Law and Order

Mysterious massive pressure drops in both Nord Stream One and Two pipelines were recorded, coupled with three separate leaks being detected near the Danish island of Bornholm on September 26 of last year. The damage to the gas pipelines that run between Germany and Russia under the Baltic Sea was extensive and an act of sabotage. The Nord Stream One pipelines were built in 2012 and the Nord Stream Two pipelines were completed in 2021 for the purposes of commercially exporting Russian gas into Germany in particular and Europe in general. Immediately Western leaders and various media outlets rushed to blame Russia as the culprit for the deed. For their part, the Russians denied they did it and accused the West of being the perpetrators.

Curiously though, a Polish former foreign minister tweeted (and later deleted said tweet) the day after the attack thanking the United States for blowing up the pipelines. A joint Swedish-Danish investigation on the incident found it was the result of a deliberate act. Yet, they failed to name the culprit. Even the Washington Post later admitted that there was no conclusive evidence that proved that Russia was behind the attack. Then on February 8th, Seymour Hersh, a veteran investigative journalist, released a bombshell article alleging that the United States and Norway were responsible for sabotaging the Nord Stream (both One and Two) gas pipelines and detailed a covert operation that was run off the books so as to bypass Congressional oversight.

Blanket denials were issued from the CIA and the White House. While the American government vociferously deny that they sabotaged the pipelines, such denials alone does not by itself repudiate the story. After all, when Mr. Hersh documented that there was torture of Iraqi inmates taking place at Abu Ghraib prison back in 2004, the government at the time too denied the charge. Hersh’s charge turned out to be true and the American Civil Liberties Union in 2005 obtained over 60,000 pages of the government’s own documents on the Iraqi prison scandal.

It should be noted that other analysts have contested the details of the alleged covert operation that was highlighted in Hersh’s article. Hersh for his part has said in an interview with a German newspaper that, “I worked with the same experienced fact-checkers I used to have at the New Yorker for the current story. Of course, there are many ways to verify obscure information shared with me.” Whether it emerges that Hersh is right or wrong about what his critics deem to be the faults within his article, those who find the fault pointing to the West have a basis in doing so.

Those who pin the pipeline incident on the United States note that where the explosion happened was closer to NATO-aligned waters than Russian waters and that NATO training exercises took place in the general area a few months before the explosion points toward a Western plot. Another basis for American involvement is that American government officials expressed discontent over the Nord Stream project from its inception, threatened Nord Stream, and celebrated its demise. As one such official, Biden’s Undersecretary of State, put it, “I am, and I think the administration is, very gratified to know that Nord Stream 2 is now, as you like to say, a hunk of metal at the bottom of the sea.”

Another clue that hints towards Western involvement in the Nord Stream sabotage was the geopolitical gain the US gained by weakening Russia’s leverage by reducing its ability to deliver its gas supplies to Germany, increasing the time and cost of delivery. Since the advent of Willy Brandt’s policy of Ostpolitik in the late 1960s and the orientation of German policy after the end of the Cold War such as by Chancellor Gerhard Schroeder, Germany has sought to have a relaxed commercial relation with Russia (and its predecessor the Soviet Union). Chief among the commercial exchanges was the export of cheap oil and gas to Germany for the purposes of making German industry competitive. The Russian invasion of Ukraine in February of 2021 upset this relationship, but the prospect of available cheap Russian gas was a leveraging point over the Germans. Chancellor Schultz was (and still is) accused of flagging on the issue of Ukraine and even of quietly hoping for a Russian victory. The removal of the Nord Stream pipelines ended the prospect of a quick resolution to Germany’s major energy crisis. All these combined factors coupled with the lack of any official Western investigation naming a culprit offer a potential answer to the question of cui bono (who benefits) from the crime in question.

