The disengagement plan is producing some rather instructive responses from the state's institutions. The IDF wants a release from the punishment of clashing with the settlers; the police moans that it won't be able to deal with all the public disturbances resulting from the evacuation; and the Justice Ministry, under minister Tzipi Livni, is initiating a toughening of the criminal code to prevent incitement against the state's leaders. The combined impression is of a frightened regime, whose instincts are telling it to evade dealing with the resistance to the evacuation of the settlements or alternatively, to deal with it through harmful hyperactivity.
It had seemed that Attorney General Menachem Mazuz and his senior staff were a stable beacon of light in the storm rattling the country. They rebuffed demands to take criminal action against rabbis and public officials who spoke out very harshly against the disengagement and its initiator, and announced they were in no hurry to put people on trial for things they said, despite the vehemence. They also rejected proposals to use administrative detention against those considered likely to take part in public disturbances. But it turns out that under the facade of coolness there is a mounting nervousness in the upper echelons of the Justice Ministry: With the minister's blessing, a proposal was formulated to change the incitement article in the criminal code in a way that would allow the police and state prosecution to start investigations and prosecute people for things they said.
Previously, it was necessary to prove "a tangible possibility" that the incitement would cause violence. From now on, it is proposed, all it would take is "a reasonable possibility."
The state prosecution argues that with the existing formula it is difficult to convince the courts that the results of the vituperative statements attributed to various defendants would actually lead to violence. According to the new proposal, the law would distinguish between an explicit and direct call for an act of violence that would lead to indictment without the state having to prove that there is a probability the result would be dangerous activity, and more ambiguous incitement, expressing support or identification with acts of violence. Those kinds of statements would have to pass the test of "reasonable possibility" that the statement could indeed cause actions.
There is something ironic in the explanatory section that accompanies the Justice Ministry's initiative. The ministry heads declare that even if the law is amended, the prosecution will adopt a very restrained policy when considering whether to prosecute people under the amended law against incitement. Mazuz said last week at the Israel Democracy Institute in Jerusalem that "there is no intention of conducting wholesale criminal inquiries; the use of the criminal instrument will only be in unusual and extreme cases."
The irony is that the government publishes a statement about its intention to toughen the law, but at the same time wants to persuade the public that it will rarely make use of it. In other words, the highest law enforcement authority in the land is making a distinction between its announced intentions and the governmental action derived from those intentions. And that's the root of the debate about the limits of the law against incitement: the distance between the sounding of grave statements and the likelihood that they will yield violent actions.
So far, Justice Minister Livni is delaying the initiative, waiting to see just how heated the public debate over the disengagement will get. She should shelve the draft in its entirety. The proper way to deal with expressions like "traitor," "worthy of death," and even "the prime minister should be killed," is by raising counter arguments in the context of the public debate. The debate about the disengagement - its wisdom, justification, morality, the way it was promulgated by the prime minister in the political system, and every other aspect of it - should take place in the media, the Knesset, lawful demonstrations, and every other legal framework. There should be no countenancing of it being channeled into police interrogation rooms or the courts on the grounds of incitement. The proper response to poisonous rhetoric is to undermine the legitimacy of that rhetoric as part of the public debate over the disengagement plan - and not through a law that stinks of panic.
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