Never enough evidence to convict price tag attackers

It’s hard to avoid the feeling that the police’s nationalist crime unit is incapable, even at its best, of obtaining a conviction. Daharia

The deplorable murder of Ali Dawabshe led to a wave of far-reaching, anti-democratic proposals allegedly meant to augment fighting nationalist crimes against Palestinians. As we see it, the problem lies somewhere else entirely: the quality of police work. The final week of July — which began with a stunning acquittal and ended with a terrible tragedy — provided us with a good example.

At the end of July, the Be’er Sheva District Court acquitted Aharon Sadigorsky, Nethanel Klarman, and Yehiel Lex over  the burning of Mahmoud Arnan’s car in the West Bank village of Al Asja near Hebron. They were also charged for spray-painting the words “price tag” and “congratulations Effi” on a nearby wall. The three were acquitted after the court ruled that the nationalist crime unity of the Samaria and Judea Police Department failed to provide evidence connecting them to the arson.

Acquittals happen, but this one is particularly galling. One of the accused was arrested while wearing a ski mask; all three were in a car that did not belong to them; the vehicle contained a plastic bottle containing fuel, stones in a sack, a crowbar, gloves, a can of black spray paint, a bag of nails, and a realistic, plastic replica of an M-16 assault rifle. The court stated that it “does not trust the testimonies of the accused, which aside from being late [i.e. provided only in the court court, not to police – YZG] seem to be coordinated and make no sense.” None of this was not enough to convict them.

Some background. The verdict states that Sadigorsky and Klarman met on the night of the arson in Hebron, where they arrived, they claimed, in order to visit a fourth friend. Together with Lex they enter a red Subaru belonging to Sadigorsky. Unbeknownst to them, the police has received intelligence that the car is used for price tag attacks, is being tracked by the police, The three drive to the settlement of Ma’on, where they change cars and – so they claim – pick up a hitchhiker who wants to go to the nearby settlement of Beit Hagai. None of the three would later be able to identify him. At around 2 a.m., they decide to drive to Samoa, where there is an ancient synagogue. The hitchhiker, they state in retrospect, asked them to drop him off in Beit Haggai on their way back, but continued on with them.

The three don’t know it, but they are being followed. The police know they are up to something, and that the are in a vehicle that doesn’t belong to them, but somehow lose track of them for a critical half hour. When they identify the three again the cops move quickly and detain them. During the arrest, Klarman is wearing a ski mask. The fourth man manages to escape to the outpost of Mitzpe Eshtamoa; the indictment notes he attacked a pathfinder who tried to detain him.

The police detained the trio at around 2 a.m.; the price tag attack in Al Asja took place between 1:45 and 2:10. No one witnessed the attack itself. The residents of the house woke up soon after the attack, and naturally were busy putting it out.

The judge was unimpressed by the tale told by the three defendants, ruling that their testimony was unreliable. He also wrote that it is perfectly possible that the three did carry out the arson – but that “perfectly possible” is not the standard for conviction — “beyond reasonable doubt” is. And since testimonies and evidence about the critical events – the arson itself – are lacking, he had no choice but to acquit them.

It is very hard to shake the feeling that had the defendant been Palestinian, he would be convicted, and rather speedily. One also finds it hard to ignore the feeling that were the defendant a Jew caught with a locksmith kit (and not with fuel, immediately follwoing an arson in a Palestinian village), he, too, would face a speedy conviction. It is hard to believe a defendant who was not charged with a nationalistic crime would be acquitted. The Israeli rate of acquittal is not high – unless the victim is a Palestinian.

But when all is said and done, there was an acquittal, which the prosecution will not appeal; one has to face the unpleasant fact that the case lacked critical evidence. One must say, while gritting teeth, that the judge was right: I wish more people against whom the level of evidence was so low would be acquitted.

But something else must also be said. This was a flag case for the nationalist crime unit, mockingly nicknamed FASHLA (acronym for nationalistic crime, which also means “screw up”). The police had suspects in its sights; it had a car under surveillance; it bugged the car; it knew which car the suspects switched to. And yet, after all this effort and investment, the police was unable to obtain the necessary evidence to secure a conviction.

These are the optimal circumstances. The police had intel, and it was accurate. When the trio entered the car, the cops identified them. They knew those guys; they knew the car well enough to identify the sounds of the Subaru’s moribund engine. And after all the efforts, investment in time and money, proven ability – nothing.

The “Yapanit Aduma” (“Red Japanese”) case, as the police called it, was a flag case – and it dropped the ball. You have to give it points for effort, but it dropped the ball. The message “Yapanit Aduma” sends price tag attackers is simple: Keep your mouth shut and say nothing under interrogation. If you have the misfortune of actually appearing before a judge, sell him a half-baked fairy tale. It will be enough, since the police are incapable of obtaining evidence. If you won’t convict yourself, you won’t be convicted by them.

The message for Palestinian victims is quite different: don’t waste your time. If the police couldn’t obtain the evidence in this case — when the suspects were in sight and being tailed — what chance does it have when the attacker is unknown and not under surveillance? What are the chances that the police get a conviction for an assault taking place in a field, or in the outskirts of a village – attacks which lack the show-off element of a slogan (which isn’t the crime but rather its attendant) — but which are much more common, when it doesn’t have the benefit of pre-emptively positioning bugs and camera?

What are the chances? Unfortunately, we know the answer: 1.9 percent.

Photo by: Samaria and Judea Police spokesperson.

Law Enforcement? Don’t Look at Us

Perhaps the most infuriating aspect of the return of the Dreinoff case is the way law enforcers abjure their duty.1467522_10153216342924118_1278106413_o

We think we owe you an apology: about a month ago we informed you that the High Court of Justice has accepted our position regarding the Dreinoff Buildings. One could misconstrue that to mean that since Israel abides by the law, the decision was final and would finally be enforced. We are sorry for so misleading you — all we can say is that this wasn’t intentional or planned.

We regret to report that this was not the end of the case. Despite the fact that the High Court twice ruled that the Dreinoff Buildings were built on private Palestinian land seized by a military seizure order, and even though its last ruling made clear it was final and absolute, the government of Israel continued to do its best to avoid enforcing the law.