This is not to suggest that Hersh’s article cannot possibly be without error or that evidence could emerge that sheds a different light on the events and motivations in question. If it was proven that the United States played a role in the destruction of the Nord Stream pipelines, then this would not be the first time that the United States has elected to engage in covert operations to blow up Moscow’s gas pipelines. At the very least there should be an investigation of whether an American operation sabotaged Nord Stream and whether Congress was aware of such an operation. On the latter point, Mike Lee, the senior Republican Senator from Utah, commented that he “checked with a bunch of Senate colleagues…none were ever briefed on this. If it turns out to be true [that an American covert operation was done], we’ve got a huge problem.” He further endorsed the notion that an investigation should take place and if it was found that Joe Biden authorized such an operation without informing Congress that this would constitute an impeachable offense.

The Nord Stream affair has the hallmarks of an international crisis because it was not just an American attack against a country that the United States is not officially at war with, it was also an attack on German-Russian built pipelines that supplied a fellow NATO ally with commercial gas. It also carries with it the prospect of becoming a constitutional crisis within the United States if the Senate was not consulted about this attack. Previous analogous episodes of the United States engaging in similar acts without Congressional warrant, such as the Iran Contra scandal, led to rumblings of impeachment against the president.

With or without Nord Stream, the tragic and bloody Ukraine war continues to rage on. Major NATO members' promises, to change their bandwagoning ways and become active contributors in their own defense by meeting the minimum NATO defense spending requirements, have gone unfulfilled. Analysis of German military spending shows that they are failing to meet their pledged 2 percent for this year and this pattern of suboptimal spending will continue for the foreseeable future. This once more puts the immense burden of the defense of Europe squarely on the Americans.

The American military arsenal is not inexhaustible. It has already been extremely strained to keep munitions and supplies flowing to Ukraine. Such is the strain, which has included pulling munitions from American depots in foreign countries, that a number of military analysts fear that the rate of depletion is endangering American military’s own military readiness. The Europeans have also proven unable to keep up with the military demands of the war. As Ben Wallace, the United Kingdom’s Secretary of State for Defense, put it when he denied sending more jets to Ukraine “he had a duty to ensure the UK and Nato had the aircraft needed for their own defence.” Despite this effort, the Russians are now acknowledged to be winning the munition manufacturing game. Predictions of the Russians running out of weapons and critical missile shortages have so far proven to be wrong. The alarming revelations of the depletion of the vaunted arsenal of democracy in the strongest of the world’s democracies should be cause for recalculation. The United States and its allies should pursue policies that encourage its manufacturing sector to become strong again and this will in turn allow for greater military munitions production.

The sanctions regime against Russia has also failed to bankrupt or seriously impair Russia’s war making capabilities. The Russian economy has actually been projected by the IMF to grow slightly in 2023. Europe continues to buy energy from Russia albeit in a more expensive and indirect way. Russian-European Union bilateral trade increased by 30.1 percent in 2022 despite the sanctions with imports from Russia to the EU surging by 69.9 percent. Russia’s account surplus has swollen to a record of $227 billion. An article from the Wilson Center put it bluntly when it asked and answered the question “Is there any chance that Putin will run out of money for his war? Not in the near term.”

President Biden’s emotional appeal that Putin cannot stay as leader of Russia has similarly not bore fruit. The Russian leader continues to enjoy widespread popularity according to independent nongovernmental pollsters. In fact, Putin’s popularity has increased from 77 percent in September 2022 to over 80 percent in January 2023. In short, the chances for regime change in Russia look bleak. Even if this were a more achievable aim, as I mentioned in a previous article all this may do is bring in a more dangerous government than Putin’s.

There are indications that the grueling war of attrition being waged in Ukraine is not going in Ukraine’s favor. An examination of Russian causality rates by independent sources like the BBC looking at open-source information could only confirm that 12,225 Russians were killed by January 23rd, 2023. While they mention that the real number could be 40 to 60 percent higher than their list of identifiable names this puts the total maximum estimates of those killed to between 17,115 to 19,560. As of February 13, the number of confirmed Russian war deaths by this study by BBC and Mediazone has increased to 14,093 (revising the potential maximum total deaths to be between about 19,730 to 22,549 deaths). Even among Western sources there has been a noticeable downward revision of Russian deaths from the Ukrainian claims of over 100,000 losses to between 40,000 to 60,000 deaths. As with most things concerning the fog of war, the information the public has is obscured. Nevertheless, the general thrust is that this is a war of attrition that favors the Russians in terms of men and material even with Ukraine receiving Western support.

