IV.  CONCLUSION 

All Israeli law enforcement agencies – the army, the police, the prosecutor, and the judiciary – bear responsibility for the failure to administer justice and protect Palestinian civilians in the Occupied Territories from settler violence.  The recommendations of the Karp Commission in 1984 still have not been implemented. 

The almost total impunity with which the Israeli criminal justice system permits settlers to commit criminal acts, including murder, against Palestinians not only violates fundamental human rights, but also destroys the rule of law and challenges basic moral values. This policy is neither wise nor just. The contradiction between Democracy and the way in which the Israeli criminal justice system operates when Palestinians are victims of Israeli settlers is apparent, and unless significant changes are made, the deterioration of Israeli democracy167 will continue.

Footnotes

[1] The Levinger case will be fully discussed later in this pamphlet.

2   Davar, May 2, 1990.

3 International Covenant on Civil and Political Rights (ICCPR), Article 2(1).

4 ICCPR, Article 2(3), 1976.

5 International humanitarian law protects people against the consequences of war.

6 ICCPR, Article 3(1)(a).  

7 Israel’s legal position is that the territories are not “occupied” since the West Bank was taken from Jordan and the Gaza Strip from Egypt, whose rule over the territories was never recognized internationally as sovereign. The Israeli Government says the term “occupation” applies only if the territories in question belonged to a sovereign state.

8 Israel-Basic Law: Human Dignity and Liberty, Adopted 17 March 1992.

9 The “Basic Laws” are not found in a single document and were written at different times; yet they have some characteristics of constitutional law. The two Basic Laws that address individual rights were enacted only recently. They define the rights they protect only in basic terms. However, after enactment of these two Basic Laws, the Israeli Supreme Court gained the power to interpret the meaning of the basic human rights protected by them and, at times, the Court’s interpretation has been quite broad.

10 Many of the facts contained in this article are based on investigations and data analysis conducted by the Palestinian Human Rights Monitoring Group and B’Tselem-The Israeli Center for Human Rights in the Occupied Territories.  

11 The first large-scale Palestinian uprising against Israeli occupation, known as the “Intifada,” began in December 1987 and ended in 1993.  The Al-Aqsa (second) Intifada began in late September 2000.

12 Since this article is limited to analyzing homicidal acts occurring within the Occupied Territories, there is no discussion of suicide bombings and other attacks which have occurred in Israel proper (i.e., within the Green Line) and very recently in settlements in the Occupied Territories.

13   As far back as1993, Member of the Knesset Ephram Sneh asked why armed settler groups were allowed to operate “with impudence” in the Territories and to “challenge the sole dominion of the IDF over security.” Proposal for the Knesset Agenda on the Matter of Armed Settler Militias, May 12, 1993.

14   Starting in1967, the Government of Israel encouraged Israelis to settle first in the West Bank and later in Gaza. Using land confiscation laws, Israel acquired substantial tracts of land, particularly in the West Bank. It also provided financial incentives to potential settlers in the form of grants or below-market mortgage rates

    The West Bank and Gaza Strip can be seen as falling under a legal regime called “belligerent occupation,” which arises whenever a foreign army occupies territory, whether that army acted aggressively or defensively. The body of international law which regulates the rights and obligations of all parties involved in belligerent occupation, and which protects an occupied population is found in customary international law, the 1907 Hague Regulations, and the 1949 Geneva Civilians Convention (Convention Relative to the Treatment of Civilian Persons in Times of War, Aug. 12, 1979, 6 U.S.T. 3516, 75 U.N.T.S. 287)  

    The law of belligerent occupation requires an occupying power to preserve the existing order to the extent possible, in the expectation that it will ultimately withdraw. It must leave the territory to the population it finds there and may not bring in its own people as settlers. Article 49 of the Geneva Civilians Convention. The purpose of Article 49 is to prevent permanent colonization of occupied territories, undoubtedly the purpose of the settlements.

   The Hague Regulations require the occupying power to administer public lands to benefit the local population and instruct it not to confiscate private property. Convention Respecting the Laws and Customs of War on Land, Oct, 18, 1907, Art. 55 and Art. 46. 

    For a fuller discussion of settlements and their legality, see John Quigley, Living In Legal Limbo: Israeli Settlers in Occupied Palestinian Territory, 10 Pace Int’l L.Rev. 1 (Summer, 1998).

15 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, September 28, 1995, Article XXXI, 7.

16 See Peace Now Report, The Occupation during the Oslo Years. December 3, 2000.

    The settlers are not a homogeneous group, but rather a collection of groups and individuals more or less organized and more or less united in the belief that Jews have a right to the Occupied Territories.  It is important to differentiate between different kinds of settlers, between the settlers and the settlement movement, and between the individuals and groups prone to violent, vigilante action within the settlement movement and the non-violent majority. The majority are social and economic migrants (‘quality of life settlers’), who moved into the settlements because of the financial incentives offered by the Israeli Government, or to live among friends and family. See the poll of West Bank settlers conducted by the Center for Palestine Research and Studies (CPRS) in 1997. 

     It is the religious-nationalist settlers who are responsible for the vast majority of violence against Palestinians.  In one of the few thorough academic studies made of the phenomenon of settler violence, David Weisburd notes that it is justified by reference to norms and values higher than those embodied in the laws of the (Israeli) State. The violence generally enjoys high levels of support in the settler communities. Weisburd, David, Jewish Settler Violence: Deviance Reaction, 1989, Pennsylvania State University Press.

