Artistic freedom and freedom of expression have never clashed so head-on with the issue of libel as they have in the last 18 years over the documentary “Jenin, Jenin.”
On the one side is the actor everyone once loved to love: Mohammad Bakri, the tall, blue-eyed hero of the Academy Award-nominated film “Beyond the Walls,” who has sometimes been compared to Clint Eastwood. “Jenin, Jenin,” which he made in 2002, depicts Israel Defense Forces soldiers participating in Operation Defensive Shield in the West Bank during the second intifada as the worst war criminals – a film that’s packed with lies, according to Israel’s Supreme Court.
On the other side are the fighters who were in Jenin, who have sued him for libel and for whom, in this case, art the refuge of the villain. Bakri argues that the film is protected by the freedom of art and expression, and the relativity of truth.
The army embarked on Operation Defensive Shield in March 2002, after a Palestinian suicide bomber blew himself up on Passover eve at the Park Hotel in Netanya, killing 30 mostly elderly guests. This was the climax of a bloody month in which more than 135 Israelis were killed. It was the height of the second intifada, which erupted in 2000; during the uprising, 2,000 Israelis were killed, the majority of them in suicide attacks in the hearts of Israel’s cities – on buses, in cafes and on the streets.
the moment you take a decision that supports the soldiers and comes out against Bakri you don’t stand a chance of getting to the Supreme CourtGeula Boussidan
The difficult nine-day battle in the Jenin refugee camp, in which 23 Israeli soldiers and 50 Palestinians were killed, is at the heart of the film and the dispute.
In December 2002 the Israeli film and theater ratings board banned “Jenin, Jenin” from being screened and ruled that it was a “propaganda film dripping with venom.” Bakri and the Israeli Documentary Filmmakers Forum petitioned the High Court of Justice on the grounds of violation of the freedom of speech and artistic expression. They faced the state along with soldiers who had fought in Jenin and the bereaved families of others who had died in the battle.
A bench headed by Justice Dalia Dorner voided the decision by the film board and ruled that “however false and distorted” the claims in the film might be, “banning it violates the freedom of speech and democratic procedure.” In response to the High Court ruling, five of the soldiers filed a libel suit at the Petah Tikva District Court in 2003. When it was rejected five years later they appealed to the Supreme Court.
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The justices ruled that there was grave libel in the film, but nevertheless did not find Bakri guilty because of a technical impediment, since the law prohibiting libel does not allow “an unidentified public” to sue – and rejected the appeal.
In 2016 a suit was filed in an attempt to circumvent this obstacle, this time by Lt. Col. (res.) Nissim Magnaji, who appears in the film. In the coming weeks the summations in this trial will be heard at the Lod District Court,where the deliberations thus far have been marked by sharp clashes between the sides. The affair was mentioned in a speech by IDF Chief of Staff Aviv Kochavi at Training Base 1 last month, in which he said that “Freedom of speech must not allow for freedom of debasement.”
Bakri himself is unperturbed by these claims about truth and lies. During the course of the trial at the Lod District Court, he retracted his claim about an adapted sequence, which creates an impression that an IDF armored car ran over a line of shackled Palestinians. When asked why he did that, he replied that it was “an artistic choice.”
That was just one of the many sequences that have been refuted since then – including claims of Palestinians buried in a mass grave, a shooting of a baby and a disabled man and the bombardment of a hospital. The Supreme Court ruling noted that Bakri “declared he would prove that everything that was said in the film is the full truth,” but he did nothing to that end. None of the witnesses he promised to bring to court showed up.
In an extensive interview with Nirit Anderman in Haaretz this April, Bakri reiterated that he is at peace with not having checked the facts even though the film is categorized as a documentary. “No one has a monopoly on the truth… The truth is ‘Rashomon’-like,” he said. He added that he would make the same film again “without thinking twice.”
‘We chose to be cannon fodder’
In an empty classroom at the Hakfar Hayarok youth village, north of Tel Aviv, I met with six people: Aryeh Kadosh, 56, and Yoram Lavi, 60, who were battalion commanders at the time; soft-spoken Yonatan van Kaspel, who was born in Holland and is one of the five soldiers who sued Bakri at the district court and then at the Supreme Court; Rafi Lederman, 55, a lieutenant colonel in the reserves who at the time was the head of the brigade headquarters in the operation; Yisrael Caspi, 67, a slender, passionate and articulate man who fought at Jenin and holds a Medal of Distinguished Service from the Battle at the Chinese Farm in 1973; and Geula Boussidan, the mother of Amit Boussidan, who was killed in the Jenin battle. All of them spoke with the sharp precision of people for whom the matter has not ceased to burn.
