In the decades prior to the fall of Communism, the legal systems of most Central European states looked a lot like their Western counterparts.
People accused of crimes such as fraud, assault, even murder, were arrested, investigated and tried, pretty much like in the West. The accused had the right to defense counsel. Acquittals were rare, but the same could be said of other legal systems – such as Israel’s.
It was only when an indictment had a whiff of politics about it that the system exhibited Dr. Jekyll/Mr. Hyde characteristics. Due process was suspended. Guilt and punishment were determined in advance.
Evidence was irrelevant. The accused was usually convicted of a crime he never contemplated committing; his real crime was to have opened his mouth or used his pen.
Israel’s criminal justice system tends to exhibit Jekyll/Hyde characteristics of its own. Crimethink, to use Orwell’s term, is punished far less often than in Eastern Europe before 1989, though the phenomenon is not unknown – think of Margalit Har-Shefi, who was jailed for allegedly knowing what Yigal Amir was thinking, or of Elitzur Segal, who received a fine and suspended sentence for writing nasty things about a former IDF chief rabbi.
But in cases with political overtones a suspect’s due process rights are liable to take a beating. Thus the state prosecution authorized totally unwarranted wiretaps of Haim Ramon’s phones when it was trying to put him away for sexual harassment.
During the Gaza disengagement, Israel’s state prosecution took a long, wholesale and officially sanctioned walk away from the law, using pretrial arrest to deter protesters and looking the other way when police beat them up.
It’s about to happen again, with Israel’s “price-tag” malefactors as the next set of victims.
Price-tag hooligans are motivated by a combination of half-baked ideology, racism and contempt for the law. Their actions are stupid and criminal. The phenomenon is spreading and justifies devoting more police resources to forestalling it, as well as stern punishment for offenders – once they’re convicted in open court.
Price-tag offenders are not, however, by any stretch of the imagination terrorists, against whom the full panoply of Israeli laws designed to fight terror ought to be enforced. These laws set aside due process and expose suspects to potentially unlimited incarceration, as well as bodily harm, at the whim of state authorities.3 Once they’re classified as terrorists, people suspected of price-tag violence may never get their day in open court. They may, for example, spend years under administrative arrest.
Some of those so imprisoned are likely to be innocent.
There is an orchestrated campaign on the part of some politicians and the press to get price-tag hooliganism reclassified as terror. This is partly the result of genuine indignation, and partly the attempt of some politicians to curry favor with publicists and prosecutors who tend to believe right-wingers are bad news in whatever they do.
But indignation is a bad policy where law enforcement is concerned.
It creates an atmosphere in which officials think the ordinary rules are suspended, and they can do whatever they want. This is particularly true when the loaded word “terror” is used, and those accused of terrorism can find themselves without rights.
Recently the police, frustrated by their inability to acquire the evidence needed to put the leaders of Israel’s murderous mafia behind bars, asked Attorney-General Yehuda Weinstein to sanction the use of administrative detention against them. Wisely, Weinstein refused.
Suspension of due process is not a proper remedy for the incompetence of Israel’s police. It is neither needed nor justified in dealing with pricetag hooligans.
We need to fear a public atmosphere that gives sanction to decisions whereby certain crimes, or worse, certain groups of offenders, are no longer subject to due process.
Such sanction not only provides opportunities for those charged with the authority of the law to abuse that authority, but gradually shifts society toward tolerance of the suspension of due process, to no longer conceiving it to be an essential aspect of civil liberties and human dignity. In denying due process to hooligans who indulge in vigilantism and mob rule, we become more like them.
In free societies, people suspected of crimes are entitled to punctilious observation of their legal and human rights. The point of these rights is not to protect criminals. It’s to protect all of us, and to ensure that we always keep in mind the moral distinction between those who break the law, and those who uphold it.
The writer is head of the policy research department at Kohelet Policy Forum.
The views in the article are his own and do not necessarily reflect the forum’s positions