The Jenin Jenin Amendment: Israel from Ethnocracy to Fascism

Last Monday, on the 6th of May, Israel’s Ministerial Committee for Legislation decided to approve the “Jenin Jenin Amendment” in a paramilitary hearing. The amendment [Hebrew] is an addition to the Israeli Defamation Law [Hebrew], stating that army personnel and the state can sue individuals, who expose army violence, for libel, without proving damages. The amendment comes as a reaction to Israel’s Supreme Court rejecting soldiers’ class action suit of defamation against actor/director Mohammad Bakri, for his documentary Jenin Jenin (watch it in full here), in which Palestinian testimonies describe their experiences of the 2002 massacre perpetrated by Israel’s army in the besieged refugee camp.

The Council of Film and Theatre Production Critique and the British Occupation of Palestine

From the beginning, the image of TheOnlyDemocracyInTheMiddleEast™ couldn’t absorb the damage made by the State of Israel, as reflected by the horrific testimonies of the survivors. After just 3 screenings, the “Israeli Film Board” banned the film, saying it’s “libelous for calling itself a documentary despite documenting only one ‘side’ of the story.”

For all of us following, it’s no surprised that the state of Israel and its governmental bodies perceive Palestinian experiences- if they exist at all- as fiction, unless paralleled by Israel’s army experiences. I suppose it took McDonald’s a great deal of restraint, not to declare “Supersize Me” as fiction (but then, one could always argue that McDonald’s has a much more stable image than Israel, and as such can assume a much less aggressive line of PR defense). The method being well known, the question that arrises is who is this Israeli governmental body that seeks to change the criteria of documentaries, so radically?

I tried Googling various versions of the words “Israeli Film Board” in both English and Hebrew, and finally found “The Council of Film and Theatre Production Critique” [Hebrew]. As always, when you look into the tangled mess which is Israel’s legal occupation system, you’ll find a thicket of pre-state British Mandate (a.k.a. “British Occupation”) laws, dating from the turn of the previous century. The Council of Film and Theatre Production Critique  is no different:

The Council of Film and Theatre Production Critique is a body that in the past dealt with censorship of films and theater productions in Israel. From the mid 1990’s, it’s main function is rating films. The Council of Film and Theatre Production Critique was founded of the authority of two Mandatory statutory provisions, the “Film Order” and the “Public Theater Production Order” that were set in 1927. [Today, the] council has 14 elected members and is part of the Ministry of Interior.

In 1991 the theater production portion of the council’s mandate was cancelled, but it’s mandate to censor films, or ban them altogether still stands. Its last banning being Jenin Jenin. Following the ban, Bakri, a Palestinian citizen of Israel, petitioned the supreme court, which lifted the ban a year later. But don’t get so optimistic, after all, that was 2003, and Israel has only gone Right  in the passed decade.

Evil Tongues and Other Plagues

While mucking it out through Israel’s bureaucratic obstacles, 5 reserve soldiers, who were stationed in Jenin refugee camp at the time, decided to sue for defamation, even though their names were never mentioned in the film. It was for the latter that the Supreme Court dismissed their case, but that didn’t stop Knesset members from spending the next decade trying to find any loophole possible to punish Bakri, and when finding nothing, inventing new laws in order to delegalize his simple act of filming testimonies.

Before we come back to last Monday, however, I’d like to touch base briefly about Defamation Law in Israel and how it may apply in the specific case of Jenin Jenin. The law [Hebrew], borrowing its name from the similar biblical concept called “Evil Tongue”, was actually inspired by British legal practice in the field. Defamation is defined as information which when made public:

1. Humiliates a person in the eyes of the public, or makes her/him the victim of hatred, contempt, or ridicule;

2. Humiliates a person for actions, behavior, or traits relating to her/him;

3. Harms a person, their job, business, or occupation;

4. Humiliates a person on the basis of his race, origin, religion, place of residence, gender, sexual preference, age, or physical ability.

The law is applied to both individuals and corporations, and doesn’t necessitate actual proof of damages. Its considered a civil tort that can follow a law suit according to damages laws, or if it is found that the defamer intended to do harm, it amounts to criminal charges with the penalty of one year in prison.

