The request submitted by Prime Minister Benjamin Netanyahu to President Isaac Herzog for a pardon, while the prime minister’s criminal trial is ongoing, places the president in an unprecedented and difficult situation.
Under Israel’s Basic Law: The President of the State, the president’s authority to issue pardons is quite broad. The president may pardon, cancel, or ease sentencing.
Over the years a clear practice has developed in Israel: pardons are granted after the completion of the legal process, and they are usually based on exceptional personal circumstances, health conditions, claims of rehabilitation, or harm created as a result of circumstances that changed over time.
The pardon mechanism was never intended to serve as an alternative to a criminal trial. It is intended to allow for forgiveness, correction, or rehabilitation – not deeming someone guilty or innocent.
A full pardon even erases the conviction and the criminal record, but this does not nullify the very existence of the judgment that was rendered. In other words: the pardon is an act of grace, not of exoneration.
The legal and political stakes of Netanyahu’s request
Netanyahu’s request is exceptional in every sense: seeking a pardon before a verdict – particularly when the defendant is the prime minister – creates an extraordinary situation that could destabilize the relations between the branches of government and undermine the principles of the rule of law and equality under the law.
It is true that the pardon authority is broad, and there is no explicit legal prohibition on granting a pardon before a final judgment is rendered.
However, the accepted practice whereby a pardon comes only after the court has spoken is intended to distinguish between a legal proceeding entrusted to the law-enforcement authorities and the court, and the pardon process, which is unique and involves considerations of a different nature.
A well-known exception worth mentioning here is the Bus 300 affair, a 1984 incident involving members of the Shin Bet (Israel Security Agency) who took down Palestinian bus hijackers after they were apprehended.
There, then-president Chaim Herzog, father of the current president, granted a pardon to the Shin Bet personnel involved in the affair before they were put on trial.
However, these were extreme circumstances involving a complex security situation. Those pardoned had admitted guilt, and the head of the Shin Bet at the time had agreed to resign before the pardons were issued.
The High Court affirmed the legality of the pardon by majority opinion but stressed that it was an “exceptional authority that must be exercised only as a safety valve.” Even then, the decision was controversial.
As to the question of admitting guilt, in Netanyahu’s request there is no such admission – quite the opposite. True, the law does not require an admission of guilt as a condition for a pardon, just as the law does not set other conditions for a pardon.
However, it stands to reason that an offender who does not admit guilt or take responsibility for their actions reduces their chances of receiving a pardon.
Some have floated the idea of conditioning the pardon on Netanyahu retiring from political life – it does not appear this is the route being pursued.
According to the prime minister’s pardon request, it is in fact intended to allow for his continued involvement in political life.
In public discourse, some float the idea of a pardon as part of a political deal (e.g., in exchange for agreeing to the establishment of a state commission of inquiry).
A quid pro quo of this nature, however, could undermine both sides of the deal – the legal authorities whose protection was “purchased” and the findings of the inquiry once it is established.
Herzog’s dilemma: weighing justice, politics, and public trust
Herzog has an unprecedented decision before him that throws him into the thick of Israel’s political divides.
His dilemma is threefold: first, from a legal standpoint, granting the pardon would be an intervention in the legal process and a deviation from the practice according to which the pardon comes only after conviction.
Second, in terms of the balance of powers between the branches of government, a pardon of this nature could destabilize the fabric of the relationship between the branches.
But the third aspect, the most important of all, is what message such a pardon would convey to the public regarding the rule of law and equality before the law.
Therefore, although the pardon request is personal, it will affect not only Netanyahu’s fate but also the fate of the State of Israel.
The writer is a research fellow at the Israel Democracy Institute.