…for basically calling (with ample justification) a racist far right Israeli settler a student of the Nazis. The small claims court, remarkably, foudn in favor of the plaintiff. Professor Harel of the Hebrew University, the defendant, kindly shares this account of the case and what it tells us about the state of Israeli society:
Not a Word
Alon Harel
In this post I wish to briefly describe a judgment in a civil case concerning libel in the small claims court in Jerusalem, in which I was the defendant. This seems at first blush like a minor and insignificant incident. Yet I believe much can be learnt from it on the deterioration of the integrity of a legal system in a morally challenged society. Perhaps an indication of its importance is that although the decision has been made by a small claims court, it got a lot of attention by leading dailies both on the left (Haaretz) and on the right (Srugim and Arutz 7).
The plaintiff Mr. Kirshenbaum is a right-wing activist residing in Yizhar — a settlement in the Occupied Territories. The plaintiff published a racist article containing horrifying content. In that article, the plaintiff referred to the Palestinian population as “human animals,” described discussions about avoiding harm to civilian populations as “foolish intellectual coldness,” called for harming the civilian population in the West Bank as such, called for the collective punishment of the entire civilian population in the West Bank through painful and extreme deterrent measures, and urged that no distinction be made between terrorists and the civilian population in a manner that would constitute a war crime. The article entitled The Law of Jit is the Law of Rafah was published only one day after a horrendous pogrom took place in the Palestinian village Jit in the West Bank. As has become customary in recent years, a group of settlers entered the village, burned down houses and cars and murdered a Palestinian resident Mr. Rahseed Seda.
Like many other Israelis, I was shocked by the article praising the pogroms and calling for conducting new ones. I wrote a FB post in which I condemned harshly the article and described Mr. Kirshenbaum as a student of the (Nazi war criminal) Alferd Rosenberg and also labelled him a member of the Jewish Hamas. Mr. Kirschenbaum sued me and in lengthy judgment, Judge Hagit Plaut awarded Mr. Kirschenbaum an exceptionally high compensation. For a description of the judgment, see
In my view, the doctrinal details of the case, and even the judgment itself, pale in comparison to one fact that powerfully exposes the moral decline of Israeli society and of its legal system. Most astonishingly, the judgment manages to proceed from beginning to end without referring—even once and not even in a single word—to the content of the article that prompted my response. Not a single word is devoted to describing, acknowledging, or engaging with its content. To the credit of the judge, she is not in favor of murder, of course—but also not in favor of condemning it either. It is as if the commitment to legal neutrality has been carried to an absurd extreme. This is precisely what makes this judgment so exceptionally morally depraved and deeply grotesque.
How can this be? How can a judge fail to express some resentment reacting to an article which is calling for the mass murder of Palestinians? After all, such murder is not only morally depraved; it is also a crime under Israeli and international law. As a matter of fact, the article by Kirschenbaum himself is defined as a crime under Israeli law (section 144 D2 of the criminal code – incitement to violence).
It would be easy to attribute the judge’s callous indifference to her educational or cultural background. From her résumé it is evident that she grew up within the religious-national community, a milieu that is occasionally linked to ultra-nationalist sentiments, and it may therefore be tempting to assume that this background shaped her judgment. I wish I could persuade myself that this is indeed the case. I would be relieved if such an explanation were sufficient.
In my view, no judge in a healthy society could have written a judgment without expressing harsh condemnation of the call to murder innocent Palestinians. In a morally decent society, failing to do so, would result in the judge being classified as an outcast. A judge in a decent society (irrespective of her politics) would find herself viscerally disgusted by an article calling for murder on ethnic grounds. Such a judge may eventually decide against the defendant, but she could not resist the urge to express her disgust in the judgment. The problem therefore does not lie with the particular judge but with the political community in which she lives.
My conjecture is that, in contemporary Israel, the type of article written by Mr. Kirschenbaum has become so normalized that its content no longer appears (at least to some) to call for comment or response. It is not, I maintain, because the judges are particularly evil. I assume that had somebody drew the attention of the judge, she would condemn the article and Kirschenbaum’s call for murder. But this is precisely the problem: judge Plaut needed a trigger; her reaction to the horrendous proposals contained in the article written by Kirschenbaum was not reflexive, natural and irresistible as it should have been. Why?
There are perhaps many reasons. One reason is the lack of ethical component in the legal education. In a post I wrote I suggested that judges should be required to read the famous book by Robert Cover, Justice Accused on the cases of slavery and, in particular, on the judgements of judges who opposed slavery. But this is not the only reason. I would suggest that there is a strong connection between the recent judicial reforms proposed by the government to constrain judges and limit their powers and the recent moral deterioration of the Israeli legal system. Judges who are recruited on the basis of their loyalty to the executive branch, whose powers are constantly challenged and who are often labelled pejoratively as mere clerks become timid obedient and submissive. Judge Plaut is not an evil judge; it is simply that her appointment and the circumstances surrounding her workplace and prospects of promotion are ones that encourage, reinforce and even compel technocratic decision-making process marked by excessive deference rather than moral sensitivity and ethical independence. If I am right, the judicial putsch in Israel may have disastrous implications on the integrity of the Israeli legal system for many years to come.
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