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An IDF officer and spokesperson for human rights NGO Breaking the Silence demands to be prosecuted for beating a Palestinian man, only to find that the State Attorney’s Office insists he is innocent.
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This is a segment from The “Why Oh Why Won’t You Try Me?” Edition.
This case is not as strange as it first seems. Civil disobedience’s primary strategy is to induce arrest for a contested law, contested either as unconstitutional, misapplied, or poor policy. If the action is successful, a court might strike the law, argue the law’s scope has been overreached, or, more simply, the State might refuse to prosecute the arrest which, if prominent, could signal that future arrests for the same act will not occur. As well, one forced into an illegal act might seek arrest to reveal its primary cause. What is bizarre in the present case is the long delay between action and hoped arrest.
Once arrested for knowingly committing an illegal act one does not therefore plead guilty. Again, innocence plea allows constitutional challenge or revelation of background mitigating causes. It is therefore quite possible to demand self arrest yet plead innocent. The BtS spokesperson in the present case would undoubtedly argue as defense that he was forced to his act by direct order and prevalent social pressure among ground IDF. This defense, if accepted by a court, would amount to an attenuated conviction of IDF policy and (at least) local command. Therefore the State’s refusal to bring charges amounts to potential obstruction of justice by disallowing a court finding of State culpability. Everything hinges in this case on the factual evidence of the confession; since the State controls evaluation and, mostly, creation of such evidence, especially after such long delay, it can essentially dodge self jeopardy by denying a prosecutable event occurred.
Overlapping jurisdictions can weaken this State defense by creating prosecutors with divergent interests. In the US, a State law may induce arrest of an individual by city police, country sheriff, or State police (long past known as the “Highway Patrol”). One of these jurisdictions might want to avoid arrest and prosecution while another would want to proceed. Consider prostitution. The city might have a look the other way policy while the county sheriff ran on an eradication platform (county sheriffs are, unusually for law enforcement, mostly an elected office in the US). In the border between city and rural county, the sheriff might arrest on city territory (which can be done) arguing that as a preventive policy against leakage into the sheriff’s sole rural domain.
Overlapping jurisdictions come with large territory. Israel is small; moreover, its past settlement policies and perpetual near war footing press to centralize jurisdiction, so the State speaks with a single voice–and this helps foster the illusion, grown strong in Israel, that the State is the People. In contrast, when city police and county sheriff differ on enforcement, the State is naturally seen as a variable tool of policy contested by factions. Liberals need this variability as a perceived natural phenomenon to make headway. Proto fascists, of course, argue that a single voice is the only natural voice for a State. Parliamentary government, by fusing ministerial government with the ruling coalition, can also foster a single voice view of the State; contrast the US system where, even with Republicans dominant, the structural separation between Congress and the Presidency presently creates multiple voices. There are several factors channeling Israel toward what I see as an emerging new form of Fascism–perpetual war footing, lack of written constitution, Knesset/Executive fusion, and small size leading to singular jurisdiction(s) among them. But I digress.