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In 1977 Israel’s criminal code was changed. Section 144A was added, making “racism” a crime. Racism was defined as “persecution, humiliation, demeaning, displaying animosity, hostility, violence or strife towards a population group or parts of such a group, all on the basis of skin color or membership in a racial or ethnic-national grouping.” It is still on the books and is being enforced these days with new vigor.
At first glance, the law seems innocuous enough. After all, who can be in favor of racism or against attempts to eliminate it?
But the main problems in this law quickly become clear. First, the law criminalizes some expressions of speech and so infringes free speech. Second, the definition of “racism” in the law is so vague as to render the entire law arbitrary and useless. Third, in its implementation and enforcement the law has already been used in an arbitrary and anti-democratic manner for partisan purposes.
There is a clear and present danger that the law can be used in other anti-democratic ways by people seeking to suppress free speech for those with whom they disagree, simply by labeling these opinions “racist.” This is not just a theoretical potential danger but is increasingly the reality in Israel. Rather than defeating extremist ideas by exposing them to sunlight and forcing them to compete in the marketplace of ideas, the anti-racism law criminalizes certain arbitrarily chosen forms of expression.
The law has become a bludgeon to suppress free speech selectively, used against some right-wing Israeli Jews. At the same time, there has never been any attempt to prosecute Arabs or left-wing Jewish extremists under the same law.
The immediate motivation for the framers of Israel’s law was the activities of some followers of the late Rabbi Meir Kahane, founder of the Jewish Defense League and later a right-wing parliamentarian and political activist in Israel. The law’s purpose was to suppress the freedom of speech for these and some other fringe groups among Israeli Jews.
But even the campaign against Kahanism under the anti-racism law is highly problematic. First, it is not entirely evident that Kahanist ideology is racist, or at least more racist than that of many other groups whose statements are usually regarded as protected speech. Kahane himself is commonly regarded as a racist for certain unpleasant epitaphs he allegedly applied to Arabs. But does that necessarily make anyone defining himself as a follower of Kahane a racist? Karl Marx also used uncouth epitaphs when speaking about Jews, black people, and others. Should everyone in Israel defining himself as a Marxist be arrested for racism?
It is true that Kahanists have advocated the “population transfer” of Arabs by forcing them to leave Israeli territory or subsidizing them to leave. But, strictly speaking, even advocacy of “transfer” is not the same as racism, and a person can conceivably be in favor of it for reasons having nothing to do with racism or bigotry. Many decent people consider the population transfer that took place in the Punjab in 1948 to be the least of evils and a reasonable solution to the Indian-Pakistan conflict.
Israel has long been full of people, including politicians, who advocate transferring the entire Jewish population out of the West Bank and the Gaza Strip. No one has ever been prosecuted for such advocacy under the same law that allows the prosecution of Kahanists for their advocating “population transfer.” True, those other people say they want this in order to achieve peace, but the Kahanists say the same thing.
Most of the problems with the anti-racism law became clear soon after it was passed by the Knesset. One of the first cases prosecuted under the law was the State of Israel against Rabbi Ido Elba (Docket 2831/95). Rabbi Elba had published a 14-page article on rabbinic law concerning murder. His thesis was that in the Torah there are separate rabbinic laws applying to killing of Jews, covered in the part of the Ten Commandments prohibiting “murder,” and the killing of Canaanite non-Jews living among Jews, which was prohibited under a separate law given to all descendants of Noah. That was the essence of Rabbi Elba’s “racism.”
The article was a scholarly exercise in explaining rabbinic laws and especially the commentary by Maimonides on manslaughter. Elba emphasized that killing of Canaanites living among Jews was strictly forbidden, except if they were warring against Jews. Elba never advocated killing non-Jews in the article and never even stated whether he agreed or disagreed personally with the approach of Maimonides or other commentators on the questions he was surveying.
But the article was published shortly after the massacre of Arabs in Hebron by Baruch Goldstein, and the public and the politicians were looking for a target to prosecute for anti-Arab racism. In April 1995 Rabbi Elba was convicted under the anti-racism law. He was sentenced to four years’ imprisonment (two of the years being a suspended sentence). The Supreme Court upheld the conviction and the sentence the following year.
The vagueness of the anti-racism law is also problematic. The law’s language was formulated and thought through so poorly that it would make statements like “I do not want to date non-Jews,” or “I do not like red-headed women” to be crimes. Should reading certain passages in the Bible be prohibited because they offend some modern ears? There already have been demands to cancel Israel’s Law of Return (which grants immigration rights to Jews) as a purported violation of the anti-racism law.
