Jeffrey Katz and Ben Swartz vs The Star

Complainant: Jeffrey Katz and Ben Swartz

Lodged by: Jeffrey Katz and Ben Swartz

Article: SA undertakes to arrest Israeli officers, and SA cops will arrest Israeli commanders – Jewish body threatens Independent Media group over reports that warrants will be effected

Author of article: Shannon Ebrahim

Date: 2 February 2016

Respondent: Kevin Ritchie, editor of The Star newspaper

Complaint

Katz and Swartz are complaining about two articles in The Star of 19 and 23 November 2015 respectively, headlined SA undertakes to arrest Israeli officers, and SA cops will arrest Israeli commanders – Jewish body threatens Independent Media group over reports that warrants will be effected.

The gist of their complaint is that the stories:

·         misleadingly, inaccurately and unfairly stated that South Africa had confirmed that the SAPS would be enforcing Turkish warrants of arrest against four top Israeli military officials, should they enter the country; and

·         were unbalanced and unfair as it reflected only the Palestinian side of the Mavi Marmara affair, while ignoring some other relevant facts.

They add that the newspaper neglected to publish an appropriate retraction, correction or explanation once the “true facts” were brought to its attention – thus suppressing relevant facts and failing to distinguish between fact and opinion.

The texts

Both articles were written by foreign editor Shannon Ebrahim.

The first story said that South Africa had pledged to enforce arrest warrants issued by Turkey against four Israeli navy and defence force commanders for their involvement in the 2010 Israeli attacks on the Mavi Marmara aid ship (which led to the deaths of nine humanitarian activists). The journalist stated that the SAPS had confirmed in writing that it would enforce the warrants of arrest if these commanders entered South African territory. An arrest warrant had also reportedly been circulated to the SA Border Control system on 3 September 2015 and the information had been forwarded to Interpol SA for liaison with Interpol Turkey so that a “red notice” would be issued.

The second story reported the SAPS had confirmed to Independent Media that it planned to enforce Turkish arrest warrants against the four top Israeli military commanders should they set foot in South Africa (following the denial by the SA Zionist Federation to this effect). Ebrahim reiterated that the document referred to in the first story did exist and stated that it would be read out at a media briefing the next day.

Analysis

‘Enforcing’ Turkish warrants of arrest

Katz and Swartz:

Katz and Swartz maintain that the SAPS gave no undertaking to enforce the warrants of arrest, and that the articles falsely stated that South Africa had been engaged in efforts to persuade Interpol to issue a red notice against the Israeli commanders.

“All that can be surmised … with certainty at this point is that SAPS has received a letter from their counterparts in Turkey requesting that should the four Israeli commanders enter this country, they be arrested, and that this letter is currently being processed through the appropriate channels.”

They argue that there is a difference between, on the one hand, confirming that a request to adopt a certain course of action had been received and was in the process of being investigated, and, on the other, announcing one’s intention actually to comply with the terms of that request – a formal request (from Turkey to arrest Israeli military chiefs should they enter South African territory) is not the same an arrest warrant.

Katz and Swartz say that in the November 23 article the journalist merely stated that the information had been obtained from the SAPS: “At no point did she disclose what the exact source of that information was. No SAPS spokesperson is identified … nor is any official document cited.”

They cite a report by journalist Barry Bateman (for Eyewitness News) and an article in SA Jewish Report to support their arguments.

Ritchie:

Based on a letter in possession of Ebrahim, Ritchie claims there is “documentary proof of the facts in the article”, as well as corroborating information from two confidential sources – who will remain confidential. (The “documentary proof” refers to a letter by the Organised Crime: Directorate of Priority Crime Investigation, dated 2015-11-10).

The editor says that, while the article stated that the SAPS would enforce the Turkish warrants, Katz and Swartz clearly misunderstand the matter “as there seems to be the belief that the article outlined that there was a warrant issued for the Israeli commanders in South Africa; this statement is nowhere in the article and its assertion is patently incorrect”.

He also replies with regard to the complainants’ references to Bateman.

My considerations:

The gist of the complaint is that the stories misleadingly, inaccurately and unfairly stated that South Africa had confirmed that the SAPS would be enforcing Turkish warrants of arrest against four top Israeli military officials, should they enter the country.

