Court Urges Breaking the Silence, State, to Make Deal Over Accessing Soldier's Testimony

Prosecution wants NGO to release full interview because it suspects soldier may have committed a war crime; nonprofit refuses, citing soldier's right to anonymity.

Gili Cohen
Gili Cohen
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Breaking the Silence employees in conversation at the organization's Tel Aviv office, December 16, 2015.
Breaking the Silence employees at the organization's Tel Aviv office, December 16, 2015.Credit: Reuters
Gili Cohen
Gili Cohen

In a case that could have far-reaching consequences for Breaking the Silence, an Israeli court on Sunday urged the nongovernmental organization and the state to reach an agreement on obtaining an anonymous soldier’s full testimony.

“I’m not certain this case must be decided by the strict letter of the law,” said Petah Tikva Magistrate’s Court Judge Eliana Danielly. The next hearing will take place in two months’ time.

The state had petitioned the court, insisting that it needs Breaking the Silence’s full interview with the soldier because he may have been party to a war crime. The group, which collects testimonies about the military’s activities in the territories, is refusing to hand over the raw interview because it would reveal the identity of the witness, who had spoken to it on condition of anonymity. This would likely deter other soldiers from providing testimonies in the future.

The military, meanwhile, argued that the soldier’s identity is already known to its investigators, and that the soldier “has information that is crucial to clarifying serious suspicions.”

Attorney Michael Sfard, the NGO’s attorney, told the court, “The first, immediate, and irreversible damage [resulting from the state’s request] is the finishing off – the total silencing – of Breaking the Silence. Without Breaking the Silence, there would have been no testimonies published from Operation Protective Edge [the Gaza war in the summer of 2014] and we wouldn’t be here. They wouldn’t know about the events, and no investigation would have been launched.”

Sfard argued that the NGO should be granted journalistic immunity against revealing its sources, since the witnesses were given a commitment that they would not be exposed.

“If the order remains, it’s the end of Breaking the Silence. This case is one of, To be, or not to be,” he said. Sfard added that those testifying to Breaking the Silence knew there might be a risk of investigations being launched as a result of what they said, “but not that the police would retroactively turn Breaking the Silence into police agents.”

Prosecution attorney Leonora Montilyo Segal told the court that negotiations between the state and Breaking the Silence had reached a dead end, adding, “Our demand is clear. We want the material.”

The state prosecution presented the judge with investigative material that it claims indicates the soldier allegedly involved in the violations was the one who spoke to Breaking the Silence, making the NGO’s material crucial. This presentation was made without the NGO’s attorneys being present.

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