Breaking the Silence and Israeli government cut a deal

The NGO has been under pressure to confirm the identity of an Israeli soldier who spoke to it confidentially about four incidents that occurred during the 2014 Gaza war.

The offices of the Breaking the Silence organization in Tel Aviv (photo credit: REUTERS)
The offices of the Breaking the Silence organization in Tel Aviv
(photo credit: REUTERS)
Breaking the Silence and the state announced a compromise on Wednesday in which the NGO agrees to give its original source materials for its report on Operation Protective Edge, while withholding the names of its sources, for use by the state and the IDF in their ongoing criminal investigations into certain incidents from the 2014 war.
It appears that the sides compromised to avoid an unpredictable ruling by the courts.
The NGO has been under pressure to confirm the identity of a soldier who spoke to it confidentially about four incidents that occurred during the war as well as to provide the full transcript of his comments.
Breaking the Silence had claimed in October that it should be treated as if it were a media organization, which would give it protection from unveiling anything to the government regarding its sources.
A spokesman for the Ad Kan NGO said, however, that giving Breaking the Silence a media privilege would be highly problematic, as journalists have a set of ethics they need to meet and can be reprimanded by journalist ethical boards.
In contrast, he said that Breaking the Silence is under no one’s supervision and granting it a media privilege would be giving it a blank check to undermine Israel and the IDF.
The soldier-source comes up in Breaking the Silence’s critical report on IDF conduct during the war.
For around 11 years, the NGO has delivered anonymous testimonies from soldiers on alleged IDF abuses during conflict with the Palestinians.
The state attorney had demanded that Breaking the Silence reveal one of its anonymous sources, saying that solving the crime the anonymous soldier is accused of takes precedence over maintaining his anonymity.
Sfard argued to the Petah Tikva Magistrate’s Court in May 2016 that it should “defend Breaking the Silence, and in doing so, defend civil society which is very broken which is anxious about its future.” He has said that ruling against the NGO would deal a major blow to Israeli democracy and freedom of speech.
Regarding the soldier, he said in May 2016 that he is only suspected of a property related offense, not physically harming someone. In other words, he said even if in some theoretical serious criminal case, it might make sense to piece a soldier’s anonymity, this was not that case.
But a professors’ brief organized by a George Soros-sponsored foundation in October tried to block access to Breaking the Silence’s source and source-material using a cutting-edge media privilege argument.
It cited 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. 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 cited 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 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 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.