Is everything immune?

The recent events at Sde Teiman and Beit Lid raise complex and troubling questions regarding the criminal liability of politicians involved in disturbances at IDF bases. Beyond the moral and ethical considerations, one pressing inquiry stands out: Do politicians such as those who took part in storming the bases possess immunity from prosecution, and if so, what are its scope and limitations?

Section 17 of the Basic Law: The Knesset grants immunity to Members of Knesset (MKs) and refers to the Immunity Law, which outlines the principles and rules for granting immunity under various conditions. It is crucial to clarify that this discussion focuses on criminal immunity, which differs fundamentally from parliamentary immunity designed to ensure the freedom of action for MKs in the performance of their duties. To establish a clear understanding: What exactly is the immunity being discussed? Immunity serves as a procedural barrier against legal proceedings, including criminal prosecution. It is essential to recognize that immunity does not negate the criminality of an act but rather introduces a technical obstacle to prosecution.

The Immunity Law defines two types of criminal immunity: substantive and procedural. Substantive immunity applies to offenses committed in the course of official duties and cannot be revoked under any circumstances. In contrast, procedural immunity applies to offenses not committed in the course of official duties and is temporary.

According to media reports, certain MKs are suspected of breaking into a military base with the intent of preventing the arrest of soldiers accused of abusing detainees. The President of Israel has even expressed concern that the break-in was carried out ‘with the encouragement and involvement of public officials.’ The key question is: Can such an act, where MKs knowingly entered a military base alongside civilians and encouraged interference with the activities of the military police, be considered ‘in the course of official duties’? And if not, is another form of immunity relevant in this case?

In the Pinchasi case, where the then-Minister of Communications was charged with fraud and breach of trust, the question arose: What is the standard for determining whether an offense was committed ‘in the course of official duties’? Former President of the Supreme Court, Aharon Barak, ruled that, as a general rule, MKs must act lawfully. However, in exceptional cases, an MK might engage in illegal actions stemming from the very nature of their role.

Barak provided examples of ‘borderline’ cases that might be protected by immunity, acknowledging the difficulty in defining the broad concept of a ‘natural risk zone.’ He outlined instances that fall under substantive immunity and those that do not, aiming to offer clearer guidelines for distinguishing between cases.

In the same ruling, Barak presented a clear example of substantive immunity: an MK participating in a legal protest related to their party’s affairs, which suddenly turns illegal. Continued participation in the protest would be protected by immunity. On the other hand, premeditated involvement in an illegal protest would not be covered by immunity, as ‘planning and executing an illegal protest constitutes a criminal offense, for which even an MK must be held accountable.’ Barak emphasized the importance of criminal intent: even actions considered ‘within the scope of duty’ could lose their immunity if they were carried out with the intent to commit a criminal offense.

Despite certain legislative changes since this ruling, Barak’s ‘risk zone’ principle remains intact. However, case law over the years has tended to provide broader protection for offenses related to freedom of speech. In the Bishara case, for instance, Barak expressed concern about severely restricting MKs’ freedom of speech if their immunity was removed for offenses like defamation, incitement, and sedition. Nevertheless, Barak clarified that even in offenses related to freedom of speech, there is a limit. In Bishara’s case, it involved a lengthy speech that partially included prohibited statements. This differs from MKs who make short, focused declarations encouraging demonstrators to attend illegal protests and obstruct arrests, effectively undermining the rule of law.

In conclusion, it can be generally stated that MKs do enjoy immunity for their actions, particularly for offenses related to freedom of speech. However, the current case presents significant challenges:

1. Declared Intent: The MKs explicitly stated their intention to disrupt the activities of the security forces.
2. Location of the Protest: The protest took place inside a military base, a location where it is clear to all that protests are illegal.
3. Purpose of the Protest: The stated objective was to prevent or hinder the security forces in carrying out their duties.
4. Premeditation: This was not a case of a lawful act turning unlawful, but rather a premeditated intention to carry out an illegal action.

Given these factors, it is difficult to see how these actions could be covered under the protection of immunity. The premeditated and declared intent to disrupt the activities of the security forces is a decisive factor in denying immunity in this case. This differs significantly from the protests surrounding the judicial reform, where the purpose of the protest was different, the statements made by MKs were different, and the situation was much closer to a ‘slip’ from lawful to unlawful action (if it was unlawful at all) than in the current case.