Israel\u2019s so-called judicial reform was launched by Prime Minister Benjamin Netanyahu\u2019s right-wing government in January 2023.1<\/sup><\/a> The \u201creform\u201d is underpinned by proposed legislation that could alter the composition, powers, and independence of the judiciary. These proposed changes sparked large-scale protests and riots in Israel which were still ongoing at the time of writing (June 2023). The Israeli Declaration of Independence (May 1948) states that a constitution will be legislated by October 1948.2<\/sup><\/a> However, due to narrow political considerations and the need to maintain stability within Israel\u2019s coalitions over the years, a constitution has never been established.3<\/sup><\/a> Thus, for the past few decades, the Israeli Supreme Court has served as the primary defender of civil rights, individual rights, and the rights of minorities, including the lesbian, gay, bisexual, transgender (LGBT) community and Palestinians.4<\/sup><\/a> The proposed \u201cjudicial reform\u201d also has the potential to further escalate the Israeli\u2013Palestinian conflict, because, since the late 1980s, the Israeli Supreme Court has played a critical role as a protector of the human rights of Palestinians living in East Jerusalem and the West Bank.5<\/sup><\/a><\/p>\n While, as mentioned above, critics argue that the proposed measures would have detrimental effects, the reforms could be of great personal benefit to Netanyahu, who is facing a series of corruption allegations and a lengthy legal process that could end with his conviction. The charges against Netanyahu include bribery, fraud, and breach of trust, and his indictment represents a pivotal moment in Israeli politics with potential ramifications for the country\u2019s governance and international standing.6<\/sup><\/a><\/p>\n Moreover, some of Netanyahu\u2019s coalition partners could also greatly benefit from the \u201creform\u201d of the Israeli Supreme Court. For example, Haredi of the<\/em> (ultra-Orthodox) United Torah Judaism<\/em> (UTJ) party is determined to undermine the Supreme Court\u2019s long-standing position on Haredi enlistment in the Israel Defense Forces (IDF).7<\/sup><\/a> For many years, ultra-Orthodox men have enjoyed a near-blanket exemption from national military service, instead preferring to devote themselves to religious study (although a small percentage do choose to enlist). However, in 2012, the Supreme Court declared the law allowing this arrangement discriminatory and struck it down.8<\/sup><\/a> Moshe Gafni, chair of the UTJ party, expressed his satisfaction with the expected passage of the judicial reform legislation with the words: \u201c34 years since I was elected to the Parliament, I have been waiting to take down the Supreme Court\u2019s power. There is no area where it did not hurt us.\u201d9<\/sup><\/a><\/p>\n Meanwhile, the president of Israel, Isaac Herzog, has been pressuring the parties to engage in a dialogue about the main features of the reform since March.10<\/sup><\/a> The president of Israel holds an apolitical position and is elected by the members of the Israeli parliament every seven years.11<\/sup><\/a> As tension was rising and civil violence had erupted, Herzog stepped in and called for the judicial reform legislation to be paused, emphasizing the need for national unity and political dialogue.12<\/sup><\/a><\/p>\n When massive demonstrations escalated into further violence, at the end of March 2023, Netanyahu responded to Herzog\u2019s invitation, announced that the coalition agreed to pause the contested new legislation.13<\/sup><\/a> Netanyahu stated that this provided an opportunity to start a dialogue on the so-called reforms with the opposition.14<\/sup><\/a> The discussions about the main features of the contested reform, which involved members of the coalition and opposition, took place at President Herzog\u2019s residence. While the negotiations are officially ongoing (as of June 2023), there has been no meaningful breakthrough.<\/p>\n In the financial realm, analysts from Fitch Ratings and J.P. Morgan, among others, made a worrying announcement on February 23 regarding Israel\u2019s judicial reforms, suggesting a downside risk for the country\u2019s credit rating.15<\/sup><\/a> Drawing a parallel with Poland, which underwent similar reforms, J.P. Morgan\u2019s research teams pointed out that Netanyahu\u2019s \u201creform\u201d, including the potential undermining of checks and balances, has raised concerns about its impact on the rule of law and governance in Israel.16<\/sup><\/a> J.P. Morgan\u2019s analysts highlight that these so-called reforms could weaken the country\u2019s institutional framework and create uncertainty regarding the protection of property rights and contract