Analytical Outlook towards Israel's Judicial System and the Trial of Mr Benjamin Netanyahu

Dhanya Viswesvaran,

Research Intern,

Internationalism.

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Introduction

Benjamin Netanyahu (henceforth, “Netanyahu”) is Israel’s longest-serving and sitting Prime Minister (henceforth, “PM”). He is currently undergoing trial for charges of bribery, fraud, and breach of trust under three cases. [1] However, despite such adversarial circumstances, Mr Netanyahu swore himself as the Prime Minister for the fifth time in his career, a feat he achieved by means of an unusual power-sharing agreement. [2] This agreement is an ode to his knack of being able to maintain power in even the most adverse of circumstances.

Apart from understanding the legal aspects around the three cases that Netanyahu has been indicted for, one also needs to understand the factors that underlie the functioning of the Israel Supreme Court. An understanding of the latter could even help us make educated guesses regarding how Netanyahu’s trial may proceed in the near future.

An In-Depth Study of the Relevant Cases

Netanyahu’s problems began in 2018 when two police reports stated that there existed enough evidence for him to be indicted in three cases. The facts and charges for these three cases have been laid down in a 63-page indictment. [3]

Case 1000

Facts

Netanyahu and Israeli-American businessman Arnon Milchan (henceforth, “Milchan”) shared a personal relationship since 1999. In 2013, Milchan further introduced Netanyahu to Australian businessman James Packer (henceforth, “Packer).

Netanyahu would often receive goods, mainly cigars and champagne bottles, from both these business tycoons. It is important to note that these goods were transferred to Netanyahu and his family on a continuous basis, were often a product of requests and demands from them and had an aggregate value of around 1 million Israeli New Shekel (INS). In fact, these goods would be sent through even when Milchon and Packer were not present in Israel.

It is believed that the aforementioned transfers were in relation to Netanyahu’s role as the PM of Israel and the power that his position afforded him. On various occasions, Netanyahu acted for the benefit of Milchon by virtue of his official position. Prime examples of this are when he helped Milton secure a U.S. entry visa by intervening with government officials in 2013 and 2014, and when he contacted heads of ministries such as the Finance Ministry and the Ministry of Communications to provide extensions and assistance in relation to investments Milchon was making.

Charges

For his actions, Netanyahu has been charged with breach of trust, since public trust and integrity has been majorly hampered. However, he has not been charged with bribery despite the police report stating that “the relationship between the Prime Minister and Mr Milchon was one of criminal bribery and not an innocent one between friends.”

Defence

Netanyahu’s defence, in this case, was that the exchange of goods were merely gifts and that there was nothing wrong with receiving such gifts from friends. Further, Netanyahu was not aware that his family was requesting and demanding goods from Milchon and Packer.

Analysis

The fact of the matter is that Netanyahu should have refrained from getting involved in Milchon’s matters, especially by wielding his influence as the PM of Israel. There was clearly a conflict of interest between his responsibilities as a public servant and his personal convictions in aiding Milchon. This should have been recognized and avoided. The major question that the Court will have to tackle is whether these exchanges constituted gifts, illegal benefits, or a mix of both.

The Prosecution will want to focus on merely the exchanges that occurred between 2007 to 2016, that is when Netanyahu was in power. However, the Defense will seek to emphasize that Netanyahu and Milton share a twenty-year-old friendship and there were various transactions happening between them even when Netanyahu was not in power. In fact, Netanyahu himself has given Milchon various gifts, ones that are measurable in monetary terms.

Regarding the valuation of the exchange that occurred, the Prosecution will push for the 1 million INS to be seen as a whole to afford it more gravitas. However, the Defense will break it into pieces, such that the transaction amounts are spread out over a number of years and hence, are of comparatively smaller and seemingly irrelevant amounts.

They will also try to connect specific gifts to specific events and try to prove that most gifts were made to Netanyahu’s wife Sara Netanyahu, of which Netanyahu himself had no knowledge. This is where the Prosecution will try to bring in someone who can provide proof of an intervention by Netanyahu, invalidating the argument that he did not know about requests and demands made by his family for goods. The Prosecution will also cite the regularity of the transactions as a redeeming factor in why they shouldn’t be viewed as redeeming gifts.