The following statements in the first article are relevant:

·         “South Africa has pledged to enforce Turkey’s issuing of arrest warrants against four Israeli commanders…”;

·          “Turkey has welcomed South Africa’s decision to enforce the arrest warrants”;

·         The SAPS “has confirmed that it will enforce the warrants of arrest if the … military chiefs enter South African territory …”;

·         “An arrest alert notice for the four was circulated to the South African border control system on September 3, and the information has been forwarded to Interpol South Africa to liaise with Interpol in Turkey for a red notice to be issued”; and

·         “Following the arrest of any of the four charged with war crimes, South Africa would grant Turkey’s request for extradition”.

The second story stated, “The SAPS has confirmed again to Independent Media yesterday that it “plans to enforce the Turkish arrest warrants against four top Israeli military commanders if they set foot in South Africa”.

The headlines are also in question (SA undertakes to arrest Israeli officers, and SA cops will arrest Israeli commanders).

The question is whether the newspaper was justified in making these statements, both in the stories and in the headlines. I need to consider three issues here – the sources, the response by police spokesman Brig Hanwani Mulaudzi to a query by Ebrahim, and the SAPS document.

Firstly, I am in no position to make any sort of a decision regarding the newspaper’s sources, as I know nothing about their seniority, independence and knowledge of the matter.

Mulaudzi responded to Ebrahim (dated 22 November 2015) as follows: “After serious consultation we can confirm that the letter has been received and it will be processed to the relevant section for compliance.  That is all we are prepared to say at this stage.”

The document used by Ebrahim as the basis (at least partly) of her stories, was printed on an official SAPS letterhead, was headlined Request to circulation of suspects regarding the attack on the Mavi Mamara (sic); Athlone Cas 216/10/2012.

It reads (unedited, save for the omission of names that may identify the source/s):

 

  1. On 28 July 2015 the investigating office (name deleted) received the warrants of arrest for the following persons: (The warrants were issued by the Republic of Turkey Istanbul, 7h Hich Criminal Court for the crimes committed of murder as well as war crimes against the Israeli Defence Force (IDF) for the attack on the MAVI MAMARA).
  1. Rau Aluf Gabiel Ashkenazi
  2. Eliezer Alfred Marom
  3. Avishay Levi
  4. Amos Aydlin
  1. The above mentioned individuals were found guilty in absence and warrants of arrests was issued to them. These warrants was translated to English and both were send to the investigating officer. The suspects were circulated on the Border Control System on 3 September 2015 and it was also submitted to Interpol Pretoria in order for their Turkey counterparts for a red notice to be issued.
  1. A letter was also send for the NPA PCLU unit, Priority Crimes Litigation Unit, should such persons be detected Interpol NCB Prestoria must immediately be informed in order that last mentioned liaise with the Turkish Authorities to confirm that request for extradition be forth coming.

So, what does this document say, and what does it not say?

For clarity’s sake and in summary this document says that:

·         the South African authorities have received the warrants of arrest for the four military commanders;

·         the military men in question were found guilty (in Turkey) in their absence (hence the warrants of arrest);

·         the information was:

o   circulated on the Border Control System (on 3 September 2015);

o   submitted to Interpol Pretoria;

·         the above happened in order for their Turkey counterparts to issue a red notice;

·         a letter was sent to the Priority Crimes Litigation unit in this regard; and

·         should such persons be detected, Interpol Pretoria must immediately be informed so that this body could liaise with the Turkish Authorities to confirm that a request for extradition is forthcoming.

(Regarding a “red notice”, Wikipedia – taking cognisance of its shortcomings – states an Interpol notice is “[a]n international alert used by police to communicate information about crimes, criminals and threats to their counterparts around the world. They are circulated by Interpol to all member states at the request of a member or an authorised international entity… There are eight types… The most well-known notice is the Red Notice which is the ‘closest instrument to an international arrest warrant in use today’.”)

I take into account the fact that the SAPS document stated some actions as fact, while others appeared to be recommendations, which I need to compare with the information in the stories.

