Published by The Freeman Center
The Maccabean Online
Political Analysis and Commentary
Column One: Israel\'s accountability problem
On April 10 two brothers are scheduled to begin serving prison sentences for a crime they never committed. Yitzhak and Daniel Halamish were convicted of aggravated assault and were sentenced respectively, to seven and eight months in jail.
The two men, who live in Ma\'aleh Rehavam south of Bethlehem, were arrested on February 22, 2004. The day before their arrest, the brothers were serving as IDF-trained and armed security guards in their community. They were called by Baruch Feldbaum, the head of security at the neighboring Sde Bar community, to assist him in dispersing an illegal gathering of Beduin in land adjacent to Sde Bar.
Feldbaum\'s concern over the gathering was heightened because Beduin shepherds are suspected of having carried out a number of unsolved terrorist murders in the area. These include the murder by stoning of 14-year-olds Kobi Mandell and Yosef Ish-Ran on May 8, 2001. Feldbaum feared that the Beduin were conducting surveillance of the community ahead of a future attack.
Armed with their IDF-issued M-16 rifles, augmented in Yitzhak\'s case by a handgun, the Halamish brothers rushed to the scene. Once they arrived the two were surrounded by some 20 rock and club-wielding Beduin. In an attempt to disperse the hostile crowd, and enable the Halamish brothers to escape unharmed, Feldbaum shot a warning shot into the ground. Yitzhak Halamish similarly shot a warning shot in the air with his handgun. The two brothers then pushed their way out of the crowd.
Later in the day, the Beduin filed a complaint with the police against the three guards. They alleged that Feldbaum and the Halamish brothers all shot at them with their rifles and beat them with their fists.
The issue of who was telling the truth was not a purely subjective question of whom to believe. When the police arrested the Halamish brothers, they also seized their rifles. The Halamish brothers had both denied ever shooting their rifles at the scene. Had the police wished to objectively weigh the credibility of the two sides, they could have conducted ballistic tests of the rifles to determine whether or not they had been used. But they did no such thing. Rather, they indicted Feldbaum and the Halamish brothers for aggravated assault and sent them to trial.
Feldbaum was found guilty based on his admission that he shot his rifle. He was sentenced to nine months in prison. His sentence was later reduced to six months community service by then president Moshe Katsav.
Given their denials of ever shooting their rifles, the Halamish brothers were convicted based on the Magistrate Court judge\'s decision to believe the Beduins\' accusations and reject their defense. In his ruling, Judge Amnon Cohen did not take the police\'s decision not to conduct ballistic tests of their weapons into consideration. His convictions were upheld on appeal to the Jerusalem District Court. The Supreme Court refused to consider the case.
Attorney Yoram Sheftel, who represented the brothers on appeal, focused his arguments on the police\'s refusal to conduct ballistic tests of their rifles. According to Sheftel, in standard criminal cases, police refusal to examine potentially exculpatory evidence is grounds for an automatic dismissal of charges. In convicting the Halamish brothers and upholding their convictions, Sheftel argues that the courts ignored standard criminal procedures.
Today, with the courts closed to them, the Halamishs\' only hope for avoiding prison is a presidential pardon.
Supporters of the Halamish brothers have launched an interesting campaign to lobby for clemency. They have asked for US citizens to call the office of Israel\'s military attaché at the Israeli Embassy in Washington and demand that the IDF advance their pardon requests with the Justice Ministry and Beit Hanassi. Since the Halamish brothers were effectively acting as soldiers while performing their security responsibilities, their supporters contend that the IDF is honor-bound to defend them.
But the campaign doesn\'t stop there. Supporters have also asked US citizens to contact their Congressmen and ask them to send inquiries about the case to the embassy. Finally, they have asked US citizens to contact the State Department and complain that the State Department\'s Human Rights report on Israel is silent on the government\'s abuse of Jewish civil rights.
THE NOTION of running a campaign for an Israeli presidential pardon of Israeli citizens in the US is alarming for what it says about the Halamish supporters\' perception of Israeli democracy. Specifically, as Datya Yitzhaki from Pidyon Shevuim who has spearheaded the campaign argues, they believe that domestic pressure will have no impact on either Israeli political leaders or on the justice system because in their view the Olmert-Livni-Barak government feels no need to account for its actions to Israeli citizens. Indeed, they contend that the only force that can hold the government and the legal system accountable is international pressure and fear of international condemnation.
Organizations like Women in Green and Pidyon Shevuim who are running the campaign cite as precedent the case of Tzvia Sariel. Sariel, 18, was arrested last December on assault charges. She was accused of attacking Arabs who entered her community of Eilon Moreh on December 4. Sariel was incarcerated for three and a half months.
On March 5, the allegedly assaulted Arabs appeared in Kfar Saba Magistrate Court and recanted their accusations against Sariel. One claimed that since he is illiterate, he had no idea what he was signing when he signed his complaint against her. Yet, despite the fact that the prosecution\'s case fell apart in front of her, trial judge Nava Bechor ordered a continuance until April 4 and sent Sariel back to prison for another month.
