One of George Soros’s foundations has jumped into the legal battle between Breaking the Silence and the government which has been playing out since May before the Petah Tikva Magistrate’s Court, in which the NGO says it is fighting for its survival by not revealing its confidential sources.
On Sunday, the NGO Ad Kan!, which some say helped bring on the current legal case, disclosed to The Jerusalem Post a legal brief filed on behalf of Breaking the Silence by a group of top global and Israeli international law professors organized by Soros’s Open Society foundation.
Breaking the Silence is under pressure to reveal the identity of an Israeli soldier who spoke to the NGO confidentially about incidents that occurred during 2014’s Operation Protective Edge, as well as to provide the full transcript of his comments.
The newly revealed brief makes the controversial claim that Breaking the Silence should be treated as if it were a media organization, which would give it protection from unveiling its sources to the government.
Soros has been a magnet for criticism by those on the pro-Israel side for his criticism of Israeli policy and his funding of Palestinian and Israeli NGOs which criticize Israel or attack its legitimacy. At the same time, he has continued to invest in Israel and has been branded by Iranian media as a “Zionist billionaire.”
Ad Kan! says it conducts undercover investigations of NGOs which pose as human rights groups, but whom it accuses of having an underlying goal of delegitimizing Israel.
For around 11 years, Breaking the Silence has delivered anonymous testimonies from soldiers about alleged IDF abuses during conflicts with the Palestinians.
The group has made big headlines over the years dating back to the 2008-9’s Operation Cast Lead, but was thrust back into the media spotlight since its tactics were attacked in detail in an Ad Kan! and Channel 2 expose in March and by a wide range of politicians.
The State Attorney’s Office is demanding that Breaking the Silence reveal one of its anonymous sources, saying that solving the crime the anonymous soldier is accused of takes precedence over letting the group maintain his anonymity.
Breaking the Silence’s lawyer, Michael Sfard, argued to the court in May to “defend Breaking the Silence, and in doing so, to defend civil society which is very broken which is anxious about its future.” He has said that ruling against the NGO would be a major blow to Israeli democracy and freedom of speech.
Regarding the specific soldier whose identity the state wants revealed, he said in May that the soldier is only suspected of a property-related offense, not killing or physically harming someone. In other words, he said that, even if this were a serious criminal case that would justify revealing a soldier’s identity, this is not the case.
But the professors’ brief organized by Soros’s foundation tries to block access to Breaking the Silence’s source and source-material using a novel media privilege argument.
“It is well-established in international law that media workers and outlets enjoy a right to protect their sources of information, subject only to narrow exceptions. This right derives from the right to freedom of expression,” the brief begins.
It continues, “the practice of international courts and mechanisms, although limited, indicates that the right to protect sources is not limited to traditional journalists and media, and can also be invoked by other social communicators, notably non-governmental organizations that gather and publish information of public interest. A number of precedents established at the domestic level in other democracies lend further support to this view.”
The brief does admit that, “The right to protect sources is not expressly mentioned in any treaty,” but then adds that, “it has been widely recognized as part and parcel of the right to freedom of expression by human rights mechanisms within the UN, as well as within the African, European, and Inter-American regional systems for the protection of human rights.”
It goes on to cite the UN Human Rights Committee’s 2011 interpretive guidance to the International Covenant on Civil and Political Rights to which Israel is a party. “Because reporting based on confidential sources has traditionally been the preserve of the news media, source protection is often referred to as a right of journalists,” it stated. “There is no generally agreed definition of journalism, however, and the imposition of formal requirements for entry to the profession, such as licensing or registration, is considered incompatible with international law.”
The committee’s comment continues that journalism is now “a function shared by a wide range of actors, including professional full-time reporters and analysts, as well as bloggers and others who engage in forms of self-publication in print, on the Internet or elsewhere.”
It then cites examples of international courts such as the International Criminal Tribunal for the former Yugoslavia, the Special Court for Sierra Leone, the European Court for Human Rights and others extending the media privilege to non-journalists serving a journalistic function.
Examples of protected non-journalists were employees of the International Committee of the Red Cross and UN human rights officers, with one international judge in connection with the Sierra Leone international criminal court even explicitly mentioning that, “The reasoning behind the protection of journalistic sources can, it seems to me, be applied in principle to... reports issued to the public by NGOs like Amnesty and Human Rights Watch.”
The judge continued, “There is in my judgment little meaningful difference in this respect between an investigative journalist tracking a story in a war-torn country, a war correspondent reporting on the ebb and flow of the conflict, and a researcher for a human rights organization filing information for an “in depth” report... by extracting information for publication from people who would not give it without an assurance that their names will remain anonymous.”
Sfard had previously made the argument very generally, but the brief was designed to double-down on the argument. Previously, the State Attorney’s Office had said that since the identity of the source being sought is essentially already known to it, even asserting a media privilege should not protect the NGO from confirming that identity. Further, it said, “the state views clarifying the truth as the highest value which overcomes the wish of the suspect or witness” to remain anonymous as part of a deal with the NGO.
A spokesman for Ad Kan! said that giving Breaking the Silence media privilege would be highly problematic, as even journalists have a set of ethics they need to meet and can be reprimanded by journalist ethics boards.
In contrast, he said that Breaking the Silence is under no one’s supervision and granting them media privilege would be giving them a blank check for conduct undermining Israel and the IDF.