Wednesday, May 27, 2009

The Anti-Nakba Bill

One of the more amusing pastimes these days is watching the Israeli
do-gooders and bleeding hearts all racing out of their holes to wring
their hands and publicly rend their garments over the proposed "Anti-Nakba
Law." The bill, unlikely to pass in any case, would make it illegal to
hold public mourning ceremonies on Israeli Independence Day designed to
proclaim Israel's very existence a catastrophe or "Nakba." The "Nakba" is
the favorite new slogan of Israel's Far Left and of course also of most of
its disloyal Arabs. Leftist university faculty members have turned it
into the leftist alternative to Passover and Yom Kippur.

The hysterical Left is claiming that the law is an infringement of
freedom of speech. In other words, burning US flags can be made a crime
in democratic America, but public mourning ceremonies for the existence of
Israel in the middle of a war cannot.

Well, these free speech absolutists would have a bit more credibility
if they also came out against OTHER laws and rules designed to suppress
freedom of speech, and in particular against Israel's Orwellistic
"Anti-Racism Law." An older posting on that atrocity appears below.

The Left is always opposed to providing as sauce for the gander that
which serves as sauce for the goose. They are adamantly opposed to any
suppression of the rights of freedom of speech of anti-Israel traitors,
but cannot contain their delight that Kahanists and other far-Rightists
are denied freedom of speech and criminalized.

Here is the earlier posting:


By: Steven Plaut

Date: Wednesday, March 30 2005

In 1977 Israel's criminal code was changed. Section 144A was added, making
"racism" a crime. Racism was defined as "persecution, humiliation,
demeaning, displaying animosity, hostility, violence or strife towards a
population group or parts of such a group, all on the basis of skin color
or membership in a racial or ethnic-national grouping." It is still on the
books and is being enforced these days with new vigor.

At first glance, the law seems innocuous enough. After all, who can be in
favor of racism or against attempts to eliminate it?

But the main problems in this law quickly become clear. First, the law
criminalizes some expressions of speech and so infringes free speech.
Second, the definition of "racism" in the law is so vague as to render the
entire law arbitrary and useless. Third, in its implementation and
enforcement the law has already been used in an arbitrary and
anti-democratic manner for partisan purposes.

There is a clear and present danger that the law can be used in other
anti-democratic ways by people seeking to suppress free speech for those
with whom they disagree, simply by labeling these opinions "racist." This
is not just a theoretical potential danger but is increasingly the reality
in Israel. Rather than defeating extremist ideas by exposing them to
sunlight and forcing them to compete in the marketplace of ideas, the
anti-racism law criminalizes certain arbitrarily chosen forms of

The law has become a bludgeon to suppress free speech selectively, used
against some right-wing Israeli Jews. At the same time, there has never
been any attempt to prosecute Arabs or left-wing Jewish extremists under
the same law.

The immediate motivation for the framers of Israel's law was the
activities of some followers of the late Rabbi Meir Kahane, founder of the
Jewish Defense League and later a right-wing parliamentarian and political
activist in Israel. The law's purpose was to suppress the freedom of
speech for these and some other fringe groups among Israeli Jews.

But even the campaign against Kahanism under the anti-racism law is highly
problematic. First, it is not entirely evident that Kahanist ideology is
racist, or at least more racist than that of many other groups whose
statements are usually regarded as protected speech. Kahane himself is
commonly regarded as a racist for certain unpleasant epitaphs he allegedly
applied to Arabs. But does that necessarily make anyone defining himself
as a follower of Kahane a racist? Karl Marx also used uncouth epitaphs
when speaking about Jews, black people, and others. Should everyone in
Israel defining himself as a Marxist be arrested for racism?

It is true that Kahanists have advocated the "population transfer" of
Arabs by forcing them to leave Israeli territory or subsidizing them to
leave. But, strictly speaking, even advocacy of "transfer" is not the same
as racism, and a person can conceivably be in favor of it for reasons
having nothing to do with racism or bigotry. Many decent people consider
the population transfer that took place in the Punjab in 1948 to be the
least of evils and a reasonable solution to the Indian-Pakistan conflict.

Israel has long been full of people, including politicians, who advocate
transferring the entire Jewish population out of the West Bank and the
Gaza Strip. No one has ever been prosecuted for such advocacy under the
same law that allows the prosecution of Kahanists for their advocating
"population transfer." True, those other people say they want this in
order to achieve peace, but the Kahanists say the same thing.

Most of the problems with the anti-racism law became clear soon after it
was passed by the Knesset. One of the first cases prosecuted under the law
was the State of Israel against Rabbi Ido Elba (Docket 2831/95). Rabbi
Elba had published a 14-page article on rabbinic law concerning murder.
His thesis was that in the Torah there are separate rabbinic laws applying
to killing of Jews, covered in the part of the Ten Commandments
prohibiting "murder," and the killing of Canaanite non-Jews living among
Jews, which was prohibited under a separate law given to all descendants
of Noah. That was the essence of Rabbi Elba's "racism."

The article was a scholarly exercise in explaining rabbinic laws and
especially the commentary by Maimonides on manslaughter. Elba emphasized
that killing of Canaanites living among Jews was strictly forbidden,
except if they were warring against Jews. Elba never advocated killing
non-Jews in the article and never even stated whether he agreed or
disagreed personally with the approach of Maimonides or other commentators
on the questions he was surveying.