For that purpose, the Objections Subcommittee of the Civil Administration convened in mid-July, and after a speedy debate tabled the order to destroy the building in Beit El. This is the equivalent of a zoning plan — in an area seized by the military. The ruling paid lip service to the High Court ruling, saying that it, naturally, does not undermine it. Because, let’s face it, a planning committee annulling a decision of the land’s highest court might cause the mask that lets this country pretend it is a lawful one to slip. But the committee approved a plan, which means the approval of new buildings instead of the ones demolished. As this post is being written, the decision is supposed to be rubber-stamped by the Minister of Defense. [Update: it was.]

Perhaps the most infuriating article in the decision of the Objections Subcommittee is article 60, which refers to the objections of Attorney Shlomy Zachary of the Yesh Din legal team, who represents the land owner. Zachary noted that the criminals who illegally built the structures were never punished, and that approving the buildings is a form of rewarding criminality.

Article 60 replies: “In the case before us, indeed, the builders were not criminally charged for their actions; however, as was stated in High Court of Justice case 5528/12 […] the authorities are now acting to create an investigative unit for enforcing building and planning laws in the Judea and Samaria region, which doesn’t exist today. This issue impacts, as we see it, the very possibility of taking action against the criminals, who should not face a reckoning because the authorities did not act to create a relevant investigative body.”

In other words, since no one enforces planning and building laws in the West Bank, even those who are considered tp be criminals by the Objections Subcommittee should not be penalized for their crimes. Until a special law enforcement unit is created, the law will not be enforced.

Some explanation is in order. In fact, as demonstrated in our Mock Enforcement report (pg. 86 and onwards), the Israeli police is fully empowered to enforce the building laws — it simply doesn’t want to do so, and thus tries to throw this hot potato onto the lap of the Civil Administration, which doesn’t like the idea much either. Therefore both do nothing. The State Comptroller daintily admonished them in 2013 (Hebrew document); in May of that year, the State Attorney demanded that the defense minister create a body to enforce building laws. In May 2014 the Coordinator of Government Action in the Territories (COGAT), Brig. Yoav Mordechai, informed the Knesset’s Security and Foreign Affairs Committee that such a unit will soon be created.

 

Nothing has happened since, and as far as the Objections Subcommittee is concerned, the criminals can go on despoiling land. Yes, this theft may be deplorable, but it will not hinder them in any way from receiving building permits to create “facts on the ground.” Law enforcement? That’s so passé, and certainly not the concern of the Objections Subcommittee. Someone – don’t ask us who, there isn’t one – will handle this. Sometime. Maybe. Don’t count on it. Next!

 

The behavior of the Attorney General must be judged by his action. Weinstein may have sent a self-serving letter to the defense miniser two years ago, but his representatives supported the criminals time and again in the High Court, and are likely to do so soon. [Update: they did.]

It is reasonable to assume that once the felons appeal to the High Court for the third time, saying: “Here, we manufactured a building permit — what’s the point in demolishing the buildings? Isn’t it a shame?” The State Attorney representatives will support them. [Update: this is precisely what happened.]

Furthermore, Weinstein has a founder’s share in the concept that building offenses should not punished: last November, he closed the investigation against two Binyamin Council officials (Hebrew) who openly admitted to building the Ofra waste disposal facility on private Palestinian land. Weinstein’s argument was stunning: since no one had been previously prosecuted for similar offenses, the suspects may use the “abuse of process” defense. So Weinstein saved them the trouble, the time and the lawyers’ fees, and made the argument for them.

The paradoxical result of this decision may be that no one may ever be prosecuted for building offenses in West Bank: whomever has the unfortunate pleasure to become the first to be indicted will claim abuse of process and will rely on an august authority — the State Attorney himself. Building offenses may be still on the books, but Weinstein and the Objections Subcommittee did everything in their power to make them a dead letter.

On Sunday, July 26th 2015, we submitted an appeal to the High Court of Justice through Attorney Zachary, asking for an interim injunction, and interim order, and an order nisi against the guidance system. That day, the High Court issued an interim injunction ordering the government to explain why it insists on allowing what the court prohibited. So far, the court has refused to silently accept the fact that ideological criminality is rewarded by the government, time and again, since the law enforcers are in cahoots with the criminals. The court stood firm. We’ll keep you posted.

Update: As predicted (this post was written on July 22nd), Dreinoff did petition the High Court on July 28th, using the decision of the Objections SubCommittee as a pretext for the petition. The government supported the petition of the law-breakers. On July 29th the High Court issued its decision, dismissing the appeal with prejudice. That same day, all its options exhausted, the government demolished the buildings. To be continued.

The IDF presents: Looting under the guise of a search

IDF soldiers burst into a Palestinian house, wreak havoc, and disappear with money and the gold.11720499_1104269489602385_1409873871_n

And the LORD said unto Joshua, Get thee up; wherefore liest thou thus upon thy face? Israel hath sinned, and they have also transgressed my covenant which I commanded them: for they have even taken of the accursed thing, and have also stolen, and dissembled also, and they have put it even among their own stuff. Therefore the children of Israel could not stand before their enemies, but turned their backs before their enemies, because they were accursed: neither will I be with you any more, except ye destroy the accursed from among you. (Joshua 7:10)

The place: the West Bank village of Kalil. The time: 1:30 a.m., around the beginning of June 2015. Athmad Aziz Shakhada Mansour, a social activist and a member of the village council, wakes up from a noise she she has become accustomed to: violent slamming on the front door of the house. She instructs her husband to secure the money and gold the family holds for the wedding of their son M., who is supposed to marry in two days time.

The slams continue. Mansour goes to open the door. A large group of soldiers, all hooded, burst into the house. Somehow, the strange custom of IDF soldiers to hide their faces, as if they were not in charge of law enforcement but rather breaking it—as if they were thieves in the night—has become a fixture over the past few years, while the public remains silent. The soldiers, as usual, gather the residents of the house into one room and forbid them to leave it. When they enter the bedroom, they find Mansour’s husband trying to pack up the money and gold. The husband tells them loudly that he wants to protect the gold; some of the soldiers answer, in what Mansour would later remember as fluent Arabic, that soldiers are not thieves.

The soldiers conduct a search of the house; they are probably looking for arms. They detain Mansour’s husband and her son S. while shouting: “Tell us where the weapons are. You have weapons, surrender them and we’ll release the detainees. You have a wedding in two days, you wouldn’t want the father and one of the brothers to be held custody.”

Finally, the soldiers despair and leave, taking the son S. with them but releasing the father. They didn’t find any weapons. A week later S. is released without charge.

