The brief but exciting life of the bill to outlaw filming IDF soldiers

What the tortuous path of one small piece of legislation – and the commotion it caused – reveals about Israel’s hollowed-out politics

Haviv Rettig Gur

Haviv Rettig Gur is The Times of Israel's senior analyst.

IDF soldiers clash with Palestinians in Al-Fawwar refugee camp, south of the West Bank city of Hebron, on December 31, 2017. (Wisam Hashlamoun/Flash90)
IDF soldiers clash with Palestinians in Al-Fawwar refugee camp, south of the West Bank city of Hebron, on December 31, 2017. (Wisam Hashlamoun/Flash90)

On the afternoon of Friday, June 15, the New Israel Fund sent out a worried alert to the media.

The email’s first line spoke in no uncertain terms: “Tyrants Restrict the Rights of People to Record What Happens Around Them; Democracies Don’t.”

It explained: “Israel’s Cabinet is expected to vote on a bill on Sunday which calls for up to 10-year jail terms for anyone who distributes video or audio footage of IDF Soldiers. Once the bill is approved by the Cabinet it is guaranteed a majority in Knesset votes.”

CEO Daniel Sokatch provided journalists with a ready-made quote: “In Israel, as elsewhere in the world, video footage of police and military activity has become an important tool for human rights groups and the media. It’s part of how citizens can blow the whistle on wrongdoing by authorities. We’ve seen that from Abu Ghraib to the case of Philando Castile. Tyrants restrict the rights of people to record what happens around them; democracies don’t.”

Sokatch wasn’t the only one to notice this worrying development. In Haaretz’s Sunday, June 17, edition, columnist Gideon Levy took a stand, vowing “not to stop filming, not to stop writing.”

He didn’t stop. “We will violate this law proudly, we must violate it… Well-proposed, MK Robert Ilatov, you democrat from that famous party of liberty Yisrael Beytenu. Your bill shows just how much the IDF has to hide, to be ashamed of, to cover for.”

Yisrael Beytenu MK Robert Ilatov at a Knesset House Committee meeting on March 15, 2017. (Miriam Alster/Flash90)

Later that Sunday, the cabinet’s Ministerial Committee for Legislation did indeed vote to advance the bill on to the Knesset.

Yisrael Beytenu chief Avigdor Liberman, the defense minister, didn’t hesitate for a moment. He tweeted triumphantly, “I want to praise the Ministerial Committee for Legislation for approving Yisrael Beytenu’s bill to outlaw filming of the security forces for the purpose of slandering them. IDF soldiers face a homegrown assault from those who hate Israel and support terror, and who seek ways to humiliate and hurt them. We’re putting an end to it!”

That evening, Israel’s Keshet television network hosted a debate between B’Tselem CEO Hagai El-Ad and Jewish Home MK Motti Yogev, a former IDF colonel who once remarked in the Knesset plenum that the Supreme Court should be demolished with a Caterpillar D9 bulldozer.

El-Ad dutifully delivered B’Tselem’s line: “It’s simple. If you don’t want to see pictures of soldiers dragging an 8-year-old boy in Hebron, pull the soldiers out of Hebron.”

And Yogev held up his part of the arrangement, insisting in response that the Palestinians like occupation; that Palestinians he speaks to in the West Bank are “happy with Israel’s rule,” want it to remain and even fear losing it.

And, indeed, on the morning of Wednesday, June 20, the Knesset held the preliminary vote on the legislation, the first of four votes required to pass a private member bill, narrowly advancing it by a vote of 45-42.

Illustrative: The special plenary session opening the winter session of the Knesset, on October 23, 2017. (Hadas Parush/Flash90)

In the debate in the Knesset plenum ahead of the vote, Ilatov explained that “anti-Israel and pro-Palestinian groups like B’Tselem and Machsom Watch and Breaking the Silence and various BDS organizations” were filming IDF soldiers in order to “slander them” and “undermine their morale.”

“I have no intention of limiting free expression,” Ilatov assured fellow lawmakers, but added the caveat that “free expression doesn’t mean anarchy.”

