Court to Decide if Israel Can Force Breaking the Silence to Reveal Its Sources

The state attorney wants the NGO, which collects testimonies from Israeli troops about their army service in the Palestinian territories, to reveal the identity of a soldier whose statement raises suspicion of war crimes.

Breaking the Silence activists hold signs saying 'this is what the occupation looks like'  at a rally against incitement, Tel Aviv, December 2015.
Moti Milrod

A Petah Tikva court will hear arguments on Sunday hearing that could have far-reaching consequences for left-wing NGO Breaking the Silence. After several postponements, Magistrate’s Court Judge Eliana Danieli is to hear a petition by the state attorney to force the organization to reveal the identity of a soldier whose testimony raises suspicion of war crimes.

The Military Police is investigating transcripts of some of testimonies collected by the NGO regarding suspicion of war crimes during Operation Protective Edge in Gaza in 2014. If the judge  accepts the state’s petition, it will be the first time authorities will force the organization to identify a soldier who spoke on condition of anonymity, and take his testimony directly. In this case, it is likely the state attorney will also use testimony or raw materials as evidence. It is also reasonable that such revelation will severely deter other soldiers from providing anonymous testimony.

It is hard to escape the impression that this is precisely the state prosecutor’s long-term goal. Several petitions to oblige Breaking the Silence to provide raw materials in a way to reveal soldiers’ identities have been rejected.

One of the main complaints army brass, and subsequently government ministers, have raised against the NGO is its refusal to reveal the identity of most witnesses. The army complained such behavior reflects a problematic approach by the witnesses themselves, who are not prepared to take responsibility for their actions. The NGO was criticized for making it hard on the army to conduct broad investigations of complaints and mainly engaging in what the army sees as its prime goal, political activity against Israel’s occupation of the territories.

Attempts to obtain full testimonies began in 2004 when founders of the NGO, demobilized Nahal soldiers, held an exhibition in Tel Aviv documenting their experiences serving in the territories.

The military criminal investigation division raided the exhibition and confiscated items on orders from the state attorney, but did not uncover anything. Later it tried to obtain other raw materials regarding testimonies, but the NGO sent them to its attorney, Michael Sfard. The military advocate general issued an order to confiscate the documents but withdrew it when it encountered skepticism in court.

The past three military advocates general have desisted from taking similar action. After Operation Protective Edge, some 30 investigations were open, eight of them based on testimonies collected by Breaking the Silence. The army tried to contact one of the witnesses directly via the NGO, but they refused to cooperate. So it filed the petition to reveal the raw materials. The case has been classified, on the claim that the investigation includes secret materials.

While the petition was filed with the military criminal investigation division, the military advocate general is involved marginally, which probably reflects a lack of enthusiasm to deal with the issue. The testimonies involve a handful of soldiers who were demobilized shortly after the operation and are no longer subject to military law. The military prosecution considers one of the soldiers who testified to Breaking the Silence a suspect for criminal acts. The incidents themselves, compared to some of the testimony taken, involve less important complaints that aren’t particularly serious and deeds not linked to senior officers.

Breaking the Silence opposes handing over the materials on grounds that it will lead to uncovering witnesses’ identities against their will. Most witnesses to date have requited anonymity, and the NGO understands that the chance of convincing other soldiers to testify will plummet if it cannot protect their identity. Part of its problem in making its legal case is the way it will present its immunity request – what status do testimony takers, who are not journalists or lawyers for the witnesses, deserve?

By coincidence, the state attorney’s first petition, which was delayed several times until this coming Sunday, was filed in December in the same week that a broad public attack began against Breaking the Silence and other anti-occupation groups. It began with the attack on President Reuven Rivlin for participating in the Haaretz conference that Breaking the Silence representatives also attended, continued with a film clip describing leftist activists as “moles” and ended with attacks by senior politicians on NGOs including Breaking the Silence. Some were accused of treason. It seems the state attorney’s move, even if it is presented as a procedural matter, is not entirely disconnected from the effort to prune the influence of NGOs determined to publicize complaints about events in the territories.

Breaking the Silence’s executive director, Yuli Novak, accused the state prosecutor of “taking an unprecedented and worrying step that endangers the organization and its work by trying to force us to reveal witnesses’ identities. It is even more puzzling and bothersome that the attorney’s demand is part of an investigation of junior soldiers for offenses that are not severe, in the very least, that were described in testimonies or took place in Protective Edge and as far as we know have nothing to do with killing or causing injury.”

The state prosecutor commented, “The State of Israel believes there is public interest of the highest degree to investigate the suspicions against the suspect and against others involved.”

The IDF spokesperson commented that during a military investigation opened in the wake of a report by Breaking the Silence on Operation Protective Edge, it emerged that one person, whose identity is known to investigators, had vital information for investigating grave suspicions. “In order to advance the investigation, there was a need to receive the unabridged material that Breaking the Silence documented.”