Knesset members seek libel protection for IDF soldiers
If passed, legislation will enable class-action suits against critics who make false claims about army operations
Haviv Rettig Gur is The Times of Israel's senior analyst.
A bill that would allow IDF soldiers to file class-action libel suits against dishonest claims about the army’s operations saw its first public debate Tuesday in a tense session of the Knesset Constitution, Law and Justice Committee.
“We’re dealing with a unique phenomenon in which soldiers are defamed to [harm] Israel,” explained MK Yoni Chetboun (Jewish Home), who proposed the bill. “It is the duty of the legislature to identify lacunae in the law that leave our soldiers exposed, and to correct them.”
The bill is a response to “Jenin, Jenin,” a film by Arab-Israeli actor and director Mohammed Bakri that leveled accusations of atrocities by Israeli forces during the April 2002 battle of Jenin. The film offers a number of unchallenged claims about Israeli brutality that Israel’s Supreme Court has ruled were deliberate lies.
The IDF remembers the battle as the Palestinians’ most significant military success during Operation Defensive Shield, where Palestinian fighters managed to kill 23 IDF soldiers and wound another 70. Some 54 Palestinians were killed, at least half of them combatants, according to international watchdog groups, a figure far lower than the hundreds of civilians Palestinian officials claimed had been killed at the time.
Several IDF soldiers who participated in the battle attempted to sue Bakri for defamation over his portrayal of IDF behavior in Jenin. The case reached the Supreme Court, where the justices agreed that the film contained lies about the fighting in Jenin, but ruled the soldiers did not have legal standing for the suit because Israeli law only allows civil libel suits to be brought against defamation of individuals, not groups. The film did not name the soldiers in the battle of Jenin, but rather leveled its accusations at them as a group.
In its ruling, the court relied on Article 4 of Israel’s 1965 Prohibition of Libel Law, which explicitly forbids individuals from filing civil suits over alleged libel directed at entire groups.
“‘Jenin, Jenin’ exposed a gap [in the law] on this issue,” MK Nachman Shai (Labor), a cosponsor of the bill, said Tuesday. “The Supreme Court said the law doesn’t allow for these libel cases to be brought, and in doing so it invited the legislature to change the law.”
Article 4 not only prohibits civil suits against libel directed at groups, it also limits the state’s ability to file criminal charges. Any such indictment must be approved by the attorney-general, a power no attorney-general has ever utilized since it was passed into law in 1967.
The new bill, proposed by Chetboun together with cosponsors Yariv Levin (Likud-Beytenu) and Shai, would grant IDF soldiers the right to sue for libel on a class-action basis, granting them legal standing even in a situation in which the defamation of an IDF operation did not name them individually.
The bill raises a series of weighty legal questions, and has faced criticism from several quarters, chiefly from those who fear that an expansion of the right to sue for libel would have a chilling effect on speech that isn’t libelous.
“The ability of law to police free expression and arrive at a good result is very limited,” said Avner Pinchuk, an attorney with the Association for Civil Rights in Israel.
The bill’s focus on soldiers also drew fire.
“This is essentially an attempt to establish that the defamation of a certain public is a cause for civil suit, and it’s being done for a public [soldiers] that is at the heart of the Israeli consensus and serves as a central pillar of state power,” warned Deputy Attorney-General for Legislation Orit Koren, who represented the attorney-general’s office at the committee meeting.
The attorney-general’s office supported the original libel suit against “Jenin, Jenin,” Koren said, and continues to disagree with the Supreme Court’s decision on the soldiers’ standing.
“We believe the soldiers had standing under existing law as individuals who were libeled,” she told the committee. The group of soldiers was small enough and easy enough to identify by any film viewer who sought to do so.
“Unfortunately, the court thought otherwise.”
Yet even with that support for the soldiers’ original lawsuit, the attorney-general’s office believed the current bill had significant problems, Koren insisted.
One example: “There are insufficient limitations on who can file a lawsuit,” she warned.
Others complained the bill was overkill.
“Your intentions are good,” MK Micky Rosenthal (Labor) told the bill’s proponents, “but you’re trying to use artillery to shoot down a fly. You’re opening a window for those who will abuse the legal process” to silence criticism.
“You understand that if this is going to pass, I won’t be able to stop myself from demanding that women be included in the amendment,” MK Merav Michaeli told the bill’s sponsors. “And then I will sue anyone who ever said anything bad about women,” she quipped.
The bill’s sponsors lived in “the fantasy that if only we sue for libel then the truth will come out and everything will be okay. But there is no solution to the problem [of libel] that doesn’t end up silencing free speech,” Michaeli said.
Levin, Likud’s coalition chairman and a cosponsor of the bill, rejected the criticism.
“Any lawsuit submitted [under the new bill’s provisions] would have to be accepted by a court,” he said. “That’s the expertise of a court — to know how to balance these things.”
Levin conceded that the bill could be amended to restrict the groups that can file suit, but staunchly defended the bill’s key provisions.
“This is not a simple case where some lies are told about someone or some people are embarrassed in public,” he said. “So it’s not as simple as balancing free expression with one’s right to their good name. We can’t abandon our soldiers in the face of orchestrated efforts to expose them to international tribunals or legal action overseas.”
One of those soldiers was in the meeting. Dr. David Zangen, head of pediatric endocrinology at Hadassah Hospital in Jerusalem, served as the chief medical officer of the IDF forces in the Jenin battle.
“Our fathers left countries like Syria, Russia, Poland and Iraq because of blood libels that led to their persecution,” Zangen told the committee. “We built this state to be a place where we would no longer have to live under the shadow of such blood libels.”
Gil Bringer, Jewish Home’s legislative director who advised the crafting of the bill, was also unimpressed by the criticism. “I support the [right to] criticize soldiers, and oversight of their actions, but I don’t support lies,” he said. “We have to find a balance. I know the issue is sensitive, but IDF soldiers should also be able to seek redress in court, to ask a court to rule on the libel directed at them.”
The bill’s proponents hope to get it through committee to a first reading in the plenum by the end of the current Knesset session in late July. While they acknowledge the bill may be amended in its details — “it’s rare for a bill to pass into law in its original version,” notes Bringer — they believe they will be able to pass it into law in relatively short order.