Once the family leaves the room where they were held, they find the usual trail of destruction — a hallmark of a visit by the IDF: the chicken feed has been spilled on the floor, all of the dishware was thrown from the cupboards, and the contents of the drawers have been thrown on the ground.

Among the missing objects is 30,000 NIS ($7,950) in cash, as well as 22 gold coins, purchased for M.’s wedding.

The soldiers, as we understand it, likely had a legitimate reason to break into the house at night. They may well have had a legitimate reason to detain S., as well, but we have no idea what that reason is. The disappearance of the money and gold after the search, however, indicates a case of looting. Again, IDF soldiers are allowed to confiscate property that may be suspected of being used, or possibly being used, in the committing of a crime. They must, however, supply the owners with a written confirmation of the confiscation. In the absence of a receipt, the assumption should be that we are dealing with looting. Mansour heard from her daughter-in-law, S.’s wife, that 8,000 NIS ($2,120) were also stolen from his house (on the lower floor of the building) during the very same search. However, we do not have a direct testimony regarding that claim.

Looting is a war crime. Although Israeli military law does not call it that by name, it nevertheless carries a punishment of 10 years in prison. This isn’t the first case of looting on part of the IDF that we know of. We documented one case in February 2013, in which soldiers vandalized a home and looted money from it. In September 2013 we documented a case in which soldiers burst into a house (the wrong one, as it turned out) and vanished with a woman’s life savings.

The very violent Operation Brother’s Keeper in the West Bank in 2014 included several cases of looting. One of them, a year ago, looks like a direct copy of Mansour’s story. Soldiers burst into a house to look for weapons, didn’t find them, and made off with gold. In another case, in which the soldiers acted as if they had come for the sole purpose of confiscating money (they left no receipt) one of the soldiers broke a child’s piggy bank and stole its contents. In yet another case, the soldiers came to a house, took the money – which turned out to be tax money paid by the townspeople – and told the owner he would receive a receipt from the police; the latter didn’t know what he was talking about. In another instance of looting, soldiers took an envelope full of money that had been hidden by the homeowner on her body, while also stealing hundreds of shekels from her purse. This is just a partial list of cases of looting, which also took place during Operation Protective Edge (for which the MAG ordered several indictments), and the looting of the Mavi Marmara detainees in 2010 (Hebrew). Earlier examples can be seen here.

Therefore when the soldiers of the most moral army in the world claim that they are not thieves, we cannot take them at their word.

Looting cannot be excused; and what we cannot excuse, we suppress. When we suppress, we become silent partners to a war crime.

So here it is, in full view. Do with it as you will; you can no longer say, however, that you did not know.

Our attorney, Emily Schaeffer Omer-Man, sent a complaint in late June to the Operational Affairs Attorney, Lt. Col. Adoram Riegler, demanding an urgent investigation both of the soldiers and of their commanders (who have command responsibility, which MP-CID often ignores.) We will keep you posted on developments, although history cautions us not to expect too much from the military justice system.

For Palestinian land, the High Court contradicts itself

Why does the state support a petition asking to cancel a High Court ruling? Everything you always wanted to know about the Ulpana Hill compensation conspiracy and never askedYD_Ulpana

On July 19th, 1979, as the High Court of Justice (HCJ) was debating over what would one day be known as the Elon Moreh ruling, a Civil Administration officer, Major Amnon Shasha, signed a seizure order for a plot of land in the village of Dura Al Qara. In his letter, a copy of which can be seen here, Shasha emphasized that the order “is not to be published to the locals.” By so doing, Shasha prevented the villagers from appealing.

Why do I go back to a 36-year-old affair? Firstly, because it is not yet over; secondly, because a few months back the state repeated this dirty trick: it held a secret meeting of the Secondary Settlement Committee in order to rush through a decision that would effectively rescinding a HCJ ruling without informing the relevant parties—that is, the land owners.

The details are complicated, hence they will be presented in chronological order. But the core issue is quite simple: the government of Israel, with all of its various branches, is collaborating with Israeli nationals who seized land illegally, in order to allow them to keep that land, all while giving a finger to the courts.

As mentioned, the affair began with Shasha’s order in 1979. For many years after, the land seized by the IDF under the auspice of that particular order remained barren and served no purpose whatsoever. We remind you that the seizure of land by military order is intended to fulfill a pressing military need, and that such needs are temporary by nature: the invader may have been repulsed, the theater of battle likely moved elsewhere, and the land may be returned to its owners. But for decades, the IDF did nothing with the land it seized in Dura Al Qara.

We skip in time to September-October 2010. Our petitioner, Ahmed Abd Al-Rahman, find outs that illegal construction is taking place on his privately-owned land. The construction is being carried out by M.D. Yehonathan Building and Development Ltd., run by Meir Dreinoff. We note that building on private land seized by a military order is forbidden by international law as well as the rulings of the HCJ, both because  military seizure is supposed to serve clear military goals and because the residents of the West Bank are protected by the Geneva Conventions (this protection extends to their property). At Al-Rahman’s request, we prepared a petition to the HCJ, which was served in December 2010.

24.1.11: The HCJ issues an interim injunction against the continuing of the construction, ordering, in effect, the state to ensure this injunction is enforced. M.D. Yehonathan carries on with the construction.

March 2011: Since the interim injunction was disregarded, we demand the HCJ issue a contempt of court order.

7.4.11: The state informs the court (Hebrew) that it will demolish the illegal structures within a year, unless the builders demolish it themselves, or the zoning status changes.

29.4.11: The state admits that construction is ongoing, despite the interim injunction. It notes that the contractor was warned by the Civil Administration that construction is illegal and ordered to cease work immediately. In reply, the company claims it never received the injunction. The police tells the court it received orders from the deputy state attorney to immediately investigate the construction violations. The investigation is closed without any indictments. A month later, taking into consideration the state’s replies and its commitment to halt construction, HCJ President Beinish decides not to rule on the contempt of court request.

20.6.11: The state informs the HCJ that it will grant planning status—i.e. begin the process of granting building permits—to the buildings built on public land, but not those on private land.

9.4.12: A year after its commitment to demolish the buildings, the state informs the court it will not fulfill its promise to demolish them by 7.4.12. All this happens with another HCJ ruling in the background, which orders the evacuation of Ulpana Hill, also in Beit El. The settlers demand compensation from the government for the evacuation, and receive it.  As we shall see, the land in question this petition is part of the compensation package.