It’s been 18 years since the courts declared “Jenin, Jenin” to be a film rife with lies and it has pretty much been forgotten since then. Why do you keep going?
The sentence that Justice Dorner put into the ruling at the High Court of Justice will be remembered eternally in disgrace. It fires me up with anger to this dayRafi Lederman
Yonatan van Kaspel: “They’re still screening the film – at Beit Berl, Tel Aviv University and other academic settings. It’s on YouTube, it’s a classic in the BDS [boycott, divestment and sanctions movement] library. ... And every time they screen it, they libel us all over again.”
Yisrael Caspi: “Suppose I were to spread a story that you are a pimp, heaven forbid, and you were to sue me for libel, and the court were to rule that it was all lies and mendacity but I could continue to publicize them. Would you be pleased with the result? That is what has been happening to us for 18 years now. I was at the deliberations at the High Court of Justice, the district court and the Supreme Court, and at all three of them the same picture was Lederman repeated. On the one hand, lip service that we are right, that it is libelous. On the other hand, they gave him the victory.”
Rafi Lederman: “The sentence that Justice Dorner put into the ruling at the High Court of Justice, ‘Both this and that are words of the living God,’ will be remembered eternally in disgrace. It fires me up with anger to this day.”
What are “this and that?”
“That the IDF narrative of the events is just as legitimate as the Palestinian narrative in the film – which she noted as false.”
Aryeh Kadosh: “Until the judges rule that this film cannot be shown, it is a mark of Cain on Geula’s son who died in battle, on me and on Yoram and on all the rest of the combat soldiers. What’s this supposed to be? Am I a mercenary? They called me to the flag after the terror attack at the Park Hotel. I came, I left my newborn son, I wasn’t at the circumcision, I fought, I went home. And suddenly along comes some person in the guise of an actor and says, ‘I made a film.’”
Caspi: “We believe there is some covenant between us and society. I have two sons who are combat soldiers and that’s not by chance. We need to defend this place and we have chosen to be the cannon fodder. We are prepared to put our lives on the line and go to battle and we are prepared… we are prepared to die. Chief of Staff Kochavi talked about this at Training Base 1: ‘The soldiers gave what they had, now it is the state’s turn.’ The state’s recompense in this social covenant is to defend the soldiers, their reputation, their honor.”
Geula Boussidan: “It can’t be that a decision like this has been rolling around between four attorneys general and five state prosecutors and no one is capable of deciding. I will tell you why: Because the moment you take a decision that supports the soldiers and comes out against Bakri – who is a friend of the leftist elites – you don’t stand a chance of getting to the Supreme Court.”
Suppose I were to spread a story that you are a pimp, and the court were to rule that it was all lies but I could continue to publicize themYisrael Caspi
Kadosh: “Geula – but I am also a leftist! I grew up in the Working Youth movement. I educated generations there. ... I am a Ma’arachnik [a member of the main precursor of today’s Labor Party] from the left who stood in the city squares. We didn’t go as volunteers to Jenin. They killed hundreds of people here. We’re not discussing the question of occupation or no occupation. We have among us a mosaic of the whole state.”
Boussidan: “Amit was a young man of 21 who had completed his compulsory service, an outstanding soldier in the Givati rifle unit. He had a girlfriend; he was about to get married. From the moment they contacted him to report for this operation, it took five minutes – and he left. They have killed me twice: I have both lost a son and my name has been slandered. It’s over this that I’m at war with the court system.
“I was invited by the president of Israel – forgive me for being emotional, it’s my son speaking from my throat – and along the way they invited me for an interview on Mabat” – the main evening news show on Israel Television – “about the film. I stood in the studio in Tel Aviv, and Bakri and his good friend [prominent Israeli actress] Gila Almagor. She hadn’t seen the film and she’s defending him.”
How do you know she hadn’t seen it?
