Israel's Selective Enforcement of Flag Desecration Offenses Is Based on Sentiment

Flag desecration accepted when protesting Shalit deal, but leads to arrest when protesting occupation. Ultra-Orthodox protesters dancing on flag could be sentenced to community service; an Arab who burns a plastic flag is arrested.

A demonstration against a prisoner release, 2013.
Moti Milrod

The Israel Police’s intention to file an indictment against artist Natali Cohen Vaxberg for an offense under the Flag Law raises questions about the correct balance between respecting national symbols and freedom of expression. Cohen Vaxberg, a performance artist, filmed herself defecating on the Israeli and other flags.

The police regard the Cohen Vaxberg incident as “an important case,” though other cases of defacing and debasing the flag (“damage to a symbol of the state”) have been treated with more leniency - if they were dealt with at all. Could it be that the police are enforcing the relevant law selectively?

In May of 2014, shortly before Memorial Day (its full name is the Day of Remembrance for the Fallen Soldiers of Israel and Victims of Terrorism,) two activists sprayed Israeli flags hanging along Yehuda Hayamit Street in Jaffa with red paint. The two, a young man from Ramle whose name is embargoed and Anarchists Against the Wall activist Inbal Sinai, were swiftly arrested.

The investigation material showed that Sinai had been under police surveillance before the arrest. The attorneys for the young man, against whom an indictment was filed, sought clarification of what had led the police to follow the two. It turned out that the Defense Ministry had been granted a document of confidentiality back in June of 2014, nearly a year earlier.

Ultra-Orthodox protesters burn an Israeli flag, 2008.
Alex Levac

According to the document, the confidentiality applied, inter alia, to the Shin Bet's sources of information, its “methods and modes of action, operational activity, work procedure and means of obtaining information; technical means at the Shin Bet’s disposal for obtaining intelligence material, including material gathered by those means; positions, names and tasks of Shin Bet employees or any other detail that could reveal or expose their identity.”

It is not clear what was behind the Shin Bet's surveillance of the two - whether it was a result of their plans to besmirch the flag or due to Sinai’s activism against the West Bank separation fence. Cases against both are still being pursued.

The conduct of the authorities might suggest that defending the flag is a key mission of the Israel Police, but that's not necessarily so. Eight months before the incident in Jaffa, police from the same district were present at a Tel Aviv demonstration against the release of Palestinian prisoners as part of the deal to free Gilad Shalit from Hamas captivity in the Gaza Strip. Under the slogan “Blood on Their Hands,” the demonstration included such participants as Knesset member Ayelet Shaked (today Justice Minister,) who posted a picture on her Facebook page that clearly showed Israeli flags stained with red paint – not dissimilar to what was done in Jaffa.

It would have been very easy for the police to catch the desecrators of the flag, even without undercover surveillance, but the police who were present did nothing.

Israeli flags splashed with red paint in Jaffa.
Israel Police spokesperson

Provocative Professor Amir Hetsroni succeeded in annoying many people last week, when he uploaded a Facebook post about Cohen Vaxberg. “Politically, Natali and I see Israel identically – a state destined for scrapping and immediate dismantling. Nevertheless, there are differences, because Natali is an artist while I am a scientist. Therefore, Natali wastes high-quality cloth on useless installations, while I use the Israeli flag as a rag for washing the floor. Even Corinna, the faithful Filipina cleaning woman, knows that in casa professor the floor is washed only with a blue and white flag.”

The post includes a picture of an Israeli flag attached to a mop handle. The police promised to look into the matter after complaints were received, but Hetsroni has not been arrested and it is doubtful that he will be.

The public does not feel any need to complain when Beitar Jerusalem soccer fans fly the flag in their stands, embossed with “Representing the Jewish People” in black and accompanied by racist slogans. The national flag in the yellow and blue team colors of Maccabi Tel Aviv doesn't stir any protest either and there was no outcry when flags were dyed orange during the disengagement from Gaza 10 years ago.