17 The United Nations  has repeatedly declared the Israeli settlements in the Occupied Territories to be illegal under international law. See, for example, G.A. Res. ES0/3, U.N. GAOR, 10^th Emergency Special Sess., U.N. Doc. A/ES-10/L.2/Rev.1 (1997);  S.C. Res. 465, U.N. SCOR, 35^th Sess, S/RES/465 (1980); G.A. Res. 35/122C, U.N. GAOR 35^th Sess, 92^nd Plen. Mts. (1980).    The General Assembly reviews the settlement situation annually and every year has adopted a resolution criticizing Israel regarding the settlements. The most far reaching resolution called on states that give aid to Israel to avoid giving aid that allows Israel to violate the Geneva Civilian Conventions. See  S.C. Res. 465, U.N. SCOR, 35th Sess., at 5 U.N. Doc.S/INF/36 (1981)  and G.A. Res. 35/122C, Art. 8, U.N. GAOR, 35^th Sess., at 90 U.N. Doc. A/35/48 (1980).

18 For example, Yehoshua Mor-Yosef, spokesman for YESHA (acronym in Hebrew for Judea, Samaria and ‘Aza, the Biblical names of the West Bank and Gaza) Council, a privately funded group, stated: “We (now) act in coordination with the army. If … the situation worsens, we are also ready to act on our own.’ Settler: IDF Acting in Subdued Manner,” YNET October 2, 2000.

19 Israeli journalist Amos Harel of Ha’aretz described the settler patrol phenomenon as similar to the “Wild West… The IDF… does not dare prevent the patrols from operating.”   IDF Considers Legalizing Settlers’ Patrols, Ha’aretz, February 28, 2001.

20 It is unclear, for example, whether these private security patrols have open-fire regulations. If they do and someone violates them, are there any disciplinary procedures?

21 At the top of Israel’s court hierarchy is the Supreme Court, which hears appeals from lower courts. In addition, the Supreme Court has original jurisdiction over petitions seeking relief from government decisions. In the latter role, the Court sits as the High Court of Justice and  may 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).

   The decisions of the Israeli Supreme Court do not apply to later cases in that Court. Not only is the Court not absolutely bound by precedent; it has no obligation to look to its own precedent when deciding issues.  See Basic Law: The Judiciary, id., 20(b).

22 High Court of Justice 428/86,  Barzilai v. Government of Israel.  

23 The Convention by its terms applies only to “the territory of a High Contracting Party.” Israel argues that only a sovereign may be a contracting party lawfully bound by Article 49 and  neither Jordan was sovereign in the West Bank nor Egypt in Gaza.  Thus, Israel argues that the Geneva Civilians Convention does not apply to its control of the West Bank and Gaza.  This view has been rejected by the international community, including the United States. See S.C.Res. 237, U.N. SCOR, 22^nd Sess., Res. & Doc. S/INF/22/Rev.2 (1968),  U.S. Dept. of State, Country Reports on Human Rights Practices for 1983, 1292 (1984). The Geneva Civilians Convention states that it applies “in all circumstances” and to “all cases of declared war or of any other armed conflict.” Geneva Civilian Conventions, supra, art. 1, art 2. The law of belligerent occupation applies so long as the occupant exercises any authority. See John Quigley, Living in Legal Limbo,. 

24 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, Chapter 2,  Articles X – XIII. 

     While Israel argues that, following the Oslo Accords, it is no longer responsible for protecting human rights and complying with international law relating to Palestinians living in areas of the Occupied Territories formally transferred to the Palestinian Authority, it clearly retains ultimate control over these areas.  See the recent statement of Prime Minister Ariel Sharon that Israel enters Area A “almost every day.”  See Gideon Levy, A Demolished House for Every Bullet, Ha’aretz April 15, 2001. Moreover, the Israeli army continues to confiscate private Palestinian property in Area A, which theoretically lies beyond the geographic jurisdiction of Israel and within full Palestinian control. See Petition to the High Court of Abu-Holy family, represented by the Palestinian Centre for Human Rights, April 19, 2001, challenging the legality of such confiscations and requesting an injunction. The High Court granted the injunction without ruling on the issue of Israeli jurisdiction in Area A.

²⁵  In theory, the Interim Agreement grants the fledgling Palestinian Authority the right to administer criminal justice over all of its ‘citizens.’ However, Israel’s retention of jurisdiction over all ‘security’ offenses committed in area C guarantees a different reality.

26 Article XI, para. 4(d) of the Israeli-Palestinian Interim Agreement mandates that  “Israelis shall under no circumstances be apprehended or placed in custody or prison by Palestinian authorities.”

27   See Israeli-Palestinian Interim Agreement,  Annex III  Protocol Concerning Legal Matters, Article I, and Annex I: Protocol Concerning Redeployment and Security Arrangements.

   In theory it is the responsibility of the Israeli police to conduct investigations and collect evidence, and the Israeli army’s responsibility to make preliminary arrests, as well as intervene to prevent crime. The Israeli army is obliged by international law to provide the same protection to Palestinian civilians in areas B and C as they do to Israeli civilians. However, the reality is far different. See 1994 letter of Hebron soldier   to then Minister of Education and Culture Amnon Rubinstein, stating that he was specifically told by his commander that he was not permitted to arrest settlers during a settler riot, quoted in B’Tselem report, Law Enforcement vis-à-vis Israeli Civilians in the Occupied Territories,  pp. 38-40, Jerusalem, (1994).