enforcement. Such developments may undermine investor confidence and have implications for Israel\u2019s creditworthiness. However, given Netanyahu\u2019s personal promise to Fitch Ratings analysts that the current legislation will not continue, Israel\u2019s rating has remained stable for now, subject to successful negotiations on the reforms.17<\/sup><\/a><\/p>\n Besides the domestic protests against Netanyahu\u2019s proposed legislation, the reforms in question have also raised concerns about the country\u2019s democratic tradition and the impact on its foreign relations with its closest allies, especially Germany. However, these recent events have led to a more critical position on Israel in German foreign policy and the \u201cspecial ties\u201d between the two countries have increasingly been called into question.<\/p>\n Germany\u2019s approach toward Israel is multifaceted and guided by various factors, including its own national interests and considerations. One of these factors is, for example, Russia\u2019s war on Ukraine.18<\/sup><\/a> The conflict has prompted Germany to reevaluate its previous security policies and make adjustments to its long-term security strategy, including taking a fresh perspective on the security needs of the European Union (EU).19<\/sup><\/a> Under Olaf Scholz, Germany is more focused on its own security requirements, and as a result, the security of Israel may be a lower priority than before, particularly considering the plan to overhaul the Supreme Court proposed by Netanyahu\u2019s government.20<\/sup><\/a><\/p>\n Staatsraison<\/em> is the German term for raison d\u2019\u00e9tat or reason of state. Specifically, it depicts Germany\u2019s commitment to Israel\u2019s safety and national security and is based on the German sense of responsibility and guilt regarding the Holocaust. Thus, Israel\u2019s survival as a Jewish and democratic nation has been a central tenet of post-war (West) Germany\u2019s Staatsraison<\/em>. Germany\u2019s national security commitment to ensuring Israel\u2019s safety has been focused on countering external threats through arms trading, accessing innovative technology, exchanging knowledge, and sharing intelligence. Additionally, Germany has advocated Israel\u2019s right to exist as a Jewish and democratic state in international forums.21<\/sup><\/a> This new situation has given rise to the threat of internal conflicts \u2013 possibly even a civil war \u2013 and arguably Israel\u2019s self-sabotage when it comes to the country\u2019s democratic status. This presents significant \u2013 and very new \u2013 challenges for Germany, not least the need to preserve the health of Israel\u2019s democracy.<\/p>\n It is important to note that the Reparations Agreement (Wiedergutmachungsabkommen<\/em> in German; Heskem HaShillumim<\/em> in Hebrew), signed in September 1952 between Israel and the Federal Republic of Germany (FRG), was a key factor in the survival of Israel in its first decade of nationhood.22<\/sup><\/a> The Wiedergutmachungsabkommen<\/em> helped build the economy and the healthcare system and was crucial to establishing Israel\u2019s security and a modern military. The FRG provided compensation and restitution to survivors of the Holocaust, both through direct payments to Israel and through the efforts of the Conference on Jewish Material Claims against Germany.23<\/sup><\/a><\/p>\n However, in the German Democratic Republic (GDR), the Reparations Agreement faced strong opposition. The GDR\u2019s political elite contended that the most appropriate and morally just compensation they could provide would be to eradicate all remnants of the Nazi regime and German fascism.24<\/sup><\/a><\/p>\n Moreover, the reparations were a key factor in the polarization of the Arab\u2013Israeli conflict and the arms race in the Middle East.25<\/sup><\/a> This was because the reparations were very much coloured by the polarized nature of Cold War loyalties at the time, in which the Soviet Union and, by extension, also the GDR sided with the Arab nations of the Middle East, and the US and its allies principally sympathized\u00a0 with Israel.26<\/sup><\/a><\/p>\n The unification of Germany in 1990 marked a significant turning point in German history. It should be \u00adnoted that post-unification German foreign policy and the FRG\u2019s Staatsraison<\/em> are influenced by Germany\u2019s acknowledgment of the Holocaust, the Reparations Agreement, Holocaust education, and reconciliation with Israel and the American Jews and the \u201cspecial\u201d nature of German-Israeli relations.27<\/sup><\/a><\/p>\n In March 2008, German chancellor Angela Merkel addressed Israel\u2019s parliament (the Knesset<\/em>) in German and Hebrew. She said that she bowed in shame to Holocaust victims. Merkel also spoke of the legacy of German Staatsraison<\/em> and the danger of a nuclear Iran: \u201cTogether with its partners, Germany is setting its sights on a diplomatic solution. But if Iran does not come around, the German government will remain fully committed to sanctions. [\u2026] While we speak here today, thousands of people are living in fear and dread of missile attacks and acts of terror by Hamas.