KNOW YOUR RIGHTS , The Palestinian Human Right Monitoring Group

PURPOSE: The purpose of this pamphlet is to help you protect your legal rights and seek justice when you are the victim of a settler attack.

BACKGROUND: Israeli settler violence is a serious and growing problem. Numerous Palestinians have been killed and many more have been injured, shot, beaten, or stoned. Attacks against property, especially the uprooting of trees are also common. Most often the response of Israeli law enforcement authorities to the phenomenon of settler violence is inadequate. In fact, settlers often appear to enjoy impunity from punishment. All branches of Israeli law enforcement – the army, the police, the Office of the State’s Attorney and the courts - have failed to live up to their obligations to protect the Palestinian civilian population against attacks and its duty to ensure that everyone living under Israeli jurisdiction is treated equally before the law. It is the purpose of this Handbook to give you the tools to start to change this situation.

Israelis who commit crimes against Palestinians anywhere in the Occupied Territories are tried in Israeli courts. Even if they were to commit a crime in Area A, they could not be arrested or tried by the Palestinian Authority. Unlike Palestinians who commit crimes against Israelis, Israeli criminal defendants are tried in civilian criminal courts, not military courts. The result is that they are granted the full range of judicial safeguards, rights and guarantees in Israeli law, while these same rights, safeguards and guarantees are denied to Palestinian defendants who reside on the same territory.

EVEN UNDER OCCUPATION, PALESTINIANS HAVE RIGHTS UNDER BOTH INTERNATIONAL AND ISRAELI LAW.

Under both international and Israeli law, every person in the Occupied Territories under the control of Israel has the right to have his/her life, safety, rights and property protected by Israeli law enforcement authorities. Even people living in Area A or B have the right to be protected by the Israeli police and/or army from attacks by Israeli settlers. Palestinians have the same rights to protection as Israeli citizens. Every Palestinian who is the victim of a crime committed by an Israeli has the right to an effective remedy in the Israeli courts.

Unfortunately, Israeli law has been applied differently, depending on whether Palestinians or Israelis are involved. This means that despite the law, Israel often fails to adequately protect the lives and rights of Palestinians. Two separate and unequal legal systems operate side-by-side, one for Israelis and one for Palestinians. While Palestinians who commit crimes against Israelis are prosecuted and punished to the fullest extent permitted by law, Israelis who commit crimes against Palestinians are seldom prosecuted and when they are, they receive grossly inadequate sentences.[i]

The right to life, liberty and security of person is one of the most basic principles of international human rights law. This right is contained in both the United Nations Universal Declaration of Human Rights (UNUDHR) and in the International Covenant on Civil and Political Rights (ICCPR).[ii] The UNUDHR further states that there can be no discrimination in the way the law is applied, meaning that Palestinians can be treated no differently than Israelis, and that access to a court of law is guaranteed in case of criminal acts, meaning that Palestinians victims of settler violence can resort to Israeli courts to obtain redress.[iii] Israel ratified the ICCPR and is therefore bound by these principles.[iv]

The Geneva Conventions mandate that even during times of armed conflict, there should be no discrimination in the way people who are not taking part in the hostilities are treated.[v]

The very first act prohibited by the Geneva Convention, “at any time and in any place whatsoever,” is “violence to life and person.”[vi] The Convention further requires that protected people have the right, in all circumstances, to respect for their persons and that, at all times, they “shall be protected, especially against all acts of violence…”[vii]

This agreement calls for the “efficient and effective handling of any incident involving a threat or an act of terrorism, violence or incitement, whether committed by Palestinians or Israelis.” It requires that each side “immediately and effectively” respond to an occurrence of violence and “take all necessary measures to prevent” such occurrences.

Israel’s own Basic Laws also require that Palestinians receive the same treatment as Israelis in the Israeli criminal justice system, regardless of nationality, ethnicity or religion. Section 2 of the Basic Law requires that “There shall be no violation of the life, body or dignity of any person”, and Section 3 requires that there be no violation of the property of any person. Section 4 emphasizes, “All persons are entitled to protection of their life, body and dignity.” [viii] Section 11 requires that “all governmental authorities be bound to respect the rights under the Basic Law.” That means that the Israeli police and the Office of the State Attorney have the duty to protect the fundamental rights of Palestinians in the Occupied Territories, whether they wish to or not.

NONE OF THESE RIGHTS CAN BE SUSPENDED, EXCEPT IF A STATE OF EMERGENCY IS OFFICIALLY DECLARED.[ix]

Under Israeli criminal law, a victim of a crime should approach the nearest Israeli police station to file a complaint and give detailed testimony about what occurred, either verbally or in writing.[x] Unfortunately, police stations in the Occupied Territories are frequently located within settlements, one way of discouraging Palestinians from filing complaints. However, if you are unable or unwilling to reach the police station, a complaint can be filed with the District Coordination Office (DCO). The DCO does not investigate your case, but simply transfers the information you give to the police. Therefore, if at all possible, it is better to file your complaint at the police station.