28 The military judicial system includes assistant judges who are not lawyers, who are merely military officers appointed for the specific purpose of discussing a case.  While every bench is headed by a judge with a legal education, often assistant judges, without any legal background, are the majority (two out of three) on the bench. Although it rarely occurs, theoretically, there could be cases in which the two assistant judges override the opinion of the court president, who is the legal expert.

   One assistant judge, First Lt. Omer Bark, recently told  Ha’aretz newspaper that what he saw in the courtroom of assistant judge Lt. Colonel Yoram Haniel as a “horrifying experience” that did nothing to strengthen his belief in the practice of justice in the military judicial system: “The entire process seems to me to be a total disregard for the right of the accused to a fair trial… The system does not even make the effort to create the impression of doing justice.” Ha’aretz, December 18, 2001, Disorder In The Court, Amos Harel.

29 There are three levels of courts in Israel: the Magistrate Courts which handle offenses with maximum prison terms of 7 years, or maximum damages (in civil cases) of $30,000, the District Courts, dealing with cases where the maximum penalty is more than 7 years, or more than $30,000, and the Supreme Court, which hears appeals from the District Courts.

30 Member of Knesset Amnon Rubenstein recognized this fact as early as 1984: “In Judea, Samaria and Gaza, there are two legal systems and two types of people; there are Israeli citizens with full rights, and there are non-citizens, non-Israelis, with no rights.” Knesset Protocol, January 2, 1984, p. 923.    

31 Palestinians in the Occupied Territories are subject to two sets of penal codes. The pre-1967 local law (a combination of Jordanian, British and Ottoman law in the West Bank and Egyptian, British and Ottoman law in Gaza) and Israeli military orders. See Security Provision Order (Judea and Samaria Region), No. 378, 1970. The pre-1967 local law remains in force insofar as it has not been superceded by Israeli security legislation.

32 Even some Palestinian residents of Israel are tried according to military law.  See Petition of Mohamed Sanduka, filed before the High Court on December 5, 2000, demanding that the Court order that he and all other Arab residents of Israel be tried under the laws of Israel.

33 In general, British law provides the main base on which Israel has built its criminal and civil code, while American legal practice has strongly influenced Israeli law regarding civil rights.

34 Indeed, there is disparate treatment of Israelis and Palestinians by every institution in the Occupied Territories, with Palestinians disadvantaged in every aspect of social and economic life.

35 Israel’s criminal justice environment adheres to the basic principles of the Anglo-American legal system.

36 Orders Concerning Security Provisions, Order No. 1391,  March 24 1993 for the West Bank and Order No. 1903, March 25, 1993 for Gaza.

    On November 22, 2000 a Petition was filed before the High Court of Justice by the Public Committee Against Torture in Israel (PCATI), the Palestinian Center for Human Rights-Gaza and Bassam Na’im Ashak Natshe (a Palestinian detainee) challenging the duration of pre-trial detention of Palestinian residents of the Occupied Territories permitted under the Orders. The Petition claimed that detaining a suspect for eight days before he is brought before a judge is contrary to Israel’s Basic Law: Dignity and Freedom, as well as humanitarian and democratic values. In addition, the Petition challenges the fact that although Palestinian detainees are held in custody inside Israeli, they are held pursuant to the Security Orders and not Israeli law and demands that the permissible period of detention of Palestinians before they are brought before a judge and before they are charged be made equal to the periods of detention of Israeli citizens.

37 Law of Criminal Procedure (Detention and Search), 1969, Sec.16.

38 Security Order 378, Secs. 78(v), 79(v)(2);  Amendment 68 to the Order Concerning Security Provisions, Order No. 1378, October 20, 1992 in the West Bank; Amendment 70 to the Security Provisions Order, Order No. 1081, October 11, 1992 in Gaza.   

39 Section 13 (a) and 51 of the Laws of Criminal Procedure (Enforcement Powers-Detention), 1996.

40 A special report detailing the use of torture was prepared in May 2001 by the Public Committee Against Torture in Israel for the Or Commission, which recommended, inter alia, that the Attorney General enforce more vigorously the High Court’s ruling against torture. The report quotes dozens of prisoners, including children, who suffered beatings, racial insults, humiliation and inhuman conditions in holding cells. Many alleged deliberate torture by Shin Bet (secret police) investigators. According to the PCATI report, although Israel is a signatory to international conventions against torture and physical abuse of prisoners, the police are not aware of these laws.

     Also see the Statement of Advocate Sahar Francis, an attorney with Addameer Prisoners’ Support and Human Rights Association of November 25, 2000, alleging that several Palestinian detainees he personally visited had been interrogated for long periods of time, during which they had been subjected to position abuse (shabeh), their hands handcuffed behind their backs and to the back of a small chair in which they were made to sit, in at least one instance (Mahmoud Salah Iddon), for more than 20 hours.

41 Sec. 78b-d, Security Provisions Order.

42 Sec. 29, Criminal Procedure Law [Consolidated Version], 1982.

43 Terms of imprisonment are prescribed by law as maximum penalties. A judge cannot exceed these limits, but may reduce a term of imprisonment at his/her discretion.

44 See Section 304 of the (1977) Israeli Penal Code for Israelis; Section 3 of the Order Concerning Methods of Punishment (Judea and Samaria) (No. 322) (1969) for Palestinians.

45 Compensation here refers to money paid by the State, compensating the victims for bodily and/or property damages, as well as hospital bills and missed days of work. Claims are submitted to the Israeli Property Tax and Compensation Fund.

