Shin Bet security service coordinators who stood above the bodies of the two terrorists who penetrated Makor Hayim Yeshiva in Kibbutz Kfar Etzion, south of Bethlehem, on January 24, could barely conceal their surprise. The Shin Bet personnel were well-acquainted with the terrorists, who had intended to perpetrate a hostage-taking attack but were killed at short range by instructors in the yeshiva. The Shin Bet men had helped capture them, following a previous offense a little more than a year earlier, whose modus vivendi recalled the latest attack.
The two assailants, Mohammed and Mahmoud Samarana - cousins - from Beit Ummar, north of Hebron, were arrested in 2006 after infiltrating the settlement of Bat Ayin near Kfar Etzion. The two, together with a third accomplice, broke into a caravan housing two soldiers who were guarding the settlement, threatened the soldiers with a knife and stole a rifle. The incident was classified as criminal (the cousins were not identified with any terrorist group at the time), and the three were sentenced to relatively short prison terms of slightly more than a year in a plea bargain. They were released in the middle of January 2008.
Hardly 10 days passed before the Samarana cousins, who apparently became involved with Hamas while in prison, attacked again. Armed with a knife and a pistol, they broke into the yeshiva, lightly wounded two civilians and took a few students hostage. Only the heroism of the instructors, who charged the two and killed them, prevented a far more serious outcome, along the lines of the attack at Merkaz Harav Yeshiva in Jerusalem six weeks later.
Advertisement
For the security officials in charge of the war on terrorism in the territories, this is not an isolated incident. The military courts, which every year deal with more than 10,000 Palestinians, are a long production line whose judicial standards are far from those that are enforced in the civilian judicial system inside the Green Line. The criticism of the military courts usually emanates from one direction: left-wing organizations and human rights groups. Last December, Yesh Din, an organization that works to counter "the continuing violation of Palestinian human rights" in the territories (as its Web site says) published a blistering report entitled "Backyard Proceedings" on the manner in which Palestinian defendants are denied due process.
Now it turns out that criticism is being leveled from the opposite direction as well: from within the defense establishment. The claim is that the court proceedings make it impossible to exhaust the letter of the law, that the vast number of indictments compels the Military Advocate General's Office to choose plea bargains as a default option. The result is that dangerous individuals, who started out only as accomplices or as failed terrorists, are given too brief prison terms and return too quickly to the terror arena.
These critics are motivated by something radically different from the concerns of the human rights organizations. It is not prisoners' rights that bother the security authorities but the rights of the next possible victim of the prisoners after their release. Some believe the level of punishment is too light in terms of the system's constraints, and that apart from the Israel Defense Forces field commanders in the West Bank and the Shin Bet coordinators who work closely with them, no one is unduly concerned about this. The judicial system is only too happy to rid itself of excess baggage in terms of cases, and the public mistakenly believes the danger of terrorism has passed.
The impressive success of the Shin Bet and the IDF in stemming the wave of terror emanating from the West Bank from 2003 to 2007 (a certain erosion apparently occurred at the beginning of this year) creates a somewhat exaggerated image of quiet and insensitivity to breaches in the anti-terror alignment, of which the Military Advocate General's Office is supposed to be a part.
"It is the intolerable lightness of release [from prison]," a senior security source told Haaretz. "The judicial system in the territories has few resources. It wants plea bargains because it is incapable of conducting thousands of trials simultaneously. A train-station atmosphere is created. This is a weak link in the chain of prevention and punishment of terrorism, despite the supreme effort the military prosecution has made in recent months in a bid to stop the erosion. It received somewhat bigger resources, but in practice, in indictments for an offense that is less than murder, there is little room for maneuver. The bottom line is that terrorists are released too quickly. Every year the Shin Bet and the IDF rearrest dozens of former prison inmates who revert to engaging in terrorism."
In 2007 alone the Shin Bet arrested some 5,000 Palestinians in the West Bank. In that year 2,526 indictments were handed down (a small number of them against wanted individuals who were arrested the year before). The rate of plea bargains is extraordinarily high. According to data of Yesh Din, 9,123 cases were heard in the military courts in 2006 (about a third of them for terrorist activity, the others for disturbing the peace, criminal offenses and being illegally present in Israel). A full-scale trial involving evidence and proof took place in only 130 of these cases (1.42 percent). Relying on data received from the chief military prosecutor, Yesh Din states that fully 95 percent of all court cases in the territories conclude with a plea bargain. By comparison, in the areas covered by the Central District Prosecution and the Tel Aviv District Prosecution, fewer than half the cases ended in plea bargains last year.