9.5.12: The state asks for permission to re-open the Ulpana Hill case, and is kicked out of the court, which cites the basic principle of enforcing court rulings.

26.7.12: The smoking gun. A protocol of the Beit El Local Council points directly to a deal with the government about building in the “Dreinoff Neighborhood.” The speakers are perfectly aware that the land is under military seizure, and that “even though they [the government] approved it, there are still some delays.

beit el protocol

10.9.12: The state asks the court for permission to build on the seized land as compensation to the settlers for enforcing the Ulpana Hill ruling. That is, the state tells the court that it considers privately-owned land to be a bargaining chip in negotiations, and for that purpose is willing to withdraw from its long-held position. The fact that this is private Palestinian property does not seem to concern the state.

27.1.13: Since we represent the owners of the land in court, we ask the state to inform us about any change in the status of the land.

18.6.13: More than a year after the state was supposed to—by its own pledge—to remove all illegal construction from the land, it informs the court that it intends to keep building, making a mockery of the military seizure order. The state now claims that it is true that there is neither a military usage or a military need for the land, but that when the order–which, as you will recall, was concealed from the residents–was issued, there was such a need. So the state now invents the interesting legal term: “frozen military need.” We are left with no option but to serve another petition to the HCJ, in which we demand the cancelling of Shasha’s seizure order.

29.10.13: The state pledges to the court that by April 2014 it will remove the parts of the buildings which exceed the limits of the seizure order. As usual, the state does not make good on its obligations, and asks the court to accept an opinion which will deviate from the way maps were examined until its request, so as to include the parts of the buildings that exceed the boundaries of the seizure order.

8.9.14: The HCJ issues a final ruling, ordering the the demolition of the buildings by March 7th, 2015. In the majority opinion, President Grunis and Justice Arbel reject the possibility of waiting for extenuating the planning process and legalizing the land. The court rules that under these circumstances, waiting for the planning process would violate the state’s promises to the court regarding a concrete pledge to carry out the demolition orders, as well as its sweeping guarantee to enforce the law on private Palestinian land. The majority view refuses to deal with the request to cancel the seizure order by saying it is void, since the court ordered the illegally-constructed buildings demolished.

The important phrase is “majority view,” since only one judge held a minority view: Miryam Naor. Today, Naor is the President of the High Court, and the state has presented her with a challenge we shall delicately call unusual.

Early 2015: A few days before the retirement of President Grunis, who led the court in its decision to order the demolition, the state begins a quick and secret process to begin issuing land usage permits, while refraining from informing the land owner, despite repeated requests on this issue.

11.2.15: In a flash meeting of the Secondary Settlement Committee, the Guidance System for Depositing for Objections (i.e., a preliminary step before permitting the changing of the status of the land), the state provided the committee with wrong facts and biased commentary on the HCJ ruling.

Early February 2015: M.D. Yehonathan petitions the HCJ to demand that its earlier ruling be cancelled, pointing out that the planning procedure has advanced. The state informs the court it has no objection.

What happened here? This is an attempt to carry out one of the dirtiest tricks in Israel’s legal history. By using the fact that the judge who wrote the minority opinion has become president, while the previous president who wrote the majority opinion on the case has retired, we think that M.D. Yehonathan—a company which has disregarded the court’s orders— is trying (with the help of the state) to rescind the ruling. The state does not object to the move, despite the fact the petitioner has carried out illegal construction in contravention of the interim injunction and has breached several administrative orders. Despite the principle which forbids a criminal from enjoying the fruits of his crimes, the state now suggests President Naor may fix history and turn her minority opinion into the majority one.

By so doing, it tramples several principles: that of the finality of ruling; that of not building on private Palestinian land; and the principle according to which the court will not aid those who acted against its rulings. If this trick works, speaking honestly about the “rule of law” will become much harder. No ruling will be final—there will be no trick left untried.

All of this is happening, we remind you, three years after the government already pledged its support to the settler to preserving the construction under discussion. The politicians want to give the settlers what they promised, and the attorney general is willing to twist every principle in order to grant his masters their wish. Two weeks ago the court debated the petition, and the judges asked the state some tough questions. We’ll keep you updated when a decision is reached.

Update, 24.6.15: Yesterday a ruling was made on the petition. President Naor made it clear in her verdict that she cannot overturn the earlier ruling by President Grunis just because she was in a minority opinion. The court ordered the building demolished by July 30th 2015. Judge Rubinstein noted that “he who builds on private land, is building at his own risk.”

Welcome to the 49th Year

An article by Michael Sfard, the legal advisor to the Yesh Din. 1I9A5275copy

Congratulations. The 48th year of occupation has ended. It was a particularly good one. A year in which one of the main disorders afflicting Israeli society was restrained. A year in which we Israelis made rapid progress toward consolidating our collective personality, a personality that has suffered for years, or perhaps since the State’s foundation, but more forcefully over the years of occupation  from what psychiatrists term “dissociative identity disorder.” “Split personality”, in laymen terms.

The two personalities feuding in the soul of Israeli society  managed, with time, to develop a modus vivendi, despite their mutual hostility. But during the 48th year of occupation one personality began to dominate the other; in the distance the Biblical Cain inside us is rising to slay our Abel.

Contrary to claims made in certain radical circles, Israeli society and the State of Israel have profound and authentic liberal foundations. The structure of the Israeli regime includes an elected legislature and the separation of powers; the approach emphasizing the supremacy of law; and the Supreme Court’s early choice to raise the principle of freedom of expression on its various levels to a fundamental constitutional right and to defend it stubbornly. All these are not coincidental, nor are they public relations stunts. But at the same time,  Israel’s definition as a “Jewish” state and the sanctification of the nationhood; the dispossession of the people who were here when the state was established; the violent conflict with our neighbors; and above all, the creation of an underclass of citizens who face institutionalized and systemic discrimination because they belong to the Palestinian people. And these too are profound and authentic foundations, part of Israeli society’s defining qualities.

For years these two personalities danced a Capoeira in the Israeli public sphere. Along with legislation reflecting respect for basic rights and the supremacy of the concept of human dignity, political, artistic, and academic pluralism, we fashioned a bureaucracy and public policy that perpetuate hegemony and formalize expropriation and discrimination. Above all, we created a monster: a protracted occupation that denies millions of their civil rights while we feed off the riches of their land, at their expense. The weight of occupation has been added to the anti-liberal side of the Israeli scales. As time passed, the things we have been driven to do to maintain our control over millions of people have become harsher. And the weight of the occupation has increased accordingly, amplifying the nondemocratic, nationalist, and racist forces in us.

