Salah's lawyer to Court: If Torat Hamelech is not incitement, neither are sheikh's statements

Salah, head of the Islamic Movement in Israel's northern branch, was sentenced by the Jerusalem Magistrate's Court in March to 11 months in prison for racist incitement.

January 26, 2016 17:04
3 minute read.
Leader of the northern Islamic Movement Sheikh Raed Salah

Leader of the northern Islamic Movement Sheikh Raed Salah gestures after leaving the district court in Jerusalem October 27, 2015.. (photo credit: AMMAR AWAD/REUTERS)

Raed Salah’s lawyer on Tuesday hit the Supreme Court with an unexpected dilemma as he tried to convince it to acquit his client of incitement, asking the judges how they could let his conviction stand when they had just passed on declaring Torat Hamelech incitement.

Salah, head of the Islamic Movement in Israel’s northern branch, was sentenced by the Jerusalem Magistrate’s Court in March to 11 months in prison for racist incitement and incitement to violence relating to a speech he gave in 2007.

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His lawyer, Avigdor Feldman, in asking the Supreme Court to reverse the lower court’s sentence, did not stop at interpreting Salah’s statements as free of incitement, but also made explicit that the court would be applying a double standard if it let Salah’s conviction stand following their passing on calling the Torat Hamelech (“The King’s Torah”) book, by far-right rabbis Yitzhak Shapira and Yosef Elitzur, incitement.

In December, the Supreme Court, including Deputy President Elyakim Rubinstein who also presided over Tuesday’s hearing, declined to second-guess the prosecution’s decision not to prosecute the book’s authors.

Shapira and Elitzur published the book in 2009, arguing that, according to Jewish law, in certain circumstances killing gentiles is permissible, and even in some cases killing babies of enemy forces.

Attorney-General Yehuda Weinstein had closed the case, stating that Torat Hamelech was written in a general manner and did not explicitly call for violence.

Feldman seemed to catch Rubinstein, Justice Salim Joubran (who in a December minority opinion voted that Torat Hamelech should be declared incitement) and Justice Anat Baron off-guard by calling them to account for not reversing Weinstein’s decision.

Baron defensively tried to avoid the comparison, by emphasizing the procedural differences, that in December the court was asked whether to override the prosecution’s decision not to file an indictment, and here an indictment was filed and a conviction was obtained.

But Feldman plowed through that defense, demanding relentlessly that the court address the principle at issue and disregard procedural niceties, which to him merely showed even more clearly that a double standard was used for Torat Hamelech written by Jews versus Salah, a Muslim.

Another noteworthy part of the high energy hearing was a debate between Feldman and the justices about how the common man would understand Salah’s statements, what the meaning of calling for an intifada was and whether to contextualize Salah’s statements as being extra dangerous because of tense Jewish-Muslim relations or as being non-dangerous because no pogrom could take place with the IDF being the dominant force in the country.

As part of Friday prayer services on February 16, 2007, around 10 a.m., Salah arrived in Jerusalem and gave a speech in the Wadi Joz neighborhood to around a thousand people and significant assembled media.

In the speech, he said, “Now we are in this blessed and pure place, a place of blessing and purity, if not for the disturbances and obstruction that has befallen us by the Israeli conquest, which will be removed, please God, just as other such occupations were removed in the past.”

Salah referred repeatedly to the merit of “martyrs,” understood to mean those who were killed or committed suicide fighting Israeli and other non-Islamic enemies.

Immediately following the speech, the audience erupted into public disorder, including throwing stones at police officers, and wounded three border policemen.

Based on his words and the immediate impact his words had on the listening crowd, Salah was convicted of incitement to violence.

While “freedom of speech is a supreme value in a democracy, still it is not a freedom without limits and the state is obligated to defend its citizens and security forces from violence or terrorism,” the magistrate’s court said. “Therefore, the state cannot endure statements that call for harming the state and its security forces.”

Salah also referenced medieval blood-libels, providing the basis for a separate conviction for racist incitement.

In his speech, Salah said that he and other Muslims never made their Ramadan bread with the blood of children, adding, “Whoever wants a more comprehensive explanation, should ask what happened to some of the European children whose blood was mixed with flour for use in holy bread.”

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