46 In a landmark case involving three Palestinian women living in West Jerusalem whose apartment was bombed, Association for Civil Rights in Israel (ACRI) attorney Yousef Jabareen, reached a settlement with the Property Tax and Compensation Fund, the National Insurance Institute and the Ministry of Internal Security, whereby the women (Manal Diab, and the Khouri sisters) received compensation, marking the first time Israel paid compensation to Arab citizens terrorized by Israelis. See Announcement of Agreement between the Parties, Legal Document, June 24, 1999. The settlement also opened the door to at least some other Arab citizens or residents of Israel who are victims of terrorist attacks perpetrated by militant Israelis to recover compensation from the Israeli Government, by creating a special governmental committee to review such claims and to grant or deny compensation. The third part of the settlement agreement called on the Israeli Knesset to revise the language of Israel’s compensation laws to extend their coverage. However, no action to revise the law has yet been taken.

     Nothing in the settlement agreement pertains to Palestinian victims residing in the West Bank or the Gaza Strip.

47 Israeli courts do not use the jury system. All questions of law and fact are determined by the judge.

48 Sec. 35(a) of the Penal Law 5737-1977 states: “A court which has convicted a person of an offense may impose on him any penalty not exceeding the penalty prescribed by law for that offense.”

49 Penal Law (Amendment 44) 5755-1995.

50 Sec. 2, Amendment 44, Penal Law.

51 According to the Palestinian Human Rights Information Center, 23 Palestinians were killed in 1985 and Israeli settlers were the suspected perpetrators. Only one settler was eventually brought to trial.  PHRIC, Israeli Settlers Violence in the Occupied Territories, 1985.

52 Twenty-nine were killed in one incident in the Tomb of the Patriarchs - Ibrahimi Mosque in Hebron by Baruch Goldstein, who was himself killed during the incident.

53 See B’Tselem, Tacit Consent: Israeli Policy on Law Enforcement toward Settlers in the Occupied Territories, Jerusalem, March 2001

54   They include: 7/10/2000 Fahed Mustafa Baker Odeh (23); 10/17/2000 Farid Ashraf Nasasrah (28); 11/14/2000 Mustafa Mahmoud Musa Alayyan (50); 12/7/2000 Mohammed Jodeh Abu Assi (27); 12/17/2000 Mohammed Hamed Ali Shalash (18); 12/22/2000; Najib Mohammed Qasem Obeido (20); and 12/31/2001 Tahrir Suleiman Rezeq (22).  

  Although this figure is small compared to the number of Palestinians killed by the Israeli Army during this same time period, it is nonetheless significant.

55 They are: 12/10/2000 Ibrahim Abdel-Rahman Daoud al-‘Olami (25), 30/11/2000 Shadi Ahmed Hassan Za’oul (15),  3/3/2001 Ahmad Hasan Mohammed ‘Allan (25), 17/03/2001 Mohammed Ismail Nassar (11). Of course, an investigation by the Israeli police into these cases might lead to dispositive evidence.   

56 Most of the statistics and much of the information presented in this section comes from the B’Tselem report, Law Enforcement vis-à-vis Israeli Civilians in the Occupied Territories, Jerusalem, 1994.

57   Nachson Walls (8/6/90),  Nechamia Mashbaum (10/16/92), Yoram Skolnick (3/23/93), Uriel David (12/9/93),  Gur Ha’a,el (10/26/98), all settlers, and Ophir Ben Simon (6/10/98), not a settler.

58 Israel Zeev (5/5/88), a minor (6/16/98), Chaim Danigo (3/2/92), Shlomo Malul (4/12/93),  Ilana Podolsky (9/14/94), Nachum Korman (10/27/96), David Yafat  (8/12/97). Five are settlers, while the residence of Danigo and Yafat is unknown.

59 Pinchas Valerstein (1/11/88), Moshe Levinger (9/30/88),  Ovadia Sulami (3/23/89), Israel Menashe (5/17/89), Yigal Sasson (2/6/90), Boaz Moscowitz (2/18/91), Natan Anglesman (4/12/94). All are known settlers, except Sulami, whose residence is unknown.

60 Keisar Mansex (12/4/93),  Gad Ben-Zamra (5/29/89), both settlers.

61 Natshon Walls, sentenced February 8. 1992, had his sentenced reduced in October 1997.

62 Yoram Skolnick, sentenced  March 28, 1994 , had his sentence reduced to 15 years in October 1997 and to 11¼  years in February 1999. He was released after serving 7 ½ years in prison.

63 Nachon Walls (reduced to 13 years),  Yorm Skolnick (reduced to 11 ¼ years), Uriel David (reduced to 13 years), and Nechamia Mashbaum (reduced twice to 10 years).

64 Israel Penal Law, Sec. 298.

65 Israeli Penal Law, Sec. 304.

66 Sec. 71a(a) of the Penal Code provides the alternative of combining community service with other criminal penalties. Yigal Sasson was sentenced to 6 months community service, 1 year suspended sentence; Boaz Moscowitz to 5 months community service, 1 year suspended sentence; Pinchas Valerstein  to 4 months community service, 1 year suspended sentence and a monetary fine; Natan Anglesman to 4 months community service; Israel Menashe to 3 months community service, 21 month suspended sentence.

67 Moshe Levinger was sentenced to 5 months imprisonment, which was reduced by 1/3, 7 months suspended sentence; Ovadia Sulami was sentenced to 18 months imprisonment, 18 months suspended sentence.

