Legal Experts

24 October 2023

by Ilya Shablinsky

Source: Spektr.Press

The war in Israel has entered a new stage. And the question of the accountability of the forces that were responsible for the security of the country is not the most relevant one today. However, it will inevitably come to be. In this context, it is interesting now to break down one particular aspect: how often and under what circumstances does the topic of treason or espionage arise in Israel? How often has such an accusation been brought against the country’s citizens? How does the Israeli Penal Code view such crimes? And how possible is criticism of the actions of the security forces in Israel?

Here the Russian reader may be surprised. In part ‘Bet’ of the Israeli Penal Code (roughly corresponding to the Special Part of the Russian Criminal Code), an entire chapter is devoted to the varieties of ‘treason.’ It has six articles (97 to 103). That is, six types of treason are specified, each of which corresponds to a rather severe punishment – from ten years in prison to life imprisonment and even the death penalty (which, however, has not been practiced in Israel for a long time). Specifically, such types of treason are highlighted: ‘Causing harm to the sovereignty or integrity of the state,’ ‘Unleashing war,’ ‘Aiding the enemy in war,’ ‘Service in the enemy armed forces,’ ‘Aiding a prisoner of war,’ ‘Defeatist agitation.’

This chapter is directly adjacent to chapter ‘Gimel’ – ‘Causing harm to the armed forces’ and chapter ‘Dalet’ – ‘Espionage.’

The term ‘espionage’ in the Israeli Penal Code also covers the act referred to in Russia as the dissemination of information constituting a state secret – regardless of whether this information is passed to the enemy or to the press.

In light of the unfortunate application in Russia of the recently adopted articles of the Criminal Code establishing criminal responsibility for the dissemination of ‘false information about the army’ (sometimes called ‘fake news’) and ‘discrediting the army,’ the Israeli Penal Code rules on ‘defeatist agitation’ may be of particular interest. According to Article 103, this entails ‘the dissemination of information that may undermine the morale of military service members and Israeli residents in their confrontation with the enemy, with the intent to cause panic in society during military operations…if the goal is to harm the security of the state.’ Thus, the investigation and the court in such cases must prove not only the occurrence of the crime itself, but also the existence of intent to harm the security of the state.

However, the fact of the matter is that I could not find a single case of criminal prosecution for this crime. The reason here is not so much that the composition is structured in such a way that it is practically impossible to prove intent. It is more that Israeli media sources – previously newspapers, now mostly Internet resources – are used to feeling very free, really feeling like the ‘fourth estate.’ And in this their role does not in any way reflect the fact that the country is either in anticipation of war (and it permanently is), or is actually experiencing wartime, as it is now. The army in Israel enjoys universal respect, if not love, but at the same time criticism of specific military chiefs and their methods or specific actions is entirely possible.  And criticism of the Minister of Defense is quite common for any newspaper or website.

In recent weeks, Israeli media has harshly criticized the IDF (Israeli Defence Forces), the intelligence services, and senior government officials in connection with the tragedy on the border with Gaza. General respect for the army does not preclude such criticism. Commentators and bloggers speak more or less harshly, but buzzwords and phrases like ‘failure,’ ‘we were left butt naked,’ ‘the army is no longer the same’ are pouring out. And no article of criminal law is even recalled here.

As for other articles on treason and espionage, some of them have actually been applied. Such cases were the object of rapt attention of media sources and society. But they have been applied very rarely. Each case of accusations of treason or espionage stands out as a special account. Official statistics note only four such cases (although these statistics do not include data from the last three years). Overall, cases of treason and espionage were initiated more often, but judging by the published statistics, only four reached the courts — investigators know that the judges will not miss a single one of their mistakes, and if they do overlook one, the lawyers will point it out.

The most famous of these cases is that of Mordechai Vanunu. It was fairly well covered by newspapers around the world in 1986-87, but nowadays the story has been forgotten. Mordechai Vanunu worked as a technician at the Negev Nuclear Research Centre from 1976 to 1985. Due to his left-wing views, he appeared conflicted about his involvement in creating radioactive materials that would make it possible to produce nuclear weapons. When he resigned, he provided a British publication with 57 photographs he had taken while working at Negev, as well as some comments, from which it followed that Israel had already built or was close to building a nuclear bomb. Israeli intelligence services identified the source of the leak, lured Vanunu from the UK to Rome, and abducted him, bringing him to Israel on a ship. The trial, which was held in 1986 behind closed doors, found Vanunu guilty of espionage and high treason, and he was sentenced to 18 years in prison. Vanunu served his entire sentence.