The Prosecution’s trump card will definitely be the involvement of Packer. They will allege that Packer was brought in by Milton because he was not able to keep up with Netanyahu’s requests for gifts on his own and needed some external support.

Finally, Netanyahu’s acts of aiding Milchon will be questioned, especially the bill he pushed that would have allowed Milchon to benefit from tax exemptions. The Defense will have to prove that the economic benefits of the bill would outweigh the seemingly singular benefit to Milchon. Additionally, they will point out actions that were undertaken by Netanyahu that would have caused a loss to Milchon. This particular issue will form the core for determining whether the transactions merely constituted gifts or a quid-pro-quo bribery agreement.

Case 2000

Facts

For many years there existed a rivalry between Netanyahu and Arnon Mozes (henceforth, “Mozes”). Mozes is the owner and publisher of ‘Yedioth Ahronoth’, Israel’s leading newspaper and he never failed to broadcast Netanyahu in a negative light in his daily.

Over the course of many years, several meetings were held between Netanyahu and Mozes where they negotiated an arrangement that would work in both of their mutual interest. Netanyahu promised to impose restrictions on another leading newspaper ‘Israel Hayom’, in exchange for which Mozes promised to give Netanyahu favourable coverage in his newspaper.

Before the elections for PM in 2014, one of these meetings was held where Mozes offered Netanyahu a bribe. He promised Netanyahu negative coverage of his political opponents in exchange for Netanyahu advancing legislation restricting Mozes’ opponents. Netanyahu never actually rejected Mozes’ offer, despite not agreeing to go through with it either. In fact, discussions between both of them continued even after this meeting and Netanyahu constantly gave Mozes the impression that he was doing everything in his power to advance legislation in favour of the latter, while Mozes held up his end of the bargain.

Charges

In this case, while Mozes is charged with offering a bribe, Netanyahu is charged with breach of trust, similar to case 1000 and additionally, with fraud. The lack of a bribery charge is because Netanyahu never explicitly agreed to accept the bribe proposed by Mozes.

Defence

Netanyahu’s defence has claimed in this case that he had no intention of ever realizing his deal with Mozes and the former’s actions were merely an attempt to fool the latter. Further, they also claim that relations between politicians and media persons should not be unnecessarily criminalized as a ‘give and take’ relationship is common between such persons.

Analysis

This case is very similar to Case 4000, another case that Netanyahu has been indicted under. However, Case 4000 is a lot more serious than this particular case and it seems to indicate a certain trend of Netanyahu entering quid-pro-quo agreements. This seems to cast reasonable doubt on his character. with Netanyahu looking to gain favourable media coverage so that he can continue to stay in power with the people’s support.

In fact, Netanyahu has been caught on tape in this particular case, where he can be seen telling Mozes that he will do everything in his power to convince his rival newspaper to limit circulation. However, he does not detail these methods that he will use, and in all possibility, can even be interpreted as him promising to make a friendly plea to limit circulation. It is not especially incriminating.

Israel has had a similar high-profile bribery case before this one, the trial of former PM Ehud Olmert (henceforth, “Olmert”). Olmert was convicted for accepting money from real estate developers when he held the position of mayor of Jerusalem. However, he did resign from his post before he was indicted, making this case a somewhat indirect precedent to Case 2000, especially since his case involved an actual conviction on bribery. Regardless, Olmert’s case will provide some support regarding Case 2000 as well as Case 4000.

Case 4000

Facts

While Netanyahu was the PM of Israel, Shaul Elovitch (henceforth, “Elovitch”) was the controlling shareholder of the Bezeq Group. While Netanyahu’s position as the Communications Minister gave him the authority to grant permits and approvals related to activities of the Bezeq Group, Elovitch had the ability to influence the website ‘Walla’ that was owned by the Group.

Realizing their positions, Netanyahu and Elovitch reached a quid pro quo agreement whereby Netanyahu and his family could make demands as to how they wanted to be represented on the Walla website, while Netanyahu promised to promote matters related to Elovitch and his family in a way that it benefitted their business interests.