Beyond losses of at least 100,000 Ukrainian soldiers, the war has taken its toll on the Ukrainian economy. The Ukrainian economy, which has been plagued by mass corruption and underperformance since independence, has become totally dependent on the West in its ability to finance and carry out the war. Ukraine, which had early in the war already conducted a massive conscription campaign (including out of prisons), has increasing signs of major morale problems. Russia, for all its mobilization issues, has a deeper manpower reserve than Ukraine as well as a stronger economy that can afford greater losses. The Ukrainian Chief of Staff Valery Zaluzhny admitted in a December interview with The Economist that “the Russian mobilization has worked” and mused “that it is not yet time to appeal to Ukrainian soldiers in the way that Mannerheim appealed to Finnish soldiers [on cessation of hostilities with the Soviet Union and the cession of Finnish land to the Soviet Union].” Perhaps it may not yet be time for such an appeal but the fact he is thinking of delivering one should be of concern.

Given the military situation, viable diplomatic options should be submitted before as Zalukzhy put it a Mannerheim type speech needs to be given. On this score, the West has blocked diplomatic options to end the war on terms that Ukraine is not likely to receive again. The closest that Russia and Ukraine came to ending war was during talks in Istanbul which both sides at the time hailed as constructive. Yet, as revealed by Ukrainska Pravda, Ukraine elected not to go forward with the peace settlement due to the pressure raised by Great Britain to continue the war and news about Russian atrocities. This narrative was reinforced by Naftali Bennett, a former Israeli Prime Minister, who said that he felt that there was a roughly 50 percent chance that a deal could be struck but that powerful countries in the West thought that it would be better to continue to “keep striking Putin”. Bennett also mentioned that after what was revealed in Bucha, he thought any chance of a peaceful settlement had been shot down.

Whether it be the Nord Stream affair or the depletion of the Western arsenal in Ukraine, there are a lot of unresolved questions from these bloody episodes. Here are but a few of them. One is whether the Biden administration sabotaged the pipeline. The second is whether Biden acted in a constitutional manner when he allegedly ordered the attack on the pipelines. The third is whether German public opinion is swayed against further commitments to Ukraine based on Hersh’s charges. The fourth is whether the West will rebuild its manufacturing sector so that it can counter Russia’s (and China’s) manufacturing base. The fifth is whether the Ukrainians can afford to keep up with such steep losses against the Russians. If not, then a sixth question is whether the Ukrainian political class can make a peace settlement with the Russians. Even if so, will such a settlement be permanent and sustainable or will it go the way of the Minsk Accords remains a valid concern.

On February 6, in the middle of an otherwise normal night, millions of people in Turkey and Syria were abruptly awakened by an unexpected and disastrous earthquake. Many buildings instantly collapsed while their inhabitants were still in bed, while other buildings collapsed later during some of the about 10,000 recorded aftershocks in the following three weeks. The earthquake was so strong that it was even felt in many surrounding countries; including some of our editors in Israel. So far, about 51,000 people are confirmed to have died. Going forward we will explore what happened, its consequences, and more importantly what it means for expected future earthquakes and damage prevention in the Levant.

With its epicenter near Gaziantep, in the south of Turkey next to the Syrian border, the earthquake had a magnitude of 7.8 and caused widespread damage in an area of about 350,000 square kilometers (140,000 sq mi), which is around 12 times the size of Belgium. It was one of the strongest earthquakes ever recorded in the Levant and the deadliest in Turkey’s modern history. The tremors were felt as far away as Egypt, Israel, Palestine, Lebanon, Cyprus, and the Black Sea coast of Turkey. Immediately after, many countries sent humanitarian aid totaling more than 141,000 people from 94 countries. As rescuers were digging through the rubble, in the following days the death count kept rising higher and higher, leaving people around the world stunned at the magnitude of the crisis.