“Because we asked her. I said to her: ‘So what are you doing here in the studio?’ She said: ‘freedom of speech.’ Do you know who came with Bakri and defended him throughout all the trials? Israelis. Inhabitants of this country, who came to defend him against soldiers who had defended them and were killed because they protected them. And this hurts me.”
Almagor told Haaretz that she has no recollection of the incident. “I would never enter into a confrontation with a bereaved mother,” she said. “I have a great deal of respect for bereaved parents.”
There are no judges in Jerusalem
I realized that on this playing field apparently we won’t change the reality but we will just reawaken the filmYoram Lavi
Among the examples of lack of good faith in “Jenin, Jenin,” Petah Tikva District Court Judge Michal Nadav noted Bakri’s acknowledgement that in the film’s English subtitles, witnesses refer to “massacre” and “genocide,” but these words aren’t spoken and there is no trace of them in the Hebrew translation. This is just one of the series of omissions in the Hebrew version, including the statements “Sometimes they shot a child,” or “The tank ran over them.”
Caspi: “The film opens with a picture of Iyad Samudi, a terrorist who was killed two months later in an encounter with the IDF. In his home, they found 30 pipe bombs. In ‘Jenin, Jenin’ it’s written: ‘In memory of Iyad Samudi, executive producer of the film.’ In Hebrew it says ‘who was killed,’ in English it says ‘who was murdered,’ by IDF soldiers. And there is the terrorist Akram Abu Saba, a hero of the film, from Force 17 that participated in the fighting against the IDF. This is a despicable and terrible film at levels that are hard to describe. Fifteen people speak: doctors, a pregnant woman, a sweet, pretty girl – you don’t imagine that 15 people are lying. One lies, two, but fifteen? There is no smoke without fire.
“So we got a shock from the High Court of Justice ruling in 2003. Mohammad Bakri celebrated his victory over the soldiers at a club in Tel Aviv and we were beside ourselves with astonishment. For three weeks we stayed at the Supreme Court, we built a tent encampment, we couldn’t return to our homes. And at that time we made the rebellious statement: “These are not judges in Israel, these are judges from Europe, from The Hague. What was it that [former Prime Minister Menachem] Begin said? ‘There are judges in Jerusalem.’ In the context of ‘Jenin, Jenin,’ there are no judges in Jerusalem.”
Yoram Lavi, one of the battalion commanders who participated in the battle, has been silent.
Yoram, what do you think?
Lavi: “Unlike the friends who are sitting here, and some others who aren’t sitting here, after the ruling at the Supreme Court in 2011 in the trial conducted by my soldiers, I told Yisrael and the others that I was withdrawing from the legal battle. I realized that on this playing field, no matter what is done, what testimonies we bring, apparently we won’t change the reality but we will just reawaken the film. I salute my friends who have continued.
“I can’t compare myself to the bereaved families but I lost 13 soldiers and that is a pain I walk around with every day. Even if I rend my garments [in a sign of mourning], I won’t manage to make it go away. We didn’t go in with planes or with shells. Tanks that were there fired machine guns – not because we pitied the terrorists but rather because if you fire a shell from one side, you hit your friend on the other side of the camp. In short, we fought exactly like they did. True, in the end we used bulldozers and we demolished houses, because these were fortified targets with explosive charges and a fighting force. This isn’t an innocent home, and bullets don’t go through a wall.”
Caspi: What Yoram wants to say, what we have been finding hard to say for many years because of the bereaved parents, is that our buddies were killed because we behaved like Mother Teresa there. And after all that, a villain like this comes along, a liar, a false accuser, with all the terrorists in the film, with funding from the Palestinian Authority…”
How do you know?
Caspi: “I’d already said it in the petition to the High Court of Justice in 2002, when his attorney denied it. Afterward, at the district court, he admitted he had received money.”
Van Kaspel: “‘A loan,’ he said. Now, at Magnaji’s trial, he admitted he had received $17,000 from [Palestinian politician] Yasser Abed Rabbo. It’s not by chance that at the end of the film he thanks the public diplomacy minister of the Palestinian Authority.”
Bakri refused to respond to Caspi’s remarks (“villain, liar, false accuser’) without first reading the report in its entirety.
Ostensibly, Magnaji’s suit gives a solution to the technical obstacle, that “an identified public” cannot sue, which prevented the courts from accepting the libel suit.