68 Those involved in the killing of Hamdallah Radi Khalil ‘Alawnah (1/13/91); and Jamil Duweikat (4/14/91).

69 The defendants included those accused of killing Ra’ed Lutfi  Najib Hasan (2/27/88); Ahmad Abu Hussein Barghuthi (2/27/88);  Munir Abu Nijmeh (5/31/94)

70 The closed files concerned the killing of the following Palestinians listed in chronological order: ‘Abd al-Basset Jum’ah (2/7/88); Kamal Muhammad Dariwsh (2/21/88); Rawdah Lutfi Najib Hasan (2/22/88); Khader Muhammad Hemeidah (3/8/88);  Mustafa Ahmad ‘Awdah Halayqah (5/3/88); Sa’ib Muhammad Ha’eq (6/12/88); Nidal Rabadi (7/19/88); Ahmed Hussein Biahrarat (11/7/88);  Awwad Farah ‘Amdu (4/1/89);  Khaled Yusuf Ishaq a’Shawish (4/10/89); Walid Najajrah (4/13/89); Nader Da’nah (4/28/89);   ‘Aziz Khamis Yusuf’ Arrar (6/21/89); Fa;eq Subhi Sedan (7/30/89);  Sami Mahmud ‘Atwah a’Sabah (8/21/89);  ‘Abdullah Mustafa Abu Safiyah (10/12/89: Issa Mujammad Ali Sebeih (11/18/89); Na’im Sa’id Nawfai (12/10/89); Barakat ‘Adel Fakhuri (12/10/89); Muhammad Jamil al-Karmal (12/22/89); Samih a’Sheikh (5/15/90); Naji Ibrahim Musa Abu Saqallah (5/22/90); Salim al-Khaldi (10/24/90); Tawfiq ‘Atiq (11/26/90);  Ahlan Ibrahim ‘A’id (12/12/90); Mahmud Muhammad a-Nawaj’ah (6/7/91); Iyyad Muhammad Zadafiyah (6/16/91): Na’im Mahmud Hussein al-Mahdun (3/8/93).

71 Often, Palestinians do not report incidents of violence to the police – even those resulting in death – because of fear and/or distrust of the Israeli authorities. For example, the family of one murder victim, Tahrir Rezeq, told Ha’aretz reporter Amira Haas that they would not give the police the names of eyewitnesses to the crime because they believed that instead of investigating the murder, the police would arrest the eyewitnesses on charges of having thrown stones. Ha’aretz, November 2, 2001, Amira Haas, His Name was Liberation.

   Nevertheless, even if no formal complaint is filed, if the police know about a killing from some external source, such as the media or non-governmental organizations, they are obligated under Israeli law to conduct an investigation. Police Investigation Law, Article 59.

72 If there is prima facie evidence against a suspect, the file is transferred to the State Attorney’s Office for a determination whether to rile formal criminal charges. In 1991, a senior official from the State Attorney’s Office reported: “Tremendous pressure is placed on us [by settler organizations],  and we have reached the situation that we close files.…for lack of evidence. If there is the slightest reason to believe that self-defense was involved, we prefer to close the file.” See Hotam, magazine of Al-Hamishmar, April 4, 1991.

73 In his latest report, Eliezer Goldberg, a former Supreme Court justice, reported that more 75 per cent of the cases involving complaints of disruption of public order by Israeli settlers that were opened in 1999-2000 were closed for “lack of evidence and/or insufficient public interest, without any indictment being filed.” The report further found that the prosecution begins to deal with an investigative file five to 18 months after the file reaches the unit. “Therefore, when the police are asked to complete the investigation, they encounter difficulties due to the time that has passed.” Ha’artez magazine, 1/4/02, Baruch Kra.

74 As of March 2001,the Palestinian Human Rights Monitoring Group was not aware of a single Palestinian eyewitness to any of the recent killings by settlers who was interviewed by the police. , See, Criminal Negligence? Settler Violence and State Inaction During the al-Aqsa intifada, p. 28.

75 The phenomenon of  “disappearing” police files is not new.  It was noted in the 1982 Report of the Karp Commission, p.16.  See fn 70, infra, p.18. The lost files include those of Fa’iq Subhi Suweidan (killed 7/30/89) ; Nidal Misq (killed 8/9/89); Muhammad Salim Sharb (9/10/90).

76 The remaining cases were still unresolved at the time this article was written.

77 See Report of the Coordinating Committee, headed by Yehudit Karp, Deputy Attorney General, 1982. Among the conclusions of the Karp Commission which are still relevant today are: 1) the number of  police cases closed on grounds of “offender unknown” is inordinately high and, in some cases, the police do not make a real effort to locate the offenders; 2) the police show leniency toward settlers who refuse to cooperate with investigations; 3) Palestinian eyewitnesses are rarely questioned, resulting in one-sided investigations. It is apparent that the Commission’s Recommendations have been ignored by the Israeli police.

   In 1994, a B’Tselem report examining the handling of complaints against Israeli settlers by the police found that “nothing has changed in this regard since the publication of the Karp Commission Report more than a decade ago.”  B’Tselem, Law Enforcement... (1994), p. 88.  For instance, among the conclusions of the Karp Commission was that as a rule, “[i]f the law is breached, but no complaint is filed, no investigation is conducted.” This conclusion was echoed by the B’Tselem report ten years later. The report found that Palestinian complainants sometimes had been denied the right to lodge complaints with the police by being prevented from entering police stations, by being beaten up by settlers waiting outside police stations, by being sent from one police station to another in a circle of endless referrals, or by being told that the police do not accept complaints from people without identity cards.  Furthermore, even when complaints were accepted, the police sometimes denied having received them. On several occasions according both to B’Tselem and HaMoked-Center for the Defense of the Individual, another Israeli human rights organization, when they contacted the police to inquire about the progress of several investigations, the police denied receiving a complaint, despite the fact that a complaint had been made by the victim, sometimes accompanied by B’Tselem or HaMoked volunteers.          