As another example of its arbitrariness, the law makes advocating discrimination against a demographic group “racism.” But Israel is full of groups advocating discrimination against Jews as part of “affirmative action preferences” and, of course, discrimination against males. Virtually every Arab NGO and political party in the country is on record in favor of this, as are most groups on the Jewish Left. Such statements clearly comprise “advocacy of racist discrimination” under the anti-racism law. And yet not a single person has ever been prosecuted in Israel for advocating affirmative action discrimination. Why not?
A no less important question is why “racism” should be a crime at all. Racism is, after all, a belief or a feeling, albeit an evil one. Since when is it the business of democratic regimes to ferret out what people feel or believe in the privacy of their hearts? Do we really want a Racism Patrol inspecting bars and poker games, hunting down individuals making racist statements on chat boards or in salons?
Criminalizing public expressions of racism in the media is no less undemocratic. The world is full of statements of poor taste, intolerance, bigotry, and stupidity, but these are regarded as protected speech in democratic regimes. Democracy means we all have the right to say stupid and offensive things. The day offensive speech is prohibited will be the day democracy is replaced by totalitarian tyranny.
The anti-racism law is not merely an assault on free speech and expression in Israel, but is itself arguably the most racist law Israel has on its books. From the start, it was apparent that it would not be used against any form of racism except that allegedly espoused by the Kahanists. The prosecutions turned comic and absurd. A Kahanist was indicted and convicted of racism for selling shirts with the slogan “Where there are no Arabs there is no terrorism.”
In contrast, racism by Arabs or bigotry by Israeli leftists has never been prosecuted. When a prominent writer with communist ties made comments justifying Hamas mass murders of Jews, he was not prosecuted as a racist.
Israel’s Stalinist political parties, supported mainly by Israel’s Arabs, have never been banned or prosecuted under the anti-racism law, even while their leaders call for terrorist violence against Jews and for the destruction of Israel. Israeli professors, artists, and intellectuals endorsing and justifying Arab terrorism against Jews or declaring Jews to be not entitled to any form of self-determination have never been prosecuted. Neither have those making disparaging comments about the Jewish religion or the Bible.
Israeli Arab students, demonstrators and others chanting pro-violence or pro-terror slogans, or calling for Israel to be annihilated, have also been exempt from anti-racism prosecution. Not a single case of indictment against an Arab anti-Semite or an Israeli Jewish leftist anti-Semite has taken place since passage of the law.
Arguably the worst form of bigotry inside Israel is anti-Orthodox bigotry. What makes it so pernicious is the fact that in polite Israeli society it is often not even regarded is barbarous to denounce Orthodox Jews in the most horrendous language. The Israeli newspapers and electronic media are full of people making openly anti-Orthodox disparagements. Not a single anti-Orthodox bigot has been prosecuted.
But the worst part of the anti-racism law is that it is part and parcel of a much broader assault against free speech in Israel. It has been used together with Israeli laws against “incitement” to intimidate political dissidents. Ever since the Rabin assassination, accusations and indictments for “incitement” have become common bludgeons used for partisan purposes against political antagonists in Israel. It would not be an exaggeration to say that “incitement” has been the label of choice attached by many Israeli politicians to any statement or expression with which they happen to disagree.
In most democracies, “incitement” is not a crime at all. At most, “incitement to perform a crime” is added as an incremental charge against people indicted for perpetrating the crime itself, in cases where prosecutors seek a more severe sentence for that same crime. But prosecutions for “incitement” by itself are virtually non-existent. Even statements endorsing crime and murder, such as by protesters calling for political assassination, are protected speech and not crimes, unless they are part of the actual planning and preparation to carry out real crimes.
While the attempt to criminalize dissidents as “inciters” was largely the work of the Israeli Labor Party and its allies after the Rabin assassination, it has been co-opted by the Likud. Over the past year, there has been a dramatic increase in threats by the Sharon government to expand the uses of prosecution for “racism” and “incitement” as a means to suppress the opposition to the Gaza disengagement plan. Those who demanded that a national referendum be carried out as a pre-condition for implementing the plan were denounced by some Likud leaders and the media for “racism and incitement.”
Free speech is alive in Israel, but it is wounded and threatened. It is coming under increasing assault as the internal political divisions in Israel deepen. Besides prosecution of those utilizing free speech and saying things of which the political establishment disapproves, there are growing open threats from the government to use the police, intelligence services, and “preventive detention” without trial to bully opponents of government policy into silence.
The very fact that assaults against free speech for “racists” are so popular in Israel, especially among the chattering classes, illustrates how shallow, conditional, and dubious is the commitment to democracy by so many Israelis.
Steven Plaut is a professor at Haifa University. His book “The Scout” is available at Amazon.com. He can be contacted at email@example.com.
About the Author: Steven Plaut is a professor at the University of Haifa. He can be contacted at firstname.lastname@example.org.
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