Caspi: “Don’t be deceived. It’s not a technical obstacle at all. This whole story that the district court invented and the Supreme Court approved, that they are unable to ban the film because there’s ‘an identified public’ here – they played us like ping pong. Judge Nadav at the district court said go to the attorney general... And the attorney general at the time, [Menachem] Mazuz, supported us.
“And along came Judge Nadav and found an excuse, that the picture or the name of Yonatan van Kaspel don’t appear in the film. So we went to the Supreme Court, and what does the Supreme Court tell us? Manny Mazuz – today a Supreme Court justice – doesn’t understand – go the attorney general again. The Supreme Court rolled the state down all the stairs with Mazuz and the five fighters from behind. And we went to Yehuda Weinstein, who had replaced Mazuz, with the chief of staff at the time, Benny Gantz.”
Boussidan: “Weinstein said to me personally: ‘Geula, I promise you that in two months there will be a decision.’ He dragged us along for three years and in the end he decided no.”
Until the judges rule that this film cannot be shown, it is a mark of Cain on Geula’s son who died in battleAryeh Kadosh
Where is the attorney general?
After the case was returned to Weinstein, there remained a final and dramatic possibility: to sue Bakri in a criminal proceeding on behalf of the state. Scholars, writers, jurists and former chiefs of staff wrote to Weinstein to implore him to act. However, in the name of freedom of speech, Weinstein stood firm in his refusal.
A few months before the Magnaji suit was filed, former Supreme Court President Justice Aharon Barak wrote to the new attorney general, Mendelblit, requesting that he act since “the libel against the soldiers gives no rest,” and “Freedom of speech is a cherished value but it is not an absolute value. It is a relative value. It can be limited.” Mendelblit sided with the soldiers, but with minimal involvement in the process.
Kadosh: “He joined us and didn’t join. You were a major general in the IDF, you saw what we did, you saw how many we buried. Have you joined the process? Give your decided opinion. There is an obligation to the fighters here. ... I will fight for another 40 years, until I die, so that this film won’t be screened.”
Caspi: “It took him 28 months until he met us. The man refuses to give an opinion in writing that supports the soldiers and the bereaved families. His representatives sits at the trial like a fly on the ceiling and doesn’t speak. The top attorneys have appealed to him and he refuses to support us actively. There’s a big chance that the trial will stand or fall by his opinion.”
Prof. Yuval Albashan, dean of the Ono Academic College law faculty, is far more direct: “Mendelblit simply has abandoned the fighters. It took time until he came forward and even then the person he sent didn’t open his mouth. As though he were from the United Nations. When freedom of speech becomes a sea of versions all of which – including the completely mendacious – are legitimate, this is dangerous precisely to those who are fearful for freedom of speech. It is not legitimate to defend an artist who claims that Blacks have a smaller brain, or that the Jews murder Christian children for baking matza or that IDF soldiers intentionally run infants over with tank treads.”
The office of Attorney General Mendelblit has sent the following response: “The active involvement by the attorney general in a civil proceeding in which the state is not a side is not a usual matter but rather an exceptional measure... It is the attorney general’s intention to submit his clear and value-based legal opinion on the issue under discussion, after the sides submit their summations, in accordance with decision of the court.”
The judges, the attorney general and the government – whom are you angry with?
Boussidan: “All of them.”
Van Kaspel: “Bakri. Only Bakri.”
Caspi: “No way! The only one I’m not angry at is Bakri. Do you think I am angry at Yasser Abed Rabbo? At Abu Mazen [Palestinian President Mahmoud Abbas]? At Akram Abu Saba the terrorist? I’m telling you, in some way I respect them.”
Boussidan: “What do you respect them for?!”
Caspi: “Bakri believes the Palestinian narrative, he calls himself a Palestinian. From my perspective he is an enemy, and with an enemy I know how to deal. My heart is full of anger at those who have abandoned me. And it’s the government system, the ministers of public diplomacy and defense and justice who have abandoned me – and first and foremost the people who speak in such an elevated way and don’t do anything to defend us. The judges made Bakri a winner and the soldiers and the bereaved families are humiliated and crushed and mourning and frustrated, so that we haven’t come back from the battle in Jenin. Until the last drop of blood, until my last breath, we will not let go and we won’t keep quiet until this injustice to the IDF, to all of us, is rectified.