Court Upholds Acquittal of Rabbis Who Offered to Pay Soldiers Who Refused to Evacuate Settlements

Ruling says they had the right under freedom of expression since the likelihood of soldiers following their statements was relatively small

Aaron Rabinowitz
Aaron Rabinowitz
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A swearing-in ceremony where soldiers refused to follow orders in 2009.
A swearing-in ceremony where soldiers refused to follow orders in 2009.Credit: Miri Zach / Homesh First
Aaron Rabinowitz
Aaron Rabinowitz

The Jerusalem District Court upheld the acquittal of Rabbis Shalom Dov Wolpe and Shabtai Weintraub, who had been tried for inciting soldiers to refuse orders to evacuate settlements. The two were acquitted last year by a lower court and the State Prosecutor’s Office appealed the decision to the District Court.

Judges Aharon Farkash, Oded Shaham and Avraham Rubin ruled that in this case, the defendants had the right of freedom of expression since the likelihood of soldiers following their statements was relatively small.

Wolpe and Weintraub were charged after they called publicly for soldiers to refuse orders to evacuate settlements in the West Bank and even offered money to those who declared they would refuse such orders. Wolpe was also indicted for presenting a “certificate of esteem” and sums of money to two soldiers from the Shimshon battalion in the Kfir infantry brigade who were court-martialed and sentenced to 20 days detention for waving a sign at the Western Wall in 2009 during their army swearing-in ceremony saying, “The Shimshon Battalion will not evacuate Homesh,” referring to one of the northern Samarian settlements demolished with the 2005 Gaza disengagement. Settlers later tried to return and live there, but were removed a number of times.

“Every soldier who goes to prison for refusing this patently illegal order to evict Jews from the Land of Israel, will receive a prize,” Wolpe said at the ceremony at the time.

Wolpe is a well-known rabbi on the extreme anti-Arab right and in 2008 he founded the party Eretz Yisrael Shelanu (The Land of Israel is Ours) along with Kahanist leader Baruch Marzel. The party ran for the Knesset but did not receive enough votes to win a seat. In the past, Wolpe has called on settlers to “return fire” at IDF soldiers in case they are fired upon. Wolpe made his remarks after the evacuation of the residents of the unauthorized outpost of Havat Gilad, who resisted the destruction of their homes, by soldiers who used means for riot control against the residents.

The judges said that because the offense of incitement to refuse orders limits the freedom of expression, it must be applied according to a “probability test” in which criminal responsibility applies only in a case in which it is “close to certain” that the result will occur.

The Supreme Court has set a similar test for the crime of offending a public employee because the definition of the expression “insulting” is open to interpretation. The judges ruled that considering the manner in which their calls were made and that the defendants did not have any exceptional public standing, the chances that their calls for refusing orders would be acted on were quite low.

As for the money Wolpe paid to the soldiers, the judges noted that its purpose was to send a message – and that is included in the freedom of expression. Because of the clear media aspect of the actions, Wolpe was trying to send a nonverbal message and as such, his actions are also part of protected speech, said the judges.

Prosecutors had emphasized the offer of money to tempt soldiers in their case. The prosecution said that because the basic interest involved in the crime was the proper functioning of the security services, the question of the probability of the outcome was not appropriate, and the balance between freedom of expression and protecting the public was preserved by the limited and restrained use of investigations and prosecution of such crimes.

The prosecution is considering appealing the latest ruling to the Supreme Court, because they view the case as a matter of principle, Haaretz has learned. The State Prosecutor’s Office said it will “study the ruling and consider its next steps.”

Itzhak Bam, the attorney who represented Weintraub, said “this is an important day for the freedom of expression. But the freedom of expression of the right is not to be taken for granted. The fact that a precedent-setting indictment was filed in this case for this offense, when all the leftists since Yeshayahu Leibowitz enjoyed immunity in practice. Even after the acquittal in the Magistrate’s Court, the Jerusalem District prosecutor himself appeared at the hearing of the appeal and asked to convict the defendants in an unprecedented manner. Freedom of expression is a right that must be fought for every day. And we are fighting,” said Bam.