There is a widespread perception that Prime Minister Benjamin Netanyahu’s trial may never reach a conclusion. The proceedings have been ongoing for years, and there is widespread skepticism that the trial will ever reach a resolution.
The accused, Bibi Netanyahu, has begun his testimony. He often delivers lengthy, irrelevant speeches reminiscent of a politician addressing the Knesset plenum, and the court neither interrupts him nor steers the discussion back on track. Occasionally, the hearing is paused to deliver an important note to the accused; and sometimes, following the note, a recess is necessary for the prime minister to consult. There is a sense that the judges are conducting the trial with apprehension, desiring to return home safely.
Hearings are frequently canceled, sometimes due to the accused’s medical condition and other times due to state affairs preventing the prime minister from attending court. It must be acknowledged that it is not feasible to properly conduct a criminal trial against a sitting prime minister. Israel’s prime minister is an exceptionally busy individual, even in times of peace and certainly during wartime. It is impractical to conduct a criminal trial against a sitting prime minister, as state affairs frequently take precedence over court appearances. Netanyahu, as prime minister, holds power over decisions that could directly impact his own legal proceedings, creating an inherent conflict of interest. In the current situation, it is impossible to prevent the PM from using his position to disrupt the proceedings against him. A prime minister cannot be prevented from making decisions that affect his own trial.
Why the Netanyahu trial threatens the rule of law
The current legal situation in Israel, which allows for the prosecution of a sitting prime minister who continues to serve during his trial, undermines the justice system, erodes public trust, and violates the principle of equality before the law. The prime minister receives different treatment than any other accused individual, making decisions that affect his legal fate, thereby turning his trial into a mockery.
The Supreme Court has ruled that Israeli law does not permit the removal of a prime minister due to indictment. Netanyahu’s trial has highlighted that the current legal situation is a serious malfunction, necessitating a change in the law to prevent such a farce – which severely damages the rule of law – from recurring.
The law can be amended in one of two ways. One approach is to establish that a prime minister, like any minister, public figure, or senior official, cannot continue to serve while facing a criminal trial. What applies to a minister, police officer, teacher, firefighter, or any other public servant or public figure should apply to the prime minister as well. A criminal indictment should terminate his tenure and eligibility for office. In this context, concerns have been raised about one person (the attorney general) having the power to decide on indicting a prime minister – an indictment that may lead to regime change. This concern can be addressed by creating a review mechanism. For instance, it could be determined that the attorney general’s decision to indict a prime minister would require approval from a panel of three Supreme Court justices, who would review the case and confirm that the evidence warrants indictment and that there is no abuse of the indictment process.
Another solution to the prime minister’s indictment issue (the French solution) is to establish that while a prime minister serves in office, he cannot be prosecuted, and proceedings must be postponed until after his term ends.
Of these two solutions, the first is more appropriate, as it better reflects the rule of law and the principle of equality before the law. Postponing legal proceedings for years due to tenure violates these principles. It places the prime minister in a similar conflict of interest as today, leading a PM to use his senior position to extricate himself from proceedings. For example, changes he initiates in the justice system (up to regime change), decisions about continuing the war, or avoiding a state commission of inquiry to examine responsibility for the October 7 disaster all might stem from his desire to save himself from future proceedings. Therefore, I prefer the solution whereby, once indicted, the accused loses eligibility to continue serving as prime minister.
In any case, the current legal situation cannot continue. If the law isn’t amended, the prosecution of a sitting prime minister will threaten the state’s existence as a law-abiding nation. Clearly, Netanyahu’s trial must be concluded as soon as possible. The required law amendment should be forward-looking and apply to future prime ministers.■
The writer is a leading partner in Meitar Law Offices’ Litigation Group.