Aside from the tragedy of the dead, there is also the plight of those who have been made homeless by this event. On that score, United Nations development experts estimate about 1.5 million people have lost their homes. This leaves many spending at least the first night after the quake outside in the cold winter temperatures. Civil society has attempted to alleviate the problem. Turkish hotels, mosques, and other public buildings have been opened for people to take shelter in. Several airline companies helped evacuate hundreds of thousands of survivors from the affected areas by providing flights free of charge. Thousands of people, both domestically and from abroad, have volunteered and come to the stricken areas to assist in humanitarian aid. Turkey and Syria have received financial support through grants from the United Nations, the World Bank, and some other intergovernmental organizations.

Even newly built buildings were destroyed by the earthquake, causing public anger. After the 1999 earthquake in İzmit, Turkey, new building codes were passed, but there have long been complaints that these were not properly enforced. Now, the recent earthquake has only added to doubts raised about the Turkish construction industry, and how its building codes are meant to be more resilient to earthquakes. The earthquake has also led to a political blame game being played. There have been protests against the Turkish Minister of Transport and Infrastructure as well as local governors. Additionally, many Turkish citizens criticise their president, Erdoğan, for his role in the affair. Erdoğan claimed "98% of the destroyed buildings were built before 1999" and described the current earthquake impact as "the indicator of an improvement in the quality of building codes and enforcement". This despite no concrete data on the destroyed buildings being yet available. Civil engineer and earthquake engineering academic Haluk Sucuoğlu says Erdoğan's claim is unlikely, based on field observations, also noting that more than half of the buildings in earthquake-affected areas were built after the year 2000.

Harold Tobin, the director of the Pacific Northwest Seismic Network and professor at the University of Washington, said the affected area in Turkey has a long seismic record and is known as a seismically hazardous area. This is caused by the fact that the Anatolian plate has been at the center of multiple larger tectonic plates like the Eurasian plate and the Arabian plate. Additionally, Tobin said the earthquakes on February 6 were larger than anticipated, and he added it is not uncommon for a rupture on one fault to trigger a rupture on another.

The thousands of aftershocks from February 6 until now have also been felt in Israel, leading people to fear a potential large earthquake somewhere along the Dead Sea Transform fault system (also known as the Great Rift Valley / Syrian-African Rift). This fault is located right in the middle of the Dead Sea and goes all the way north where it meets with the East Anatolian Fault, which is where the Gaziantep earthquake originated. Historically, Israel has experienced severe earthquakes on average once every century. The last one occurred in 1927 and geologists argue we can expect another in this area within the next few years. Geological experts have warned that within Israel about a million homes are at risk of collapse in case of an earthquake. This is because about 60% of buildings are not protected against missiles, earthquakes or even collapse due to obsolescence. If such a major earthquake were to happen it would likely affect multiple countries in the Levant and cause thousands of deaths, injuries and lost homes.

In 2005, the Israeli government approved the so-called “TAMA 38” plan. The plan is an urban initiative designed to encourage tenants to strengthen their building structures. This plan may help somewhat prepare Israel for a natural disaster. It has been criticized for not being very efficient as the waiting time is multiple years to have a building approved. However, the TAMA 38 plan was ended in the fall of 2022 following extensive discussion in The National Planning and Building Council, whose members were convinced that the regulations did not achieve their goals. Ever since, the plan ended and not much change has taken place to mitigate earthquake damage in Israel. One of the reasons there has not been much investment into this project is because of Israel’s political instability in recent years.

Still, we cannot be sure when the next earthquake will be, nor can we be certain about how strong this earthquake will be. Ron Avni, earthquake studies lecturer at the Ben-Gurion University of the Negev, said “The mechanisms aren’t understood well enough. Our knowledge is empirical — it’s based on what we know about previous earthquakes.” But knowing the risk is there, countries like Israel, which are located in such tectonically active areas, should be a lot more ready than they currently are. It is up to the Israeli and neighboring governments to invest more in earthquake damage mitigation before another massive disaster unfolds.