My first observation in this regard is that it is true that the document did not explicitly say that South Africa would enforce the arrest warrants.

However, the following questions must also be asked: Why was the information circulated on the Border Control System, why was it submitted to Interpol Pretoria and to the Priority Crimes Litigation unit, why should Interpol Pretoria immediately have to be informed, and why should this body have liaised with the Turkish Authorities to confirm that request for extradition is forthcoming – if it was not the intention to enforce the arrest warrants?

I believe these considerations might have been reasonable enough grounds for the newspaper to conclude that all of these actions (not promises, or possible actions) were taken in order to enforce the arrest warrants.

However, this still was (and remained) a conclusion – of which the public should have been made aware. It is one thing to come to a conclusion based on certain information, and quite another to state your conclusion as fact. A conclusion may per definition be either correct or incorrect – and in any case, it may be premature.

There are two reasons for caution in this regard:

·         The SAPS document ends with the word “noted”, under which another (credible) signature appeared. If this word was “approved”, or “granted”, or something to this effect, it would have made a difference – but it did not; and

·         Mulaudzi’s response to Ebrahim was quite cautious.

Both the use of the word “noted” and Mulaudzi’s phrase “it will be processed” lead me to believe that Ebrahim should have clarified that, based on the information at her disposal, the newspaper had concluded that South Africa had pledged to enforce Turkey’s issuing of arrest warrants against four Israeli commanders.

The same goes for the headlines, as well as for the statements that:

·         the SAPS had confirmed or pledged that it would enforce the warrants of arrests should the military chiefs enter South African territory; and

·         following the arrest of any of the four charged with war crimes, South Africa would grant Turkey’s request for extradition.

Even though The Star’s conclusion may prove to be correct at a later stage, it still was premature for the newspaper to present its conclusions as fact.

Because of the above, I cannot take the statement seriously that Turkey “has welcomed South Africa’s decision to enforce the arrest warrants”. This allegation, stated as fact, was also not attributed to any official Turkish source.

The statement that an arrest alert notice for the four “was circulated to the South African border control system on September 3, and the information has been forwarded to Interpol South Africa to liaise with Interpol in Turkey for a red notice to be issued” is backed up by by the letter cited above.

I cannot consider the statements published by Bateman, as he is a secondary source in this matter.

Unbalanced, unfair

Katz and Swartz:

They complain that the journalist displayed a “gross anti-Israel bias” and that she was driven by an ideological agenda – having presented some issues from one side only and having ignored some relevant facts.

They cite the following examples in this regard:

·         Ebrahim depicted the Mavi Marmara incident (where Israeli troops and pro-Palestinian activists clashed on this Turkish ship in 2010 and several people were killed on both sides) as an unprovoked “attack” by armed Israelis against humanitarian aid workers. “Nowhere it is recorded that Israeli troops were attacked first by dozens of activists when they boarded the ship and were retaliating. Nor is it mentioned that the Mavi Marmara was part of a flotilla seeking to break Israel’s lawful naval blockade of Gaza, a blockade which, as confirmed by the United Nations Palmer report on 31 May 2010 … is completely legitimate … under international law”. They argue that the journalist deliberately, inaccurately and unfairly omitted contextual and material facts “with the evident intention of levelling a damning indictment against Israel whilst holding up the other side to be blameless”; and

·         The journalist summarized the three-week long conflict “between Israeli forces and Hamas militants in Gaza” in 2008-9 as follows: “The four commanders also played major roles in Israel’s Operation Cast Lead, which massacred 1400 Palestinians in Gaza in 2009”. They say this presented Ebrahim’s overtly partisan opinion that the war had been a “massacre” – while that word rather referred to the deliberate mass slaughter of helpless, innocent people. “In [this]case … it can by no means be asserted that such clear-cut, undisputed evidence exists… Given that this is a matter of considerable dispute, it is entirely inappropriate that Shannon Ebrahim should have used the term ‘massacred’ as if it were an accepted, verified fact.”

Ritchie:

The editor denies that The Star is biased in its reportage of the conflict in the Middle East. Referring to some findings by this office, the editor says there can be no question “that both sides of the Middle East conflict feel that they are not being adequately/accurately covered in the media”.