An outcry ensued and activists in the US began calling the embassy and the State Department. On March 19, Bechor dismissed charges against Sariel and sent her home. Her supporters believe that without their US campaign, Sariel would still be sitting in prison for a crime that she didn\'t commit.
Depressingly, activists fighting against civil rights abuses of right-wing opponents of government policies are probably on to something. Through their own actions, Israel\'s leaders show daily that they are willing to ignore strategic imperatives and their domestic political opponents. Their actions show that indeed, the only pressure that seems to get them to change course is international pressure.
Take Foreign Minister Tzipi Livni for example. Since assuming office two years ago, Livni has repeated at countless public appearances that Israel supports a "two-state solution." By couching her government\'s support for the establishment of a Palestinian state in these terms, Livni implicitly (and often explicitly) argues that Israel - which has existed for 60 years and whose legitimacy is rationally inarguable - can only exist legitimately if a Palestinian state is established. By making this assertion Livni effectively places Israel\'s right to exist on the negotiating table.
And yet, for his part, Palestinian Authority Chairman Mahmoud Abbas has repeatedly repudiated Israel\'s right to exist. By agreeing to negotiate the "two-state solution" with a man who rejects Israel\'s right to exist, Livni, Prime Minister Ehud Olmert, Defense Minister Ehud Barak and their colleagues are effectively saying that what reality exposes, and Israel\'s citizenry supports, is irrelevant. The Palestinians alone can confer legitimacy on Israel. And of course, as Abbas has made clear repeatedly, they never will.
In a speech this week to the foreign press corps, Olmert similarly demonstrated that the only support he is interested in securing is foreign support. During his remarks, Olmert claimed that he wishes to conduct negotiations with the Syrian regime towards the surrender of the Golan Heights to Syria. Olmert\'s statement came just days after President Shimon Peres publicly opposed such negotiations on strategic grounds. In remarks Sunday during a joint press appearance with visiting US Vice President Richard Cheney, Peres explained that Israel has no interest in conducting negotiations with Syria because, "If the Golan is given back, it will boost Iran\'s influence in Lebanon and the territory will effectively be under Iranian-Syrian control." But when he spoke approvingly of talks aimed at surrendering the Golan Heights to Iranian-Syrian control, Olmert was not concerned with strategic realities. He was similarly unconcerned with what the Israeli public - which opposes such negotiations - believes is in Israel\'s national interest.
When Olmert made that statement he was interested in what the international, overwhelmingly anti-Israel media would think and write about him personally. And so he went on record supporting an initiative that undercuts Israel\'s national interests.
Finally, there is Barak\'s behavior in advance of Secretary of State Condoleezza Rice\'s arrival in Israel on Saturday night. When Rice was in Israel on March 4, she pressured the Olmert-Livni-Barak government to abandon efforts to secure southern Israel from Hamas\'s missile campaign in favor of a cease-fire with the Iranian proxy movement. Eager to please her, the government ordered IDF units to beat a speedy retreat from Gaza.
Today, although the government continues to restrain the IDF, the cease-fire is a joke. Over the past two weeks alone, the Palestinians have launched more than a hundred rockets and mortar shells at Israel. They have further augmented their attacks with sniper fire against Israeli farmers tending fields along the border with Gaza. Hamas is openly using the respite to replenish its arsenals and expand its control over the lives of Gaza\'s citizens. Moreover, unopposed by Israel, Hamas has succeeded in forcing Egypt to release Hamas terror masters from jail, and has convinced Fatah to negotiate the reestablishment of a unity government with Hamas.
Rice is expected to continue pressuring Israel to let Hamas continue to attack at will. She is also expected to attack Olmert, Livni and Barak for the IDF\'s counter-terror operations in Judea and Samaria.
In an effort to preempt her assault, Barak announced this week that Israel will allow the PA to import some 600 armored personnel carriers from Russia and deploy hundreds of Fatah forces in terror-infested Jenin. He also agreed to ease travel restrictions on Palestinians in Judea and Samaria.
Barak knows full well that these actions will imperil Israel\'s security. His own people refer to the moves as "calculated risks." He knows full well that opposition leader Binyamin Netanyahu was right when he warned on Wednesday that "those weapons will be turned against IDF soldiers." He knows that by curbing counter-terror operations he will imperil Israeli civilians. But here too, Israel\'s inherent right to self-defense and the government\'s sovereign duty to secure the country and its citizens is ignored by the government in order to win points with foreigners whose interests are far from identical to Israel\'s.
THE HALAMISH brothers\' supporters are not people who reject Israel\'s legitimacy. They certainly would never deny its right to defend itself. Indeed, they are among the most vocal opponents of foreign onslaughts against Israel.
It is a sad commentary on the state of Israeli democracy that patriotic Israelis have come to the disheartening view that their only chance of receiving justice in Israel is to take their campaign to foreign governments. By inducing them to feel this way, the Olmert-Livni-Barak government is taking another step towards the delegitimization of Israeli sovereignty.