The victim should give as much detail as s/he can to describe both the criminal and the violation. [xi] ACCORDING TO POLICE INVESTIGATION LAW, ARTICLE 59, THE POLICE MUST INVESTIGATE ONCE THEY RECEIVE A COMPLAINT OR KNOW THAT A CRIME HAS BEEN COMMITTED. The police should give the victim a document indicating receipt of the complaint, and containing the investigation file number. That enables the victim (or the PHRMG) to monitor the progress of the investigation.

If the court finds the suspect guilty, the victim can sue for compensation for the damages in civil court. [xii] Even if the file is closed either by the police or the State’s Attorney, the victim can apply for compensation in civil court, although the chances of success will be much smaller.[xiii]

Some actions, such as shootings, beatings, destruction of property, are clearly crimes. There are other actions, such as hit-and-run “accidents,” which are not so clear. However, if a driver knows that he has hit a pedestrian and neither stops to help nor informs the police of the incident, then it is likely that s/he had a criminal intent. If there is nothing wrong with either the car (for instance, a failure of the brakes) or the driver (for instance, s/he became unconscious) or the weather (for instance, it is raining hard), then again it is likely that a crime has been committed, even if it is just gross negligence in the operation of the car, which is a deadly weapon.

It is the responsibility of the Israel Police Department to investigate crimes committed by Israelis against Palestinians in the OT. The duties of the police include: accepting and acting upon complaints brought to them by Palestinians, locating and questioning suspects and witnesses, detaining suspects for further questioning when necessary and gathering evidence to allow the State’s Attorney (prosecutor) to bring the case to court. That is the theory. The reality is often quite different.

As early as 1984, the Karp Commission set up by the Israeli Ministry of Justice,

concluded that the Israeli police’s handling of complaints against Israeli civilians was severely deficient, and called for urgent action to rectify the situation and safeguard the rule of law. The Commission found that cases were wrongly closed, despite the existence of evidence and Palestinian eyewitnesses. Furthermore, it found that police often did nothing when settlers refused to cooperate with their investigation.[xiv] Not much has changed since 1984. It is still often difficult for Palestinians to get the police to accept their complaints. In many cases, even when complaints are accepted, they are not adequately investigated, sometimes they are not investigated at all. Far too often, cases are closed on the grounds of “offender unknown,” or “lack of evidence,” or some other pretext. The SETTLER WATCH HOTLINE hopes to change this situation by having PHRMG lawyers and human rights workers follow-up on every valid complaint filed with the police.

The State Attorney’s Office, together with the police, is responsible for bringing suspects to trial. The State Attorney can decide to close a file because there is insufficient evidence or because of “lack of public interest.” Although statistics on numbers of cases closed for these reasons are not available, the PHRMG is aware of several homicide cases which were closed due to insufficient evidence, despite the existence of several Palestinian eyewitnesses who were not even questioned. The State’s Attorney Office has admitted that when there is the slightest reason to believe that the settler acted in self-defense, they prefer to close the file.[xv]

When one considers that in almost 50% of cases of Palestinians killed by settlers, files are never opened or are closed without any legal action – compared to about 10% of Palestinian-Israeli homicides – the inequality of treatment is inescapable. The SETTLER WATCH HOTLINE hopes to start changing this situation by following up on all appropriate cases to ensure that they are prosecuted.

The Israeli judicial system is responsible for deciding cases and handing down sentences to defendants who are found guilty of having committed a crime. There are 3 levels of courts in Israel: the Magistrate Courts, dealing with offenses that carry a maximum prison sentence of 7 years, the District Courts, dealing with offenses where the maximum penalty is more than 7 years, and the Supreme Court, which hears appeals from the District Courts.

Even in the relatively few cases in which Israelis are prosecuted for committing crimes against Palestinians and even where the evidence is overwhelming, defendants are often found not guilty or if found guilty, they receive ridiculously light sentences. At a time when violence against Palestinians is increasing, such court decisions send a dangerous message concerning the value of Palestinian life. Again, the PHRMG staff hopes that by monitoring all cases that go to trial and continuing to advise victims throughout the legal proceedings, we will have an effect on the seriousness with which courts handle cases of violent settler crimes, especially crimes committed by the handful of settlers who are repeat offenders and constantly engage in criminal attacks against Palestinians.

In order to bring the criminal(s) to justice, it will be necessary for you to be able to identify them. If possible, observe how old they are, how tall they are, the color of their hair, whether they have beards or wear religious hats. If the criminals arrive in a car, try to remember the type of car (make and color) and remember the license plate number, if possible. If you have a camera and conditions permit, take a photograph of the attackers. (Also take a photograph showing your injuries or property damage.) However, do NOT give the only copy of the photographs or vide tape to the police. First make a copy for yourself or for the PHRMG to keep in our files.

When you file a complaint, make sure that the police give you the complaint number and that you know the name of the police officer who took your complaint. That way you (and the PHRMG) will be able to follow the status of the case and can try to ensure that an adequate investigation is performed.