Probably the clearest manifestation of this acute personality disorder can be found in the rulings of the Supreme Court. Israel’s supreme judicial institution also displays clear signs of a multiple personality syndrome. Over the years, one Supreme Court has issued liberal and activist rulings addressing a wide spectrum of human rights and was ready to render them in many cases at the expense of clashes with other arms of government. The Court’s jurisprudence included among others defense of freedom of expression, protection from religious coercion, equal rights for the LGBT community, and even important rulings concerning animal rights. But simultaneously a second Supreme Court has exhibited extreme conservatism and passivity and a willingness to sacrifice any type of basic right in the name of national security. Its rulings have sanctioned almost every practice and policy the State of Israel has applied in the Occupied Territories. This Court has given its seal of approval to our most offensive actions in these areas: deportations, house demolitions, land confiscations, extra-judicial killings, mass administrative detentions, restrictions on movement, segregation according to nationality, and more.

As such, every new year of occupation is inevitably a bad year for whoever desires a democratic Israel founded on humanistic principles. Acquiescence and addiction to domination and subjugation of the Palestinians have taken root and are a central component in our individual and collective personalities. The 48th year saw a war of unprecedented cruelty against the civilian population in the Gaza Strip; a new government that openly declares its hostility to pluralism (accused of “harming the state”) and a Prime Minister who did not blink before he rode the waves of volatile racism on his way to office. This year has also seen a series of Supreme Court rulings that raise concern that this institution’s liberal streams are also losing their vitality. Look at the Court’s recent rulings: the judgment upholding the “boycott law”, in which it approved restrictions on freedom of expression and freedom of non-violent political action is unparalleled in any democracy with a judiciary that cherishes civil liberties; the case in which the Court approved the second expulsion of Bedouin citizens from Umm al-Hiran in the Negev to make room for a Jewish settlement group; and the decision to deny security prisoners the right to study in the Open University. A stream of rulings that permit violation of basic rights, and not even in the name of security.

If this was what the 48th year was like, we have good cause to be frightened now as we enter the 49th year. The way things look now, our democratic foundations will continue and even accelerate their collapse. Fascisization and McCarthyism towards anyone who dares to think differently threaten to dissolve the remnants of the liberal personality. It is particularly painful that all this is being done in the name of ostensibly “Jewish” values. If we were truly a Jewish state, the 49th year would be one of rejoicing: the seventh Sabbatical year, followed by the Jubilee year, when all slaves are set free: “Set aside and consecrate the fiftieth year to declare liberty throughout the land for all of its inhabitants” (Leviticus 25:10). But the occupation has no Sabbatical year and no Jubilee. Theft and subjugation continue unabated.

Welcome to the 49th year.

“Soldiers understand this isn’t in their interest”

A conversation with Eyal Hareuveni, the author of our latest report, on the meaning of “the spirit of command” and why every IDF veteran knows how to aim his rifle, but has no idea how to deal with rioting settlers.11209575_10153409164297604_8068665424986642186_n

We recently published our “Standing Idly By” report, which deals with the phenomenon of soldiers who stand aside and refrain from enforcing the law on Israeli civilians who use violence against Palestinians or their property. The report includes a detailed historical review of the phenomenon, as well as testimonies by soldiers given to Breaking the Silence and documentation of the reality on the ground, which reveal the soldiers’ lack of understanding of their duty to protect Palestinians while the latter are harmed by Israeli nationals. This, according to the report, stems inter alia from a lack of clear orders – not to mention the IDF’s lack of response to the phenomenon. I met with the report’s author, Eyal Hareuveni from Yesh Din’s research department, for a short conversation.

What is unique about the phenomenon of standing idly by phenomenon? Why should it interest the public?

It is unique because it symbolizes the depth of the army’s misunderstanding of its obligations—as well as the obligations of its—soldiers as an occupying force. In fact, the army denies the essence of the occupation by standing idly by.

What do you mean by “denies?”

The duty of an occupying force—its basic duty according to international law and innumerable HCJ rulings—as well as the basic duty of the military commander, is to maintain public law and order. When it avoids doing so and tries to create, by action or inaction, a situation by which it avoids enforcing the law and leaves a vaccuum, it puts the area in a sort of “wild west” situation.

This phenomenon can be seen all through the West Bank, and has been going on for very long. It began in the early days of the settlement in Hebron. A year after there was a government resolution calling on the settlers to obey the law, but not ordering the soldiers to enforce it.

If you told a soldier what you just told me, about his duty as a representative of the military commander, he would think you were speaking Chinese.

He is well aware of what I say regarding the Palestinian population: he knows his duties, his authority, and the range of tools he may use on the Palestinian population. Soldiers are empowered to use the same policing authority against the Israeli population that they have used against Palestinians for the past 48 years. The soldiers only lack a very essential understanding that what they do vis-à-vis Palestinians, they need to carry out with Israelis as well.

As far as the army is concerned, when it comes to enforcing the law on Israeli civilians, these are the same military orders. When it comes to the court, however, there is a difference: military law applies to the Palestinians, Israeli law applies to Israeli nationals. But at the enforcement level, as far as the army is concerned, these are the same orders, the very same military acts.

Yet soldiers don’t enforce them.

Except in very rare cases.

Reading the Breaking the Silence testimonies in the report, it seems very few soldiers knew they had such powers.

One officer said he knew he had them, and there were a few soldiers who knew they had the power but said they didn’t have the tools to enforce them. This isn’t a scientific survey, but if the soldiers who speak to Breaking the Silence don’t know what their powers are, it is reasonable to assume that there is a much greater number of soldiers don’t know them.

Where is the army’s instruction apparatus?

That is part of the criticism in the report. Declaratively, the army and the Ministry of Defense speak very clearly: “We enforce the law, we shall enforce the law on lawless settlers.” But the army, as part of a policy that has lasted since the early 1980s—when the phenomenon was identified and its documentation began—refuses to draw the necessary conclusions.

When did the IDF finally enact procedures? Was it only after we asked them about the issue?

