By Shaul Gordon
Over recent weeks we have witnessed bitter arguments in the Israeli media and in public discourse over reforms demanded by the new public security minister Itamar Ben-Gvir, who has renamed his position to national security minister.
Before assessing the value and possible ramifications of these reforms – among them are the powers to govern the Israel Police and outline its general principles of action – we should first examine the status quo.
According to Clause 8A of the Police Ordinance, 1971, the commissioner of police is appointed by the government following the recommendation of the public security minister.
According to Clause 9 of the ordinance, which can be traced back to the British Mandate period, the role of the commissioner is to “supervise the Israel Police, its management orders, activation and all of the expenses tied to it, and the supplies at its disposal.”
In both practice and theory, the minister recommends to the government his or her preferred candidate for commissioner and the government accepts the recommendation. There is no precedent for the recommendation being rejected.
The minister also authorizes all of the appointments of senior police officers – officers from the rank of deputy commander and up – after examining their professional and ethical suitability to their proposed positions. The minister can reject the appointment of a specific officer but cannot decide to appoint an officer who has not been recommended by the police chief.
On all matters pertaining to ongoing police activities, up until now, no public security minister has ever intervened in the commissioner’s work by issuing orders on how and where to deploy and operate the various police units. The minister’s involvement has usually been limited to the general guidance of the police.
Thus, for example, the minister can instruct the commissioner to prepare for certain events but cannot instruct him on how to deploy forces, in which locations or how many offices to deploy.
The role of the minister and the ministry is to represent the police to the government and to secure suitable budgets and personnel. The internal distribution of the police budget is presented to the minister but it is not subject to his approval.
How will Ben-Gvir change Israel's police?
Ben-Gvir’s coalition agreement with the Likud involves far-reaching changes to the law. These changes will enable him to determine policies that will govern the police and which will in effect subordinate the police to the minister, including the ability to alter the police’s rules of engagement.
In addition, the Border Police in Judea and Samaria, today, subordinate to the IDF’s Central Command but will be subordinate to Ben-Gvir.
To justify these steps, the new minister has sought to give the police equal standing to that of the IDF. Ben-Gvir has claimed that just as the IDF is subordinate to the defense minister and his policies, so too should the police be subordinate to the national security minister and his policies.
At face value, this argument is appealing since the minister has been voted in by the public in democratic elections to promote certain agendas. If the minister cannot determine the policies and priorities that guide the police and only the commissioner can decide in these areas, then how can the minister fulfill his obligations to the public?
YET THESE demands not only create significant legal and constitutional difficulties, they could also lead directly to the politicization of the police, to severe harm to human rights and potentially, to violent incidents that could claim lives, as well as harm the international status of Israel.
The claim that the police’s stance needs to be equal to the IDF is baseless since the legal basis governing the military – Clause 2 (A) of the Basic Law: The Military states that “the military is subject to the authority of the government,” and not to the defense minister.
According to Clause 3(B) of the aforementioned Basic Law, “the chief of the general staff is subject to the authority of the government and subordinate to the defense minister.” – means that the military cannot be ordered by the defense minister on his own and without a government decision, to go to war. As such, there is no basis for the claim that the military is subordinate to the defense minister and no basis for the claim that the police should be subordinate to the public security minister.
Beyond legal arguments, the comparison of the police to the military is wrong for reasons of substance, too. Unlike the IDF, the police is designed to serve and protect the Israeli public from domestic threats. The police must act on the basis of equality without the victim of the crime or the offender’s religion, race or gender playing any part in its actions.
Therefore, the decision to place the minister – not just Ben-Gvir, but any minister – as being in charge of police policies in dealing with offenses or rioting is an opening for the politicization of the police and could lead to the alarming scenario of over or under-policing of one sector or another depending on its identity.
Imagine a situation in which a minority seeks to protest against the prime minister or a public body and that the decision on whether to allow the protest is taken by a political element. Could the minister truly ignore his political beliefs and the political affiliation of the protesters? Those pushing the reforms seek to calm critics by saying that the minister will have no ability to intervene in investigations and that the police will remain sovereign in its ability to investigate any individual on suspicion of any offense.
While this position is important and necessary, it is not sufficient. The minister can, under the reforms, set budgets for investigating units whose activities he does not view in a favorable light.
In addition, the minister will, under the reforms, be able to dictate how police respond to disturbances, as well as set policies in classic policing missions among the various sectors of Israeli society, including minorities. This represents a slippery slope that could easily lead to drastic future changes.
Similarly, Ben-Gvir’s demand to command Border Police forces in Judea and Samaria is extremely problematic. From the perspective of international law, Judea and Samaria are classed as zones under belligerent control, meaning that a military commander – in this case the head of the IDF’s Central Command – is sovereign there. Subordinating them to the minister is not only contrary to international law and could be interpreted as an act of annexation but could create chaos on the ground by creating multiple chains of command in the same area.
These steps appear, therefore, to form a real revolution and can lead to disturbing consequences on Israel’s standing, image and values, which have been shaped by generations.
Brigadier General Shaul Gordon has extensive experience serving in a legal capacity within the Israel National Police (INP) and the Israel Defense Forces, including holding the position of Senior Legal Advisor to the INP from 2006-2016. Read full bio here.