He was not allowed to speak to the press, and the details of the case were classified, seeing as it concerned the country’s nuclear programme. But the Israeli press actively and freely discussed both the charge against Vanunu and all the details of the closed trial, to the extent that information from the defendant’s lawyers and the prosecutor allowed. The story was prevalent in the Israeli press for quite a while. The vast majority of Israelis condemned Vanunu’s actions. At that time, it was already known that nuclear development had been underway since the early ’80s in both Iraq and Iran.

Another case. In 2008, a young girl name Anat Kamm, who was working as an assistant in the Central Command Bureau while in the army, secretly copied thousands of classified documents. After her service, Kamm provided Uri Blau, a journalist for the Israeli newspaper Haaretz, with the documents on a compact disc. She made an agreement with the newspaper that required the editors to keep the source of the information confidential.

Evidence from the leak showed, among other things, that the military violated an Israeli Supreme Court ruling that prohibited the killing of wanted militants in the West Bank. According to the Supreme Court ruling, the militants should have been arrested, not killed. Uri Blau published a piece about the incident, which provoked wide discussion in Israeli society.

In 2011, investigators finally found Anat Kamm. The court found her guilty of aggravated espionage, although she was only sentenced to 3.5 years in prison after making a pre-trial deal with the investigation.  Uri Blau was also convicted. He was found guilty of illegal possession of classified documents and sentenced to four months of community service.

However, Anat Kamm filed a lawsuit in 2013 where Haaretz, its editor-in-chief Amos Schocken, journalist Uri Blau, and a senior news official were defendants. The plaintiff sought 2.6 million shekels in damages, which claimed she suffered due to her identity being disclosed as a source.  

From a Russian perspective, this is a totally improbable situation and astonishing requirements, right?

Nevertheless, the Tel Aviv District Court ordered Haaretz to pay Anat Kamm 75,000 shekels as compensation for the legal fees she had to incur after the newspaper revealed her as a source. All of this despite the fact that Kamm had previously been convicted of a felony. Her motives were no secret: she considered Israeli intelligence to have committed war crimes. The newspapers actively discussed these trials, and Anat Kamm had many supporters.

So we’ve seen that Israel’s criminal law system considers a wide range of actions as crimes, and penalties are severe. But it is difficult to bring any espionage case to court: in any case, it must be true espionage or true disclosure of information constituting a state secret. The courts place a high value on the interests of the country’s defence but will not make any concessions to investigators if they present inconclusive evidence or evidence obtained illegally. The Israeli media is able to cover any such trials and typically scrutinizes investigations in detail.

Let’s now switch to Russian jurisprudence for a moment. Article 275 of the Criminal Code of the Russian Federation has approximately the same contents and outlines the same types of treason as the Israeli law: giving away state secrets to a foreign state or organization, switching to the enemy’s side, etc. But there is also a clause that is not in Israeli law or in the laws of other countries, and that is: “providing consulting or other assistance to a foreign state, international or foreign organization, or their representatives in activities directed against the security of the Russian Federation.” With that kind of phrasing, anything goes.

At the same time, the number of convictions under this article in Russia was not very high. But it has increased dramatically because of the war against Ukraine. In 2017, four people were convicted; in 2018 – four, in 2019 – eight, and already in the first half of 2023, 12 were convicted with 43 such cases initiated.

And the problem is not even in the lack of clear definition of the offence. The problem is that the courts, both before the war and now, have automatically accepted any charges laid by the Investigative Committee, any evidence, handing down the sentences as ordered by the FSB. All trials in prosecutions under this article are usually declared in camera, and even defendants may not know what they are accused of. Their lawyers may not know about the essence of the alleged crime either. That way it is more convenient for the FSB investigators. In particular, Ivan Safronov’s lawyers learned with great difficulty and only after some time that the defendant was accused of publishing (or transferring) information about the sale by Russia of certain airplanes to Algeria. Safronov had no idea that this information was classified.

The prosecutions of Russian engineers, designers and scientists, who are usually accused by FSB investigators of passing information to an enemy (most often, incidentally, to China), although the information in question has long been in the public domain, form a special category. As a result, international scientific cooperation for Russian research centres is now blocked.

It must be emphasized once again that in all such instances Russian courts do not even consider the arguments of the defence. They strictly follow the instructions of the intelligence services. The Russian media, including the few publications still in private hands, are now tightly controlled by the state and have to take into account the requirements of censorship. Censorship which, ridiculous as it may seem, is formally prohibited by the Constitution.

Translated by Alyssa Rider and Nina dePalma