January 21, 2019

In Israel, Hard Cases Make Bad Laws

The Israeli Ministerial Committee for Legislation on June 17 approved a bill proposed by Knesset member Robert Ilatov, chairman of the Yisrael Beiteinu party, entitled “Prohibition against photographing and documenting IDF Soldiers.” If hard cases make bad law, this is indeed a case in point.

Here is what this bad law concerning the Israel Defense Forces (IDF) proposes: “Anyone who filmed, photographed and/or recorded soldiers in the course of their duties, with the intention of undermining the spirit of IDF soldiers and residents of Israel, shall be liable to five years’ imprisonment.” 

First of all, from the practical point of view, even if this law is passed, it will be impossible to enforce. With almost everyone carrying a smartphone today, who will chase the originators of IDF pictures and videos, which will easily spread on social media?

Worse still is the phrase “with the intention of undermining the spirit of IDF soldiers and residents of Israel.” What kind of Orwellian thought police will Israel have to create in order to establish the motives of people who might take pictures of, film or record IDF soldiers? 

Imagine photojournalists these days doing their job on the Israel-Gaza border. And imagine that their cameras catch a Palestinian being killed by an Israeli sniper — obviously a picture or video that, if published or broadcast, might arouse strong reactions. On the one hand, Israelis and Israel supporters might vindicate it by arguing that if Palestinians break through the fence into Israel, it will result in a massacre in the neighboring Israeli kibbutzim. On the other hand, some might argue that there must be better ways to stop the Palestinians short of shooting at them. This is a healthy debate, one which shouldn’t be hampered by self-defeating legal intervention. 

If the IDF is “the most moral army in the world,” then there is no need to hide anything.

Take for instance the case of Elor Azaria, the former Israeli soldier convicted of manslaughter for killing an incapacitated Palestinian terrorist. Surely Ilatov, the initiator of the current bill, had this incident in mind. Indeed, the release of the video of the shooting caused a turmoil. Without it, however, Israelis would have been denied the knowledge that there was a rotten apple in their cherished IDF, and things like that could have been repeated without the punishment and condemnation they deserve. 

And why stop at photos and video? What about print? Surely, the reports for The New York Times that Neil Sheehan sent from Vietnam during the war were unsettling, but would anyone seriously think about prosecuting him for “undermining the spirit of American soldiers and residents of the United States”?

Also, this ill-conceived move goes against the trend in other areas, like the monitoring of police conduct. Most studies on the use of body cameras by police officers show an improvement in transparency, trust of the public in the police and easing of tensions. Why must Israel single itself out as a reactionary force?

This ill-conceived bill is part of a greater scheme by the Israeli government aimed at harassing people who oppose its policies. Recently, some human rights activists were deported from Israel upon arriving at Ben Gurion Airport. Instead of doing that, Israel should let anyone enter and then debate with them. At the age of 70, our country should be self-confident enough to do that. The more people know about Israel from first-hand experience, and the more they meet real Israelis, the more nuanced their perspective of Israel becomes. 

Personally, I think that in the current Gaza violence, the IDF’s conduct is reasonable, and that probably no other democracy in the world would have come up with better solutions for this kind of challenge. However, I wouldn’t like my government to chase or imprison people who beg to differ. 

Defense Minister Avigdor Lieberman, who praised the bill proposed by his party member, has called the IDF “the most moral army in the world.” If this is true, then there is no need to hide anything. Let the world see for itself. It is our job, then, to give context to the pictures and the films.

Uri Dromi is the director general of the Jerusalem Press Club. From 1992-96, he was a spokesman for the Israeli government.