Now for a brief look at the reservists’ case: The court dismissed their suit because their names were not mentioned in the film, therefore they weren’t the one’s defamed and are not the victims of what the court actually did think of as an immoral act. I also contend that even had the reservists been named in Bakri’s film, the actions associated with them wouldn’t have legally amounted to defamation in Israel:

  • Clause 4 – Irrelevant in this case.
  • Clause 3 – One could argue that when pressed to the wall, the army may convict a soldier for a violation, and the result of a conviction may amount to a relieving from duty. Two aspects are important here: The first being that a soldier during conscription is allotted a symbolic excuse for a “salary” averaging at 10 agorot (about 2.5 cents) an hour, so while it may harm their job, it would not harm their livelihood. The second aspect is that while a commander actually lawfully employed by the army may be stationed elsewhere less “glorified”, chances are that he will not be relieved from duty and will not suffer a pay cut. He definitely would not suffer a loss of income due to compensation of his victim for the crime he was theoretically convicted for originally. And of course I say “theoretically” because the chances of a conviction, or even an indictment, of a soldier who has wronged a Palestinian (beyond the given state of occupation) has just very recently been proved to be Zero.
  • Clause 2 – Since the soldiers are not being criticized for their good looks, but for their actions, this clause may actually apply in Israel, if it weren’t for Clause 1…
  • Clause 1 – I argue that since the occupation normalizes Jewish Israeli hegemony over Muslim and christian Palestinian Arabs, it’s hardly likely that a soldier’s humiliation or false arrest of a Palestinian, while invading their home without a warrant or even plausible cause, can serve to “humiliate the soldier in the eyes of the public, or make her/him the victim of hatred, contempt, or ridicule.”

Despite Israel’s soldiers’ almost complete de-facto immunity from defamation, the law specifies that it’s ok to criticize them within their “official capacity” [Clause 15.4] and as a result of “legal, moral, or social obligations” incumbent upon the alleged defamer [Clause 15.2]. And this is exactly the “loophole” which the Jenin Jenin Amendment was crafted to plug.

The Protected Military Minority of the Hegemony and Self Defense

I can’t help but note that the letter of the law of the Jenin Jenin Amendment is embarrassingly jumbled and incoherent, and that that in itself is dangerous regarding a legal system which is so dependent on the written word. More importantly, however, the phrasing of its preamble jumbles up between concepts that are very basic to democracy (you know… that thing Israel claims to be…). One of these concepts is the difference between a government worker/representative and a private person:

The amendment… is only referring to the right of the individual to enact a civil suit against whomever damaged their good name.

But what if said “individual” is in an official capacity? After all, the whole point of the amendment is to protect poor defenseless soldiers, right? And soldiers are working in a governmental official capacity, are they not?

Interestingly enough, Israel’s Defamation Law includes whole clauses about recommended defenses from the law. The defense which deals with “good faith” [Clause 15] has a sub-clause [the aforementioned Clause 15.4] that permits the public criticism of someone acting in an “official capacity”. My quibble with the clumsily phrased proposal isn’t due to my aesthetic sensibilities. Seeing as Israel’s Ministerial Committee for Legislation is taking this amendment seriously, they may have some legal editing work to do, that may just prove Sisyphusian, and by the time they are done, they’ll be left with no amendment at all.

The second concept I’d like to take up is that of “the community of IDF soldiers”. This is not just a fluke in the phrasing of the amendment, but a major political concept that its formulators would like to enshrine in the legal system:

The bill asks to acknowledge the fact that IDF combatants are a community fundamentally different from any other community in the state of Israel. This community derives its uniqueness both from the importance of the stature of the IDF around the world, and from the severe damage caused to Israel by the false accusations aimed at it, and also from severe damage caused to IDF soldiers, left with no possibilities to protect their good names after being sent to execute the hardest tasks, that can cost their lives.

As someone who often meets the members of “the community of IDF soldiers” face to face, while they “execute their hardest tasks”, I admit that we are looking at some of the hardest knocks Israeli society has graduated, and the deliberate socio-economic based devision of command and drudge-worker shouldn’t surprise anyone, as it reflects the Zionist mentality. The army is often referred to in Israel as “the great equalizer”, and I’ve seen with my own eyes, how petty drug dealers are transformed into petty drill sergeants. As the state completely ignores the socio-economic gaps, every soldier is elevated to a mythical status of “son” and “hero”, but the Jennin Jennin Amendment aims to elevate them to legal status of “minority”.

