By John Strawson, University of East London
(The Conversation) – The interesting thing about Benjamin Netanyahu’s call on Israel’s president, Isaac Herzog, to pardon him for charges of bribery, fraud and breach of trust, is that he has not been found guilty on any of them.
The trial is made up of three separate but related cases and began in May 2020. They’ve been paused regularly, especially since the country began its military campaign in Gaza, and are thought likely to continue for years.
Netanyahu’s 111-page pardon application does not admit guilt. Instead it’s a sustained attack on Israel’s legal system. In particular it alleges that the cases against him have involved illegal interrogations and unlawful manipulation in the collection of evidence. He argues that the charges against him undermine national unity and impair his ability to do his job as the country’s leader.
In short this is not Netanyahu asking for a pardon so much as an attempt by the prime minister to portray himself as a great man wronged by the elite.
Significantly it comes just a few months before the next election will have be called in Israel. As Herzog has said the application will could “unsettle” the Israeli public.
The latest developments in the long-running saga of the Israeli prime minister’s trial began in October. The US president, Donald Trump, in his speech to the Knesset to celebrate the apparent success of his peace plan for Gaza, called for the pardon.
Having recently humiliated Netanyahu at a meeting in the White House by making him apologise to Qatar for his airstrike on Hamas officials in Doha, Trump – ever the deal maker – thought he could sweeten things for his staunch ally by making such a public appeal. The US president has since followed this up with a formal letter to the Israeli president.
Trump seems to be under the impression that Israel’s president has the same widely discretionary powers that he exercises. He has just pardoned the former president of Honduras, Juan Orlando Hernandez, who had been sentenced to 45 years during the Biden years for drug trafficking and has a well established track record of pardoning his allies.
But Israel has a complex system that may take weeks to work through. First the pardon must be submitted to the Ministry of Justice to consider before it goes to the president. The president then has to ask his own legal advisor for her view.
The reaction to Netanyahu’s pardon application has predictably divided Israelis along political lines.
Opposition party leaders are overwhelmingly opposed to the grant of a pardon, especially as Netanyahu has not accepted guilt. Opposition leader Yair Lapid has said that no pardon can be given unless Netanyahu admits guilt. Yair Golan, the leader of the Democrats, also says that only the guilty can apply for pardon.
Former prime minister, Naftali Bennett – a frontrunner to succeed Netanyahu should the opposition coalition win the election – has a more nuanced view. He argues that a pardon should be given but on condition that Netanyahu retires from office.
Netanyahu’s government colleagues have of course welcomed the application and agree with Netanyahu’s criticisms of Israel’s justice system. Environment minister, Idit Silman – a fellow member of Likud, Netanyahu’s party – has gone so far as to suggest that any refusal to grant the pardon will result in the justice officials involved being sanctioned by the Trump administration.
Undermining due process
All of this places Herzog in a delicate position. The judicial reforms which the current government initiated when it took office in December 2022, which have drawn the anger of many in Israel who perceive them as an attempt to emasculate what was once a robust legal system, have continued during the war in Gaza.
The government and its supporters already treat Israel’s Supreme Court with contempt. This was amply demonstrated on December 1 when a hearing on the government’s attempt to sack the attorney general was cancelled after the government boycotted the hearing.
It is also a moot point whether the president is legally able to pardon anyone who has not been convicted of a crime or at least been admitted guilt. There have been two cases where pardons were granted without convictions.
These related to a 1984 trial in which two operatives working for Israeli intelligence agency Shin Bet were charged with the summary execution of two Palestinians who were hijacking a bus. It was considered that a full trial could compromise security – so on the basis of the admission of guilt a pardon was given.
It has been suggested that Herzog could offer a conditional pardon dependent on Netanyahu not returning to office after the next election, whatever the result. But the Israeli prime minister seems in no mood to admit to any wrongdoing on his part – let alone retreat from political life. Instead, his application for a pardon is a demand that the Israel public rally round him and a statement that disunity has been caused by the trial not by his actions.
File photo. President Donald J. Trump participates in a bilateral meeting with Israeli Prime Minister Benjamin Netanyahu Monday, Jan. 27, 2020, in the Oval Office of the White House. (Official White House Photo by D.Myles Cullen). Public Domain.
This has echoes of the way in which Trump dealt with the litigation against him after his first term. He used it as proof of the bias and indeed the corruption of the legal system at the service of the elite.
In this period of populist politics this stance evidently did him no harm as he was reelected. Netanyahu must be hoping the same politics work for him. But unlike Trump, it was under his watch the most catastrophic intelligence and military failures took place on October 7 2023.
The Israeli electorate may well not accept his excuses for that traumatic day. They may instead see his pardon application as another self-serving act of a politician who is putting himself first.
John Strawson, Emeritus Professor of Law, University of East London
This article is republished from The Conversation under a Creative Commons license. Read the original article.
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