Attorney Gaby Lasky, who represents the young man from Ramle, says that “in the current trial, we have asked the Israel Police to explain their reasons for closing Flag Law cases and have been rebuffed every time. It is unclear to this day on what basis the police file an indictment and on what basis they don't. If a demonstration is about an issue with which it is easy to identify and Knesset members are present, no one enforces the Flag Law.”

Natali Cohen Vaxberg in 2014.
Tomer Appelbaum

The Israel Police responded: “Incidents that arouse suspicion of the commission of an offense under the Flag Law are examined and treated in professional coordination with the State Prosecutor’s Office, which has the authority to approve the filing of indictments for this offense, taking into account the overall circumstances and with a careful balance regarding the principle of freedom of expression.”

When police requested that Cohen Vaxburg be remanded after her first arrest in November 2014, Judge Yaron Gat of the Tel Aviv Magistrates Court wrote that her deeds were “infuriating and ugly, but I do not believe that they entail any danger that justifies her continued arrest as requested.”

In fact, the history of flag desecration is as long as the history of the state. The ultra-Orthodox Naturei Karta sect in Bnei Brak and Jerusalem regularly burns the flag on Memorial Day for fallen IDF soldiers. As a rule, the police tolerate it. An indictment was filed three years ago against an individual who, upon hearing the siren on the eve of Memorial Day, began to jump up and down, clapped his hands, set a flag on fire and held it up for onlookers to see. After the flag was burned, he and others trampled it underfoot. He was brought to trial and sentenced to 120 days of community service.

Similarly, the Jerusalem Magistrates Court sentenced Elhanan Ostrovitz to six months of community service a few months ago, for destroying property at Yad Vashem and the Ammunition Hill memorial site. His crime was to spray-paint graffiti such as “The evil Zionist regime will yet collapse” and to attempt to set fire to a flag.

In 1997, then-deputy mayor of Jerusalem Rabbi Haim Miller caused an outcry when he said in a radio interview that the national flag is "a stick with a blue and white rag on it." The attorney general rejected demands that Miller be charged, saying that even if the statement was disrespectful of the flag, Miller had the right to free speech. The High Court of Justice supported that decision.

The law does not define what exactly the flag is. If it's defined as a piece of cloth with two blue stripes and a Star of David in the center, what about a flag drawn on cardboard and used for advertising purposes? The Petah Tikva Police was not in doubt. When, in May 2014, an Eritrean asylum-seeker cut a carboard advertising flag on a Mifal Hapayis lottery stand, he was arrested and indicted for possession of a knife and for dishonoring the national flag.

“I didn’t rip any flag,” he told the judge. “My knife belongs to my work,” he added, “for cutting the string on boxes.” According to his attorney he did not even know it was the Israeli flag.

Magistrate’s Court Judge Erez Nurieli was not convinced. In his opinion, “The deeds of the accused were done with criminal intent. His repeated damage to the flag by means of the knife, tearing it up on the state’s Independence, all this, on the background of his anger at the establishment, constitutes an offense against the Symbol and National Anthem Law. However, with regard to the nature of the damage and its essence the magnitude of the damage does not amount to debasement of the flag.” The accused is currently awaiting sentence.

It is not clear how many people are arrested and tried for destroying or debasing the flag but almost certainly most of them are not Jewish. Sleimeh Tarq was arrested in 2000 for burning “a length of plastic two meters-long with the symbol of the state on it,” as stated in the request to extend his remand. Judge Haim Li-Ran found him not guilty and reprimanded the police since, according to him, there were indeed blue stripes on the length of plastic but no one saw that a Star of David had been drawn on it.

Fatina and Ahmed Zabeidat, who waged a long struggle until they were able to build a house in the community of Rakefet in the north, discovered that an Israeli flag had been hung on their home without their permission on Independence Day of 2012. They folded the flag neatly and returned it to the council. Many in the community took offense and spoke of filing a complaint for debasing the flag. But in the end no complaint was filed.