The army is an aggressive body; it only acts when it is forced to act. The first step was taken in the wake of the Association for Civil Rights in Israel’s (ACRI) petition about the olive harvest (Hebrew). We cannot claim ownership for the army’s new procedure; it may be that long staff work had at long last matured just as we presented them with our questions regarding the lack of a procedure. But we do not know of any procedures that existed prior to our questions. There was a commander’s note, but according to the testimonies of the soldiers to Breaking the Silence, no one was familiar with it.

According to the IDF Spokesman, soldiers receive a one-time instruction before operational activity. They get the information via bullet points, including the prohibition on standing aside in cases of Israeli violence against Palestinians. We do not know how the procedure is passed on. It is clear to us, however, even from the IDF Spokesman response, that it is not readily available, unlike the ROE or the Suspect Detaining Procedure. This procedure seems to us insufficient and improper.

How many soldiers did the IDF put on trial for standing by?

We know of one case from the First Intifada—not for standing by but for other offences, since standing by is not defined as a military offense. Another soldier was disciplined following information sent by Yesh Din. We do not know of any soldier who was criminally charged for it.

The term “Spirit of Command” is often mentioned in the report. Can you break down this concept for us?

It has several aspects. First, the commanders realize it is not in their interest to oppose the settlements—that this is not beneficial to their military career. Gen. Amram Mizna, who was in charge of the Central Command, as well as Brigadier Ilan Paz, who served as Chief of the Civil Administration, were both deemed enemies by the settlement establishment. Paz explicitly said they acted against him.

A second aspect, which is much more serious and can be seen in the Break the Silence testimonies, is that soldiers understand that even if they can do something against settlers, it isn’t in their interest. They don’t have the backup, they don’t have the tools, their commanders ask: “why do want to enflame the settlers.”

So on the one hand we have the procedures, which the soldier is unfamiliar with. On the other hand, we have the “Spirit of Command,” which he knows intimately. Would it be fair to regard the procedures as a form of whitewashing?

Every instruction a soldier receives has an obligatory side. This is done so that the army can say it has instructed soldiers whose duty it is to maintain the peace and enforce the law; this includes mentioning the prohibition on standing by. It is a one-time instruction, which includes no written materials. The IDF Spokesman claims this is more efficient; we say that because this is a very complicated issue, which is still foreign to most soldiers and unknown to the military for years, it needs to be defined much more clearly and be more accessible to every soldier.

For instance, I am certain that even though it has been many years since you finished your military service, you know precisely at what angle to raise your rifle during a Suspect Detaining Procedure.

60 degrees, obviously.

Precisely. Every soldier can recite the Suspect Detaining Procedure for you. They know it by heart.

However, the soldier won’t know the limits of his authority when it comes to Israeli nationals. How long is he allowed to detain an Israeli national for? Where can he detain him? Would he know how to secure a scene so that evidence may be collected? Does a soldier know that he must provide the police with a testimony about violations he witnessed, that it is not up to his discretion or personal wishes? All this cannot be explained in a two-hour, or even a four-hour, briefing.

If the army truly wanted to draw conclusions from its behavior over the years, it would not only secure crime scenes and detain suspects—it would also hold debriefings on the incident, so as to improve its practice in similar future incidents. And as far as we know, no such debriefings have been held, even though this phenomenon has been going on for years. It is not something new.

Isn’t the military, in its determination not to deal with settler violence, a reflection of Israeli society?

Of course the army is a reflection of society, but the army—unlike the state, which has several authorities and bodies—is standing in the shoes of the sovereign. It is in the military commander’s authority, if only for his own utilitarian interests of preventing such incidents, to issue orders and set down procedures. It does not need the approval of other bodies. This is his authority, his duty, which according to the Supreme Court is enshrined in innumerable rulings. He has no excuses for not doing so.

Unlike Israel proper, where violence wears many disguises and comes in various forms, the violence we identify in the West Bank is mostly instrumental, particularly in the last few years: it is intended to push Palestinians away off their lands, or from a certain public area in Hebron, to take it over and dispossess—in the long term—Palestinians of their property, particularly their agricultural land. Violence in the friction areas (Yizhar, Shiloh Valley, etc.)

is intended to make the Palestinians disappear, and this isn’t a particularly new or innovative pattern – everyone knows this.

Even the lowly soldier on the ground?

It is known to any military officer who hasn’t spent the last few years on Mars.

Preventing this kind of harassment doesn’t even require the military to make a major efforts. Yet, when the army refrains from taking action, it puts itself in a much more political position than it prefers—as a professional army, as a people’s army.

The situation itself seems as if it inherently leads to a violation of international law. You either protect the settlers or the Palestinians. And since the settlers belong to the same ethnic group, the soldiers’ default is to protect them rather than the people they are suppose to protect as “protected persons.”

In a situation in which the soldiers know their duty and are trained to carry it out, there could be a chance that this will change. I do not think we will reach an optimal stage while the settlements last, but this is the eternal question human rights organizations face: do you announce the sweeping conclusion that will heal the world, ie. “remove the settlements,” and thereby say something that has no chance of actually taking place – or do you write down less sweeping recommendations, that have a chance of bringing some relief to the existing situation.

 Photo: Activestills, South Hebron Hills 22.9.2012.

Forget about the law – don’t get me in trouble

IDF soldiers have a duty to protect Palestinian residents, but many of them choose to stand aside. A case in point. post-pic2

We recently published our newest report, “Standing Idly By,” which deals with the phenomenon of IDF soldiers avoiding both protecting Palestinians attacked by Israeli nationals and aiding law enforcement authorities in investigating violations carried out by the Israeli nationals. The case of R. will serve as case study. We must mention that this isn’t, of course, the first case of its kind.

One morning in the beginning of April 2015, R. took out his goats to pasture. At one point, he thought some of the goats had strayed from his flock, and went uphill to look for them. When he reached the goats, he realized they were not his and turned back.

As he was climbing down, a white jeep with flashing lights stopped in front of him, and out came two men, one of whom was armed. R. recognized the armed man as the CSC of a nearby settlement. The CSC demanded R. come over to him, but R. refused. He went down the hill and took his flock home.

A few minutes later, after R. and another herder managed to get to the house with their goats, R. suddenly noticed three vehicles and a quad bike advancing towards his home. R. had just enough time to close the windows and lock the doors, before ten Israeli nationals, all armed, began pounding at the door—one of them began climbing the house’s wall.

