Don't call it 'racism'

Mar. 23, 2005 20:35 | Updated Mar. 24, 2005 5:22 Original Post on Jpost.com
By Professor Steven Plaut

In 1977 Israel's criminal code was changed. Section 144A made "racism" a crime. Racism was defined as "persecution, humiliation, demeaning, displaying animosity, hostility, violence or strife toward 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."

At first glance, this 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.

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 nor left-wing Jewish extremists under the same law.

The immediate motivation for the framers of Israel's law was the activities of followers of the late Rabbi Meir Kahane. The law's purpose was to suppress the freedom of speech of these Kahanists and of some other fringe groups among Israeli Jews.

But prosecuting Kahanists for "racism" is inconsistent and arbitrary.

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 v. Rabbi Ido Elba (Docket 2831/95).

Elba had published an article arguing that in the Torah there are separate rabbinic laws applying to killing 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 humans descending from Noah. The article was a scholarly exercise in explaining rabbinic laws and especially the commentary on manslaughter by Maimonides.

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

The vagueness of the anti-racism law is extremely problematic. The law's language was so poorly formulated and thought through that it would make statements like "I do not want to date non-Jews," or "I do not like blond women" crimes. Should reading certain passages in the Bible be prohibited because they offend some modern ears?

The law explicitly makes advocating discrimination against a demographic group to be racism. But Israel is full of groups advocating discrimination against Jews as part of affirmative action preferences, and, of course, also discrimination against males. Not a single person has ever been prosecuted in Israel for this. Why not?

Racism is, after all, a belief or a feeling, albeit an evil one, but a private one. Do we really want a Racism Patrol inspecting bars and poker games, hunting down individuals making racist statements in chat rooms or in salons?

The anti-racism law is not merely an assault against free speech, but arguably the most ludicrous law Israel has on its books. A Kahanist was indicted and convicted of racism for selling T-shirts printed with the words "Where there are no Arabs there is no terrorism." Another is under investigation for selling an anti-disengagement-plan board game.

In contrast, no racism by Arabs has been prosecuted. Nor has bigotry by politicians such as Shinui's Tommy Lapid, whose entire party agenda is based on anti-haredi bigotry. When communist Sami Michael, a prominent writer and a leader of the Association of Civil Rights in Israel, made comments which struck me as justifying Hamas's mass murders of Jews, he was not prosecuted as a racist. No Arab political parties – regardless of how outrageous their statements are – have been banned or prosecuted under the anti-racism law. Neither have Israeli professors, artists or intellectuals endorsing and justifying Arab terrorism against Jews, or declaring that Jews are not entitled to any form of self-determination.

Free speech is alive in Israel, but wounded and threatened as the internal political divisions in Israel deepen. Besides the 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 by so many in Israel to democracy.

The writer is a professor at Haifa University.