Articles for author: Aeyal Gross

The Functional Approach as Lex Lata

The ICJ has de facto adopted the functional approach to occupation with regard to Gaza. The Opinion is thus a critical point in the development of the law of occupation, in that it transcends a binary approach to the question of the existence of occupation, in favour of a more nuanced approach that enables holding that a territory is occupied, but not in an “all or nothing” way. More generally, the Opinion as rejects a more restrictive approach to the question of whether occupation exists in a territory or not in favour of a more flexible approach.

12. Oktober 2024

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Did the Israeli Supreme Court Kill the Constitutional Coup?

On January 1, 2024, the Israeli Supreme Court struck down a constitutional amendment prohibiting judicial review of actions of the government, the prime minister, or any minister based on the “reasonableness” doctrine. The judgment illustrates how societal and judicial vigilance in recognizing “early warning” signals of potential “constitutional capture” may play a significant role in battling such processes. However, notwithstanding this judgment and the halting of the legislative process, the threat of democratic backsliding in Israel persists. The ongoing war has, in fact, paved the way for further anti-democratic measures, some of which were upheld by the very same Court that struck down the anti-reasonableness amendment.

9. Januar 2024

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An Unreasonable Amendment

Amidst massive protests taking place in Jerusalem and throughout the country, on July 24th the Knesset (Israeli parliament) passed  Amendment Number 3 to Basic Law: The Judiciary, curtailing the power of Israel’s Supreme Court. The amendment determines that no court, including the Supreme Court seating as the High Court of Justice, may engage with and/or pass judgment on the reasonableness of any “decision” of the government, the prime minister, or any minister; nor may a court give an order on the said matter. The coalition government’s choice to go ahead with the legislation notwithstanding the internal and external pressures may now only deepen the multi-layered crisis the country has been in since January.

24. Juli 2023

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The Battle Over the Populist Constitutional Coup in Israel

On the night of March 26, 2023, the battle over the constitutional overhaul planned by Israel’s Netanyahu government reached an apex moment. Much uncertainty lies ahead. What is clear is that a combination of massive protests, pressure by significant groups in Israeli society such as the tech industry and elite military reservists, and American pressure forced Netanyahu to suspend the legislative process. Whether this development will lead to the burial or the reemergence of the constitutional coup is yet to be seen. The road ahead is complicated, as rejection of the coalition’s plan, while seemingly a victory for the democracy movement, may also serve to feed the populist argument about elites.

31. März 2023

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The Populist Constitutional Revolution in Israel

Israel’s Minister of Justice has published memorandums outlining the (first) major steps in the constitutional overhaul planned by Netanyahu’s new government – an overhaul at the epicenter of the rise of constitutional populism in Israel. The paradoxes of Israeli constitutional law make it vulnerable to such a populist attack, which occurs within a specific ethno-national context involving ongoing military occupation.

19. Januar 2023

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Does the End of the Netanyahu Government Mark the End of “Democratic Backsliding” in Israel?

What does the end of the Netanyahu era mean for “constitutional populism” in Israel, where the “Nation-State Law" was cited as one of the main components of an “anti-constitutional” revolution? To answer these questions, we should recall that the Israeli version of “democratic decline”/constitutional crisis/populism developed against a complex background. The most important element of it is the attempt to entrench Israel’s ethnic nature as a “Jewish state,” against liberal currents epitomized for the right wing in several rulings of the Israeli Supreme Court.

14. Juni 2021

The Paradox of Israel’s Coronavirus Law

On January 12, 2021, the Israeli Supreme Court sitting as High Court of Justice (HCJ) will hear arguments in a series of cases challenging the constitutionality of Israel’s Coronavirus Law. This Law was enacted on July 23, 2020, to replace the Israeli government’s reliance on general emergency powers. It was supposed to curb the government’s powers on restricting rights and ensure parliamentary supervision of enacted measures. In fact, however, it handed the government new executive lawmaking powers rather than limiting them.

8. Januar 2021

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