In recent months, ever since the disengagement plan entered high gear, the law enforcement agencies have demonstrated a worrisome weakness - and astonishing leniency - in their handling of inflammatory speech by rabbis and educators on the extreme right, who have called for halting the withdrawal from Gaza by murdering the prime minister.
Admittedly, they did not use the word "murder," but all who heard them understood. They said that din rodef (the principle of Jewish law that permits a person to kill someone who is trying to kill him) applies to Ariel Sharon; that "anyone who hands over parts of the land of Israel [to non-Jews] deserves to die"; "Yigal Amir lives, Rabin is dead and Sharon will die"; "if only Sharon were among the evacuators and stopped a bullet"; and other such pearls.
Attorney General Menachem Mazuz has not dealt with this matter seriously. At first he said that it was not a legal issue, then he said that the law should not be employed because freedom of expression should not be restricted. Later still he raised the fear that if a rabbi were put on trial, the court would become a platform for incitement. And last week Mazuz offered a new reason for the prosecution's ongoing delinquency: It is the law's fault.
The law in question is a May 2002 amendment to the Penal Code, which requires prosecutors to prove in court that there is a "real possibility" that someone who heard the inflammatory statements would be influenced by them to commit an act of violence. The problem is that this deals with the vague future, and the courts would find it difficult to convict someone of a crime whose basis is speculative.
But despite this difficulty, the question must be asked: Why has the prosecution thus far not submitted even one indictment, as an experiment? Perhaps there is a judge who would understand exactly what the phrase din rodef means, and in light of the fact that one prime minister has already been murdered under its influence, would see a "real possibility" in these words of incitement, and convict the inciter?
The fact is that Yigal Amir told his interrogators that "without a halakhic ruling from several rabbis that I know of that din rodef applied to Rabin, I would have had trouble committing the murder. A murder like this must have backing. If I had had no backing, I would not have acted."
The prosecution has thus far avoided dealing with these issues for the same reason that it refrained from acting when settlers attacked soldiers in front of the television cameras at Mitzpeh Yitzhar, or when they beat up the IDF Central Command's rabbi at Mitzpeh Jericho: The prosecution is afraid to confront the rabbis, the extreme right and the violent demonstrators - and it is thereby essentially giving in to violence. And when a democratic state gives in to violence, it signals the beginning of the end of democracy.
Democracy must not be tolerant of those who rise up against it to destroy it. The rule of law must use its powers to defend democracy from the hoodlums of the nationalist right, who want to alter the decisions of the elected government and the sovereign Knesset by force.
Freedom of expression is a fundamental and essential principle of any democratic regime, but is it really above all other values? Above life, above the value of the democratic system itself? The murder of another prime minister would spell the end of democratic government in Israel, since the next prime minister would be afraid even to think about a withdrawal. He would obey the thugs' orders. If Amir succeeded in altering a historic process, the next murderer will change the face of the nation.
It is impossible to exaggerate the danger. Shin Bet security service chief Avi Dichter said recently that there are a few dozen Jewish extremists capable of committing murder.
"The incitement already exists, but only a small part of it is visible; most of it is underground," he said. "The goal of these people is to stop the disengagement."
Tzachi Hanegbi, in his former capacity as minister of public security, said: "Some people have made a decision that they will `save the people of Israel' by assassinating a minister, the prime minister or an army officer. I have no doubt of this."
In other words, the situation today is nothing like the situation in May 2002. The threats and incitement have reached a peak, and there is a real danger that another prime minister will be murdered. Therefore, even if the prosecution stops evading action as it has to date, it would be appropriate to make its job easier: The balance between freedom of expression and the need to ensure the continuation of the democratic system should be shifted. The law should be amended to replace "real possibility" with "reasonable possibility," as is the case in many other criminal laws.
Once this amendment is enacted, it will be easier to indict and convict the inciters. Then it will be possible to find out whether the legal problem was just an excuse, or whether Mazuz genuinely understands that this is an emergency situation of "democracy defending itself."
Democracy's right to defend itself was articulated 40 years ago already, in a ruling in the Al Ard case. "It has happened more than once in countries with democratic governments that fascist movements rose up against them and made use of those very same rights of freedom of speech in order to conduct their destructive activities under their aegis," the justices wrote. "No one who witnessed this during the days of the Weimar Republic will ever forget the lesson."
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