A win in the war on words?
The State Prosecutor's Office has stepped up its battle against incitement. But the wrong people are being indicted, says Labor MK Ophir Pines-Paz
Two weeks ago, the phone rang at Yitzhak Caspit's home in Nes Tziona. An officer from the investigations branch of the Ramat Gan police department was on the line. The officer announced that Caspit was ordered to appear in response to allegations of incitement to racism, based on an article that he had published in the narrowly circulated Hayarden, the house organ of the Jabotinsky Institute, a year and a half ago. Caspit, aged 78 and retired, has never been in a police station. He was shocked. At first, he thought someone was playing a practical joke. He was only convinced that he needed to appear when the officer explained that the investigation followed a complaint lodged by MK Ophir Pines-Paz (Labor) regarding his article entitled, "The real demographic problem."
During the two-hour interrogation, the investigating officer explained to Caspit that he was suspected of a breaking a law "forbidding the publication of incitement to racism" which finds that "an individual who publishes a work with the purpose of inciting to racism is liable to serve five years in prison." They also explained to him that, according to the law, racism includes, "persecution, humiliation, contempt, expression of malice, enmity, violence or causing hatred of a sector of the public or the population based on color or belonging to a particular race, ethnic-national group." The investigator asked him many questions.
"All of the questions he asked were prepared ahead of time by the prosecution," Caspit says. "They asked me, for instance, if I do not believe that the article I published is racist. They expected me to admit to being racist. They released me, on bail, at the end of the investigation and asked me to promise to return to another investigation if so ordered."
Caspit, the father of journalist Ben Caspit of Ma'ariv, is the deputy head of the Israel Pensioners Union. He was born in Israel, and is a fifth generation son of a family from Tiberias. He was a member of the Mapai (Israeli Workers Party) for many years, until he switched to the Rafi (Israel Labor List) Party. He moved from there to the National List and then to the Free Center. He joined the Likud in his 70s and has since been considered a follower of Menachem Begin.
Caspit is convinced he was ordered to appear at the investigation in order to shut him up but promises that nothing will prevent him from continuing to express his opinions in the Jabotinsky Institute house paper. The fact is that another of his articles, entitled, "The solution," is soon scheduled to appear in Hayarden, in which he suggests that Arab citizens living in Israel be allowed to vote in the elections of a Palestinian state while Jews who continue to live in the West Bank and Gaza vote in elections to the Knesset. He also suggests that both nations agree to limit the numbers of the Jewish minority in Palestine and the Arab minority in Israel to 25 percent.
`Scandal and obscuration'
MK Pines-Paz was surprised to hear that Caspit was called to an investigation in response to his complaint. "I had no intention of causing him to be investigated," Pines-Paz says. He notes that he asked the district attorney to contact the attorneys of Hayarden to make it clear to them that they must avoid publishing material which incites the public to violence or extreme racism, and that if they failed to do so, the house paper would be closed.
Pines-Paz says that, over the last 10 years, he presented at least 100 complaints to the attorney general regarding incitement to racism, incitement to violence, and incitement to terror, but only one complaint was handled seriously, in the case of Rabbi Yitzhak Ginsburg, who was indicted.
Pines-Paz says the decision to open an investigation against Caspit, but take no action against editor of the settler newspaper Nekuda, Uri Elitzur, "represents complete scandal and obscuration." Pines-Paz described Elitzur's interview in the national-religious weekly Basheva: "He said that dismantling of settlements is illegal and shocking and then justified refusal of orders and the use of violence on the part of the settlers, including the use of firearms, to protect their homes." According to Pines-Paz, he considers the behavior of Attorney General Menachem Mazuz and the State Prosecutor's Office to be equally grave in the case of this affair.
"The fact that there are still no instructions to the police to open an investigation against Rabbi Avraham Shapira, who called to IDF soldiers and Border Police to refuse orders to evacuate settlers, is unreasonable in the extreme," Pines-Paz says. "To my regret, Mazuz continues the policy of his predecessor, Elyakim Rubinstein, in this matter that excessively honors rabbis who are extremely inciteful."
Deputy state prosecutor Shai Nitzan admits that there has been a recent change in policy regarding the actions taken in cases of incitement to violence, and that this explains the decision to open the investigation against Caspit.
Nitzan, who leads an inter-office committee to handle incitement founded in the wake of the Yitzhak Rabin assassination in 1995, says, "It was not customary in the past to open an investigation against soccer fans who shouted `Death to Arabs' at Arab players. We decided to declare all-out war against these slogans, which represent a violation of the law, and there have already been a few indictments against fans of the Jerusalem Betar team and several convictions. We open about three investigations each year dealing with incitement to racism."
Why did you ignore grave statements by Uri Elitzur and fail to open an investigation against him?
Nitzan: "We deliberated this matter a lot, but as it was the first time he had made such statements, we decided not to pour oil onto the fire and decided not to open an investigation. Our cautious approach was derived from the marginal situation. That is why we decided to limit our response to a condemnation of these statements."
Is that also the reason for the decision not to open an investigation of prominent rabbis who have called to soldiers to refuse orders?
"There is still no decision in this matter. We are continuing deliberations regarding instructions to the police to open an investigation."
Do these deliberations derive from the same desire to avoid pouring oil on a fire?
"I don't want to go into it, because deliberations are ongoing and we have yet to reach a decision."
Hard to prove
A complaint was lodged with the police against a pensioner who published an article in a small house organ calling to deny Israeli Arabs their voting rights, but no investigation was opened against Uri Elitzur and Rabbi Shapira, who called for the use of force and refusal of military orders. This reality makes one question the reasoning that is driving leaders in the State Prosecutor's Office. Moreover, it heightens the question as to whether the attorney general has a policy or is making decisions in an arbitrary fashion.
The difficulty in presenting indictments in cases of incitement hails from the complexity of the term, "freedom of expression." According to Nitzan, "Freedom of expression ends the minute it turns into freedom to instigate and incite."
His predecessor, Talia Sasson, said, in the past, that, "The High Court, which defined freedom of expression as a supreme right in a democratic nation, and the state prosecutor deliberate the point where the balance lies, and where to set the limits to say that a certain statement is so grave and injurious that it is subject to criminal law. Even then, this must be done very carefully."
More investigations are opened pertaining to incitement to racism than to incitement to violence or terror, because incitement to racism is easier to prove in a court of law. It is simpler to prove that a defendant who wrote an article that included racist statements broke the law, or that a defendant who carried a poster bearing the words, "Death to Arabs," engaged in an act of incitement to racism, than to prove that an individual violated the law by inciting others to violence or terror.
In an amendment to the law enacted two years ago, it was decided that individuals may be convicted if they, "publish a call to engage in an act of violence or terror ... or praise of acts of violence or terror, if there is real proof that the publication may cause acts of violence or terror." During the enactment of the law, heated arguments developed between the Attorney General's Office and members of the Knesset Constitution Committee. Representatives of the Knesset's right wing demanded that it be possible to convict individuals only in cases of "near certainty" in order to make it difficult to bring right-wingers and rabbis to trial.
On the other hand, the attorney general and the State Prosecutor's Office, at the time, demanded that conviction be allowed in cases where there was a "reasonable possibility" that an act of violence or terror would be committed. A compromise was finally achieved in which the term "real possibility" was included, making it difficult for the state prosecution to prove a violation involving incitement to violence or terror. That is why the prosecution avoids presenting indictments in the case of these crimes.