Is Netanyahu in real trouble?

While the world looks elsewhere, a legal battle brews in Jerusalem

In April, a group of distinguished Israeli professors, hi-tech entrepreneurs, retired generals, and holders of Israel's highest internal honor, the Israel Prize, petitioned the Supreme Court requesting an order to declare Netanyahu incapacitated from continuing in office.

The petitioners claim that Netanyahu is in an unresolvable, structural conflict of interest that they describe as "powerful and anomalous" regarding the conduct of the Hamas war. They suggest that Netanyahu has a fundamental obligation to conduct the war with the good of the country as his top priority. The claim is that he uses the war illegitimately to hinder the conduct of his trial on corruption charges. The petitioners to the Supreme Court base themselves on the court record of his long-running criminal trial in Jerusalem, where he has on several occasions argued for delays in hearings based on his need to focus on the war. The Jerusalem District Court has been very considerate. The next hearings are only scheduled for December 2024 when he will finally testify, five years after charges were filed. As the war drags on and the long-delayed trial does as well, there is a sense among many in the Israeli public that the two may be connected inappropriately. That feeling impacts on morale. Hence the petition.

The petitioners point out that there is considerable legal precedent demanding of candidates for leadership positions that, should a conflict of interest arise, they must agree to a "conflict-of-interest agreement." The candidate and the State define, and the candidate agrees to refrain, from touching on issues with which they have that conflict. Netanyahu himself signed such an agreement regarding any actions involving his non-engagement with matters of the country's judicial system, so long as he is on trial.

The petition does not argue that he violated that agreement. Instead, it suggests that under current conditions, where the conflict of interest is structural and undeniable, a Prime Minister cannot agree not to deal with the conduct of the war in order to meet his obligation to assist the court in moving forward with his trial. Therefore, any conflict-of-interest agreement is impossible, so there is no choice but to declare him incapacitated from continuing in office so long as his trial continues.

One of the thought-provoking aspects of the petition to the Supreme Court is how, at first reading, it seems counter-intuitive. My first reaction was to think that the petitioners went too far. Of course, a Prime Minister must focus on the conduct of the war. Moreover, it would be counter-productive, even dangerous to the State, for the court to place obstacles in his way when he is so engaged.

Yet, the argument made by the petitioners suggests something more complicated and perhaps more persuasive. We must consider the sad fact that every accused has essential responsibilities, at least in their own eyes, that might lead them to prioritize those matters over assisting the court in expediting judgment, especially when an accused knows they are guilty and seeks to delay the moment of paying the piper. In humanitarian cases like severe illness, a sudden death in the family, and so on, courts can be considerate to a degree. However, judgment must not only be made but must also be seen to be done with reasonable dispatch.

Because we speak of Netanyahu with his troubling patterns of conduct, even if the petition is accepted by the Supreme Court, it might not end there with his resignation. One of the aspects of the Netanyahu years is his repeated creation of situations where he prioritizes his personal political interest over public interests. The country emerges damaged. One example is his decision to continue his political career before clearing his name after the State of Israel filed corruption charges against him in 2019. Ehud Olmert had the public decency to resign under similar circumstances in 2008. Many see his assault on the judiciary in the same light.

The Supreme Court justices face a severe challenge. The petition is logical, so they may find it persuasive. The danger is a constitutional crisis where the Supreme Court declares that Netanyahu cannot continue to serve. That judgement could result in internal violence in a country at war with aggressive enemies beyond its borders, if he refuses to respect the court's decision. With this new petition to the Supreme Court, yet another untenable situation created by Netanyahu's self-serving approach to political leadership may leave the country in a destructive crisis of political legitimacy.

Polls show that two-thirds of Israelis want Netanyahu to leave politics. He gives no indication that he will take the step of national responsibility that the dignity of his office requires of him, following his multiple failures as we discovered on October 7th and he left unaddressed since then. That moral obligation is to resign.