It all seems clear: Israel’s cabinet approved a bill that was “guaranteed a majority in Knesset votes,” as the NIF had it, that will throw human rights activists into prison for a decade if they dare to film IDF soldiers committing abuses in the West Bank. B’Tselem and the New Israel Fund said so, Liberman and Ilatov confirmed it, the Knesset even voted in favor. Any right-thinking believer in democracy should be incensed and horrified.

There’s only one problem: None of it is true.

The bill was fake from the start, the cabinet committee that “approved” the bill actually killed it, the preliminary vote was an agreed-upon fiction, Liberman’s gloating was a lie and the left-wing activists’ pearl-clutching was a demonstration of either a similar dishonesty or, worse, ignorance.

Illustration. Soldiers of the Etzion Regional Brigade during an operation in the West Bank on October 7, 2015. (IDF)

Smoke and mirrors

Let’s go one step at a time. By the end, something profoundly important about the nature of Israel’s politics, and about the moral and identity feuds that surround those politics, will hopefully become apparent.

MK Ilatov did, in fact, pen a bill of the sort that Sokatch warned about. But he didn’t do so because he thought it might pass, nor even because he wanted it to pass. As anyone with more than a passing familiarity with Israeli politics of the past decade can attest, right-wing lawmakers use such bills to get their names in the newspaper in a nation where news events come at a fevered pace and no mere press release from a junior politician has much hope of getting noticed. The most effective way to get noticed, right-wing lawmakers have discovered, is to trigger the left into a public relations campaign against them. Countless right-wing bills have been proposed, but only an infinitesimal number have passed into law. Those that did were so gutted by the time they became law that they have not been enforced, usually because the final version negotiated by lawmakers during the legislative process was carefully constructed to ensure they could not be enforced.

The fact that his bill forbidding all filming of IDF soldiers had no hope of actually becoming the law of the land was the only reason Ilatov allowed himself to propose it in the first place. It’s also the reason the original bill was written with more than the usual incompetence. If Ilatov’s version were to pass into law, it would have as much effect on right-wing Jewish activists as left-wing or Palestinian ones, as it would apply equally to pro-settlement protesters who occasionally scuffle with IDF troops in the West Bank and often take pains to film every blow in the altercation. Does the right-wing, pro-settlement Ilatov really want to stifle Jewish pro-settlement protesters?

Besides, how would one even begin to enforce such a law? Cameras are everywhere, in every pocket, including in the pockets of some 3.5 million tourists who travel throughout this country each year. No state agency has the manpower or desire to implement the original bill’s blanket ban.

These concerns are among the reasons Ilatov had already agreed to kill the bill by the time the NIF statement went out on June 15.

It’s mostly true, as the NIF warned, that “Once the bill is approved by the Cabinet [or rather by its legislation committee — H.G.] it is guaranteed a majority in Knesset votes.” The Ministerial Committee for Legislation, chaired by Justice Minister Ayelet Shaked and Likud’s Yariv Levin, a former deputy head of the Israel Bar Association, is composed of representatives of all the parties in the ruling coalition. Approval by the committee gives a bill the support of the government, and thus in theory the backing of the majority coalition in the Knesset. So yes, when the Ministerial Committee for Legislation votes to back a bill, its chances of passing into law in the Knesset increase dramatically.

Except when they don’t.

Justice Minister Ayelet Shaked gives a statement to the media at the Knesset on February 26, 2018. (Yonatan Sindel/Flash90)

When the ministers convened on June 17, they heard from the legislation committee’s legal adviser, an appointee of Shaked and the Jewish Home party, about the many problems with implementing Ilatov’s original idea — this was a formality, as everyone in the room already understood the bill’s shortcomings.

They heard, too, that there is already a law that seems to fit the problem Ilatov identified: It is illegal to obstruct a public servant in the lawful fulfillment of their official duties. Those who do face a penalty of up to one year in prison. IDF soldiers are public servants, and so are currently protected by law against anyone obstructing them from lawfully carrying out their orders.

They also learned that there is an exception in the law for police officers (for the curious, Chapter 9, Section C, Article 279 of Israel’s Criminal Code) that ups the punishment for obstructing cops to a maximum of three years.