But the article was published shortly after the massacre of Arabs in
Hebron by Baruch Goldstein, and the public and the politicians were
looking for a target to prosecute for anti-Arab racism. In April 1995
Rabbi Elba was convicted under the anti-racism law. He was sentenced to
four years' imprisonment (two of the years being a suspended sentence).
The Supreme Court upheld the conviction and the sentence the following

The vagueness of the anti-racism law is also problematic. The law's
language was formulated and thought through so poorly that it would make
statements like "I do not want to date non-Jews," or "I do not like
red-headed women" to be crimes. Should reading certain passages in the
Bible be prohibited because they offend some modern ears? There already
have been demands to cancel Israel's Law of Return (which grants
immigration rights to Jews) as a purported violation of the anti-racism

As another example of its arbitrariness, the law makes advocating
discrimination against a demographic group "racism." But Israel is full of
groups advocating discrimination against Jews as part of "affirmative
action preferences" and, of course, discrimination against males.
Virtually every Arab NGO and political party in the country is on record
in favor of this, as are most groups on the Jewish Left. Such statements
clearly comprise "advocacy of racist discrimination" under the anti-racism
law. And yet not a single person has ever been prosecuted in Israel for
advocating affirmative action discrimination. Why not?

A no less important question is why "racism" should be a crime at all.
Racism is, after all, a belief or a feeling, albeit an evil one. Since
when is it the business of democratic regimes to ferret out what people
feel or believe in the privacy of their hearts? Do we really want a Racism
Patrol inspecting bars and poker games, hunting down individuals making
racist statements on chat boards or in salons?

Criminalizing public expressions of racism in the media is no less
undemocratic. The world is full of statements of poor taste, intolerance,
bigotry, and stupidity, but these are regarded as protected speech in
democratic regimes. Democracy means we all have the right to say stupid
and offensive things. The day offensive speech is prohibited will be the
day democracy is replaced by totalitarian tyranny.

The anti-racism law is not merely an assault on free speech and expression
in Israel, but is itself arguably the most racist law Israel has on its
books. From the start, it was apparent that it would not be used against
any form of racism except that allegedly espoused by the Kahanists. The
prosecutions turned comic and absurd. A Kahanist was indicted and
convicted of racism for selling shirts with the slogan "Where there are no
Arabs there is no terrorism."

In contrast, racism by Arabs or bigotry by Israeli leftists has never been
prosecuted. When a prominent writer with communist ties made comments
justifying Hamas mass murders of Jews, he was not prosecuted as a racist.

Israel's Stalinist political parties, supported mainly by Israel's Arabs,
have never been banned or prosecuted under the anti-racism law, even while
their leaders call for terrorist violence against Jews and for the
destruction of Israel. Israeli professors, artists, and intellectuals
endorsing and justifying Arab terrorism against Jews or declaring Jews to
be not entitled to any form of self-determination have never been
prosecuted. Neither have those making disparaging comments about the
Jewish religion or the Bible.

Israeli Arab students, demonstrators and others chanting pro-violence or
pro-terror slogans, or calling for Israel to be annihilated, have also
been exempt from anti-racism prosecution. Not a single case of indictment
against an Arab anti-Semite or an Israeli Jewish leftist anti-Semite has
taken place since passage of the law.

Arguably the worst form of bigotry inside Israel is anti-Orthodox bigotry.
What makes it so pernicious is the fact that in polite Israeli society it
is often not even regarded is barbarous to denounce Orthodox Jews in the
most horrendous language. The Israeli newspapers and electronic media are
full of people making openly anti-Orthodox disparagements. Not a single
anti-Orthodox bigot has been prosecuted.

But the worst part of the anti-racism law is that it is part and parcel of
a much broader assault against free speech in Israel. It has been used
together with Israeli laws against "incitement" to intimidate political
dissidents. Ever since the Rabin assassination, accusations and
indictments for "incitement" have become common bludgeons used for
partisan purposes against political antagonists in Israel. It would not be
an exaggeration to say that "incitement" has been the label of choice
attached by many Israeli politicians to any statement or expression with
which they happen to disagree.

In most democracies, "incitement" is not a crime at all. At most,
"incitement to perform a crime" is added as an incremental charge against
people indicted for perpetrating the crime itself, in cases where
prosecutors seek a more severe sentence for that same crime. But
prosecutions for "incitement" by itself are virtually non-existent. Even
statements endorsing crime and murder, such as by protesters calling for
political assassination, are protected speech and not crimes, unless they
are part of the actual planning and preparation to carry out real crimes.

While the attempt to criminalize dissidents as "inciters" was largely the
work of the Israeli Labor Party and its allies after the Rabin
assassination, it has been co-opted by the Likud. Over the past year,
there has been a dramatic increase in threats by the Sharon government to
expand the uses of prosecution for "racism" and "incitement" as a means to
suppress the opposition to the Gaza disengagement plan. Those who demanded
that a national referendum be carried out as a pre-condition for
implementing the plan were denounced by some Likud leaders and the media
for "racism and incitement."

Free speech is alive in Israel, but it is wounded and threatened. It is
coming under increasing assault as the internal political divisions in
Israel deepen. Besides prosecution of those utilizing free speech and
saying things of which the political establishment disapproves, there are
growing open threats from the government to use the police, intelligence
services, and "preventive detention" without trial to bully opponents of
government policy into silence.

The very fact that assaults against free speech for "racists" are so
popular in Israel, especially among the chattering classes, illustrates
how shallow, conditional, and dubious is the commitment to democracy by so
many Israelis.

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