In its edition of 10 December 2006, the Sunday Star-Times (“SST”) printed an article by Anthony Hubbard under the headline “THE ONE THAT GOT AWAY”. A group calling itself “Kiwis for Balanced Reporting on the Mideast” (“KBRM”) complained to the Council about the contents of the article.
The complaint is not upheld.
The Article
The subheading of the article read:
“The case of an alleged Israeli war criminal visiting New Zealand ended in a bitter political row. Critics say Moshe Ya’alon should have been tried and arrested, but the Government let him go. Anthony Hubbard reports.”
The article commenced with the reference to the Government’s claim 6 years ago that it would prevent war criminals finding a bolt hole in New Zealand. This statement was made by the Minister of Justice when legislation was introduced allowing war criminals to be prosecuted in New Zealand for crimes committed elsewhere.
The tone of the lengthy argument was set by the following paragraph:
“Six years on, critics say these claims are hollow. New Zealand gave safe haven to Israeli war criminal Moshe Ya’alon they said, because Attorney-General Michael Cullen stepped in to prevent his arrest.”
The implicit theme of the article was that the Government’s claim six years ago had been shown to be hollow because of failure to arrest General Moshe Ya’alon while he was in the country.
The article contains statements critical of the Attorney-General’s action and claims that the Government had intervened for political reasons. There is a statement that both the Prime Minister and the Attorney-General deny that the decision was made for political reasons. The article cast doubt on this statement but noted it was harder to dismiss the statement by the Solicitor-General that the decision was made on purely legal grounds. The article noted the “integrity and general high-mindedness” of the Solicitor General.
The article then dealt at some length with the alleged crime, namely the dropping of a one tonne bomb on the house of Salah Shehadeh, the leader of the military wing of Hamas, in Gaza in 2002, which killed not only Shehadeh and his wife but 13 other innocent bystanders in a tightly packed Gaza slum.
The article noted by way of background that an Auckland District Court Judge after considering an application for an arrest warrant over a weekend decided there was prima facie evidence that Ya’alon was a war criminal and issued an arrest warrant under the relevant legislation. However, the Attorney-General, who is not a lawyer, accepted the Solicitor-General’s advice that there was no prima facie case and stepped in to prevent the arrest.
The Complaint
KBRM in its complaint alleged:
The newspaper did not make a proper distinction between reporting of facts and conjecture, passing of opinions and comment (principle 6).
The newspaper was not guided at all times by accuracy, fairness and balance and did deliberately mislead or misinform readers by commission or omission (principle 1).
The headlines, subheadings and captions did not accurately and fairly convey the substance of the report they were designed to cover (principle 10).
KBRM summarized its complaint in these words:
“We believe that the SST published an unfair and unbalanced article that gave the impression that an Israeli General has committed a ‘war crime’. He ‘got away with it’ because of legal or political reasons that stopped the New Zealand Government from arresting him. The overall space and balance given to the article by the SST was overwhelmingly on the side of the charges against Ya’alon, with very little space given to any defence, or even to the facts involved. No reasonable reader could come away from this article without believing that in all likelihood the General Ya’alon was indeed a ‘war criminal who got away’.
Yet this impression was based only on opinions, comments, conjecture, innuendo and guilt by association, with a complete lack of fairness, balance and facts. We also believe that the SST’s refusal to publish any counter-balancing material submitted by us was a violation of the NZPC principles of fairness and balance.”
The Newspaper’s Response
The newspaper’s position is that the article was a piece of comment and analysis which was clearly signaled by its placement under the Comment and Review section masthead. SST stated it was “…a by-lined opinion-analytical piece, not a news story”. It showed that there were serious charges against Ya’alon and that these had not been properly considered by the Solicitor-General. The focus of the piece was to question the reasons for the Solicitor-General’s decision (after 2 hours consideration) to overturn the District Court Judge’s findings (after 2 days consideration), that there was a prima facie case that Ya’alon was a war criminal.