78 See High Court Report  (HCJ) 175/81. 

    In Israel, as compared to the United States, the Supreme Court more broadly reviews the reasonableness of decisions of the prosecutor on whether to prosecute. All justices agree that prosecutorial discretion is reviewable, although there is some disagreement over what degree of deference is due. While some have called for more judicial scrutiny of prosecutors’ actions in the US, the concern there tends to be that prosecutors are overzealous in prosecuting at least some classes of defendants. In Israel, cases tend to involve requests for review of decisions by prosecutors not to prosecute.

79 The report urged Israelis never to use Palestinian attacks on settlers to “justify violation of the law and taking the law into one’s one hands, … [Israeli] offenders should not be treated with leniency and understanding.” Shamgar Report, p. 167.

80   Former deputy president of the Israeli Supreme Court, Judge Chaim Cohen wrote in 1992 that the Israeli criminal justice system had neglected one of its cornerstone duties – justice to all people. Injustice, he wrote, “has become part of the imposition of criminal sanctions in the Israeli system, favoring Jews over Arabs.”  See foreword to Two Volumes of Sentencing (Golomb, 1992).

81 See fn 31, infra, p. 10 dealing with instances of torture of Palestinians in detention.

82 The Israeli settlers killed were: Watslav Zelebski (10/2/00), Hillel Lieberman (10/7/00), Benyamin Herling (10/19/00), Marik Gabrielov (10/27/00), Amos Mahluf (10/28/00), Noa Dahan (11/5/00), Gabi Zaguri (11/13/00), Miri Amitai (11/20/00), Gabriel Biton (11/20/00), Itamar Yafet (11/21/00), Rina Didowsky (12/8/00), Eliyahu Ben Ami (12/8/00), Roni Tzalach (1/14/01), Ophir Rahun (1/17/01), Moti Dayan (1/23/01), Etgar Zaituni (1/23/ 01), Akiva Pashkud (1/25/01), Arye Pashkus (1/29/01), Arye Hershkowitz (1/29/01), Lior Atia (2/1/01), Shmuel Gillis (2/1/01), Tzahi Sasson (2/11/01), Baruch Cohen (3/19/01),  Shalhevet Pass (3/26/01).

83 No Israeli has ever been convicted of being an accomplice to a homicide.

84 Goldstein killed 29 Palestinians in the Ibrahami Mosque in Hebron before himself being killed. His funeral was attended by at least a thousand mourners and he was eulogized by Rabbi Israel Ariel eulogized as a  “holy martyr.”  In 1995, a shrine was built by the Kiryat Arba municipality on Goldstein’s tomb, which has become a place of pilgrimage.

85   Compare this to the 44% of cases involving Israeli civilians killing Palestinians, see infra, p. 16,  to appreciate the impact of ethnicity or nationality on record termination . Moreover, there appears to be no connection between the number of record terminations and the legal soundness of the remaining cases brought to trial.

86 This chart is reprinted from the Palestine Human Rights Monitoring Group report entitled Criminal Negligence? Settler Violence and State Inaction During the Al-Aqsa,  p.13,  Alon. Carmel,  March  2001. Much of the data originates from B’Tselem. The relevant time frame is December 1987-March 2001.

87 Of the seven clear cases, only one seems to have occurred in self-defense. Mohammed Joudy Abi’Assi, 30 years old, who stabbed his Israeli employer and was himself shot by a passing truck driver in Gaza. In the other six cases, no violence - certainly no lethal violence – was warranted. In those cases in which the settlers were in danger, they had put themselves in that situation and could, it appears, have extricated  themselves without using violence.

    In one case, Najeeb Obeido from Hebron was shot in the head by a settler on December 22, 2000, while he was lying wounded and helpless on the ground. He had attacked an Israeli policeman, who had then shot and wounded him. As the police officer left the scene, he met a settler and told him what had happened. The settler then approached Obeido and shot him in the head.

    Several other killings appear to have been the result of premeditated attacks, such as the killing of  Mohammed Shalash on December 17, 2000, by settlers who got out of their car, chased a group of boys waiting for a taxi and then shot one of them in the head at close range, or the killing of Farid Nasasrah on November 17, 2000, as he and other Palestinian farmers were harvesting olives in their fields.

88 For example, in a letter to the Palestinian Human Rights Monitoring Group (PHRMG) dated March 26, 2001, Attorney Rekefet Levin, Public Affairs Officer of the Police, Shai Jurisdiction, stated that no investigation into the death of Mustafa Mahmoud Elayan (on November 14, 2000) had begun until the facts surrounding the death had been brought to the attention of the police by the Israeli human rights organization B’Tselem, in mid-March 2001.

89 PHRMG and B’Tselem.

90  For example, the murder of Fahed Mustafa Baker Odeh (22), killed when settlers attacked his home village of Bidya, near Nablus on the July 10, 2000 may never be solved as Israeli law enforcement authorities have neglected to interview the eyewitness,  Khadri Fayez Mohammed Marjan (27) from Bidya.