The thousands of court cases in the territories are handled by about 40 prosecutors. Their number was recently increased - and it has doubled in comparison to the situation on the eve of the intifada, in September 2000 - but the number of cases meanwhile has multiplied tenfold. The Yesh Din report states that a combination of reasons pushes the parties in the territories to seek plea bargains. Among these are the interrogation methods of the Shin Bet (which include threats and, according to some who have undergone interrogation, also physical means) and the fact that the defendants are denied legal counsel for a relatively long period. These conditions induce many of the accused to confess or incriminate their friends. "The considerable case load in the courts brings all parties involved... to view plea bargains as the fast and efficient way to finish their work on a case," the report notes.
A former military prosecutor who served for many years in the territories says that the first bottleneck is not the courtroom but the Shin Bet's interrogations unit. The reason, surprisingly, is the over-efficiency of the IDF and the Shin Bet in arresting wanted individuals in the West Bank. Compared to the situation five years ago, Israel now has full intelligence and operational control. Very few wanted individuals try to resist arrest. The overwhelming majority, sometimes 15 or 20 in a single night, are rounded up from their homes without any special difficulty. But the Shin Bet detention facilities, though reinforced in terms of detention cells and interrogators in the past seven and a half years, still cannot accommodate them all. The Shin Bet interrogates about half of those who are arrested. It is a hard, exhaustive process that can last a month and produces, in most cases, a detailed confession, often accompanied by the incrimination of other suspects (hence the "rolling" investigation that leads to more arrests).
However, the other half of those taken into custody never encounter a Shin Bet interrogator. They are less interesting from the Shin Bet's point of view, and their interrogation is transferred to the police with a summation of the incriminating evidence against them. These detainees, whose interrogation lasts only a few hours, almost always deny the charges against them. The prosecutors, faced with a case that is not entirely solid (the more so because part of the intelligence information is not revealed in court, for fear of harming sources), and under heavy pressure to conclude the case and move on, prefer plea bargains. "There are quite a few cases in which I settled for a sentence of 10 years, even though in a lengthy trial we could have reached 15 years," a former prosecutor admits. "These are the constraints under which the system operates. I sleep well with that - and you can, too." A senior source in the Military Advocate General's Office says that, "The High Court of Justice rulings today recognize also the positive aspects of plea bargains. There is efficiency, a confession by the accused, who takes responsibility for his actions, and punishment handed down relatively close to the date of the offense. It is no longer something that is done in backrooms, as it once was. Clearly in a plea bargain we have to give something to the other side to reach a compromise. Our role is to ascertain that the price will be reasonable in relation to the case. As in every judicial system, we go to plea bargains in cases where the evidence is weak.
"We, too, are bothered by the fact that dangerous terrorists are liable to get off with a light sentence," the source continues. "That is the nightmare of every prosecutor and judge in the territories: that the thrower of the Molotov cocktail who was not convicted will come back to you in a few years as a murderer of Israelis. But you have to remember that there is also another side to this equation. The Palestinian defense counsel who appear in the courts have gone on strike, because they claim the courts are trying to enforce a level of punishment that is too rigorous. And despite the criticism of the Palestinians, there is a process of 'Israelization' under way in the courts in the territories. The judges are more critical, the procedures are more similar to those in Israeli courts. We do not follow the Guantanamo model [referring to the courts established by the Americans for terrorist suspects, in which the defendants' rights are severely abridged - A.H.], and that is perfectly fine."
Haaretz.com, the online edition of Haaretz Newspaper in Israel, offers real-time breaking news, opinions and analysis from Israel and the Middle East. Haaretz.com provides extensive and in-depth coverage of Israel, the Jewish World and the Middle East, including defense, diplomacy, the Arab-Israeli conflict, the peace process, Israeli politics, Jerusalem affairs, international relations, Iran, Iraq, Syria, Lebanon, the Palestinian Authority, the West Bank and the Gaza Strip, the Israeli business world and Jewish life in Israel and the Diaspora.