He says journalist Gadija Davids, who independently experienced the event, was embroiled in this incident – “hence the reason for outlining her version”. The editor adds the merits of the case are yet to be tested in court.

Davids took legal action against Israel, after which the Turkish courts decided that the commanders accused in the matter needed to stand trial – hence the warrants of arrest issued by Turkey when the accused did not appear at court in that country. “Context regarding the matter was sought from … Davids as she was the person who laid the charges,” the editor explains.

Ritchie also emphasises that Ebrahim contacted the Israeli ambassador to South Africa, Mr Arthur Lenk (the “most correct person to cantact in the circumstances as he is the spokesperson of the Israel government in South Africa”), who reportedly stated his respect for the South African legal system and said he had full confidence that SA would not allow its system to be abused or politicized. Ritchie concludes that the Israeli representatives in South Africa were given ample opportunity to respond “and their response was published in order to create balance in the article…”

The editor says a “collective response was done due to the amount of complaints received regarding the articles in question”.

He concludes that not only were the articles fair and balanced, but they were also “undeniably and overwhelmingly in the public’s interest”.

My considerations:

My task is not to consider whether The Star had been biased in its reportage on the conflict in the past, as the two articles in dispute are the only ones now in my sights.

While I can fully understand the views of Katz and Swartz on this issue, I also need to keep in mind what Ritchie said, namely that the merits of the Mavi Marmara case are yet to be tested in court – a statement which neither of the complainants dispute.

Also, one person’s set of “facts” may be another one’s set of propaganda. This office is in no position to decide on the merits of the contextual arguments in question, and it would therefore be inappropriate for me to endeavour to make any kind of decision on this issue.

I am not convinced by the complainants’ argument that the word “massacre” of necessity refers to the slaughter of innocent people.

No retraction, correction, explanation

Katz and Schwartz complain that the newspaper neglected to publish an appropriate retraction, correction or explanation once the “true facts” were brought to its attention – thus suppressing relevant facts and failing to distinguish between fact and opinion.

Based on my argument in the previous sub-section, I do not blame the newspaper for not publishing any retraction, etc.

Finding

‘Enforcing’ Turkish warrants of arrest

The newspaper is in breach of Section 2.3 of the Press Code for stating its conclusions as fact, namely that:

·         South Africa would enforce Turkey’s warrants of arrest should the Israeli commanders set foot in this country;

·         following the arrest of any of the four charged with war crimes, South Africa would grant Turkey’s request for extradition; and

·         Turkey has welcomed South Africa’s decision to enforce the arrest warrants.

Section 2.3 reads, “[W]here a report is…is founded on opinion, allegation, rumour or supposition, it shall be presented in such manner as to indicate this clearly.”

The complaint about the statement that a notice “was circulated to the South African border control system on September 3, and the information has been forwarded to Interpol South Africa to liaise with Interpol in Turkey for a red notice to be issued” is dismissed.

Unbalanced, unfair

This part of the complaint is dismissed.

No retraction, correction, explanation

This part of the complaint is dismissed.

Seriousness of breaches

Under the headline Hierarchy of sanctions, Section 8 of our Complaints Procedures distinguishes between minor breaches (Tier 1), serious breaches (Tier 2) and serious misconduct (Tier 3).

The breach of the Press Code as indicated above is a Tier 2 offence.

Sanction

The Star is cautioned for being in breach of Section 2.3 of the Press Code for stating its conclusion as fact, namely that:

·         South Africa would enforce Turkey’s warrants of arrest should the Israeli commanders set foot in this country;

·         following the arrest of any of the four charged with war crimes, South Africa would grant Turkey’s request for extradition; and

·         Turkey has welcomed South Africa’s decision to enforce the arrest warrants.

The newspaper is directed to publish this finding on the same page as the first story, as well on its website.

The text, which should be approved by me, should end with the sentence, “Visit www.presscouncil.org.za for the full finding”.

The headline should reflect the content of the text. A heading such as Matter of Fact, or something similar, is not acceptable.

Appeal

Our Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.

Johan Retief

Press Ombudsman

 

 

 

Leave a Reply

Your email address will not be published. Required fields are marked *