The Independence of the Israel Police and the Limits of Political Intervention in Its Operations

| Written By:

Israeli Supreme Court Hearing on what is known as the "Ben Gvir Amendment" to the Israel Police Ordinance.

Photo by: Haim Goldberg/Flash90

On Tuesday, June 18, 2024, Israel's Supreme Court held a hearing with an expanded panel of nine justices to discuss the constitutionality of an amendment to the Police Ordinance, which was initiated by MK Itamar Ben Gvir in preparation for the start of his role as the Minister of National Security in the current government (Amendment No. 37 to the Police Ordinance). This legislative amendment, which was passed by the Knesset on December 28, 2022, following a hasty legislative procedure, incorporated provisions that significantly expanded the extent of the Minister's influence over the police. According to the amendment, the Minister of National Security is in charge of the Israeli Police on behalf of the government, and is authorized to outline police policy, the general principles of its activities, and the general police investigations policy. During the hearing, questions regarding the constitutionality of the amendment, in view of its potential for violating the basic rights of Israeli citizens and the impartiality of the Israel Police were discussed. The Supreme Court's hearing on the amendment offered a significant opportunity to address the fundamental and delicate question of the independence of the Israel Police and the permissible limits of political intervention in its activities.

The Petitions before the Court

Shortly after Amendment No. 37 to the Police Ordinance was approved by the Knesset, several civil society organizations and Members of Knesset filed petitions with the Supreme Court, requesting the annulment of the amendment on the grounds that it raises serious concerns about the Minister's interference in the professional discretion of the police over its operations, thereby advancing prohibited political and partisan considerations. The Court decided to consolidate these five petitions.

Among the petitioners in the case were: The Movement for Quality Government in Israel; MKs Mickey Levy and Yoav Segalovich (both retired Israel Police officers); the Labor Party headed by Merav Michaeli; the Association for Civil Rights in Israel, the Public Committee Against Torture in Israel, and the Movement for Moral Purity; and the High Follow-Up Committee for Arab Citizens of Israel and Adalah – The Legal Center for Arab Minority Rights in Israel. Among the respondents were the Minister of National Security, the Knesset, and the Attorney General.

Previous Decisions

On March 19, 2023, Supreme Court Justice Yitzhak Amit decided (following requests made by the Association for Civil Rights in Israel and the Movement for Quality Government for an interim order prohibiting the Minister from interference in the police's response to the judicial overhaul protests) that the Minister is not authorized to intervene in the operational execution details of the police’s response to protests and cannot issue specific directives while such events are taking place. While the Minister may set general policies and principles for the Israel Police, including regarding demonstrations and the blocking and clearing of traffic routes, he is not permitted to issue operational directives regarding the methods of implementing his policy, the use of force at a particular event or the means for dispersing demonstrations.

On June 18, 2023, following a public hearing of the case before Acting Supreme Court President Uzi Vogelman and Justices Amit and Yechiel Kasher, the court issued an order nisi, shifting the burden to the respondents to explain why Amendment No. 37 to the Police Ordinance should not be annulled.

On January 10, 2024, an interim order was issued requiring the Minister to refrain from issuing operational directives to the police regarding the implementation of his policy on the right to protest and freedom of demonstration. This order was issued following social media posts published by the Minister indicating that he intervened in the professional discretion exercised by the police, in order to prevent the Arab Israeli Hadash party from holding a demonstration which aimed to call for a ceasefire, a prisoner exchange deal, and peace. The Court reiterated that the Minister must avoid referring to, among other things, the use of force by the Police at a particular event, the methods of using force, and the means for dispersing demonstrations. The Court also instructed him to refrain from addressing the conditions related to the time, place, and manner of demonstrations, as well as the very approval of holding them. In addition, the Supreme Court Justices criticized the Minister, stating that his behavior was inconsistent with Justice Amit's decision from March 2023.

The State's Position

In her response to the petitions dated March 28, 2024, Israel's Attorney General argued that the amendment, which does not define the scope of the Minister's involvement in Police activity and does not provide the requiredguarantees of checks and balances to protect human rights and the rule of law, created an imbalanced governance structure allowing for abuse and improper politicization of police power, making it unconstitutional. The Attorney General presented several cases in her response demonstrating the improper involvement of the Minister of National Security in police work, such as when he visited the offices of the Department of Internal Police Investigations and made statements to the media while a criminal investigation of a Border Police officer who fired his weapon during riots in Shuafat was being conducted.

After examining the balance between the minister's responsibility and police independence, as shaped over the years in Israeli law, the Attorney General concluded that the section of the amendment allowing the minister to outline police investigation policies should be annulled. Regarding the other sections of the amendment, the Attorney General believed they could be accepted, provided that a "sustaining interpretation" is read into the amendment, in order to ensure the protection of human rights and prevent the politicization of police work, and only if the minister publishes the policy he outlines in advance. However, the Attorney General argued that if the Supreme Court justices find that the amendment cannot be interpreted in this manner, the entire amendment should be annulled.

On May 27, 2024, the Chief of Police sent a letter to the Attorney General describing, among other events, several cases of the Minister's interference in police operational activities to secure humanitarian aid conveys to the Gaza Strip – aid transferred following a decision by the Security Cabinet. The Chief of Police also described how he discovered through media reports that the minister had spoken with senior police officers and agreed with them on the "suspension" of officers who used force against those attempting to gather illegally at Mount Meron

Following these revelations, state representatives filed a request with the Court on June 14, 2024, to add this letter to the case files. The request, which was accepted by the court, stated that the minister's conduct indicated a "blatant violation of the law and improper interference by the minister in the police's operations." According to the state representatives, the Minister's actions described in the Chief of Police's letter were prohibited before Amendment No. 37 to the Police Ordinance and remain prohibited even after its passage.

The Position of the Minister of National Security

The Minister of National Security, who requested independent representation in the case (i.e., not by the State’s Attorney General), argued in an affidavit submitted in March 2024 that the amendment anchors his authority to set police policy and that a reasonable interpretation of the amendment would lead to a conclusion that it is "consistent with the fundamental principles of the system." He therefore argued that it does not violate fundamental rights or democratic values. He further argued that the petitioners' claims that the amendment could lead to the politicization of the police are baseless. Additionally, in June 2024, the minister submitted a critical response to the state's representatives' claims in the case, arguing that he is required to influence the fields of police investigation and prosecution, which he oversees. Therefore, the minister seeks to dismiss the petitions in this case and compel the petitioners to pay "significant damages."