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