A solution had been found that could give Yisrael Beytenu its legislative victory while not allowing Ilatov’s ridiculous bill, as all concerned viewed it, to advance any further. It was wiped clean, its text replaced with a new proposal: to make obstructing IDF soldiers, which is already illegal, carry the same penalty as obstructing police officers.

Filming the soldiers, it was suggested by state attorneys in the room, could be part of the “obstructing” activities of the activists — but was not in itself enough to constitute obstruction.

This is important enough to reiterate: The bill that made it through the June 17 meeting of the cabinet committee no longer forbids filming IDF soldiers. Any filming, for it to become illegal under the stipulations of the new bill, would have to be part of an activist’s already-illegal efforts to obstruct the soldiers’ work. That is, the bill explicitly does not forbid the filming of IDF soldiers, especially by those who are not actively clashing with them.

Illustrative photo of Israeli soldiers on an arrest operation in the West Bank city of Hebron, June 2014. (IDF Spokesperson/Flash90)

This means the new version does nothing to solve what Ilatov pretended was the problem that led him to propose the original bill: to prevent the “slandering” of Israeli soldiers or attempts to “undermine their morale” via photography.

Meanwhile, a survey of judicial archives carried out by legal advisers ahead of the June 17 meeting discovered that no one has ever been so much as indicted — never mind sentenced — for the crime of obstructing IDF soldiers.

At the June 20 debate in the Knesset, just before the bill passed its preliminary reading, Likud’s Regional Cooperation Minister Tzachi Hanegbi, with the air of a man slightly embarrassed by what he has to say, assured lawmakers that the Ministerial Committee for Legislation had agreed to support Ilatov’s original bill through its preliminary reading in order to give Ilatov his moment in the spotlight — but only if he agreed to replace his bill with the new version by the following vote, in Knesset parlance its “first reading.” Ilatov agreed, Hanegbi said, so coalition lawmakers could vote for the bill without worrying that they would be advancing it. It was Hanegbi’s unenviable job to represent the government in one of its regularly scheduled parliamentary shams, part of the ego-soothing grease that helps keep a coalition flowing smoothly.

Even now, with the bill so thoroughly gutted as to be unrecognizable, it is not at all clear it can pass in the Knesset. Even Jewish Home, the furthest right one gets in the current Knesset, isn’t eager to support it. And even after the right-wing coalition gutted the bill, its dead-on-arrival shell could only pass a sham preliminary ballot by a narrow three-vote margin.

No committee is scheduled to discuss it, and it is entirely missing from the plenum agenda through July 19, when the parliament shuts down for its summer recess. Will the Knesset take it up again when it returns for the fall session in October? Will anyone even remember?

To recap, a bill to outlaw the filming of IDF soldiers has transformed into a bill that increases the maximum sentence for obstructing those soldiers — a crime never prosecuted in Israel’s history — from one year to three. It doesn’t forbid filming. And even as it was gutted, the bill was removed from the Knesset’s agenda for the foreseeable future. Yet despite its brief lifespan, it offered left-wing activists a chance to rally to democracy’s defense, and the right’s populists a chance to show their uncompromising defense of Israel’s young soldiers, even if it means insisting that free expression “doesn’t mean anarchy” or, as Yogev explained, that the Palestinians are enjoying Israeli military rule.

Moti Yogev, second row center, gesturing during a Knesset debate on October 12, 2015. (Miriam Alster/Flash90)

Much ado

So what just happened? Why would the NIF issue such a dire warning about so meaningless an exercise, about an ostensibly right-wing bill that was expertly dismantled by right-wing ministers? Why would the organization claim falsely that the original proposal to outlaw filming IDF soldiers was all but assured passage into law?

Even more egregious than the NIF’s apparent naivete was Liberman’s bald-faced lie. Why would Israel’s defense minister boast after the committee vote that ministers had decided “to outlaw filming of the security forces for the purpose of slandering them,” a claim he knew to be the opposite of what actually happened in the committee?

Why would left-wing firebrand Gideon Levy decide to make his stand and flaunt his courageous commitment to principled civil disobedience over such a fake bill?