91 Haaretz, November 22, 2000 (Hebrew edition), Police in no Rush to Solve the Incident in Itmar.

92 PHRMG Report, Criminal Negligence, p. 21.

93 Haaretz, March 11, 2001 (Hebrew ed.), Difficulty in Formulating Indictment against Two Settlers.

94 Settlers also frequently throw stones at Palestinians, at their cars (to prevent them from travelling on roads in the Occupied Territories) and at their homes (especially those close to settlements or bypass roads). For example, Mustafa Mahmoud Mousa Elayan, from Nablus, was killed on November 14, 2000 by a stone thrown through the windshield of his truck when it was attacked by about a dozen settlers from the Ofra settlement. However, settlers are almost never arrested for such offenses

95 The family did not file a complaint with Israeli authorities, believing it would be futile and fearing that the authorities would insist on performing an autopsy, in violation of their Islamic beliefs. Ha’aretz, February 2, 2001,  November 2, 2001, Amira Hass.

96 By letter dated March 26 2001, written to the Palestinian Human Rights Monitoring Group, Rekefet Levi, Attorney with the West Bank (Shai) Police referred the PHRMG to the Jerusalem Police for further information” concerning the Riziq investigation. On May 15 2001, Shmuel Ben-Ruby of the Jerusalem Police advised that, on the contrary, since the killing had occurred in Himza, it was the responsibility of the West Bank Police to conduct the homicide investigation.

97 In Israel, the prosecutor weighs the “public interest” before prosecuting every case. If the State’s Attorney concludes that there is no public interest in prosecuting a case, the process ends. Prosecuting authorities enjoy wide discretion in their decision to either prosecute a suspect or close a case.

98 In response to correspondence by the Palestinian Human Rights Monitoring Group (PHRMG) inquiring about the status of the case, in December, 2001, Sami Bada’an of the Shay Regional Police wrote a one line letter stating: “A file was opened regarding the case you referred to and was closed by the police.”

99 PHRMG Attorney Saher Ali has appealed to the government legal adviser to reopen the case. Until contacted by the PHRMG, the victim’s family had not been informed that the file had been closed.

100 Ha’aretz, August 1, 1989.

101 Ha’aretz, July 31, 1989.

102 Hadashot, August 2, 1989.

103 Hadashot, ibid. Shtibi’s lawyer argued that the soldier could not have seen the stone-throwing from his vantage point

104 Ibid.

105 Bail was set at 50,000 NIS.

106 See letter of May 7, 1991 by Senior Assistant to the State Attorney Shai Nitzan  to the Israeli human rights organization B’Tselem, contained in  Law Enfocement in the Occupied Territories.

107 On April 25, 1993, in response to a specific question by B’Tselem as to whether those eyewitnesses had been interviewed, Chief Inspector Yoni Tsioni, Department of Investigations and Claims, responded: “Investigation procedures were carried out as required.” 

108 See letter by Mr. Nitzan to B’Tselem, dated May1, 1993.

109 On June 9, 1991, the newspaper Davar reported that al-Nawaj’ah had been shot during a violent confrontation between a settler and several shepherds, who had refused to leave the area after he had ordered them to do so.

110 Yediot Aharonot, June 21, 1991.

111 B’Tselem, Law Enforcement Vis-à-vis Israeli Civilians In The Occupied Territories, 1994. p. 92.

112 Col. Meir Kalifi, Commander, Hebron Sector, stated in an interview published in Yediot Aharonot, December 15, 1993: “… What upsets me more than anything else is the judicial system. The army carries out all the procedures. We arrest a Jew. He goes to court and the judge releases him… Justice is not fully done – and when there is no justice, there is no deterrence.”

113 Levinger is considered the father of the settlement movement and is a vocal opponent of the creation of a Palestinian state.

114 Davar, 2 May 1990.

115 Crim. App. 84, 81/79, Arutz et al v. State of Israel, Piskei Din 34 (1) 679.  See B’Tselem’s Report,  Law Enforcement…,  p. 106.

116 Id.

117 Penal Law of Israel (Unofficial English translation), chapt. 2, section 20(a),(b).

118 At this stage, when he was at the military checkpoint, protected by heavily armed soldiers, Levinger’s shooting could not be considered an act of self-defense.

119 B’Tselem report, Law Enforcement, pp. 107-108.

120 Protocol, (Transcript) of May 1, 1990, p.3.

121 Crim. App. 419/68, State of Israel v. Ze’ev Raphael, Piskei Din 22(2), 754.

122 Protocol, court session of May 1, 1990, pp. 8, 19. The judge also expressed his belief that Levinger acted under pressure and fear of being harmed, which diminished his level of recklessness.

123 He had seven prior convictions.

124 When on February 25, 1994, Baruch Goldstein, a resident of the Kiryat Arba settlement, massacred 29 Muslims at prayer in the Ibrahimi Mosque (Tomb of the Patriarchs) in Hebron, Rabbi Levinger, was asked if he were not sorry about the incident. He replied “I am sorry not only about dead Arabs but also about dead flies.” Shahak, Israel, Mezvinsky, Norton,  Jewish Fundamentalism in Israel,  1999,  Pluto Press, p. 100. 