The Kremlin has increasingly shifted its rhetoric, strategy, and policies toward a protracted war in Ukraine - all the while, continuing to frame conflict as having a short horizon. The recent withdrawal from the New START arms limitations treaty, the neutering of Wagner mercenary group financier Yevgeny Prigozhin, the FSB’s (Russian security services) infiltration of the defense industrial base, and this week’s arrest of an American reporter from the Wall Street Journal (the first such case since the Cold War) are just a handful of examples that illustrate Moscow’s changing approach to the conflict. As such, the West needs to send more munitions and more capable weapons systems to Ukraine. The weapons should be given because they will help the Ukrainians achieve victory, but also as a demonstration of our prolonged willingness to support Ukraine’s independence. Concerns over the cost, squeamishness over escalation, and inquisitions over their deployment will merely embolden China to refill the shrinking stockpiles of the Russian Armed Forces.

More comprehensive military aid packages, and delivery of more status-quo-changing items like modern tanks and warplanes are necessary to deter Chinese arms and ammunition sales to Russia as they face shortages that prevent sustained offensives and prepare for a protracted war. Small scale shipments of body armor and munitions have already been recorded, and as Rep. Mike Garcia, R-Calif., put it “[China] can make it rain better than we can tread water in Ukraine.” Alluding to the disproportionate military manufacturing infrastructure between China and the United States - one that is not currently in our favor.

The United States should continue to expend resources on the Ukraine war as it degrades the Russian armed forces at a rate exponentially greater than the upfront cost to the United States. Additionally, it’s rather surprising that many members of the Freedom Caucus are skeptical of further Ukraine funding given that a significant amount of infrastructure, jobs, and economic investments related to the military industrial complex are located within their states. This map of the economic impact of the F-35 Lightning program illustrates how widespread many of these investments are. Fortunately, language in the 2023 National Defense Authorization Act (NDAA) authorizes an increase in the acquisition of new munitions, for example, including with multiyear buying authorities.

Moreover, an increase in multiyear contracts with defense contractors to help refill our depleting arsenal will not only pay for itself in terms of damage inflicted to the Russian armed forces, but create a more robust military industrial base in preparation for (and as deterrence against) the next major great power conflict that is brewing between the U.S. and China. History is not in our favor in terms of averting a military confrontation between the rising and existing hegemonic powers of the international political ecosystem. However, that fate is not written in stone, despite some military analysts putting a possible invasion of Taiwan within a 6-year timeframe. Expert diplomacy, and enduring resolve will be critical in preventing the culmination of Xi Jinping’s Chinese Dream - which requires the complete reunification of Taiwan with mainland China.

However, years of underinvestment have left the U.S. industrial base incapable of both refilling and increasing stocks while meeting demands from allies in a relevant timeframe. Additionally, the commercial side of the defense industrial base has an incentive structure that motivates a lowest cost model at the expense of capacity and speed. While this incentive structure is designed to ensure that the Department of Defense can invest a broad range of capabilities and to carefully allocate taxpayer funds, it has also reduced the ability of the defense industrial base to surge. A weakness that is surely being noticed by Chinese military analysts.

For example, the iconic Javelin relies on a specific rocket motor - the Aerojet Rocketdyne’s advanced solid-propellant rocket motor - without a second source at the moment. There is one company (Williams International) that builds turbofan engines for most of our cruise missiles, such as the Joint Air-to-Surface Standoff Missile, Joint Air-to-Surface Standoff Missile-Extended Range, and Long-Range Anti-Ship Missile. There is one company that produces the energetics for most missiles, and there is also one foundry that can produce the large titanium castings for some important weapons systems. These problems are particularly concerning considering that China has been acquiring high-end weapons systems and equipment at a rate five to six times faster than the United States, according to some U.S. government estimates.

House Armed Services Committee Chairman Mike Rogers (R-Ala) noted at an Armed Services Committee hearing in February that “oversight is about more than just accounting,” continuing his push to convince the Biden administration to send Ukraine more advanced weaponry such as long-range missiles. “It’s about ensuring the administration is setting strategic goals and implementing a policy to achieve them,” said Rogers. “This is where I have very real concerns. Since the beginning, the President has been overly worried that giving Ukraine what it needs to win would be too escalatory.”

Last year Congress provided the Defense Department with $61.4 billion in emergency military aid for Ukraine over four supplemental spending packages. The last package – attached to the government funding bill Congress passed in December – included $27.9 billion in additional Ukraine military aid, which the Biden administration hopes will last through the end of the fiscal year in September.

