel’s High Court has never ruled on the legality under international law of Israel’s settlement enterprise in the West Bank, writ large. But the judiciary’s position—that Israel’s settlement policies in the West Bank are political questions that the courts should not rule on— opens the question of whether it is up to the task of delivering justice for those living under Israel’s occupation, and, if not, what alternative recourses to justice exist for the millions of Palestinians in the West Bank.

In an era when democracy has been tested so profoundly, we find ourselves thinking through basic questions about the role of accountability and justice in our societies. When it comes to Israel and its occupation, the jury is still out on where this critical accountability will come from. What is for certain is that in any democracy, in order to be a nation of laws we must hold the powerful—prime ministers and presidents—accountable.

Yet accountability is not just for those in center of the political spotlight. It’s not just about corruption trials and presidential impeachments. Every day, civil society plays an essential role in demanding it in ways big and small.

It happens as our grantees hold the media accountable for the lack of Arab representation there. And it happens when grantees like the Association for Civil Rights in Israel hold government officials to account when ministers overstep their authority by withholding vaccinations from those incarcerated in Israel’s prisons. We see it when organizations like Physicians for Human Rights Israel remind Israel of its obligations to provide access to the vaccine for those who live under military occupation and those living in Israel without legal status.

I know that our collective democratic future relies on a strong and resilient civil society that mobilizes the activism of its citizens to demand accountability. This is the essential work of civil society, and it is what the New Israel Fund does best.