The fact that Israeli nationals may not enter a Palestinian’s house without the owner’s permission did not deter them, nor did it prevent one of them from attempting to climb the wall. A few minutes later, three IDF jeeps also made it to the scene. According to R., the soldiers noticed the settler trying to climb the fence, but did not prevent him from doing so.

R. opened his door to the soldiers—at which point he and the other herder were promptly handcuffed. R. said that while he was handcuffed one of the settlers entered the yard and began beating him. According to R., the soldiers did not prevent the assault, nor did they detain the attacker or call the police; they simply dragged the two goatherds to the police station. R. was detained for three days under suspicion of entering a settlement and stealing goats, before being released—without being interrogated or standing trial. The soldiers who handcuffed him told him nothing about the reason for his detainment.

Beyond the question whether R. did steal goats or not—as mentioned above, he was not put on trial—the IDF troops reached R.’s house, saw an Israeli national trying to invade it without authority, and did nothing. They later saw that Israeli national beating R. while he was handcuffed—and did nothing.

Note, and this is important, that they had all the authority they needed to detain the settler until the police arrived. This wasn’t just their right; this was their duty.

Every soldier has the basic duty, anchored in international law and dozens of High Court of Justice rulings (as well in, as of last year, IDF regulations) to protect the local (Palestinian) population of the West Bank and its property. But a majority of IDF soldiers don’t even know the definition of their duty (on this, at length, see our report). They don’t know what a protected person is. They don’t know that it is their duty to protect Palestinians. They know, however, what the spirit of command wants of them: don’t get in trouble with the settlers. Forget about the law—don’t get me in trouble now. That’s what standing idly by is. The soldiers know that if they stand in the settlers’ way they’ll get in trouble, but that nothing will happen to them if they stand aside. The IDF, for its part, maintains ambiguity and provides its soldiers with very partial training regarding this problem, which has been documented since the Karp Report in the early 1980s. Soldiers know what they may do when it comes to a law-breaking Palestinian; they haven’t a clue how to deal with an Israeli one.

As for the Jewish marauder who attacked R.? Nothing will happen to him. R. decided not to complain to the police. To quote him, “I do not intend to lodge a complaint with the police since I am afraid of the army, the settlers, the police and judges.” He is so afraid, he won’t agree to publish his name.

So it goes.

Who is afraid of nationalist crimes?

The prosecution thinks that Israeli civilians who attack Palestinians and setting their trees on fire do not merit prosecutionShayNitzan-18.06.15

From time to time, the country is shaken by a particularly severe case of nationalist crimes against Palestinians, often in the form of an arson or desecration of a religious site. After each such incident, we are faced with the usual ritual: senior government or police officials stare into the cameras with a determined gaze; call the acts unconscionable; that they take the incident with a full measure of responsibility and severity; that this is not how a Jewish state acts; and that zero tolerance will be shown. These rituals usually appear against a backdrop of fear that this time the cup will finally runneth over, shattering the sacred “quiet” in the West Bank. But after a short while, everything is back to normal.

We can see just how seriously the government takes nationalist crimes from the following case. On July 26, 2010, a large group of Israeli marauders, whom eyewitnesses said came from the direction of the settlements of Yitzhar and Bracha, allegedly made their way to the land belonging to the nearby Palestinian village of Burin. According to the witnesses, the marauders burned hundreds of olive trees, some of them older than a century. Furthermore, they attacked the villagers with stones and in a few cases with clubs, and stoned the houses of the village. On that same day, some of the victims lodged a complaint with the Israeli police.

In August 2011, i.e. more than a year after the incident, the police informed Yesh Din that the case was turned to the attention of a prosecutor – that is the last we heard of the story for two years. In August 2013, the Shomron Prosecution Unit bothered to update us that they had closed the case back in December 2012. Three months later, we received the investigation material of a three-year-old incident, and tried to see whether there is any point in appealing the decision to close the case.

To the utter surprise of our attorneys, who were under the impression that the police closed the case for lack of evidence, the case files contained quite a bit of evidence. At the same time and place of the incident, three Border Policemen detained two Israeli civilians – A. and M. – after police officers testified that they saw them throwing stones at Palestinians.

The testimony of a cop, as well as the detention of suspects at the scene, is generally enough cause for prosecutorial action, particularly since the government take nationalist crime seriously, as it keeps claiming. Therefore, we appealed the decision to close the case in December 2013, demanding of A. and M. be prosecuted on suspicion of throwing stones and assaulting an officer; we also demanded that the investigation into the question of who attacked one of our clients with an iron rod and set his olive grove on fire continue.

That’s when events took a surrealistic turn. In response to our appeal, the prosecution claimed that they are well aware that there is enough evidence to indict A. and M., but said it would not do so – since it sees no reason to interfere with the decision of the Police Prosecution Unit, which closed the case for lack of public interest.

According to the prosecution, since both sides engaged in stone throwing, and since there is no precise information about how the incident began, and since there was no equivalent interrogation of Palestinian suspects, there is simply no public interest in putting the Israeli marauders on trial.

To quote our sarcastic reply, sent in April by Attorney Noa Amrami: “To sum, two Israeli civilians woke up one morning, arrived at the village of Burin and the homes and land of our clients, threw stones at them and beat them. Is there any doubt here as to who is the attacker and who the defender? With all due respect, we are not dealing with a kids’ squabble at school here, but with a criminal, methodical action of terrorizing the villagers of Burin, who suffer from the violence of the Israeli civilians residing in the region.”

What the government prefers to call nationalist crimes — and we call ideological crimes — has become a national scourge. As we emphasized here repeatedly, this is not an incident of random violence, but rather violence with a clear political goal: dispossessing Palestinians of their land so it may be transferred to Israeli civilians. The police’s failure at resolving these crimes is systematic and well documented: out of 1,045 investigation cases reviewed by Yesh Din in 2005-2014, only 7.4 percent turned into indictments. 85.2 percent of the cases were closed due to the police’s investigative failure, usually because the police failed in finding suspects or gathering enough evidence to try them.

The village of Burin is a stark example of criminal actions carried out by Israeli civilians: in the years 2005-2013 Yesh Din documented 103 incidents of criminal activity, mostly violent, by Israeli civilians against Palestinians from the village. This blog documented a series of violent actions – both by Israeli forces and Israeli civilians – toward the villagers. If we were to take the official rhetoric about the need to fight ideological crime seriously, we would expect any incident in Burin would be dealt with to the fullest extent of the law.