Assistant Secretary of Defense for International Security Affairs Celeste Wallander stated in February’s hearings that “we’ll need to be thinking about these longer-term investments in a modern Ukrainian military.” Moreover, she warned that Moscow would use any potential ceasefire to prepare for another invasion attempt. “I know it’s not the answer everyone wants to hear,” she added. “We’d like to think the Russian leadership will wake up and go home and leave Ukraine alone, but the indications are quite the opposite.” As the war rages into its second year, ammunition has started to run low on both sides and rearmament from China could give Russia a decisive edge over the long haul. The U.S. must be prepared to continue and even increase its aid to Ukraine or risk allowing Russia to gain the upper hand. Moreover investments now will pay dividends before, rather than after, a possible conflict with China in the Pacific theater.

In the last few weeks, Israel saw a wave of protests against judicial reforms proposed by the country's ultranationalist government, currently led by Prime Minister Benjamin Netanyahu. These reforms could hamper the separation of powers within Israel, as they allow for the selection of its judges by the government, and require only a simple parliamentary majority to override the Supreme Court’s decisions.

The demonstrations have been organized on a weekly basis, sometimes accompanied by daily blockades during rush hour, and were widely attended by a diverse group of citizens. Those expressing worry about the reforms range from Israeli students to foreign governments. For instance, the German Chancellor Olaf Scholz discussed the proposed reforms with Netanyahu on March 16th, declaring to have followed the debate “with great concern", and wishing that Germany’s “partner in values, Israel, remains a liberal democracy."

Why are European democracies so concerned about the role of the judiciary? The decisions and reforms concerning this body of public power have been at the center of European constitutional debates for centuries, largely between the sects of Civil Law and Common Law. The importance of the judicial system needs to be contextualized: it represents a direct link between the citizens of the state, whose legal disputes must be adjudicated by the judicial branch, and the laws created by the legislative bodies, which must be applied, interpreted, or even reviewed by the Courts.

This last feature, called judicial review of legislation, was famously used by U.S. Chief Justice John Marshall in the 1803 landmark decision Marbury v. Madison. From that moment onwards, American courts gained the power to declare legislative and executive acts unconstitutional. The decision of the Court slowly influenced many European countries, which enhanced the power of their judicial branches. Such examples are Germany, which provided its courts with the power to examine the constitutionality of statutes, or France and Italy, where ad hoc Constitutional Courts are tasked with making sure that certain ordinary laws do not conflict with constitutional provisions.

The distrust towards judicial reforms in European Civil Law countries can also be attributed to the legal history of the continent. In particular, the traumatic experience of the Ancien Regime: the absolute monarchical system of government that preceded the French Revolution of 1789. This system led to a perception of courts as defenders of oppressive governments. Parliaments were by contrast entrusted with legislative activity and the protection of rights. This perception of the courts was further exacerbated by the 20th century authoritarian regimes’ use of the judicial system to cement and maintain their hold on power.

In contrast, countries belonging to the Common Law model, a legal system of British origin mainly based on binding precedents, were influenced by the experience of the American Revolution against the British Parliament. Under this perception the legislature was seen as particularly prone to oppression. This attitude, alongside the view of rights as pre-existing and inalienable, created a general trust in judicial review of legislation.

Judicial independence is fundamental for a functional democracy, respect for the rule of law, and access to impartial justice. However, some governments have attempted to interfere with the judiciary, either by appointing judges with political affiliations or by undermining the legal protections that guarantee their independence - a practice that could seriously compromise the branch’s effectiveness.

The independence of the courts is essential for a system of checks and balances to work through the reciprocal supervision of the public branches of power. However, this fundamental requirement should not cause political affiliation of the judges to be a reason for rejection. For example, Italy equally divides the composition of their Constitutional Court between members elected by various national bodies - from the Council of State, the Court of Auditors, the Court of Cassation, the Parliament and the Head of State himself - all in order to increase the representativeness and independence of the Judicial branch.