SST’s stance is that the case against Ya’alon had been modestly stated and could have been much harsher. According to the SST, Ya’alon approved the dropping of an enormous bomb on an apartment building in a crowded residential area of Gaza, itself one of the most densely populated places on earth. The newspaper acknowledged that the facts made Ya’alon “a figure of the most intense international controversy since the day of the bombing; and it is, in the writer’s view, prima facie evidence of a war crime. That fact is rightly highlighted in the break-out quote”. That quote, from a London solicitor who instructed the Auckland solicitor to obtain the arrest warrant said:
“This is one of the most densely populated areas on earth, and they set off a one-tonne bomb in it.”
SST acknowledged that the article sought to discover why the Government was so keen to dismiss this extremely serious and well-documented charge. It denied that it attempted to stifle debate on the article and said it ran a letter to the editor the following week. It rejected KBRM’s complaint as “it simply chose not to publish another lengthy article from a newly-formed pressure group with no established reputation but with an obvious agenda”.
In an opinion piece the writer has the opportunity to present a point of view. Provided the basic facts are accurate, the writer is entitled to express his or her view and to draw conclusions from those facts. The journalist has the right of free speech.
The article does pose the question as to which, of the District Court Judge who had decided that was a prima facie case that Ya’alon was a war criminal, or the Attorney-General who accepted the Solicitor-General’s advice that there was no prima facie case, was right. It noted this was a hard question to answer because the Government has not given detailed reasons for its action and the lawyers for the other side say they cannot divulge all their client’s case. It was then noted that the central issue was the dropping of the bomb in Gaza.
The article quotes extensively from those who endeavoured to obtain the arrest warrant including two solicitors who act for the Palestinian Centre for Human Rights and the father of one of those killed in the bombing. There is implied criticism that a Government could make its decision within 2 hours and asks “what was the big rush? There is a quotation from a law professor who had seen the evidence and believed it provided a strong prima facie case for arrest. It is clearly the opinion of the author that there were serious charges against Ya’alon which had not properly been considered by the Solicitor-General.
There is no discussion in the article of the complexities of the issues in bringing cases about alleged war crimes before the courts. General Ya’alon is simply described as a war criminal, no allegations, no ifs or buts. The clear implication is that he committed a war crime and that he got away with it because of legal or political reasons that stopped the New Zealand Government from arresting him.
As the article is one of comment and opinion, SST was entitled to express the views it did provided the article had a reasonable basis in fact and proper distinction was made between the reporting of facts and the passing of opinions and comment. An opinion piece must be based on fact but does not need to be balanced. In the Council’s view the article was clearly an opinion piece evidenced both by the fact that it was in the Comment and Review section of the newspaper and by the contents itself, notwithstanding that “reports” was used in the sub-heading. The thrust of the opinion was that the Solicitor-General’s decision may have been politically motivated and that the New Zealand government had welshed on its commitments. The particular complaints made by KBRM are aimed not at any factual errors but at the opinions expressed in the article.
While the Council does not go as far as the complainant, it accepts that the article questions and is critical of the Solicitor-General’s decision that there was not prima facie evidence that Ya’alon was a war criminal. By the use of the headlines “THE ONE THAT GOT AWAY” and other comments in the article, there is a clear suggestion that Ya’alon was fortunate not to face charges in this country. In an opinion piece SST was entitled to take this view provided it was not based on incorrect facts. In the Council’s view, most of the statements are clearly comment or opinion. The basic facts were the issuing of the arrest warrant, the stopping of it, and the facts of the actual event on which the warrant was issued. As there is no suggestion that the essential facts were not correct and in the Council’s view there was a clear distinction between facts and opinion and comment in the article, the complaint is not upheld.
It was part of the complaint that an article submitted by KBRM should have been published to have given balance. In the Council’s view there was no obligation on SST to publish the article. It had on 17 December 2006 published a letter criticizing it for the way it handled the legal issues. The proposed article was reasonably lengthy, albeit somewhat shorter than the original article. This part of the complaint is also not upheld.
The complaint about the headlines and captions is also not upheld. In an opinion piece, headlines and captions often are indicative of the opinion expressed, as these were.
The Council, in declining to uphold the complaint, is not endorsing the opinions expressed in the article. It is recognizing the right of a newspaper and a journalist to express an opinion.
Press Council members considering this complaint were Barry Paterson (Chairman), Aroha Beck, Ruth Buddicom, John Gardner, Penny Harding, Keith Lees, Clive Lind, Denis McLean, Alan Samson, Lynn Scott and John McClintock.


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