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December 24, 2017

Ayelet Shaked’s Private Prosecutor

by MICHAEL SFARD

*Originally published in Haaretz’s Hebrew edition, 19.11.2017

“In the second decade of the 21st century, anti-democratic trends in Israel have increased. Senior politicians, and mostly the Prime Minister, have made extensive use of a rhetoric of intimidation and incitement against civil society organizations that criticize Israeli colonialism in the occupied Palestinian territories. The political arena is ever shrinking due to legislation that harmed  freedom of expression and the possibilities of sources of funding for opponents of occupation and settlements. Moreover, right-wing organizations, supported by, and in lockstep with, the government have executed an array of spying, slandering, and incitement against their adversaries in the democratic camp. These processes have on occasion received surprising tailwind from bodies and institutions whose social and constitutional role is to defend democratic principles, such as the press, the police and, above all, the Attorney General and the State Attorney’s Office.”

When the chronicles of the Netanyahu regime will be written and historians will calculate the causes for the darkness currently dominating Israel, they will dedicate a central chapter to the State Attorney’s Office. In this chapter, the Dean Issacharoff affair will star as one of the highlights of the State Attorney’s process of moral corruption and subservience on behalf of the ministerial branch. The affair began with the swift and scandalous response of Attorney General Avichai Mandelblit and State Attorney Shai Nitzan to Justice Minister Ayelet Shaked’s request.

Shaked requested that a complaint filed by a right-wing organization against Issacharoff, the spokesperson of Breaking the Silence, about an incident in which he publicly testified that he had used violence against a Palestinian, be investigated urgently. Instead of informing the Minister that her request had no legitimacy and that the law enforcement system does not act according to the dictates of the political sphere, and certainly not as a tool for battering political rivals, Mandelblit and Nitzan ordered the police to summon Issacharoff for questioning. Afterwards, they tried to cover up what they had done by claiming that the push to investigate this complaint came from the Military Advocate General, which in an unprecedented move, was denied by the IDF Spokesperson. And finally, yesterday, the State Attorney’s Office completed the political service it provided to the responsible minister by issuing a letter closing the file that violated every possible legal and professional rule, and sent it to the right-wing organizations that are so dear to the Minister.

The investigation file includes, according to this letter, the testimony of Issacharoff, his Company Commander and the Palestinian who was located and who, in the estimation of those running the investigation, was at the center of the incident. The Palestinian, Hassan Joulani, denied that he had been subjected to violence other than what was required to handcuff him, the Company Commander supported his testimony, while Issacharoff insisted that he beat the Palestinian whom he had arrested and “kneed him repeatedly.” There is no doubt that with the evidence at this stage, the file must be closed and Issacharoff can not be found guilty. This is a case in which there is insufficient evidence to file an indictment.

However, in examples where the case includes incriminating evidence (in this case, the suspect’s confession), the norms of prudence practiced by the State Attorney’s Office for years do not allow clearing of all suspicion. Generally, in a case of “your word against mine,” that has no smoking gun in the form of a full recording of the incident, the State Attorney’s Office will never determine what the “truth” is. Its wording will cleave closely to convoluted legal jargon, which includes expressions such as: “there is insufficient evidence to file an indictment”; “a hovering question mark”; “it is impossible to determine,” and when they really want to go wild: “it seems that.” All these phrases allow for withdrawal in the event that additional evidence emerges, or in our context – for example, if it turns out that Joulani, overwhelmed by the Israeli ambition to investigate the beating he received from a soldier three and a half years ago, denied the violence because he feared it would end badly for him. Or if it turns out that there was another incident in which Issacharoff arrested a Palestinian in Hebron (yes, yes, Joulani is not the only Palestinian who has been arrested in Hebron).

And as it turns out, there is. On the day the decision was published, it was revealed that the police did not investigate an additional witness to the incident, who incidentally confirms Issacharoff’s account. Another day went by and it was shown that the police had interrogated the wrong Palestinian. Combat officer Issacharoff served in Hebron for a lengthy period and was involved in many arrests, only regarding one of which did he say he used harsh violence. Therefore, a professional State Attorney would be cautious in its wording. Thousands of suspects whose cases are closed plead that the State Attorney will rule positively that they were not involved in any crime (including Mandelblit himself, who before being appointed Attorney General even filed a petition to the High Court of Justice demanding that the closure of the investigation against him in the Harpaz affair clear him completely [of any involvement]). This is what the State Attorney normally does, but not when it is serving the boss [Justice Minister] Shaked.

In the letter announcing the closing of the case, Shai Nitzan’s deputy, Nurit Litman, ruled that, regarding Issacharoff’s account, “this is a false claim” and that “[these] things did not take place.” Simple as that.

In its desire to grovel before Shaked, to give her the goods (vis-a-vis the public and political spheres), the State Attorney’s Office enlisted in the IDF’s department of history. And if it turns out in a few days or weeks or months that Issacharoff told the truth, that this hapless investigation did not find the right Palestinian or intimidated the right one from telling the truth What then? The yellow headlines of the papers already slung their mud. The armchair journalists of the right have already drunk the blood of Breaking the Silence. Issacharoff will remain a liar in the eyes of the public and no one will compensate the damage caused to Breaking the Silence’s image. Shaked’s goal for the professional echelon  at the Ministry of Justice was achieved, and the legislation that she is working on to outlaw Breaking the Silence received another significant step forward. Even if he opposes the law, The Attorney General , will not be able to wash his hands clean.

Today everyone applauds the State Attorney’s Office, which has contributed another punch to the ongoing pogrom against Breaking the Silence. But the day will come when the winds will change direction and the question will be asked with intensity: where were you, Mandelblit and Nitzan, when the battle for democracy was in full force? Because Issacharoff and his testimony are mere pawns in the struggle to silence and suppress the forces that oppose Israeli occupation, settlement enterprise, and Apartheid.

The author is the legal adviser of Breaking the Silence

 

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