The Amendment, mirroring Israel’s general outlook on its army that it can never do wrong, doesn’t stop at the “minority itself”, it also wishes to define its collective actions- in an official capacity- as protected:

… It is because of this that the bill proposal adds to the law of defamation a clause which [differentiates] IDF combatants from all other communities and rules that despite the limitation of the law concerning suits of defamation of [whole] communities, defamation of IDF combatant military operation activity will be eligible for class action suits. This clause will allow IDF soldiers to prosecute in class action suits if they are damaged by defamation relating to military operation activity that they undertook.

Not only is Israel’s army a minority in need of special protection in the law, which isn’t afforded to any other actual minority, but it is elevated to a whole other moral status, allotted a privilege no other minority community (like say, children, the elderly, the disabled) is allotted. It’s collective actions, in official state capacity, which have to do with population control, which is illegal according international law, is now to be protected by Israeli law, and not only is any criticism delegalized, but it is punishable by a year in prison, or fines, paid to the specific soldier in question. Again, who profits from the occupation?

Defamation Laws and Boycott Laws

Being a BDS activist, I might need to warn the formulators of this law that they are dangerously close to turning the boycott from institution/corporation-oriented to individual-oriented. Being a BDS activist particularly in the cultural arena, I can also point out the discrepancy between the welcoming of international cultural figures who refuses to interact within the political context hosting them, and the defamation and banning of cultural figures who choose to take a stance that doesn’t serve the hegemony’s agendas. I can also point out the ironies of the TheOnlyDemocracyInTheMiddleEast™ that won’t allow Arab people to speak on the basis of their “Arabism” (is that a word?). All this and many other deadly manifestations of military control and apartheid are the catalysts of the Boycott, Divestment and Sanctions movement. But more specifically, I’d like to address the not-so-hidden agenda of the Jenin Jenin Amendment, as stated in its jumble of a preamble :

The legal loophole [in the Defamation Law] has called to the thief, and there are those that knew well how to abuse the problematic situation. The defamers of Israel, waging a campaign of delegitimization against it in the international community, who wish to bring about a boycott of the state and its citizens, have chosen the community of IDF soldiers as a comfortable target for their accusations and defamation, in recent years, fully aware that no legal steps can be taken against them… The grave injury to the combatants sent to risk their lives, not only strengthens the trend of delegitimizing Israel around the world, but often sabotages the soldier’s mission to complete his assignment, which’s goal is the protection of the lives of the citizens of Israel.

I may just have grounds for a defamation suit against Knesset members Yoni Shetbon, Yariv Levin and Nahman Shai, who claim that I wish to bring a boycott of individual citizens, when time and again, we “delegitimizers” exhibit that that isn’t the case. More severely, the accusation that I somehow “sabotage a soldier’s mission”, which holds grave legal implications for me, not to mention that roundabout legal liability that comes with this “sabotage” that may in itself somehow endanger lives. And please let us all remember that all that this bill is aiming to stop is the documentation and publication of army actions, which may, or may not, constitute violations of army laws and protocols, violations of human rights, war crimes, and/or crimes against humanity. One might argue that each and every soldier should be sending me some flowers for doing their commanders’ jobs for them.

I also take issue with the claim- now enshrined in this bill- that “no legal steps can be taken against [me]”. I doubt that official wording of a law can include a factual lie. As I’ve already implied in the previous paragraph, while the Boycott Prohibition Law specifically targets those directly advocating for BDS, the Jenin Jenin Amendment comes to complete the silencing, by also delegalizing the simple act of providing information, without the added legal, moral, or political analysis (although avoiding analysis may not protect us from the Boycott Prohibition Law). So while the Boycott Prohibition Law silenced the minority-within-the-minority of citizens of Israel known as BDS activists, the Jenin Jenin Amendment will silence the rest of the left, especially NGO’s who’s main activities are documenting, archiving, and publishing reports (written, or filmed), such as B’tselem, Machsom Watch, Physicians for Human Rights, Amnesty International and many others. But lest someone accuse me of advocating only for one political group, allow this anarchist to become a democrat for a second and ask what is to become of the last watchdogs of Israel’s ethnocracy, if the legislative and judicial arms bound them from criticizing their executive arm?

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