Analysis

Waiving Murder Charge in Killing of Palestinian, Israel Fails to Deter Next Jewish Terrorist

Lesser indictment of Jewish teen in West Bank stoning attack proves yet again lenient treatment and shows Israel may be tainted by the Weimar Republic syndrome of setting apart 'our own' patriotic political criminals

A demonstration in support of the defendant in the killing of Aisha Rabi.
Tomer Appelbaum

It is not at all clear why the prosecution has charged a Jewish teen with manslaughter and not murder over an October stoning attack on a West Bank highway that killed a Palestinian woman.

The rock used is said to have weighed two kilograms (4.4 pounds) and was allegedly thrown from only a few meters away — forcefully and from a high place at the front windshield of 47-year-old Aisha Mohammed Rabi's car, which was moving at about 100 kilometers (60 miles) per hour.

As things appear and assuming the prosecution has sufficient evidence to prove the facts in the indictment, it is difficult to see how prosecutors reached the conclusion that they had no reasonable chance of obtaining a conviction for the premeditated killing of Rabi and for attempted murder of the others in her car.

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It was only by a miracle that the driver didn’t lose control of the car. Such prospects are greatly increased in light of the racist motives and the hostility towards Arabs attributed in the indictment to the defendant, who allegedly ascertained that the occupants of the car were Arab before throwing the rock.

It’s also clear that, from the standpoint of racist motivation, a dead Arab man or woman is much better than an Arab who is injured. The same holds true when it comes to the message that such an act is meant to convey to Palestinians living in the West Bank — and the deed’s potential to ignite the situation on the ground.

Following the amendment of the homicide laws by the Knesset since Rabi’s death, a mental state of indifference is enough to turn a killing into murder, but it doesn't apply retroactively, and as a result, the indictment reflects the state of the law at the time of the act, making it a crime of manslaughter.

There is a substantial difference between manslaughter, the maximum punishment for which is twenty years in prison — which as a category includes a killing committed with indifference as well as a killing resulting from a hasty act (despite the hope that there would be no lethal outcome) — and murder, which carries a mandatory sentence of life in prison, albeit not mandatory in the case of a minor.

The difference between the two crimes is not only in the severity of the punishment, but also in the stigma that the conviction carries. The mark of Cain on someone convicted of murder is not the same as the stigma of a manslaughter conviction.

Aisha Rabi
Jaafar Ashtiyeh/AFP

We have become used to the privilege accorded to those who kill Arabs in the course of security operations. Even when the killing is premeditated, they are only found guilty of manslaughter, as had happened in the case of Elor Azaria, the soldier who killed a Palestinian in Hebron who was on the ground. Does such a privilege, which is accorded to members of the security forces, now also excuse the acts of civilians who break the law, as long as they are good Jews?

The question is not just one of doing justice but of deterring ideologically and politically motivated crimes, which is particularly hard to do, all the more so when it's wrapped in various expanding circles of social support. These include thwarting the efforts of law enforcement, expressions of understanding for the crimes committed and the absence of objection or condemnation of the acts by public figures. And on the broadest level, people who have reservations concerning the means employed but share the same political objectives.

Under such circumstances, it’s a serious mistake on the part of law enforcement to convey an attitude of leniency, downplaying the gravity of the offenses. Not only does such an attitude not create a deterrence; it may actually encourage lawlessness.

When the law enforcement system in the wider sense addresses terrorist acts by Jews, its point of departure is problematic. It is still burdened by the original sin of how the so-called Jewish Underground of the 1970s and 1980s was handled. Its members were treated relatively leniently in court and sentences were later reduced by the president at the time. They also enjoyed special treatment in prison, and their public standing was not diminished in the least. No legal proceedings were launched against the spiritual leaders who inspired the acts — some of which were among the most dangerous in Israel’s history, such as the conspiracy to destroy the Al-Aqsa Mosque.

Law enforcement agencies must treat everyone equally. That is what their representatives told Knesset committee hearings on the anti-terrorism law. But such declarations are easily thrown into doubt. It’s obvious that if a non-Jewish cleric would say what Safed Rabbi Shmuel Eliyahu has said (and it’s hard to believe it was said by a rabbi), he would have been swiftly arrested and interrogated for incitement to violence and terrorism.

Israel is being put to the test. Is it committed to the equality of human life or is it tainted by the Weimar Republic syndrome, making a distinction between “our own” patriotic political criminals and political criminals (from the left) who are not patriots, with the former getting lighter treatment than the latter?

Does Israel’s battle against terrorism embody a just and moral stance — protecting non-combatants from those who seek to threaten them for political or ideological reasons? Or is it making use of animosity and hatred towards Palestinians, whom the government has presented as our perennial enemy?