Indeed, why would Ilatov propose such an unenforceable and undemocratic idea in the first place?

And finally, why would the bill’s proponents, after battling over the bill on prime-time national news for days, abruptly forget about it and neglect even to schedule its next committee or plenum vote?

The televised debate between B’Tselem’s El-Ad and MK Yogev that Sunday in June offers a valuable window into how the broader Israeli political debate has been hollowed out, and how the moralizing activists on both ends of the spectrum drive a culture of feckless posturing that is all that remains of the old political elites of left and right.

Hagai El-Ad, executive director of B’Tselem, at a press conference in Tel Aviv, February 5, 2016. (AFP/Jack Guez)

The El-Ad vs Yogev debate took place in Hebrew, on Israel’s most popular news channel, during a relatively high-ratings evening hour. It wasn’t long, with parts of it unintelligible because the two men were trying to talk over each other. But in the end, they represented ably and authentically the edges of Israeli politics.

El-Ad demanded an immediate Israeli withdrawal from the West Bank, an end to an occupation that he insisted would never stop being unphotogenic, no matter how many laws Ilatov tried to pass against photographing it.

In making the argument, he neatly sidestepped the question constantly asked of Israel’s left, but which it has been unable to answer effectively for nearly two decades: not whether the Palestinians should be independent, but how.

B’Tselem is marginal and disliked among large swaths of even centrist Israeli voters — not because it reveals unpleasant truths, but because it ignores them. The unpleasant truths B’Tselem champions about the inescapable immoralities that accompany occupation once drove an Israeli search to end the occupation via withdrawal from the West Bank and Gaza. The tellers of such truths once won elections. But B’Tselem and similar groups on the far left have changed in the eyes of most Israelis into irresponsible idealists who refuse to deal seriously with the hard and bloody experience Israelis have gone through with each withdrawal from Palestinian-claimed territory — or, indeed, with the fact that in the eyes of those like Hamas, who seem to step into every political space vacated by Israel, all of Israel is Palestinian-claimed territory.

The point here is not to make the mainstream Israeli argument about Palestinian intransigence and rejectionism. The Palestinians, of course, have their own arguments about their red lines in peacemaking, and reason enough to distrust Israel. It’s an old, tired, endless debate. The point is simpler: Many Israelis accept B’Tselem’s moral argument about occupation, but not what they see as its willful blindness of the potential dire consequences of ending it. Israelis elected Ehud Olmert prime minister in 2006 on an explicit platform of withdrawal from most of the West Bank, but saw his agenda crumble as Hamas in Gaza and Lebanon’s Hezbollah launched their summer assaults from the two regions most recently vacated by the IDF. Most Israelis believe a far more dangerous escalation is almost certain to follow any withdrawal from the West Bank.

The far left’s campaigns demanding withdrawal offer no inkling or hint that there is any understanding of the looming fears and bloody experiences that are currently keeping even many self-identified leftists from supporting such a withdrawal. One cannot demand from a population that it endanger itself in the name of morality. Or, rather, one can, but one should not be surprised if it makes one unpopular.

Hamas supporters take part in a rally marking the 30th anniversary of the founding of the Islamist terror group, in Gaza City on December 14, 2017. (Mohammed Abed/AFP)

It doesn’t help that this world of far-left activism increasingly conducts its campaigns abroad and raises most of its money from foreign foundations and governments. Assuming the activist left still thinks its mission is to convince Israelis to withdraw from the West Bank, these habits too are self-defeating.

But that doesn’t mean these activists don’t have fans in Israel. Some of those fans are, of course, on the far right.

Yogev’s blindnesses are easier to see than B’Tselem’s, especially for foreign audiences. The glib suggestion that Palestinians can live permanently under Israeli rule without the rights of Israelis, and even be grateful for it, suggests Yogev has not familiarized himself with the most basic outlines of the Palestinian narrative, with extensive polling showing just how vulnerable ordinary Palestinians feel alongside Israeli power and in the face of violence from Israeli security forces and Jewish extremists. His suggestion also reveals him to be a man not overly concerned with democratic principles and norms.