125 Crim. File 1440/92,State of Israel v. Moscowitz.

126 B’Tselem Report, Law Enforcement…, p. 112.

127 Judgment, State of Israel v. Boaz Moscowitz, P.23

128 Ya’akov Kedmi, On Criminal Law: The Law as Reflected in Adjudication, Part II, p. 450, cited in B’Tselem Report.

129 Protocol of Judgment, State of Israel v. Moscowitz, p. 23.

130 Id., p.21. The sentencing judges in both the Levinger and Moscowitz cases cited as precedent the case of Nissan Ishigayov, another settler who in February 1988, was convicted of manslaughter for killing a thirteen year-old Palestinian who had thrown stones at him, and was sentenced to only six months of community service.That sentence was eventually overturned by the Supreme Court, which sentenced Ishigayov to five years in prison, two of which were suspended. The High Court held that “[t]he punishment that the appellant received does not reflect the value that should be placed on human life.” Protocol,  State of Israel v. Ishigayov, Piskei Din 42(2) 361, p. 367, Crim. App. 175/88.

131 Id.

132 The award was NIS 156,000, approximately $39,000.

133 Shackled hand and foot, Abu Sabha had been shot at close range with an Uzi machine gun.

134 Israeli presidents have similarly intervened to reduce the criminal sentences of other Israeli settlers. For instance, in 1984, 25 members of the Jewish Underground (Makhteret) were convicted of attempting to attach explosives to five Arab buses in East Jerusalem and for plotting to blow up the Haram al-Sharif (Dome of the Rock). All, even those given life sentences, were released by 1992, after having their sentences reduced by President Chaim Herzog.   See Robert I. Friedman, Zealots for Zion: Inside Israel’s West Bank Settlement Movement, 1992, Random House.

135 Ha’aretz Magazine, May 25, 2001. Parole Board chairman Eli Sharon explained the criteria for early release as “the balance between the prisoner’s criminal past and his chances for rehabilitation.” Id. 

136 Id.

137 Id., At the time, the Parole Board had no clear written criteria by which to operate, making its decisions totally susceptible to political considerations.

138   In a letter sent to Attorney General Rubenstein, Knesset Member Gal-On wrote that “it is unacceptable for the attorney general to show restraint when the most important basic democratic and Jewish norm, ‘thou shall not murder’ is being rudely violated.”  Ha’aretz, May 25, 200l.

139 Id.

140 Id.

141 Ha’aretz, January 8, 2001, February 19, 2001. The PCATI petition claimed that the Parole Board’s decision was unreasonable in light of the severity of the crime committed and… would be a “grave blow to the principle of equality before the law and the capability of the legal system

to act as a deterrent to criminals.” PCATI Press Release, January 8, 2001.

142 According to Ha’aretz Magazine, only a very small percentage of prisoners convicted of serious crimes win early release. See Ha’aretz Mag., May 25, 2001.

143 Ha’aretz, High Court Paroles Killer of captured Arab assailant, February 19, 2001.

144 Ha’aretz, Id.

145 Id.

146 Ha’aretz, February 19, 2001.

147 The day of the incident, eyewitness Ibrahmim Shosha, a cousin of the deceased, reported to the police that he saw Hilmi fall after Korman hit him on the head. Village residents questioned by the police similarly reported that the defendant hit the child.

148 The autopsy revealed a concentration of blows along the left side of the child’s neck. When, during cross-examination, the coroner, was asked whether it was theoretically possible for the injuries to have been caused by the child falling backwards,  followed by the resuscitation efforts during which his head was further jerked around, he responded that it might theoretically be possible, but improbable because of the concentration of injuries in one area.

149 According to the coroner, in order for Hilmi’s death and the spinal artery injury he suffered to have been caused by his fall (without any physical contact with the defendant), his neck would have to have come into contact with a hard surface, i.e., a protruding object. From his visit to the death scene, Prof. Hiss concluded that there was no such object present which could explain his pathological findings. Furthermore, such injury to the child’s neck would have left an external bruise on his skin, and there was none found on Hilmi’s body.

    Several additional considerations undermine the judge’s findings in this regard. First,  Korman never claimed that the child hit anything when he fell. Secondly, it was only after his medical expert discussed the possibility that death may have been caused by a fall, that Korman presented that version of events. (He never mentioned this to the police when he initially accompanied them to the death site.)

150 While some of the internal bleeding in the victim’s neck might have been caused by direct pressure during resuscitation attempts, such attempts could not explain the concentration of injuries in one location, which, according to the coroner, would rather result from a direct blow. Protocol (Transcript), State v. Nachum Korman, 358.

151 Id, pp.   358-59.

152 State of Israel v. Nachum Korman, Supreme Court Opinion of Justice Benish, p.14.

153 Protocol, p. 358.

154 Opinion of Supreme Court sitting as the Court of Appeals, 653(4)/6539/00, citing text in English, Glanville Williams, The Proof of Guilt.

155 Id., p.17.

156 The Supreme Court was impressed with the fact that, following the beating, Korman had called the regional counsel of Hadar Beiter, requesting help in treating the injured child.”See Sentencing Protocol,, p. 366.

157 Id.

158 This was contested by Public Committee Against Torture in Israel, who, in their Petition to the High Court of Justice, pointed out that Korman had a prior conviction for assaulting a police officer in 1996 and that Judge Orr was, or should have been aware of this, because the evidence had been presented to the court while Korman was still in detention.

159 Protocol of Sentence.

160 Ha’aretz, January 22, 2001

161 Id.

162 Comment made on Israeli TV Channel 3, Personal Meeting, January 27, 2001.

163 The Petition was filed on March 3, 2001, but was eventually withdrawn on June 25, 2001.

164 Amnesty International Press Release 24 January, 2001

165 Ha’aretz  January 22, 23, 24, 2001.

166 Protocol,  State of Israel v. Ishigayov.

167 Israel defines itself and is often defined by others as “the only working democracy in the Middle East.”