Justice must be seen to be done: due process, broadcasting and politics in the Israeli courts

Behind glass, and flanked by guards, Adolf Eichmann faced the judgment, of audiences around the world.  On 11 April 1961, live from the Jerusalem District Court, for the first time in history, a criminal trial was televised and broadcast.  Viewers gathered in front of television sets from the United States to West Germany to see him face justice for crimes committed during the Holocaust. In Jerusalem itself, 700 people filled the Beit Ha’am theatre. Israel did not yet have a television service, and would not have one for another five years.

Initially reluctant, Israel’s prime minister Ben Gurion had been persuaded by American film producer Milton Fruchtman. Justice had to be seen to be done. Israel’s jurisdiction and mandate to try Eichmann, brought into question by retroactive legislation and issues around the legality of his abduction from Argentina, relied on the world seeing that there was no taint of bias.

“When I stand before you," chief prosecutor Gideon Hausner said to the court, "I do not stand alone. Here with me at this moment stand six million prosecutors."  Hausner’s highly emotive opening gambit hints at the potential risks, as well as the benefits, broadcasting presents for open justice. Outside the unique circumstances of the Eichmann trial, a prosecutor would usually be expected to adopt a more circumspect tone.  Although the function of open justice may be to demonstrate due process, in reality this is often technical and tedious.  Where the backdrop to a case is political, it becomes both more difficult and more necessary to maintain that focus on due process and to resist the temptation to play to the gallery. Justice must not only be seen to be done: it must actually be done.

On 11 May 2020, fifty nine years after the opening speeches in Eichmann were broadcast from its courtroom, the Jerusalem District Court refused an application by the Israeli media to allow the live broadcast of the trial of Prime Minister Benjamin Netanyahu for fraud, bribery and breach of trust, due to begin on 24 May 2020.

Netanyahu, the leader of the Likud Party, is the first incumbent prime minister to face criminal proceedings. He has denied wrongdoing, and described the case against him as a witch-hunt and a political coup co-ordinated by the media, state prosecutors and left-wing and pro-Palestinian rivals. The case has already been delayed from 17 March 2020 due to Covid-19. Adopting Covid-prevention measures becoming familiar in courtrooms around the world, only one lawyer for each party will be permitted in the main court room,  wearing face masks and maintaining a two-metre distance, with the judges separated from each other by glass panels (there are no jurors), and the wider legal teams and some journalists in overspill rooms. There are some concerns that the absence of the media from the courtroom itself, and the public altogether, will limit the scrutiny needed for the proceedings to have practical legitimacy in a deeply divided society. Commentators have been divided as to whether broadcasting would have delivered greater confidence in due process and equality before the law, regardless of outcome, or whether instead it would have turned the case (which Netanyahu’s comments have already sought to put into an explicitly political context)  into a spectacle and political platform.

Netanyahu himself had previously requested that the pre-trial hearing be televised live, arguing that “transparency delivers the truth”. Mandelbilt refused that earlier request, describing it as instead an attempt to leverage public sentiment, impliedly in the context of future electioneering. By the time of Netanyahu’s request, it was already becoming apparent that the September 2019 elections (the second that year) would fail to deliver a government and indeed, a third election was called on 11 December 2019 for 2 March 2020.

The Jerusalem District Court has not given a written judgment setting out its reasons for refusal. Granting permission to broadcast would have been a very exceptional step. However, the refusal is noteworthy in context of the fact that earlier this month, on 3 and 4 May 2020, the legal challenge to Netanyahu’s newly formed government, was live streamed. Advocacy groups and opposition politicians had petitioned the court on a number of grounds, including that Netanyahu, having been formally charged with criminal offences, should not be permitted to form a government following a unity deal with Benny Ganz of the Blue and White Party after the March 2020 elections had again failed to deliver a decisive outcome.

These proceedings were broadcast following a statement by Chief Justice Esther Hayet of the Supreme Court of Israel on 11 April 2020 that the Court would permit broadcasting on a considerably wider basis than before (prior to Covid-19, and despite legislative provisions being in place since 2004, only three cases had ever been broadcast). She emphasised that open justice should be an abiding principle in a state of emergency as well as in normal circumstances.

The Jerusalem Post described the two-day hearing  (in largely approving tones) as dry, technical and tedious: focusing on sub-clauses in legislation, Chief Justice Hayut having expressly rebuked one petitioner for “grandstanding” about democracy. This, the Post noted, was the central tension in delivering open justice through broadcasting.  While these types of cases should strip out the politics, avoid theatre and the opportunity to grandstand (unlike American impeachment hearings), it then becomes unlikely that sufficient numbers of the lay public would bother to watch to improve general understanding and improve trust in the system. The Post described a country divided in its view of the Supreme Court: “half the country seeing it as the last and greatest safeguard of democracy, and the other half viewing it as a body that badly overreached and has arrogated too much power to itself”. (A description that may have struck a chord with British readers.) That divide, the Jerusalem Post suggested, was as much a factor in the Supreme Court’s decision to allow broadcasting, as the additional difficulties for open justice posed by Covid-19 and social distancing.

In a unanimous judgment delivered by Chief Justice Hayut on 6 May, the Supreme Court, sitting as a High Court of Justice, found that there was “no legal basis to prevent Knesset member Netanyahu from forming the government". She was careful to emphasise Netanyahu’s right to the presumption of innocence in his criminal proceedings, as well as the seriousness of the charges against him and “the difficulty posed by the tenure of a prime minister accused of crimes”.  The judgment does not, however, confirm the position for all time: Israeli statute provides a clearer basis for the removal of a prime minister if convicted of a criminal offence, after all appeals have been exhausted.

After permission to broadcast the criminal trial was refused, early reports suggested that the media was planning to appeal: if it has, then it appears that the hearing has not yet been listed. Cameras or not, whether due legal process – and the reporting of that process – can have any role in healing a society which is increasingly sectarian, religiously, culturally and politically, remains to be seen.