\u201d Merkel also noted that, \u201cthe threats directed against Israel and the Jewish people by the Iranian President are without doubt a particular cause for concern\u201d.28<\/sup><\/a><\/p>\n Evidence of the possible shift in German foreign policy and change in the direction of the country\u2019s Staatsraison<\/em> toward Israel, can be found in Merkel\u2019s remarks during her visit to Jerusalem in October 2021.29<\/sup><\/a> She noted: \u201cIt is a mistake to base relations between Israel and Germany only on the memory of the Holocaust.\u201d30 <\/sup><\/a>This statement is open to different interpretations, one of which suggests that Merkel was referring to Israel\u2019s heavy reliance on German Staatsraison<\/em>, particularly the \u201cspecial ties\u201d that stem from the shared values of Holocaust education and protecting Israel\u2019s security. However, it would be a mistake to view this trend of discord between Israel and Germany as something entirely new. It has been brewing since Netanyahu first returned as prime minister in 2009, and his brand of hard-line politics has also strained relations with the EU.31<\/sup><\/a><\/p>\n In the last decade, Netanyahu has developed close ties with populist, far-right, and illiberal Eurosceptic leaders, such as those of Poland and Hungary, who harbor hostility toward the EU and Germany. Another factor contributing to the tension is that Hungary (2010) and Poland (2015) have revised their judicial systems, resulting in the undermining of their democratic checks and balances. Clearly, the successful overhaul of the judicial system by Poland\u2019s and Hungary\u2019s illiberal governments has served as inspiration for Netanyahu\u2019s coalition.32<\/sup><\/a> Germany and the European Commission have the authority to impose sanctions on Orban\u2019s Hungary due to systemic deficiencies related to the rule of law that pose a threat to the EU\u2019s financial interests.33<\/sup><\/a><\/p>\n In the case of Israel, such sanctions are not an option. However, an insight into German Staatsraison<\/em> toward Israel can be found in a recent visit by Netanyahu to Berlin. A statement made by German chancellor Olaf Scholz offers an important clue as to Germany\u2019s complex position on Israel\u2019s proposed \u201cjudicial reforms\u201d and how the issue might ultimately significantly strain the \u201cspecial relationship\u201d between Israel and Germany. On March 17, 2023, Netanyahu and Scholz stood side by side at Platform 17, a memorial at a Berlin train station commemorating the thousands of Jews deported from the city to their deaths by the Nazis.34<\/sup><\/a> In his short address, Olaf Scholz predictably stated: \u201cThe security of Israel is our raison d\u2019\u00e9tat\u201d On the subject of Netanyahu\u2019s judicial reforms, he commented: \u201cAs partners who share democratic values and as a close friend of Israel, we are following this debate very closely, and I won\u2019t deny, with much concern.\u201d35<\/sup><\/a> This mixed message further illustrates the tension surrounding the varied interpretations of German Staatsraison<\/em> concerning Israel.<\/p>\n Despite the similarities between the \u201cjudicial reforms\u201d of Israel, Poland, and Hungary, Germany\u2019s approach toward Israel, driven by Staatsraison<\/em>, is currently developing a less critical tone. However, it is important to acknowledge that this situation could change in the foreseeable future, particularly in the context of Russia\u2019s war on Ukraine, which has seen Germany reevaluate its previous security policies since February 2022.<\/p>\n In the current political atmosphere, politicians such as Olaf Scholz and Annalena Baerbock could potentially adopt a more critical stance toward Israel, particularly regarding the conflict with the Palestinians, the possibility of introducing the death penalty for Palestinian terrorists, and the construction of more settlements in the West Bank. These issues may prompt a further reassessment of Germany\u2019s \u201cspecial ties\u201d with Israel and lead to a more nuanced approach in the future.<\/p>\nIsrael\u2019s National Security and German Staatsraison<\/em><\/strong><\/h2>\n
German Staatsraison<\/em> toward Israel: The Uncertain Future of the \u201cJudicial Reform\u201d and the \u201cSpecial Ties\u201d<\/h2>\n
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