16 February 2004

Louis Rene Beres
Professor of International Law
Department of Political Science
Purdue University
West Lafayette IN 47907
USA

TEL 765/494-4189

FAX 765/494-0833

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Were it not for the evident seriousness of its implications, the David Haivri case would represent little more than the reduction to absurdity of a democratic country's legal system. Known popularly as the "T-Shirt Trial," the current court proceedings in Israel are based on an incident in which the defendant was charged with possession and distribution of a "publication" intended to incite racism. The "publication" at issue was a T- shirt imprinted with a picture of Rabbi Meir Kahane on the front, and the Hebrew words "Ein Aravim - Ein Piquim" ("No Arabs, No Terror Attacks") on the back.

The section of the penal law under which Mr. Haivri was indicted states, inter alia, that "...it does not matter if the publication led to racism or not, and if it contained truth or not." From the standpoint of even the most minimal standards of liberty in civilized societies, codification of a rule that truth is immaterial to guilt - that truth is not exculpatory - is both rare and indefensible. Moreover, as every country's domestic legal system must conform to minimal worldwide human rights standards, the Israeli prosecution here is in clear violation of overriding international law.

The defendant's "published" statement in this case - "No Arabs, No Terror Attacks" - is obviously true on its face. No one could conceivably argue that Israel now faces relentless terror from any other group on the face of the earth. The Haivri statement does not purport to explain terrorist attacks in other countries, where of course the offending groups might well be different, nor does it suggest in any way that all Arabs or even a determinable number of Arabs are terrorists. Without any explicit proposal or discernible message about what should now be done to limit Arab terrorism, the adjudicated T-shirt merely makes an absolutely incontestable observation, without any plausible evidence of bias and most certainly without any hint of identifiable "racism." To blithely deduce from the picture of Rabbi Kahane that the wearer and distributor automatically advocate harm to Arabs is not only jurisprudentially unacceptable, it is factually unwarranted.

Many Arab citizens of Israel remain loyal to the State and ought not to be identified with terrorists as a group. There is no ascertainable reason for the defendant in this case to be accused of suggesting otherwise. For the prosecution to impute a broadly generic attack upon all Arabs to Mr. Haivri on the basis of his T-shirt "publication" represents either a deliberate falsification drawn from political ideology or a despairingly flagrant incapacity to reason correctly. Indeed, recognizing very precise errors in deductive reasoning known in formal logic as "fallacies," the prosecutorial position in this case is undeniably based on conclusions that are not properly drawn from its acknowledged premises. In short, it is altogether false for the prosecution to conclude from the defendant's more-or-less implied statement, "All terror is caused by Arabs" that he is in any way suggesting "All Arabs are terrorists." The government's syllogism is patently invalid.

International law, which is always based on a variety of Higher Law foundations, including the Torah, forms part of the law of all nations - including the law of the State of Israel. This is true whether or not the incorporation of international law into national law is codified explicitly, as it is, for example, at Article VI of the United States Constitution. If it is to represent itself correctly as a Western-style democracy, the government of Israel is now fully bound by authoritative rules of international law to assure basic rights of free speech to all its citizens, Jews as well as Arabs, and not to deny these rights selectively to certain Jews on the basis of political antipathies. Further, as every state is obligated under international law to provide security to its citizens, the right of these citizens to peacefully protest when certain government policies endanger their survival is not only permissible, it is indispensable. Today, when Israel's government has undertaken repeated and persistently-failed policies of concession and capitulation to Arab states and Palestinian "authorities" that openly seek Israel's "liquidation," the right of civil disobedience in that country can hardly be questioned. In this connection the wearing and printing of a T-shirt with the message depicted by David Haivri is even substantially more protected than fully peacable acts of civil disobedience.

Every government surely has a legal right to prosecute "racism," but that right must never be allowed to impair the most minimal standards of free speech, nor can it ever lawfully declare the irrelevance of truth. This prosecutorial right is also contingent upon equality and consistency of application. For the government of Israel to prosecute Jews on the basis of allegedly offending T-shirts while simultaneously ignoring overt calls by Arab citizens for another Jewish genocide is intolerable by any measure of democratic law-enforcement. And when the indictment of Jewish citizens for "racism" takes place at a time when hundreds of aspiring Arab terrorists and suicide-bombers are released from Israeli jails as an expression of "good will," the government's case for prosecution becomes reduced to a paradigm for national self-defilement. The fact that the released Arab prisoners were not citizens of Israel has no legal bearing on this particular observation concerning wrongful prosecution of Mr. Haivri.

Speaking of Arab citizens, an important question comes to mind: If these citizens were now to print and display T-shirts with the inscription, "No Jews, No Occupation," would the Israeli authorities prosecute under the same "racism" statute? Almost certainly the government would choose to ignore such activity, although - in marked contrast to the contrived case mounted against David Haivri - the charge here would almost certainly be true. Ironically, the presumed decision not to prosecute, a decision in essence now made daily by the government when it looks fearfully away from genocidal publications by elements of its Arab population, would be based on a pitiable wish not to appear "undemocratic" before the tribunal of world public opinion.

It is bad enough that Israel's legal system is now being abused for blatantly political purposes; it is far worse that the law is now also being applied selectively, in a fashion that literally makes this system complicit in future terror attacks against Jews. Much as they might wish to deny it, the Israeli government prosecutors of David Haivri writhe within an agonizingly twisted jurisprudence that has far more to do with national surrender and capitulation to terrorism than with any measured considerations of justice.

LOUIS RENE BERES (Ph.D, Princeton, 1971) is Profesor of International Law at Purdue University. He is the author of many books and articles on >international criminal law.

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