Yet in practice, even when the police detains suspects and the prosecution has enough evidence to indict them, the case is somehow closed. This time the excuse was “lack of public interest.” Bear this in mind during the next press conference when solemn promises that the police will do its best will be made.

We have asked that the appeal be reconsidered. We’ll keep you posted.

A criminal justice system under military law

When law enforcement in the West Bank becomes ineffectual, the army cuts corners makes use of undemocratic administrative orders. tsavey_harchaka_comics3_eng

Our latest report, Mock Enforcement, takes a long, hard look at law enforcement vis-à-vis Israeli citizens who commit offenses against Palestinians in the occupied territories. Data collected for the report indicates that law enforcement in the West Bank is ineffectual, and that the absence of a functional system has led to solutions that circumvent the problem so as to maintain a facade of minimal public order in the West Bank. Instead of regular criminal proceedings, complete with professional investigations, indictments, prosecutions and convictions — a process designed to enforce the law and create deterrence — the police cut corners through the use of administrative orders.

There are two kinds of administrative orders currently in use:

Closure orders, commonly known as “closed military zone orders.” These orders enable the military commander to declare an area closed and seal it off, prohibiting or limiting entry. Both the army and the police are certain that closure orders “bring calm to friction zones” since all parties – Israelis and Palestinians – are removed from areas where a dispute is taking place. This, in their mind, prevents both sides from committing offenses. But because closure orders restrict access to farmland owned by Palestinians, they harm the legal landowners instead of protecting them from potential harm.

In addition to temporary orders issued for specific areas, vast areas are subject to permanent closure orders — mainly land adjacent to settlements — in a way that regularly prevents Palestinians from accessing their land. Use of such closure orders harms the ability of Palestinian farmers to tend to their land and live off of it. In the long term, given the land laws Israel enforces in the West Bank, lack of access and cultivation could lead to loss of rights to land.

Individual administrative orders issued against Israeli citizens bar an individual from entering the West Bank; restraining orders confine an individual to a specific locality or a home. Such orders are used frequently, compared with the number of indictments served against Israeli citizens who commit offenses against Palestinians. The military commander issues such orders against settlers marked by law enforcement agencies following ISA (Israel Security Agency) or police recommendations. The accused individuals are not informed of the allegations or given a fair chance to challenge them, and the evidence compiled against them remains classified. The military commander is authorized to use the most powerful means in a completely arbitrary fashion.

The absence of a functional, efficient law enforcement apparatus — capable of conducting proper investigations, collecting effective intelligence and stationing a large number of troops in known problem areas — leads to the use of administrative orders that by-pass the criminal justice system. Moreover, the use of administrative orders is simply undemocratic and violates human rights. Failing to improve the quality of investigations, which would lead to successful criminal proceedings against offenders and lead to reasonable enforcement and deterrence, the system prefers administrative measures. They do not require an investment of human resources, time, effort and money. All they require is the GOC Central Command’s signature.

A court of non-convictions for Israeli felons

Does everyone get his or her day in court? Not if they are Palestinian. megirot_eng_facebook

Every year Yesh Din publishes data about police investigative failures regarding offenses carried out by Israelis towards Palestinians in the West Bank. They are usually quite similar: the police fails to investigate approximately 85 percent of complaints of Palestinians who report being harmed by Israelis. The rate becomes much higher when it comes to the destruction of Palestinian trees by Israeli civilians: then the police failure rate grows to 97.4 percent.

The average Israeli may not be surprised that the police failure rates are so high, but he or she still has some expectations of the courts. After all, we are told time and again that Israel is governed by the rule of law.

Okay, says the average citizen to himself, yes, we seem to have a problem in when it comes to investigations, and naturally if the investigation is a mess we are not likely to get to court. But once we step into the halls of justice, everything should be fine.

Or not.

Our latest data sheet, which was released in tandem with an exhaustive report on the failure of law enforcement in the West Bank, examines for the first time what happens to the cases we follow once they leave the limbo of the prosecution and make it to court. The situation, to put it mildly, is not “okay.”

To begin with, the chance that a complaint by a Palestinian victim will bloom into a an indictment against an Israeli felon stands at a mere 7.4 percent. This means that the chances an Israeli felon will appear in court for a crime he is suspected of committing is about 1:14. Most often, cases are closed due to police investigative failures; in a majority of the cases, the specific reason is the inability of the police to find a suspect – what is known as the the unknown perpetrator clause.

The fact that a case makes it to court does not, of course, mean it will end in a conviction. The defendants have the right to representation and have access to attorneys — as a human rights organization we entirely support this. The problem lies elsewhere.

In 10.5 percent of the cases, the defendants are convicted of all charges; in 22.8 percent of the cases, only some of the defendants are convicted, or they are convicted of some of the charges – sometimes reduced charges as part of a plea bargain. The rate of acquittals is high relative to other cases in Israeli courts (8.8 percent). But what is truly high is the rate of “non-conviction” (24.6 percent) and the rate of indictment withdrawal (22.8 percent).

What is a non-conviction? It is a relatively rare practice, in which the court believes there is reason to avoid tarring him/her with a criminal conviction for one reason or another — despite the fact that the felon has been found guilt of the charges. This almost never happens in the Israeli courts: the percentage of defendants in the magistrates courts found guilty without conviction is 5.3 percent; in district courts the number stands at only 1.2% percent. This is true unless the victim is a Palestinian; then the rare of non-conviction jumps to 24.6 percent. That’s four times that of magistrates courts, and almost 20 times that of the district courts. What a coincidence.

In many of the cases in which indictments against Israelis charged with harming Palestinians were withdrawn, the reason was, once again, investigative failure. The prosecution re-examined the evidence, apparently after the response of the defendants’ attorneys, and reached the conclusion that it did not have enough evidence for a conviction. And that, we note, is a perfectly legitimate decision.

But in many of the indictment withdrawal cases, one of the reasons given was that the defendants did not even bother to show up for the hearings. In most of the cases the government took the required steps – a fine, issuing warrants for arrest and subpoenas – but the indictments were frozen until the defendant was found. In one of the cases, the prolonged freezing caused the police prosecution to say that the evidence has been degraded, to the point of cancelling the indictment.

At the end of the day, the chance that a Palestinian who lodged a complaint about being harmed by an Israeli civilian will see a conviction is only 1.9 percent. Again, most of the blame for this lies with the police – but the courts have their share, as seen by the unusual rate of non-conviction.

Rule of law? Rule of the violent.