Supreme Court Releases Reasoning for Barring Kahanist Leader From Israeli Election

Legal analysis explains ruling that member of the far-right Otzma Yehudit party could not run for the Knesset due to his racist views

Michael Ben Ari, leader of the Otzma Yahudit party.
Olivier Fitoussi

The Supreme Court released on Thursday its full legal reasoning behind the 8-1 decision to disqualify far-right leader Michael Ben Ari from running in the Knesset election, citing his record of racist anti-Arab statements.

Supreme Court President Esther Hayut’s lead opinion stated that it was clear that Ben-Ari “systematically fans hateful urges against the Arab public as a whole,” including calling Arab citizens of Israel “murderers, a fifth column, enemies, disloyal and of a treasonous character.” These were not “slips of the tongue in the heat of the moment, but rather a continuous and consistent series of statements,’’ the opinion stated.

The court had been presented with substantial evidence of racist statements made by Ben-Ari in the two years leading up to his candidacy. Hayut pointed at one video in particular from August 2018 in which she said Ben-Ari made an explicit call for violence: “Anyone who even dares speak against a Jew is not [to] live. A firing squad shoots him, wipes him out. This is the only language Arabs understand.”

>> Read more: By barring Kahanist, Israel's Supreme Court did its job: Protecting democracy | Analysis ■ Israel’s Supreme Court, a place of deceit | OpinionIsrael’s High Court must save itself | Opinion

She rejected the argument that Ben-Ari was not engaging in incitement against Arabs for their ethnic origins, but rather against enemies based on their political views. The court president said Ben-Ari claims the remarks are not racist but “unfortunately, his actions and statements are diametrically opposed to that comment.”

Justice Noam Solberg issued a minority opinion arguing that all of the candidates, including Ben-Ari, should have been allowed to run for the Knesset, however outrageous his statements may be.

Ben-Ari and his party colleague Itamar Ben-Gvir of Otzma Yehudit were both followers of the late extremist rabbi Meir Kahane, whose Kach party was disqualified from the ballot in 1988. Justice Hayut explained in her opinion that Ben-Gvir was not to be disqualified because “in recent years, he has changed his ways and is working through legal means.” At the time, Otzma Yehudit called the ruling “bizarre” and said it “proves the depths to which change is needed at the Supreme Court.”

Regarding the court’s decision to allow the United Arab List-Balad slate on the April ballot, the court said it had not been presented clear and convincing evidence that either of the two parties on the slate “armed struggle of a terrorist organization” as a “central and dominant goal.”

Regarding the court’s decision to allow Ofer Cassif to run on the Hadash slate, Hayut said that she accepts the opinion of Attorney General Avichai Mendelblit that evidence against Cassif is insufficient to disqualify him. She added that Cassif’s statement that inflicting harm on Israeli soldiers was “not terrorism” and is “completely legitimate based on moral criteria and, by the way, also according to international law,” are “severe and outrageous.”

In another minority opinion, Justice David Mintz said Ben-Ari, Cassif and the United Arab List-Ta’al slate should have been ruled off the ballot. He paid particular note to Cassif’s statement, saying it provides sufficient basis for disqualifying him for his support of “armed struggle against the State of Israel.”

In ruling against a request to disqualify Cassif’s Hadash-Ta’al slate, Hayut said although some statements attributed to representatives of the slate could be interpreted as support for armed terrorism against Israel, “the same reports also contain statements by members of the slate saying that they do not support violence as a political approach,” casting doubt on the interpretation that the slate supports terrorism.

The court had released a partial legal opinion prior to the election so that it could provide a summary explanation before the April election. In May, the Knesset voted to dissolve itself after Prime Minister Benjamin Netanyahu failed to form a governing coalition. A new election is scheduled for September 17.