Rowan Polovin vs Cape Times

Complainant: Rowan Polovin

Lodged by: Rowan Polovin

Article: Israeli military chiefs face arrest in SA

Author of article: Shannon Ebrahim

Date: 2 February 2016

Respondent: Editor of the Cape Times newspaper, Aneez Salie

Complaint

Polovin complains that:

·         several statements relating to “arrest warrants” against four Israeli commanders (details below) were inaccurate; and

·         the paragraphs describing the Mavi Marmara incident deliberately omitted contextual and material facts about the flotilla incident, resulting in an inaccurate and unfair summation of events, and that the article did not balance with an objective source the allegations made by SA journalist Gadija Davids (who was on board the ship Mavi Marmara with a group of reporters) as well as those made by other sources.

The text

The article, written by foreign editor Shannon Ebrahim, 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.

Analysis

Statements relating to ‘arrest warrants’

Polovin:

Polovin complains about several “inaccurate” statements concerning arrest warrants by Turkey:

‘Enforcing’ arrest warrants

The opening sentence to the story read, “South Africa has pledged to enforce Turkey’s issuing of arrest warrants against four Israeli commanders from the Israeli Navy and the Israeli Defence Force (IDF)”.

He complains that this statement violated the Press Code because:

·         the SA government has not “pledged” to enforce Turkey’s arrest warrants – he says there is no factual evidence to this effect;

·         neither the SA Police (SAPS), the Hawks, nor the National Prosecuting Authority (NPA) made such a pledge or undertaking – both police spokesman Brig Hangwani Mulaudzi and investigative journalist Barry Bateman denied that any arrest warrants had been issued for any of the people mentioned (as did Interpol and officials of Crimes Against The State). Bateman stated he had approached the Hawks, the NPA and the Department of Home Affairs and none of these organisations admitted to any knowledge of the arrest warrants;

·         the SAPS confirmed that it had received a formal request from Turkey asking for the arrest of the Israeli Defence Forces Commanders should they enter the country, but:

o   a letter of request is not the same as an arrest warrant (which did not exist); and

o   SAPS will only enforce an arrest warrant if Interpol issues a “Red Notice” – which it did not do at the time of publication of the article.

Confirmed in writing

Here the sentence in dispute stated, “The SAPS confirmed in writing it would enforce warrants of arrest if the following Israeli military chiefs entered South African territory: Chief of General Staff Rau Ashkenazi, Naval Forces Commander Eliezer Marom, Head of Airforce Intelligence Brigadier-General Avishay Levi and Major-General Chief of IDF Military Intelligence Amos Yadin.”

Polovin says there is no evidence that the SAPS has “confirmed in writing” that it would enforce the “warrants of arrest”.

Arrest notice circulated

Polovin complains about the following sentence: “An arrest alert notice for the four was circulated to the SA Border Control system on September 3 and the information has been forwarded to Interpol SA to liaise with Interpol in Turkey for a red notice to be issued.” He says there is no verifiable evidence to substantiate this claim.

Granting Turkey’s request for extradition

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

Polovin says there is no verifiable evidence to substantiate this supposition, stated as fact.

‘Shockwaves’

Polovin complains about the statement that the arrest warrants “have struck at the heart of the IDF and sent shockwaves through the Israeli political establishment”.

He says “comprehensive research” has shown that there was no evidence to suggest that the IDF has commented, responded or related to these alleged “arrest warrants” – making the statement in question an unfair and unreasonable exaggeration (which in fact boiled down to the fabrication of information).

Massacred

Polovin complains the story inaccurately stated that the four high-ranking IDF commanders “against whom the arrest warrants have been issued also played major roles in Israel’s Operation Cast Lead, which massacred 1 400 Palestinians in Gaza in 2009.”

He says the story used the word “massacred” as fact. He points out that, while there is no agreed definition of the word “massacre”, Prof Robert Melson defined this term as “the intentional killing by political actors of a significant number of relatively defenseless people” – and argues there was no evidence to prove that Israel had “intentionally killed” civilians during Operation Cast Lead. On the contrary, he says there was ample proof that Hamas deliberately launched rockets from civilian areas.

Polovin states that Judge Richard Goldstone, the lead author of the UN-sponsored Goldstone Report, eventually disputed the finding that Israel had “intentionally” killed civilians, adding that the casualty figure of 1 400 remained unverifiable as that figure had been supplied by Hamas officials, “who are known to deliberately exaggerate casualty numbers”.

He concludes, “It follows that the word ‘massacre’ should not be presented as fact, and the use of the word is inaccurate at best and malicious at worst.”

Salie:

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

He also replies with regard to the references to Bateman.

