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H. Discriminatory Implementation of
the Law:
In addition to Palestinians and Israelis being
tried under different laws in different courts for the same crime,
there is systematic discrimination in the application of the
law.
Plea bargains are often struck in civilian
court, permitting Israeli defendants to be tried for less serious
offenses in exchange for a guilty plea. In cases where the defendant
is convicted, these civilian judges consistently hand down
sentences more lenient than the law specifies. This is possible
because Israeli civilian penal law only sets maximum penalties for
crimes and only rarely provides for
mandatory punishment. Even the few instances of mandatory punishment
are subject to judicial discretion, as the law stipulates that under
mitigating circumstances, the court may still set a lesser penalty,
so long as it states its reasons for so doing. Murder is one of those rare
instances in which discretion is withheld and which carries a
mandatory sentence of life imprisonment. Even here, however, the law
stipulates three circumstances in which the court may impose a
reduced sentence: 1) when the accused suffers a mental disorder
short of mental illness; 2) when the accused used somewhat more
force than reasonable in self-defense, duress or necessity; 3) in
specific instances of murder following prolonged brutality.
II.
OVERVIEW
A. Israeli Civilians Accused of
Killing Palestinians
Between December 1987 (the start of the first
intifada
or Palestinian uprising) and March 2001, Israeli settlers killed
119 Palestinians (including 23
children under the age of 17) in the Occupied Territories. During the seven months between
the beginning of the Al-Aqsa intifada on the 28 September, 2000 and
March 2001, at least seven Palestinians were killed by
settlers. Another seven were killed
in suspicious circumstances, including four cases in which the
evidence seems to point to settlers, but is not conclusive and three
hit-and-run “accidents” involving settler vehicles.
Examination of the response to these offenses
by Israeli law enforcement authorities indicates the failure of all
parts of the Israeli criminal justice system to treat these killings
as serious offenses, from lack of investigation on the part of the
police to slap on the wrist sentences imposed by the judiciary, to
reduction of sentences by Israel’s president and/or early release by
the Parole Board. Of 89 cases monitored by
B’Tselem during this time, only 22
defendants were convicted, six for murder, seven for manslaughter and seven for negligent
homicide. Two were convicted of firing in a
residential area, possession of a weapon without a permit, and/or
endangering persons on a roadway. Only three convictions resulted
in sentences of life imprisonment, two of which were subsequently
reduced by the President of Israel to 13 years in one case and 11 ¼ years in the
other. In total, four Israeli
convicted murderers had their sentences drastically reduced either
by the President, or by the Parole Board. Although the maximum sentence for
manslaughter in Israel is 20 years imprisonment, the seven settler defendants
convicted of manslaughter were sentenced to prison terms of between
six months and seven and a half years. While the maximum sentence
for negligent homicide in Israel is three years, of the seven cases in which
the settler defendants were convicted of “causing death by
negligence” of Palestinians, five were sentenced to public
service, while the two others were
sentenced to five months and 18 months imprisonment, respectively.
Two defendants were committed
to a psychiatric hospital instead of prison. In five cases, the defendants
were acquitted.
An inordinate number of
files were closed without legal action (39 or 44%). Fifteen files were closed by the
police, 22 by the Office of the State
Attorney, and two by the military. The
stated reason they were closed was either “offender unknown,”
or
“lack of evidence.” This is despite the fact that
there were Palestinian eyewitnesses to most of the killings who were usually not even
interviewed by Israeli law enforcement. An unacceptable number of
cases (10, or 11%) were not investigated or were, according to law
enforcement authorities, “lost.” In at least four cases of
homicide, the police did not even open an investigation. The failure of the Israel
Police to accept and act on complaints obviously increases
Palestinian reluctance to complain and further undermines trust in
the Israeli authorities.
The statistics clearly evidence lack of
resolute action by Israeli law-enforcement authorities in these, the
most serious cases of violence against Palestinians and indicate
that settlers enjoy a status close to impunity from prosecution. One
possible factor in the continuing failure of Israeli law enforcement
is that soldiers, police officers, prosecutors and judges feel
varying degrees of sympathy for and identification with settler
offenders and understanding of their difficult position; therefore
they apply the law more leniently in such cases. Another factor
might be that Israeli law enforcement officers agree to some extent
with the settlers that they are at war, and in a war, defeating the
enemy must take precedence over protecting civilians, at least
Palestinian civilians.
The failure of Israel’s
criminal justice system to effectively redress homicidal acts
against Palestinians is even more evident when comparison is made to
the handling of cases in which Palestinians killed Israeli
civilians.
B. Palestinians Accused of Killing
Israeli Civilians
When Palestinians kill Israelis, the Israeli
authorities use every means at their disposal, including some which
conflict with international law and involve gross human rights
violations, to arrest and prosecute those responsible. From the beginning of the
first intifada (December 1987)
through March 2001, Palestinians killed 115 Israeli civilians in
the Occupied Territories. From the start of the al-Aqsa
intifada on September 20, 2000 until March 2001, 57 Israeli
civilians were killed by Palestinian civilians, 34 of them were
settlers killed in the Occupied Territories. Investigation files were opened
in just about every single case. In only ten cases (less than 10%),
were the files closed. Thirty-two Palestinian defendants were
convicted, 30 (34%) of murder and all of
those were sentenced to life imprisonment, without the possibility
of pardon, clemency or reduction of sentence. One Palestinian was
convicted of being an accomplice to murder. No
Palestinian was prosecuted for ‘manslaughter’ or ‘negligent
homicide,’ rather than murder. No Palestinian was acquitted because
he had acted in self-defense. None was committed to a psychiatric
hospital instead of prison. In no case involving a
Palestinian defendant have the authorities lost the case file. In only
11 cases (including the killing of Baruch Goldstein) were the files closed without
any action taken. In 23 cases, the police are
continuing their investigation. Israeli security forces killed 15
suspects before they were brought to trial. In 22 cases, in addition
to the prison sentence, Israel either demolished or sealed the
suspects’ homes.
C. Comparison
of treatment of Palestinians and Israelis accused of
Killing
Outcome
Palestinians (out of 81)
Israelis (out of 89)
Convicted of Murder:
30
3
Life in Prison
Convicted of Murder:
0
2
Less than Life
Convicted as Accomplice
1
0
to Murder
Convicted of
Manslaughter
0
7
Convicted of ‘Death
0
7
by Negligence’
Sentenced to psychiatric
0
2
hospital
Convicted of lesser
offenses 0
2
Acquitted
0
5
Suspects ‘eliminated’
by
15
0
Israeli security forces
No investigation opened
0
6
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