Elovitch was very open to people working at Walla about why Netanyahu had to be given favourable media coverage. He explicitly linked such favourable coverage with the taking of regulatory decisions that would benefit their business. However, he did try to destroy all evidence of such an agreement with Netanyahu by erasing cell phone records and ordering individuals to be tight-lipped. Netanyahu, on the other hand, deliberately hid the nature of his relationship with Elovitch. He gave partial and misleading information to official bodies when he was questioned.

Charges

Netanyahu has been indicted for bribery, fraud, and breach of trust. The police report also recommended all these charges plus obstruction of justice for Sara Netanyahu but she was not indicted. Elovitch and his family, on the other hand, have been indicted for bribery, obstruction of justice, obstruction of an investigation, money laundering, and securities violation.

Defence

Netanyahu’s defence has claimed that there exists no proof that Netanyahu conditioned his regulations in exchange for favourable coverage. In fact, all Netanyahu really wanted to be a balanced coverage ‘out of ideology’ and wanting such coverage does not, in any way, constitute a bribe. Additionally, the defence also claims that Netanyahu in no way tried to hide his relationship with Elovitch from official bodies. In fact, all his acts as the Communications Minister were approved by the professional staff of the ministry.

Analysis

This is by far the most serious case out of all the three. Netanyahu’s defence will have a hard time proving that Netanyahu was not in the wrong when it comes to this particular case.

While there exist thousands of messages between Netanyahu’s messengers and key position holders in Walla to prove the existence of a bribery scheme, a commensurate amount of articles bashing Netanyahu for his management of events, especially in the critical time leading up to the elections will definitely cast some doubt on all the evidence the prosecution brings forward. A comprehensive review of all the coverage may very well show that the negative coverage exceeded the positive coverage Netanyahu got from Walla. Further, no messages were sent by Netanyahu himself, rather by his messengers. This could always mean that Netanyahu himself had no idea what was being said on his behalf.

As for claims of the Prosecution that Netanyahu deliberately concealed information, the Defense may use a certain authoritative government report that does not require friendship-level connections to be disclosed broadly. It is possible to take a narrow interpretation regarding such disclosure. The Defense will stress that Netanyahu was not obliged to reveal his ties with Elovitch.

However, there is ample evidence that speaks for itself and proving the innocence of the parties involved will be easier said than done.

Understanding Israel’s Judicial System

Israel does not have a constitution. Instead, what it follows is a democratic form of government, broadly organized by an understanding of constitutional principles and basic laws, which gives every majority lawmaker to the ability to influence the system in whichever way they please. [4] The Courts in any and all types of democracies are supposed to be bodies that make sure that laws passed are based on the underlying principle of justice, equity, and good conscience. However, the functioning of Courts in Israel is trickier still, considering they do not have an officially laid down Constitution to guide them.

The Court’s attitude towards deciding the matters that come up before it can be broadly analyzed by looking into a few questions that it has decided, specifically involving Netanyahu himself.

Netanyahu and Gantz’s Power-Sharing Agreement

When the power-sharing deal struck between Netanyahu and his main rival Benny Gantz (henceforth, “Gantz”) was sent to the Court for an evaluation concerning its validity in a democracy, the Court’s decision that it could not find anything wrong with it from a legal standpoint came as a surprise to many. This power-sharing deal involved allowing Netanyahu to be PM for the first 18 months and then letting Gantz take over as the PM for the next 18 months. [5] While one individual is in power, the other individual assumes the role of Deputy PM, allowing both men to constantly stay in power in some way. [6]

Was this deal necessary? Yes. After three failed elections, pursuant to which no clear majority was able to be reached and further difficulties in forming a coalition government, the situation was tense. [7] Israel was potentially leaderless, which was especially concerning in the face of the COVID-19 pandemic that was gripping the world and Netanyahu’s impending trial. A fourth election would not only be expensive and time-consuming but also a risky venture with past trends not indicating a favourable outcome.

