Post-war Gaza and failed judicial reform strain Netanyahu’s governing coalition

Joe Biden provided a diagnosis of the Israeli government’s ability to maneuver in the face of the war in Gaza and its consequences on December 12. The U.S. president said that Benjamin Netanyahu “has to change” and address his government coalition — “the most conservative in Israel’s history” — because “this government in Israel is making it very difficult for him to move.” Almost a month after those statements, the ultra-Orthodox and ultra-nationalist elements of the emergency government forged by the Israeli Prime Minister continue to clash with him over the post-conflict scenario. They openly call for the total occupation of Gaza, the construction of new settlements, and even the expulsion of Palestinians from the Strip, which drastically limits the actions of their head of government. To this scenario is now added the fiasco of the controversial judicial reform promoted by Netanyahu, which the Supreme Court annulled Monday.

The most extremist position is headed by the Minister of the Interior, Itamar Ben-Gvir, leader of the ultra-right-wing Otzma Yehudit (Jewish Power). On Monday he again advocated a post-war scenario of “encouraging the migration of the residents of Gaza.” Ben-Gvir called the proposal “a correct, just, moral and humane solution.” He then called on the prime minister to coordinate a legal project to push Gazans to emigrate to other countries. “Let’s be clear: we have partners in the world whose help we can use,” he said. Ben-Gvir believes that by encouraging Palestinian emigration, residents of the towns near the Strip that were attacked on October 7 by the Palestinian militia Hamas could return to their homes, but also those in the settlements of Gush Katif, in Gaza itself, which were closed and evacuated in 2005.

A similar position is held by Finance Minister Bezalel Smotrich. On Sunday, in an interview on army radio, he assured that his aspiration was for Gaza to cease being “hothouse of 2 million people who want destroy the State of Israel.” Unlike Ben-Gvir, Smotrich did not outline a method of driving out the Palestinians residing in the Strip, but favored expelling about 90% of the population. “If there are 100,000 or 200,000 Arabs in Gaza and not two million, the whole discourse about the day after [the war] will be different,” he said. To that end, he advocates that Israel take control of the Strip not only through military presence, but also by installing civilians. Some voices within the conservative Likud, the Prime Minister’s party, have also called for “facilitating” the departure of Gazans “on a voluntary basis” to countries in Africa or Latin America.

U.S. State Department spokesman Matthew Miller said Tuesday that Washington rejects the statements of both ministers calling for new Israeli settlements in Gaza. “This rhetoric is inflammatory and irresponsible. We have been told repeatedly and consistently by the Government of Israel, including by the Prime Minister, that such statements do not reflect the policy of the Israeli government. They should stop immediately,” he said in a statement. “We have been clear, consistent, and unequivocal that Gaza is Palestinian land and will remain Palestinian land, with Hamas no longer in control of its future and with no terror groups able to threaten Israel. That is the future we seek, in the interests of Israelis and Palestinians, the surrounding region, and the world.”

Reduced maneuverability

Under these conditions, Netanyahu’s ability to maneuver is severely restricted. Washington, the EU, the United Nations, and his Arab allies are exerting increasing pressure on him to design a post-war scenario in which the Palestinian National Authority (PNA), which governs in the West Bank, would also have a presence in Gaza. The scenario they suggest is to return to the path of the talks that led to the Oslo Accords, which resulted in the creation of the PNA and divided civil administration and security responsibilities between the new authority and Israel, with an eye toward the creation of a Palestinian state.

Netanyahu has for years refused to resume these negotiations to avoid new territorial concessions to the Palestinians, although after the outbreak of the war and the increase in international and internal pressure to bring back the 129 hostages still held in Gaza, he has made his position more flexible, although always employing trade-offs.

In public, Netanyahu has maintained that he does not want to “replace Hamastan for Fatahstan” — that is, that he does not want Fatah, the party of Palestinian President Mahmoud Abbas, to be in charge in Gaza when he hypothetically achieves his goal of eliminating Hamas. However, on December 21, the head of Israel’s Security Council, Tzachi Hanegbi, published an article in a Saudi newspaper in which he opened himself to a “de-radicalized Palestinian authority” in the Strip. At every press conference, Netanyahu emphasizes the idea of fighting to the end to wipe out Hamas. Then, behind the scenes, he makes concessions to Washington, which asks him to reduce the scale of his onslaught and to consider the possibility of withdrawing part of Israel’s forces. On Monday, five brigades left Gazan territory, although the government and the army stated that the maneuver does not mean a reduction in the intensity of the fighting.

The tensions that are tying Netanyahu’s hands in this unprecedented crisis are not only coming from the parties to his right, but also from those to his left, albeit with less intensity. The more moderate National Unity Party of Minister Benny Gantz — which, according to the polls, would win the general elections if they were held now — last July rejected the prime minister’s big gamble: the judicial reform to remove the Supreme Court’s power to paralyze government decisions it considers unreasonable, an initiative that was overturned by the high court’s own magistrates on Monday.

Gantz has advocated leaving the Supreme Court tussle for after the war. “These are not days for political arguments, there are no winners and losers today,” he maintained on social media. " Today we have only one common goal — to win the war together,” he added, while recalling the polarization and even hatred generated by the approval of that reform, which was passed with the support of the ultra-Orthodox and ultra-nationalists who support the prime minister.

The repeal of the judicial reform has, in addition, a derivative that affects the way in which the war is conducted. Several jurists warned Monday that the ruling reinforces the separation of powers and allows Israeli courts to initiate hypothetical independent investigations against political officials and military personnel in the event that international justice brings charges against them for crimes such as genocide, war crimes, or crimes against humanity. The possibility of opening a full-fledged case in Israel would prevent the International Criminal Court from doing so and would make it difficult to order the arrest of those under investigation in any other country. If the reform had not been annulled, Israeli justice could have failed to meet international standards, which would have allowed the ICC to act without restrictions.

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