How I Beat Israel’s Dual Justice System

By: Steven Plaut

Published: April 9th, 2008

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Israel has a dual justice system. While operating within a single overall structure of courts and related legal institutions, two separate justice systems exist in the country: one for leftists and the other for everyone else.

One of the worst manifestations of this dual justice system involves protections of freedom of speech. For many years, freedom of speech has been selectively protected in Israel by courts and legal institutions. Under the dual justice system, anti-Israel Arabs and Jewish extremists always enjoy freedom of speech, whether they’re defending anti-Jewish terrorism, calling for Israel’s annihilation, championing lawbreaking and insurrection by soldiers, or even denying the Holocaust. Non-leftists enjoy no such freedom of speech.

Under this system, expressions of non-leftist political opinion by anti-Oslo dissidents constitute “incitement” and “sedition.” After the assassination of Prime Minister Yitzhak Rabin, dissidents were carted off by the score (including some rabbis) to face charges of “incitement,” and some did jail time. “Insulting a public official” is defined as a crime in Israel, but the law is selectively enforced, never against leftist Jews or Arabs.

Israel has an “anti-racism” law, making the expression of “racist opinions” a crime. But it is only used to ban and criminalize the expression of opinion by Kahanists. Not a single Arab or Jewish leftist has ever been indicted under it, even for cheering terrorist murders of Jews. Jewish teenage girls have been sent to prison without trial by judges for expressing opinions in protests and Moshe Feiglin was convicted of “sedition” for blocking traffic in an anti-Oslo protest – while Arab politicians openly engaged in espionage and treason are never even indicted.

Which brings me to what some are calling the most important Israeli free speech court case in recent years, one that represents an important victory over judicial bias and the dual legal system. As many Jewish Press readers may know, I have been involved in a long court case that has already run on for six years. It involves the malicious attempt by one of Israel’s worst academic anti-Israel extremists to misuse the dual judicial system to suppress freedom of speech in Israel – myfreedom of speech.

The case stemmed from my involvement in exposing and monitoring the anti-Israel extremism of Israeli academics. I work with several websites that do just that, including IsraCampus (www.isracampus.org.il).

Neve Gordon is a venomously anti-Israel lecturer in political science at Ben-Gurion University (BGU). Gordon was hired and promoted by BGU largely on the basis of the prodigious amounts of anti-Israel political propaganda he churns out and misrepresents as scholarship. He regularly denounces Israel as a fascist, racist, terrorist, apartheid state, and he openly calls for Israel’s elimination (in what Israeli leftist extremists these days call the “one state solution,” but what should more accurately be called the Rwanda solution).

Gordon led an international campaign of defamation against his own army commander, which resulted in attempts to indict that man as a “war criminal” in Europe. Gordon’s pieces are carried on neo-Nazi websites, including one run by Ernst Zundel, the neo-Nazi deported from Canada and now residing in a German prison cell.

Seven years ago I criticized Gordon for repeatedly endorsing the writings and opinions of the notorious Norman Finkelstein, who claims Germany is the victim of Jewish extortion and “Holocaust hoaxsters,” who cheers Hizbullah terror, and who was fired last summer by DePaul University, where he had been employed as a lecturer. (Unlike BGU, DePaul is trying to impose serious academic standards on its anti-Israel extremists.)

I also denounced a group of protesters Gordon joined in Ramallah. They were there – illegally – to interfere with Israeli anti-terror operations and serve as “human shields,” protecting wanted terrorists being sheltered in Arafat’s headquarters. When Gordon was shown on the front pages of two Israeli newspapers embracing Arafat in solidarity, I took to the Internet and dismissed him and his “human shield” friends as a group of “Judenrat wannabes.”

For those remarks, Gordon filed a harassment “libel suit” against me. It was a classic SLAPP suit. SLAPP stands for “Strategic Lawsuit against Public Participation.” It is an anti-democratic harassment tactic designed to suppress freedom of speech. In many parts of the United States there are serious penalties for filing SLAPP suits. That’s not the case in Israel.

Gordon filed his suit in Nazareth court, knowing that many of the judges there are Arabs, some holding extremist political opinions. Gordon’s complaint was that I “libeled” him and damaged his “good name” by criticizing his politics. But Gordon is a public figure, and attacking the public political opinions and activities of anyone in Israel, especially a public figure, is supposed to be protected speech.

Gordon’s entire suit was based on “freedom of speech for me but not for thee,” a fundamental principle in any dual judicial system. Labeling as a “Judenrat wannabe” a public figure whose anti-Israel articles are published by neo-Nazis and who proclaims solidarity with Arab terrorists may be impolite, but it is protected speech in any real democracy.

The suit, which some in the media were dubbing the “Israeli David Irving Trial” with me in the role of Deborah Lipstadt, was assigned to an Arab woman judge named Reem Nadaff. Her husband was at the time the party sidekick of Azmi Bishara, the Arab Knesset member now in hiding outside Israel after having engaged in espionage and providing assistance to Hizbullah when it was bombing northern Israel.

While most Arab judges in Israel are responsible and cautious, this judge simply threw out Israel’s entire set of protections for freedom of speech and imposed her political biases on her ruling. She found I had “libeled” Gordon by criticizing his opinions. Never mind that everything I wrote about what Gordon writes or does was factually correct. She essentially ruled that treasonous pro-terror activities are protected speech, while criticism of them is slander. In her verdict, she went out of her way to endorse Holocaust revisionism, praise Finkelstein, and then – to top it all off – wrote that all of Israel is situated on land stolen from another people.

The dual justice system had struck again, with a vengeance. The judge ordered me to pay Gordon around NIS 100,000 in “damages” and court costs simply for exercising my freedom of speech.

That was approximately two years ago. I filed an appeal, which under Israeli law must be in the same district court (Nazareth). And recently the appeals panel of three district court judges overturned the ruling by Nadaff. It was an unparalleled defeat of the dual justice system and a tremendous near-complete victory for freedom of speech in Israel.

The appeals panel, in overturning the earlier ruling by Naddaf, said that just as Gordon enjoys freedom of speech when he smears Israel, its leaders, and even private persons such as his old army commander, so those who criticize Gordon’s politics must enjoy freedom of speech, even if it takes the form of “impolite” or harsh language.

The panel, however, balked by a vote of two against one from going all the way toward establishing true freedom of speech in Israel. Basing itself on a Supreme Court ruling from last year, in which a journalist was ordered to pay 1 shekel in damages to a Kahanist because the journalist had called him a “little Nazi” on national television, the Nazareth appeals panel ruled that the court should use its powers to discourage use of Holocaust era rhetoric, and so was allowing Gordon to retain 10 percent of what the lower court had awarded him. (The dissenting appeals judge considered use of “Judenrat wannabe” to be legitimate free speech.)

That last part of the appeals ruling shows that the dual justice system in Israel is not yet shut down altogether – something that would also require the firing of Judge Naddaf. Israeli leftists, Arabs, and politicians of all stripes use “Holocaust era imagery” in political discourse all the time and it is protected speech. But for my calling Gordon a “Judenrat wannabe,” the court was allowing him to retain NIS 10,000.

To overturn that remaining vestige of Israel’s selective protection of freedom speech, and to inflict a greater defeat on Israel’s dual justice system, I am now appealing to the Israeli Supreme Court to overturn that clause.

Steven Plaut, a frequent contributor to The Jewish Press, is a professor at Haifa University. His book “The Scout” is available at Amazon.com. He can be reached at steveneplaut@yahoo.com.