Israeli courts have banned the showing of films in movie theaters before, but the ruling last week in the defamation suit against “Jenin, Jenin” and its creator Mohammad Bakri seems particularly severe. Judge Halit Silash banned screenings of the documentary, ordered the confiscation of all copies of it, and required the director to pay the plaintiff, army reservist Nissim Meganji, 175,000 shekels ($55,840), on top of 50,000 shekels for the trial’s expenses.
With this ruling the court is sending a threatening message to local filmmakers: They should be careful about how they ply their freedom of expression and artistic freedom. But, surprisingly, despite the ban and the judge’s harsh comments about Bakri, she didn’t block the option of watching the film on Israeli YouTube.
Bakri and his lawyers, Michael Sfard and Hussein Abu Hussein, say they are inclined to appeal the decision at the Supreme Court, though they have not made a final decision. Sfard told Haaretz on Tuesday that the ruling reveals much more about Israeli society than about Bakri and his film. “It shows who we are in 2021, what kind of society we are, and how we deal with criticism even if we think that it’s false. And the picture that it portrays is ugly and problematic,” he says.
“This ruling pretends to avenge the honor of the plaintiff, of a single person, but it still reveals the truth – that basically it’s avenging the honor of the army and of all Israeli society, precisely what the Supreme Court decided can’t be done. If the court had focused solely on the harm caused to the plaintiff, it would have ordered the removal of the three seconds in which he’s on the screen. The fact that the court chose to ban the screening of the entire film proves that the plaintiff’s honor isn’t at issue here.
“I’m shaken by this decision. Bakri, who has been through a lot in his life, is less surprised, but for me it’s harder not to expect an Israeli court to defend an Arab who dared give a platform to a refugee camp’s citizens from the large establishment he was confronting.
“Over 20-odd years I’ve taken part in a large number of controversial cases, but I’ve never had a case where the atmosphere was as poisonous and violent as in this one, where on the prosecution’s side every hearing was attended by soldiers and generals in uniform and representatives of bereaved families, armed with hostility and creating intolerable tension in the courtroom. In this case the entire system mobilized against Bakri.”
Sfard also says the ruling is a danger to documentaries’ basic technique. “Anyone who watches the film and sees those three seconds when the plaintiff appears on the screen will understand that this is an intercut, a generic shot of soldiers, and no viewer will think that the things said in the film are directed specifically at this man,” he says.
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“That’s why, if this ruling remains in place, it eliminates the most accepted, the most common technique of documentary filmmaking; for example, when someone is talking about police, you see police.”
‘Blatant and crude blow’
In response to the decision, which was handed down 19 years after the film was released and nearly two decades of Bakri being dragged into the courts, the Israeli Documentary Filmmakers Forum said Tuesday: “The court’s choice of the extreme sanction of destroying copies and a ban against distributing the film ‘Jenin, Jenin’ in Israel is a blatant and crude blow to freedom of expression and artistic freedom, and constitutes a dangerous precedent.
“We are opposed to any attempt at silencing. We protest the lack of proportion, and believe that in no instance is the rejection and destruction of an artwork legitimate.
“In an atmosphere of incitement and hatred, of a total blurring of boundaries between truth and falsehood, Bakri has for years, today in particular, paid an intolerably high price for a story that was important for him to tell. What is documentary film if not the opportunity to tell stories that aren’t always easy to hear, to illuminate dark corners and stir a public discussion?
“It turns out that in the Israel of 2021, discussion is a dirty word, and the silencing of voices has become legitimate under a court’s aegis. It’s sad and frightening. This ruling casts a heavy shadow over our art, over our ability to tell stories that are important to tell, and its consequences are likely to be far-reaching.”
“Jenin, Jenin” was made right after the fighting in the Jenin refugee camp during Operation Defensive Shield, the Israeli army’s 2002 incursion into the West Bank during the second intifada. Bakri visited the site and interviewed residents there after three weeks during which the army operated in the camp and prevented the Red Cross, journalists and rights groups from entering.
“We should remember that during that period the public abroad and in Israel heard only the army’s version. And then Bakri entered with a camera and let the residents who live there talk and tell about what they had experienced. And he’s been paying for the past 20 years for giving them a platform,” Sfard says.
“This case may be the best example of why the legal system has the barrier of the statute of limitations – just so there won’t be a situation in which a filmmaker or an author will have to keep dealing with lawsuits for 20 years.”
Over the decades, the Film Review Council has decided several times to ban the screening of films in movie theaters. In some cases, the filmmakers appealed to the Supreme Court, which approved the council’s decision. That’s what happened with a 1978 documentary that featured testimonies from 1948 and the confiscation of land in Wadi Ara in the center of the country. The council rejected the film, claiming that it “includes a type of incitement by minorities against the state and its citizens.”
The Supreme Court then ruled that this was “an informative film that pretends to be a documentary but actually includes a biased presentation of past events.”
Foreign films have a better chance
As Prof. Jonathan Yovel of the University of Haifa law school puts it, “In films whose rejection was approved by the court over the years, it was very strict about rejecting a local film. When it came to foreign films it was more liberal. It agreed, for example, to show ‘The Last Temptation of Christ’ here, even though the Film Review Council decided that it was offensive to the public.”
Yovel notes, however, that the court rejected the 1978 documentary on testimonies from the Nakba, the 1981 movie “The Eagle” by Yaky Yosha and a short 1970 film by David Avidan, “Sex.” “So there is definitely a local history on this issue, though none of these cases included a defamation suit,” Yovel says.
He mentions a famous case of a foreign film that reached the Supreme Court, the Japanese erotic drama “In the Realm of the Senses” (1976). The Film Review Council banned it but the Supreme Court approved it on condition that certain parts were removed.
“That could presumably have been a solution for ‘Jenin, Jenin.’ During the trial it was claimed that the plaintiff is seen for only four seconds, which Bakri at one point suggested cutting out,’ Yovel says. “That could have been proportionate, because it would have eliminated the film’s defamation against the plaintiff and reduced the impact on the filmmaker’s freedom of expression.”
But Judge Silash ruled otherwise. As Yovel puts it, “This is a strange ruling, because for one thing it’s very grave and draconian, mainly in the sense that it doesn’t permit the showing of the film anywhere. If, for example, I want to show it tomorrow in a course at the university on a defamation lawsuit, that’s forbidden according to this order.
“Also it’s too weak because it doesn’t apply to YouTube, and then of course there’s no problem in seeing the film, it’s legal. And the main support that the plaintiff requested from the court – that people won’t see him in the film in the situation that defames him – that in effect wasn’t granted.”
There may be two explanations for the strange decision to ban the screening of the film and confiscate copies of it while letting anyone watch it on YouTube, Yovel says. “One, that the court is working with totally anachronistic language in terms of technology. After all, ‘confiscating copies’ is totally anachronistic in the current situation, but I think the more correct explanation is different,” he says.
“The ruling is written in very strong language, it talks about Bakri’s lack of good faith and criticizes him harshly. It seems to me that the court wanted to write very harsh things about him rhetorically and symbolically while creating balance and still leaving the film on YouTube. I think that’s what the judge was trying to do.”