Sunday, April 17, 2011

Why Justice Won’t Be Done in the Itamar Murder Case

I remember watching movies like the Ox-Bow Incident as a young boy. In those movies, innocent men were always being lynched, despite the intervention of good guys like Henry Fonda. Of course, when the real suspects were found, there were often bad consequences for members of the lynch mob. Some sort of retributive justice applied to them. But I was never sure of the moral of the movie. Was it that lynching was bad because mistakes could be made? But what if we knew that the guys about to be hung were the bad guys? What if they really had raped and murdered that little girl? Would we say, well, it wasn't pretty, but on the frontier that's how justice was done? Or would we hold out for decency and due process?

Lynching guilty people is unjust, but so is arresting and convicting guilty people without due process. Due process is not a luxury; due process is a right. A society that tolerates making widespread arrests on the basis of ethnicity, forcing men and women who are not suspects to give DNA samples, sowing fear in a civilian population through nighttime entries, and smashing and looting property in order to "teach them a lesson" and to snuff out suspects – all of which have been alleged by the residents of Awarta, the Palestinian village neighboring Itamar, among whom the murder suspects have been found, and none of which has been denied by the IDF – such a society is not a decent, law-abiding society. It is a Wild West society, at best.

And so I am puzzled by the silence of the decent folk here. Even if one is convinced that the Itamar murder suspects actually committed the murder – and given the justice system on the West Bank, that is hardly to be taken for granted – the manner of apprehending the suspects clearly involved massive violations of their due process, not to mention collective punishment of innocents.

Would we tolerate this sort of "investigation" if it were conducted against Palestinians with Israeli citizenship within the Green Line? And if a serial killer was discovered in Tel Aviv, would we tolerate the police going to a neighborhood where the murdered was known to have lived, rounding up people with no criminal record, or with no reasonable tie to the murders, arresting them in the middle of the night, at times, and questioning them, taking from men and women DNA samples forcibly, and damaging their property – so as to apprehend murder suspects? Would we tolerate this in murder cases where settlers are suspects?

Even if the murder suspects get a fair trial – and knowing West Bank justice, the likelihood is low -- we already know that justice will not be done in the Itamar murder case.


bacci40 said...

yes....would have been much better had no one been apprehended must be terrible for the fogel family survivors to see that their state does care about bringing the murderers to justice

and im sorry...but as the evidence is pointing to a conspiracy, in regards to an attempt to cover for the crime...what israel did was justified

enjoy playing the 4th son tomorrow night.

Yerushalimey said...

Due process is an American buzzword, not a Jewish one. My understanding of the Torah is that an accused person is guilty until proven otherwise - which, tellingly, seems to be your stance when it comes to accusations against the IDF.

shmuel said...

"Due process is a right"
is very much an Americanism where "rights" may be brought to absurd (for instance OJ Simpson's trial - everyone knew he did it, but because his "due process" was violated he was aquitted).

There is the classic legal argument of the "poisoned fruit" - is illegally attained evidence acceptable or inadmissible?
In many western countries "rights" are considered more important than justice.
In Israel this is unfortunately a luxury that cannot be afforded.
It may mean that innocents may suffer, but the greater public is better off if the criminals and terrorists are off the streets and not aquitted because of legal loopholes. "Miranda" and the Middle East don't go hand in glove (excuse the OJ Simpson pun)

The Israeli system adds a unique (I think) cautionary measure because of this, and demands a "dvar ma nosaf" (extra evidence) to support a confession, such that one cannot find an accused guilty solely on his (maybe illegally obtained) confession, but must find supporting factors to the confession. (Based on the Rambam "ein adam oseh atzmo rasha..shema nitrafa daato..")

Aside from the Military courts not accepting the American system, they still do give a fair trial with all the rules of evidence pertaining. If these lads did the murder, then they'll be found guilty, if they didn't they'll be aquitted and the shabak will be looking very carefully for the murderers. The shabak's motive is not making arrests but clearing the streets of terrorists. They have no reason to look for the wrong person. It the Israeli ethos making a mistake is much worse than not succeeding in something.

Jerry Haber said...

I note that yerushalmi mey and shmuel focused on the phrase "due process" and completely ignored the methods that the Shabak used to apprehend the suspects, or the fact that they are only used on civilians in the West Bank. I really wonder your red lines are (bacci40 has no red lines -- if the murderers could be apprehending by forcing cilivians to sleep with their mothers, he would argue that murder of Jews is worse than sex between Arabs)

Jerry Haber said...

shmuel, you probably don't live in Israel, because otherwise you would know that due process is a right there. Thank God.

And while the language of rights is modern, Yerushalimey, the notion of protecting the accused form injustice goes back to the Bible. You may also want to look at masekhet Sanhedrin.

shmuel, please don't give me the dover tzahal hasbara. You want to read about military justice? Try this piece, recently published here.

shmuel said...

Firstly, one doesn't always have time to answer every point one disagrees with on every blog, so some points may be left unanswered (as you didn't answer my point about about "due process" and OJ Simpson, etc.

Secondly, I draw the red line before what the army did during the mass arrests. The wonton damage, if true, is inexcusable.
However I don't have a problem with forceably taking DNA -I think every person's DNA ought to be on record from birth, as people who behave have nothing to fear.
Mass arrest is on my red line depending on the circumstances and the exact intel in the hands of the arresting party.

shmuel said...

Actually I live in Israel (30 years) and know that due process exists but has different parameters to the American or English versions.
I have first-hand knowledge of the military courts, and much of what was written in the Haaretz article is hyperbole and inaccurate (even the colour of the prisoner's uniform is inaccurate - there is no grey or black, but only brown.)
I could write a long critique, but better I would prefer to invite you to see at first hand if you would like to.

