Dei'ah veDibur - Information & Insight

A Window into the Chareidi World

16 Kislev 5761 - December 13, 2000 | Mordecai Plaut, director Published Weekly








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Shema Yisrael Torah Network

Opinion & Comment
Exactly the Same, but Oh So Different

by A. Yitzchaki

What is so nice about the Israeli judicial system is its flexibility and its ability to adapt itself to every case individually.

It has clauses and sub-clauses, various and peculiar definitions. Indeed, room to maneuver is so broad that every judge can suit the law to his own world view for each and every case that comes before him.

This means, of course, that a judge can easily find differences and variances between one case and another, and as a result, they will tell you that there is no contradiction in issuing two totally opposite rulings in cases that, to an outside observer, seem remarkably similar.

An expanded High court recently ruled on two cases involving verbal incitement.

One defendant was an Arab journalist from Um-El-Fahm, an Israeli citizen named Muchamed Jabrin, who published an article in an Israeli Arab newspaper, long before the current uprising, under the title "Bravo! Congratulations."

Among other things he wrote: "Let me tell you the truth, my friend. Each time I shout hurrah, hurrah and throw a firebomb, I feel that I am wrapping myself in majesty and grandeur, I feel that I have found my identity and am participating in the defense of this identity and am worthy of living an honorable life."

The second defendant was Binyomin Kahane, the son of the former Kach leader. Binyomin Kahane circulated a pamphlet, also long before the current uprising, entitled "To Bomb Um- El-Fahm." His words were as follows:

"Why, when Arabs in Um-El-Fahm butchered three soldiers, did the government send soldiers to bomb the Hizbulla in Lebanon, instead of bombing the hornet's nest, Um-El-Fahm? Why, each time a Jew is murdered do they bomb Lebanon, and not the aggressive villages within the State of Israel? For each terrorist attack in Israel, an Arab village which is a den of murderers in the State of Israel should be bombed. Only Kahane has the courage to say the truth! Give power to Kahane. He will deal with them."

Needless to say that both of these are detestable; one is neveila, the other is treife.

Looking at the matter from the side, without judicial spectacles, one would tend to advocate punishing Jabrin harshly. Jabrin is a well known Arab journalist who published his incitement to throw rocks and petrol bombs in leading Arab papers and found attentive ears to his cry, as recent events have indicated.

In contrast, Binyomin Kahane is a peripheral and eccentric figure, without influence, perhaps not even on himself. Beyond a ridiculous attempt to resemble his father, he has nothing to offer.

His futile incitement "to bomb Um-El-Fahm" was in a pamphlet, whose effect is like all of the other posters which roll about in the gutters and garbage bins. Such things have no influence at all, and their only purpose is to remind the public of the name Kahane.

The decisions will probably be studied in the law schools as an example of how it is possible, by means of sophisticated judicial mumbo-jumbo, to arrive at a decision, which in present- day language we might call: "upside down, inside out."

The Israeli Arab was acquitted by the court, while Binyomin Kahane was found guilty. How did the judges pull that one off? Quite easily!

Jabrin was accused of committing a crime under the law for the Prevention of Terror, which forbids the public praising of serious acts of violence. The majority opinion is that in a well functioning, democratic society to which freedom of expression is dear, there is no place for such a prohibition which undermines freedom of speech.

Only support of a terrorist organization can justify the implementation of this clause, and not the support of "private" acts of violence.

Kahane, though was accused of violating the law of "inciting to rebellion." This law was enacted in order to enable the continued existence of a society composed of varied sectors. Thus, when someone incites others to harm a certain group, he can be found guilty on the basis of this clause.

That, in general terms, is the difference between the two cases.

Legal experts claim that had Kahane been accused of the same clause of which Jabrin was accused, he would have been acquitted, or the opposite: had Jabrin been accused of incitement to rebellion he would have been indicted.

Incidentally, the Association for Citizens Rights, which cannot be suspected of supporting Kahane, expressed concern over his indictment. The group claimed that the state prosecution is liable to use this conviction as a basis for indictments against people who have made public statements which are not very likely to induce violent actions.

A possible consequence of the court's ruling is that the state prosecution might find it difficult to indict Arab MK Baraka who called on the Arab citizens of Israel to join the uprising, and MK Dahamsha who called on them to break the hands and feet of the police who come to enforce the demolition of illegal buildings.

The prosecution could argue that the expressions of the above mentioned MKs were support only for "private" violence, and not terror organizations.

However, if a rightist were to appeal to the court about the legality of the current government to accept decisions, and would sharply criticize the Prime Minister, he might find himself charged with incitement to rebellion.

That is what is so nice about the Israeli legal system. All the prosecutor has to know is how to choose the relevant clause, so that the court won't have to forgo its values and won't have to acquit the ones it would so love to see convicted, and to convict the ones it so wants to acquit.

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