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