Despite the fact that the deal shortened the term of the ruling government from four to three years and considerably weakened the power of the opposition to raise objections and keep a check on the power of the ruling government, the deal came as a necessary evil, if not a very positive outcome. [8] Attorney-General Avichai Mendelblit (henceforth, “Mendelblit”) on his evaluation of the agreement did contend that it contained certain “warning signs”, but refrained from making a premature analysis for the simple fact that no agreement of a similar kind had ever been implemented before. [9]

The question of whether Netanyahu can remain in power while facing indictment

The reason for this question to arise was a 1993 ruling of the Israel Supreme Court which mandated that a PM had to dismiss any member of his cabinet who had been indicted. [10] The logic behind this ruling was that while an indictment did not provide any confirmation of an individual’s guilt, it did cast reasonable doubt on their character, which is especially worrisome in the case of a public official. Additionally, this ruling was further extended to include mayors as well. [11] Hence, it seemed logical enough that this ruling would act as a precedent and Netanyahu would be asked to step down until he was acquitted. However, this did not happen.

The Court considered a quasi-constitutional principle instead which stated that a PM can stay in office until he is convicted and the very last appeal is exhausted. [12] Logically, this process could take years, by which time the term of the PM itself would end. The reasoning behind this principle is that an indictment alone is not enough to make a country leaderless, the consequences of which could be far worse than having a leader whose guilt hasn’t even been proven in the first place. [13]

However, this particular case is made even more complicated by the fact that the question raised was not whether a sitting PM can continue to remain in power, rather where an indicted PM can be allowed to be re-elected. The judgement was given by Chief Justice Esther Hayut (henceforth, “Hayut”) gave credence to the will of the majority and the people’s ability to make an informed decision about their leader. She held that the Court should limit itself to interfering in only “rare and unusual situations and the most extreme circumstances,” holding that the current case is not one of them. [14]

Hayut’s decision has been criticized by other judges such as Justice Eliyahu Matza, who retorted that if this case wasn’t an extreme one, then which one is. He went on to say that “The Supreme Court has passed up an opportunity that may not return to law an ethical foundation for the institutions of government in Israel.” [15]

Inferring a general trend and the Court’s approach towards general questions and decisions revolving around Netanyahu’s specifically

The Court’s approach seems to be one of ‘Lose the battle, win the war’. While it let Netanyahu remain in power, one could theorize that the three cases against Netanyahu are in fact strong enough for the Court to come out with a conviction. However, before making this assertion, we must understand the politics behind the Supreme Court and the various members of the Israel Parliament.

The alt-right members of Netanyahu’s party Likud have consistently attempted to curb the power and independence of the courts of Israel. [16] Netanyahu even went as far as to threaten that in case the Courts ruled against him, saying “the masses will go out on the streets,” for him. [17] These occurrences are highly probable too. In fact, the legislature has proposed various measures to make Courts subordinate to its acts. A prominent example of this is the proposition of an Override Clause being implemented which would limit the Court’s power in overturning laws that are passed by the Legislation. [18] In fact, Justice Hayut is somewhat suspected to be under the influence of Justice Minister Ayelet Shaked who is a vocal supporter of Netanyahu. [19] If that is in fact true, then Netanyahu’s trial just might end with an acquittal.

The simple fact of the matter is, Israel’s Legislature does have an upper hand as compared to Israel’s Judiciary. All it takes is a vote approval from 61 out of 120 members to pass legislation, a number that isn’t too difficult to achieve. [20] When this information is comprehended, it makes a lot of sense why Israel’s Judiciary would want to adopt a cautious approach when it comes to deciding matters.

Israel’s Channel 13 legal commentator Baruch Kra sums it up beautifully, “Despite what judges and prosecutors love to tell you, the walls of the court aren’t really insulated against outside noise.”

Conclusions

Netanyahu’s trial puts Israel and its Justice System in a precarious position. Either the Court can convict Netanyahu and risk facing the wrath of his right-wing supporters, or it could acquit him and risk upholding the pillars of democracy and the principles of justice, equity and good conscience.

Those who have long opposed Netanyahu have also turned over to his side in these tough times, the most prominent example of such an occurrence being Gantz who, for years, left no stone unturned in trying to cast Netanyahu in a negative light. However, now he is Netanyahu’s ally and seems to have turned on his word.

In this situation of fight or flight, will Israel’s Supreme Court rise to the occasion and do what the law mandates it to do or be influenced by the plethora of external forces that inevitably govern its functioning? It remains to be seen.

The paper based on the excerpts of this academic analysis is set to be published in the Global Relations and Legal Policy, Volume 1 (2020).