But that doesn’t mean he doesn’t have a soft place in his heart for B’Tselem. Yogev knows he is unlikely to win most Israelis’ support when he debates the centrists of either camp, but he’s the odds-on favorite in any bout with B’Tselem’s moralizing. Given the choice between a side that is blind to Israeli suffering and a side that is blind to Palestinian suffering, most Israelis would naturally pick the latter.

And that’s why Yogev and El-Ad, or Ilatov and NIF, ultimately need each other. Yogev isn’t interesting enough for prime-time news unless he’s pretending to defend IDF soldiers from B’Tselem. B’Tselem, in turn, isn’t interesting enough for prime-time news unless it’s pretending to defend Israeli democracy from Ilatov.

Neither side in this dance even attempts to make serious policy arguments. Neither actually addresses in their rhetoric the questions the mainstream Israeli public is actually asking of them. This gutted Israeli political world — where the difficulty in finding solutions to the Palestinian conflict has catalyzed the growth of political camps that no longer feel any compulsion to even pretend to offer solutions — is the context in which Ilatov’s bill against filming IDF soldiers can come into being.

Defense Minister Avigdor Liberman meets with IDF officers near the Gaza border on June 12, 2018. (Ariel Hermoni/Defense Ministry)

The bill was not meant to benefit IDF soldiers. It was meant to benefit Ilatov — by eliciting the very ire that the NIF and B’Tselem so graciously provided.

Winners and losers

Just about everyone got what they wanted: Liberman and Ilatov got to pretend they were defending Israel’s soldiers, and in the bargain that they’re just illiberal enough to satisfy a right-wing base that dislikes liberal pearl-clutching. B’Tselem and NIF dutifully supplied the pearl-clutching about “tyrants” and got to pretend in their turn that they alone stood athwart history, holding aloft the torch of transparency and liberty in a slowly darkening world. For organizations that fund-raise among low-information foreign donors, it’s hard to imagine a better narrative. One is almost moved to forgive them given just how inviting and low-hanging the right’s legislative fruit has become.

But there were losers, too, in this exercise. Israel as a whole, of course, was depicted by its own lawmakers as a nation that could seek to prevent citizens from filming misbehaving troops. Ordinary Israelis too — that majority somewhere in the vast, amorphous center that tells pollsters it wants to separate from the Palestinians but believes the IDF’s control of the West Bank is the lesser evil to Hamas controlling the highlands overlooking Israel’s major population center — were losers in this squabble.

That majority has no voice in this political gamesmanship, in a discourse that degenerated from a politics of policy arguments to a politics of careful ignoring, where today’s left and right are defined not by their answers to Israelis’ questions, but by the questions they pointedly refuse to answer.

And, of course, there is one final group of losers from the whole episode.

The more grizzled and experienced of Israel’s politicians, when they meet for lunch over Knesset cafeteria trays, sometimes engage in a favored pastime: gently mocking colleagues who seem unable to get the joke, who take the right’s bills and the left’s horror too seriously, who refuse to recognize how feckless and essentially empty so much of Israel’s political discourse has become, and so are made unnecessarily anxious by it all.

MK Eyal Ben Reuven. (Eyal Ben Reuven/Wikipedia/CC BY)

One such ostensibly naive lawmaker is MK Eyal Ben Reuven of the Zionist Union, a decorated former armored corps commander and retired major general, who seemed genuinely horrified at Ilatov’s bill.

In the plenum debate over the bill, this is what Ben Reuven had to say: “For 35 years I wore the IDF uniform with pride. I never felt the need to hide from cameras except when secrecy required it. When I commanded IDF troops, I taught them to operate in areas with cameras. This law was written by those who don’t know our soldiers and our commanders. It will hurt them first and foremost. Our strength flows from our battle ethics too, so this law makes us look weak and helps make a case for those who want to take our soldiers to the Hague. This bill goes against the IDF’s spirit and ethics, and merely publicizing it is a win for the boycotters.”

Ben Reuven doesn’t get the joke. Many IDF soldiers besmirched by the claim that their “morale” is so fragile and their behavior so troubling that photographing them should carry a ten-year prison term probably don’t either.

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