The editor says Ebrahim contacted the Israeli ambassador to South Afrca, Mr Arthur Lenk, who 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. Salie 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…”

Davids had taken 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. “Context regarding the matter was sought from … Davids as she was the person who laid the charges,” the editor states.

Salie concludes, “The article was well sourced with more than one source corroborating the claim. Furthermore Ebrahim obtained documentary proof of the allegations from an official source who confirmed the content; the source … wil remain confidential.”

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 disputed article are especially 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 confirmed in writing 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 SA 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 question is whether the newspaper was justified in making these statements.

I need to consider three issues here – the sources, the correspondence by Mulaudzi, 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 be forthcoming.

(Regarding a “red notice”, Wikipedia – taking cognisance of its shortcomings – states that 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 have immediately be informed, and why should this body have liaised with the Turkish Authorities to confirm that request for extradition be 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 – one 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 that 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 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 Cape Times’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.

The statement that the arrest warrants “have struck at the heart of the IDF and sent shockwaves through the Israeli political establishment” may be reasonably true.

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

Omitting contextual, material facts; unbalanced

Polovin complains that the:

·         paragraphs describing the Mavi Marmara incident deliberately omitted contextual and material facts about the flotilla incident, resulting in an inaccurate and unfair summation of events; and

·         article did not balance the allegations made by SA journalist Gadija Davids (who was on board the Mavi Marmara with a group of reporters) with an objective source, as it should have.

He also questions the objectivity of the sources for the article (the Media Review Network – MRN – in SA, as well as an MRN legal representative in Turkey who relayed the “information” back to SA) – he claims that this organisation’s implicit aim is to promote anti-Israel narrative and that it displays a clear anti-Israel bias. Consequently, the MRN cannot be considered a reasonable or objective source of news and information and in addition, the article presented the allegations and suppositions from MRN as fact. “It follows…that the arrest warrant claim is not ‘reasonably true’, and thus all further allegations by MRN presented as fact must be judged in the same manner.”

Polovin specifies that:

·         before the six ships in the flotilla departed, Israel had notified the Turkish and other governments that it would not allow the “humanitarian mission” to break its naval blockade of Gaza. Instead, Israel offered to offload the aid at the port of Ashdod and transfer them to Gaza – an offer which Turkey rejected;

·         the Mavi Marmara ship (one of the flotilla of six) was organized by the Turkish Humanitarian Relief Foundation (IHH), which had “links to terrorist groups Hamas and al-Qaeda”);

·         a significant number of passengers on the Mavi Marmara were “radicals with links to terrorist organisations”;

·         the organisers deliberately brought along many women and children as passengers, while knowing that the mission was dangerous and being aware of the warnings of the Israeli government and the Israeli Defence Forces;

·         many participants on that ship chanted Islamic war songs against Jews before the ship sailed;

·         while underway to Gaza, Al Jazeera broadcast interviews with some participants, who again spoke of martyrdom and sang Palestinian Intifada Songs;

·         throughout the voyage Israel repeatedly warned the flotilla that they were going to enter restricted waters, and again offered to collect the humanitarian aid and transfer it to Gaza;

·         radicals on the ship prepared for premeditated violence against the IDF soldiers, having loaded dozens of weapons (including firearms, Molotov cocktails, iron bars, wooden clubs, axes, knives, slingshots, stones, nuts and bolts, saws and chains); and

·         many of the radicals attacked the Israeli soldiers when they boarded the ship, resulting in the deaths of ten of them – “these radicals were by no means innocent civilians”.

He asks for a full and prominent retraction of the article, and for an internal investigation by the Independent Media Group “into how (it was possible that) such a substantial breach (of the Press Code) was allowed to occur”.

Salie denies that the Cape Times 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”.

The editor says journalist Gadija Davids, who independently experienced the event, was embroiled in this incident – “hence the reason for outlining her version”.

He says that the merits of this case are yet to be tested in court, adding that not only were the articles fair and balanced, but they were also “undeniably and overwhelmingly in the public’s interest”.

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.

Salie also emphasises that Ebrahim contacted the Israeli ambassador to South Africa, Mr Arthur Lenk, who reportedly stated his respect for the South African legal system and said that he had full confidence that SA would not allow its system to be abused or politicized. He 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…”

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 Cape Times 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 Polovin’s views on this issue, I also need to keep in mind what Salie said, namely that the merits of the Mavi Marmara case are yet to be tested in court – a statement Polovin did not 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.

Finding

Statements relating to ‘arrest warrants’

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 … founded on opinion, allegation, rumour or supposition, it shall be presented in such manner as to indicate this clearly.”

The remainder of this part of the complaint is dismissed.

Omitting contextual, material facts; unbalanced

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 Cape Times is cautioned 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 story, as well as 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