In the case of Israel, interference with the judiciary has resulted in harsh criticism over its politicization, and led to fears of unconstrained executive power. In the reforms the Government of Israel has proposed changes that would limit the Supreme Court’s powers to rule against the legislature and Prime Minister, and permits Parliament to override the Court’s decisions with a simple majority, thereby creating a weaker Supreme Court and a stronger Parliament. With effective control over judicial appointments the reform’s opponents worry that it would create a system where the Prime Minister has control over all the branches of government.

A similar situation can be found in Poland, stemming from the Polish Constitutional Tribunal crisis of 2015. The Sejm (Polish Lower Chamber of Parliament) passed an act to replace five judges ending their terms that same year. However, only 3 of the judges were set to end their terms during the seventh Chamber’s session, while the remaining 2 judges’ terms were set to expire in December during the eighth session of the Sejm.

In an unprecedented turn of events, the seventh chamber controversially decided to elect all 5 judges at once. This action was decreed unlawful by the newly elected Law and Justice party of the eighth Sejm. They immediately passed a resolution to declare the judges’ election by the seventh Sejm void of legal effect and elected 5 new judges. The result of this dispute was a stalemate wherein the judges elected by the seventh Sejm could not adjudicate because they had not taken their oaths before the President of the Constitutional Tribunal. The judges elected by the eighth term were not allowed to be adjudicate by the President of the Tribunal either, as their positions were already held by the previously elected judges. The following President of the Tribunal recognized the legal status of Law and Justice Party’s 3 unlawfully elected judges, effectively negating the court’s political independence.

These Polish elections were followed by other legislation that allowed governmental appointment of judges to the Supreme Court, the reduction of retirement ages for judges, and gave the Minister of Justice the power to dismiss court precedents. These all caused serious concern over the reduced autonomy of the judiciary. Warning signals also came from the European Commission, which launched proceedings against Poland for breaching European common values and rule of law, and threatened to trigger article 7(1) of the Treaty on European Union, and eventually led to sanctions of Poland and a suspension of their EU voting rights.

A similar situation is happening in Hungary. The Fidesz majority party, led by prime minister Viktor Orbán, has been accused of passing laws that would give the government more control over the judiciary by removing independent judges and replacing them with loyalists - mainly in the Hungarian Constitutional Court by controlling the nominations committee. These new laws interfering with the independence of the judiciary have been condemned by many NGOs, such as Human Rights Watch in its annual report from 2013, as strongly hindering religious, gender, reproductive and representative rights for many members of Hungarian society.

In February 2012, a delegation of the Venice Commission, the Council of Europe's advisory body on constitutional structures, visited Budapest and reported a number of issues in its subsequent draft opinion. They claimed that the accountability of the president of the National Judicial Office (NJO), Tünde Handó (who also had close ties to Viktor Orbán and his party), must be increased and his decisions judicially reviewed. Furthermore, they found that the President of the NJO had very broad powers, which were not subject to any kind of judicial control or veto by the National Judicial Council: the very organ tasked with supervising the head of the NJO. The Commission states that no other member state of the Council of Europe delegates such important powers, including the power to select judges and senior office holders, within a single person. In contrast, the internally elected Hungarian National Judicial Council was deemed to have no significant powers in the administration of the judiciary.

Amnesty International wrote in its 2021 Report on the Status of the Hungarian judiciary that “the [underlings] of [Viktor Orban] or key figures in judicial administration oftentimes send chilling messages in the judiciary to discourage judges from exercising their right to free expression”. The ongoing politicization of the judiciary in Hungary was eventually defined by a European Parliament Resolution on 15 September 2022 as an “electoral autocracy”.

The task of the judiciary to protect rights and interpret laws in Europe was obtained through a long evolutionary path. The courts’ independence and impartiality are constantly put into jeopardy, but the need for such a crucial branch of government to evolve must not be ignored. Oftentimes reforms of the judiciary are criticized irrespective of their content: this is also true in the case of the proposed reforms in Israel. Now more than ever it is important to carefully balance the need to constrain judicial power with the dangers of overly politicizing the courts by leaving too much room for governmental interference. However, the judiciary risks falling into irrelevance if prevented from adapting to the times.