Haaretz recently reported that the police detained a leftist activist on suspicion of incitement because there was information that he possessed BDS materials. The detainee was Prof. Jeff Halper, who heads the Israeli Committee Against House Demolitions. Police held him immediately after a tour he arranged with a group of tourists in the West Bank’s Area E1.
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The reason for the detention was the suspicion that he possessed materials belonging to the international boycott, divestment and sanctions movement. The police released him after finding no such material on him. But it is not so easy to excuse the behavior of the police. However, before I say a word or two about the handling by the police, let me clarify my personal position on the issue. I oppose boycotting Israel, and certainly the BDS movement. However, this opinion has nothing to do with the question whether the police had the authority to detain Halper for questioning.
The Israel Police is authorized to investigate only acts defined as a criminal offense. It has no authority to investigate any behavior it doesn’t like. Thus, questioning someone on suspicion of incitement and calling for a boycott against Israel by an Israeli citizen in Israel, as in the case of Halper, is forbidden for the police, for there is no such criminal offense in the law books. Indeed, the ban against calling for a boycott against Israel or Judea and Samaria exists in the 2011 Law for Prevention of Damage to State of Israel Through Boycott, commonly known as the Boycott Law. However, it is strictly a civil offense, subject to suing for financial damages. It is not a criminal offense and therefore has no criminal sanctions. If so, what criminal offense was Halper suspected of? Who authorized the police to detain or question him? It seems it did so without any authority.
During my work as state prosecutor, I was responsible for enforcing incitement offenses during the period after the Rabin assassination. I also headed an interministerial team involving the state prosecutor, the Shin Bet security service and the police, which handled such offenses. It is important to point out that we knew then and we know now that the very enforcement of incitement offenses is an attack on freedom of expression, which is considered a fundamental principle in any democracy. Therefore, the Knesset conditioned the possibility of such an indictment on approval by the attorney general. The Supreme Court was also careful in interpreting incitement offenses in order to protect freedom of speech.
So the police is not authorized to open an investigation into offenses like incitement to violence, racism or rebellion without the attorney general's approval. Yet in practice, in the case of Jeff Halper, the police detained a man for an act related to freedom of expression when there is no criminal offense to suspect him of!
The main question for Police Commissioner Roni Alsheich and Attorney General Avichai Mendelblit that the incident raises is: What do you think should be done to prevent such incidents from recurring? Do Israeli policemen know that the Boycott Law is not about a criminal offense? Do they know that they have no authority whatsoever to question the behavior of any person on suspicion of inciting to join the BDS movement because doing so is not a criminal offense? Are police officers doing extra work to keep with the spirit of the commander as they understand it to be, and so are quick to detain and arrest leftists? Is this the result of a change in the Entry into Israel Law that allows preventing the entry of a foreign resident who supports the BDS movement, and in the spirit of the same law the police conferred upon themselves the investigative authority even when the Knesset did not authorize them?
Comprehensive and intensive enforcement of so-called incitement offenses constitutes a serious assault against freedom of expression and restricts it in advance. Police activity regarding something that is not a criminal offense requires immediate action by the police commissioner and attorney general to halt illegal police behavior that undermines freedom of expression and the political freedom of Israeli citizens.