Filing a criminal complaint with the Israeli police is a way to force them to do their duty, so long Israel occupies Palestinian land – it does not mean that you accept, recognize or wish to cooperate with the Israeli police in any manner other than in bringing the Israeli criminal to justice. Nor does it mean accepting or recognizing Israeli rule in the Occupied Territories.

If you do not file a complaint, you give the police an excuse not to open an investigation and not to find and punish the criminal.

What can a lawyer do to help me?

A lawyer can help to ensure that the Israeli government authorities do what by law they are supposed to do. A lawyer can also see to it that you do not give up any of your rights. A lawyer can communicate on your behalf with law enforcement authorities and can go to the High Court to challenge their failure to act appropriately. A lawyer can explain to you the legal procedures and the legal consequences of your

At the present time, attorneys from the PHRMG and cooperating attorneys from the Society of St. Yves are in the process of Petitioning the Israeli High Court of Justice to compel the police to respond to our inquiries and to complete investigations of settler criminal behavior. [xvi]

If the settler is found guilty of a criminal offense, then it is possible to sue that individual for damages, both to your person and to your property. That has happened before. For example, Boaz Moscowitz pleaded guilty to negligent homicide on 18 February 1991, by firing several shots from a bypass road near Bet Sahour towards near-by houses, killing 15-year-old Masalem Bin Jalal Hana Ibrahim Musaleh as he sat on his porch watching television. Moscowitz was sentenced to five months in a criminal trial and in civil proceedings which followed, he was ordered to pay NIS 156,000 to the family of his victim. This is not much money to pay for the commission of the ultimate crime against a person, but it will surely help the boy’s family.

It might also be possible at some point to get compensation from the State of Israel for injuries, other damages, hospital bills, missed days of work, etc caused by the crime. However, at present Israeli law discriminates against Palestinians, in the area of compensation for victims of political violence. That is because the Israeli Government only compensates victims of attacks that are seen as being hostile to the State, and the victims of these attacks are almost all Jewish. But in 1999, there was a landmark case in which 3 Palestinian women living in West Jerusalem whose apartment had been bombed received compensation - the first time that Israel paid compensation to victims of Israeli acts of terrorism. [xvii] The settlement reached in this case opens the door to the possibility of some Palestinians, particularly residents of Jerusalem, who are victims of terrorist attacks perpetrated by militant Israelis to recover compensation.

KNOW AND ASSERT YOUR RIGHTS. IF YOU DO NOT DEMAND THAT ISRAELI LAW ENFORCEMENT AUTHORITIES RESPECT YOUR RIGHTS, YOU WILL LOSE THEM!

[i] For example, Rabbi Moshe Levinger pleaded guilty in 1990 to “negligent homicide” by firing a pistol on a crowded street in response to stone-throwing by Palestinian youth, killing a Palestinian merchant standing outside his store in Hebron. Despite having an extensive prior criminal record, Levinger was sentenced to only 12 months in prison, of which 7 months were suspended. He was paroled after serving only 3 months, a sentence which showed total disregard for the value of Palestinian life.

[ii] Article 3 of the UN Universal Declaration of Human Rights affirms, “Everyone has the right to life, liberty and security of person.” While the Declaration is not legally binding, the International Covenant on Civil and Political Rights, which was ratified by Israel in 1991, provides in Article 6(1) that “every human being has the inherent right to life. This right shall be protected by law.”

[iii] Article 7 of the UDHR states in full: “All are equal before the law and are entitled without discrimination to equal protection of the law.” Article 8 requires: “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”

[iv] ICCPR, Article 2(1).

[v] Fourth Geneva Convention, Article 3(1), 1949. Article 27 gives similar protection.

[vi] Fourth Geneva Convention. Article 3(1)(a)

[vii] Fourth Geneva Convention, Article 27

[viii] The very first section 1 of Israel’s Basic Law recognizes that human rights must be based on “recognition of the value of the human being and the sanctity of his life and his freedom.”

[ix] Section 12 of the Basic Law states that the Law cannot be suspended or made subject to conditions, except when a state of emergency is officially declared.

[x] Israeli Criminal Law, 1982, Article 58.

[xi] Israeli Evidence Law, 1971.

[xii] Israeli Criminal Law, 1977 and the Court Law, 1984.

[xiii] Israeli Criminal Law, 1982, Article 68.

[xiv] Karp Commission Report,, pp. 19, 30.

[xv] Quoted in Hotam (weekly magazine of Al Hamishmar, April 4, 1991.

[xvi] The High Court has original jurisdiction over petitions seeking relief from government decisions and has the power to restrain government agencies by such writs as habeas corpus and mandamus, customary under British common law. See Basic Law: The Judiciary 15©, 38 L.S.I. 101 (1984). Since 1982, the High Court has been sharply critical of the failures of the police in investigating Palestinian complaints.

[xvii] Attorney Yousef Jabareen of the Association Civil Rights in Israel (ACRI) won the settlement.