The High Court of Justice on Monday heard a petition demanding the state reveal its reasons for having closed its case against Balad MK Haneen Zoabi and Raed Salah, a leader in the Islamic Movement in Israel, for their involvement in the May 2010 flotilla.

The petition also demanded that the state reveal the evidence in its possession against Zoabi and Salah.

National Union MK Michael Ben-Ari, activist Itamar Ben- Gvir and the Movement for Our Land of Israel filed the petition, angry that the state had closed the case and seeking ways to reopen it by pointing out defects in the state’s decision.

Motions and petitions to question the state’s decision to close a case are unusual, and in the rare instances that they happen, they tend to come from the accused who tries to get the state to eliminate his criminal record or to minimize it.

It is highly unusual, although not unprecedented, to file a petition in an attempt to get the state to open a case it has closed for lack of evidence in order to compel the state to prosecute the case.

The extraordinary nature of the case was apparent in that Adalah – a human rights organization which usually sues the state for alleged human rights violations – was on the same side as the state attorney for a change, united against a common foe.

In his opening statement Adalah’s attorney Hassan Jabareen even remarked “how lucky” he was to be on the same side as the state attorney during the hearing.

The petitioners argued that there were strong court precedents for revealing the state’s considerations and evidence in cases of public interest.

Responding to one of the state’s arguments that revealing the reasons for the decision and the evidence would undermine the state’s ability to have frank and efficient internal discussions to prosecute cases in the future, the petitioners noted that the state had waived this objection in the case of former president Moshe Katzav.

The petitioners said that despite waiving the objection to revealing internal discussions in the case of Katzav, the state still managed to convict him and achieve a seven-year prison sentence.

The petitioners also noted court precedents in which the mere presence of certain defendants in an area where a public disturbance was occurring was held to be enough to convict them.

The current case was that much more compelling, argued the petitioners, since the flotilla incident was far graver than a mere public disturbance, endangering state security and involving attacks on IDF soldiers.

Ben-Ari spoke separately from his attorney, adding that there had been public outcry that the state was not even trying to file a case against the defendants.

He said that by giving up on the criminal case so easily, the state was sending a message that the defendants and the flotilla itself were not wrong and therefore things could return to business as usual with no consequences.

The state put forth additional reasons objecting to the requested disclosure. It noted that revealing the internal information could include exposure of operational details as to how Israel handled the flotilla, thus undermining Israel’s ability to operationally handle future flotillas.

The state also said that through the publication of the problems it assessed with prosecuting the current defendants, possible future flotilla participants could learn ways to avoid prosecution.

It also commented that the head of the state attorney’s office, Moshe Lador, and his highest deputies had reviewed and approved the decision to close the case for lack of evidence.

Jabareen, agreeing with the state’s conclusion to withhold evidence regarding its decision to close the case, said that the public knew well why the case was closed and did not need further information.

According to Jabareen, the case was closed because Zoabi and Salah had nothing to do with any of the unlawful attacks on IDF soldiers.

In fact, he noted, there were hundreds of people involved in the flotilla, and virtually all of them were released because they had no involvement in the assaults on IDF soldiers.

Zoabi and Salah were the same as these hundreds of people who were released without serious investigation, Jabareen said, since no one claimed they had been involved in anything resembling violence.

The court heard and questioned the parties, but did not render a decision on the spot.

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