In an atypical rebuke, the High Court of Justice on Tuesday ordered
Attorney-General Yehuda Weinstein to present the court with a more extensive
explanation of the reasons the state did not prosecute Balad MK Haneen Zoabi and
Islamic Movement leader Sheikh Raed Salah, for their participation in the May
2010 Mavi Marmara flotilla.
The decision was made following Monday’s
hearing on a petition filed by MK Michael Ben-Ari (National Union), activist
Itamar Ben-Gvir and the Movement for Our Land of Israel.
The petition had
demanded a full accounting of the state’s decision to close the case against
Zoabi and Salah, as a first step toward compelling the state to file the
The petitioners had that hoped that once a more complete version of
the state’s reasons was put forward, they would be able to point out defects in
the decision. Previously, the state had only released a brief press release
regarding the decision to close the case.
In the separation of powers
scheme between the executive and judicial branches, the court mostly defers to
the state prosecutor when it comes to closing cases, reasoning that as the
official body which litigates criminal cases for the state, its professional
judgment about how good a case it has should not be second-guessed. Most cases
that are closed do not even merit a press release, let alone a public
The fact that the courts do not normally interfere with the
state’s decisions to close cases makes its ruling all the more surprising.
Moreover, the court wrote an extremely short twopage opinion, citing no legal
precedents for its decision.
Even though the petitioners have won an
initial victory in that the state must produce a more detailed explanation
within 30 days, their battle is far from over.
The court gave general
guidelines about what needed to be revealed, but was pointedly vague, giving the
state discretion to provide a more extensive response, but still one which
censors certain issues that the state may not want to be public.
state may also take the step of producing certain material for the court only,
without giving the petitioners a chance to see it – unless the court rules
Finally, it is still unlikely, although not impossible, that
the court would ultimately second- guess the state’s decision to close the
Most likely, this was the only battle the petitioners will win, and
the court will defer to the state’s judgment on closing the case.
extraordinary nature of the case was immediately apparent even on Monday in that
Adalah – a human rights organization that usually sues the state for alleged
human rights violations – was on the same side as the state attorney, united
against a common foe.
In his opening statement, Adalah attorney Hassan
Jabareen even remarked how lucky he was to be on the same side as the state
attorney during the hearing.
At Monday’s hearing, the petitioners had
argued that there were strong court precedents for revealing the state’s
considerations and evidence in cases of public interest.
had 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
The state had 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 its capability of handling future flotillas.
also said that publishing the problems it found with prosecuting the current
defendants might teach future flotilla participants about ways to avoid
Jabareen, agreeing with the state’s conclusion to withhold
evidence regarding its decision to close the case, had said that the public knew
well why the case was closed and did not need further
According to Jabareen, the case was closed because Zoabi and
Salah had nothing to do with any of the unlawful attacks on IDF soldiers.
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