As for the arrest until bringing before a judge - until about 20 years ago a soldier could be held for up to 15 days on a warrent of a MP officer and up to 30 days by order of the army Atty-gen. Only after 30 days did he see a judge! (today I believe it is 96 hours)

Israel is in a process of improving continuously its arrest rules. In the WB it will soon be changed to 96 hours until a judge reviews, and a maximum of 15 days extention at a time (today 30 days).
If you google my email name you'll see me and I'd welcome you to see at first hand what you criticize too harshly.

fiddler0 said...

Apart from rights and due process, the other salient point is that a multi-tiered "justice" system is fundamentally at odds with the rule of law. To have one law for some people and another for others, and to choose the law most conducive to the desired outcome - a slap on the wrist or nothing at all for Jews, prison for Palestinians - is to have no rule of law at all. That the US are marching down a similar path is no excuse.

Alon Idan's piece reminds me a lot of Tucholsky's rants against the corrupt judiciary of the Weimar Republic. Unfortunately he seems as lonesome a caller in the wilderness than the latter.

Moshe said...

"so is arresting and convicting guilty people without due process"

While I empathize with the people who had nothing to do with the murder and were unjustly detained/arrested/interrogated, the statement I quoted above is why the left wing is so out of touch with the run-of-the-mill Israeli.

Guilty people who slashed the throat of a three month old baby do not deserve due process. Guilty murderers who destroyed the life of a family do not deserve rights.

Rights are to protect the innocent who might be wrongly accused of such crimes. Those truly guilty of crimes such as those perpetrated by the Itamar murderers are deserving of the treatment that MK Ben Ari volunteered to deliver.

evildoertrail said...

The transcript of the Shin Bet investigation is online:

Shmuel said...

The other shmuel said: "The Israeli system adds a unique (I think) cautionary measure because of this, and demands a "dvar ma nosaf" (extra evidence) to support a confession, such that one cannot find an accused guilty solely on his (maybe illegally obtained) confession,"

This Shmuel says: Israeli military courts often convict Palestinians on the basis of confessions alone (yes, even those obtained under torture).

shmuel said...

To Jerry:
My comment on the military courts is as an Israeli who has lived here for 30 years who serves as a military judge in the reserves and has years of first-hand experience and knowledge of the military courts.
Alon Idan's appraisal of the military court system is full of hyperbole and solely represents a non-representative once off visit to the court (if at all - e.g. prisoners NEVER wear black or grey prison garbs, but brown standard "shabas" garb. If he saw otherwise he is lying and so is much else of what he wrote)

To the "other" Shmuel:
No, you are wrong. What I wrote about a "dvar ma nosaf" applies absolutely to the military courts - there has NEVER been a conviction based solely on a confession without the "dvar ma nosaf" and I challenge you to refute this libel!

Back to Jerry:
My red lines? Sitting as a judge - the law! The law permits accepting illegally obtained evidence, but if so feels will order an investigation into the irregularities if apparent.
As a citizen, the methods of the IDF and the shabak are often too draconian in my opinion.

fiddler0 said...

Moshe, not even military judges are omniscient. "Due process", with all that entails, is the tried and tested method for determining a defendant's guilt or innocence, and their procedural rights are in place to balance the otherwise overwhelming power of the prosecution/state. In short, no due process, no fair trial, and without a trial being fair its outcome will be arbitrary. Jerry's wording that you quoted perhaps wasn't the most fortunate.

As for human (not procedural) rights, you don't seem to have grasped the concept, and illustrate nicely why the "run-of-the-mill Israeli" that you claim to speak for is so out of touch with late 20th/early 21st century western civilisation.

Shmuel said...

The other shmuel: "I challenge you to refute this libel!"

This Shmuel: My information comes from an extreme right-wing Israeli lawyer who also served for many years in the Military Advocate General's unit (reserves), as an attorney and a judge in military courts in the West Bank. Politically, he favoured "transfer", but was US-born and trained and was appalled by the lack of "due process" for Palestinians in Israeli military courts - particularly convictions based entirely on confessions.

shmuel said...

To "the other Shmuel" (Jerry - maybe call one of us Shmuel 1, I volunteer!)

I still think you must have misunderstood him on this point, or he didn't explain about the "dvar ma nosaf".
No military court or other will convict solely on confession without a dvar ma nosaf. (Except if the accused admits guilt in court, then the judge will not know what the evidence is against him, as the court plea is of course not given under duress or "torture")

Please check agan with your friend as meanwhile he is "motzi shem ra" on the courts on this point.

If you are willing maybe Jerry could pass on his details to me privately so I see what he meant?

Shmuel said...

Shmuel 1 (good suggestion),

My friend (with whom I have not been in touch for quite some time), was very clear and very upset (despite his otherwise Kahanist views) by the lack of of justice in military courts in "Yehudah ve-Shomron". He stressed the fact of "conviction based solely on confession" - which he said went against everything he had studied at law school. Perhaps he was simplifying for a layman, and meant that convictions were substantially based on confessions, with no other significant evidence. Or maybe he was referring to plea bargains (the outcome of 95% of all cases according to Chief Military Prosecutor, Col. Liron Liebman) based on confessions/interrogation. In any event, I was impressed by the fact that a man of his political convictions held such a low opinion of Israeli military "justice".

On the chances of a "fair trial" for Palestinians in Israeli military courts, see:
Backyard Proceedings: The Implementation of Due Process Rights in the Military Courts in the Occupied Territories, Yesh Din, December 2007.