Australia/Israel Review

Trying Times

Mar 29, 2018 | Ahron Shapiro

Trying Times
Ahed Tamimi in one of her many confrontations with Israeli military personnel

Myths and Facts about the Ahed Tamimi case

Last December 15th, in the village of Nabi Saleh on the West Bank, then 16-year-old Palestinian Ahed Tamimi once again placed herself in front of a camera.

For years, Tamimi has been the subject of exploitative, incendiary videos on social media on her confrontations with Israeli soldiers recorded by her notorious extended family of virulent anti-Israel activists that include a convicted suicide-bombing organiser and other outspoken terror sympathisers. [For more, see “How a Family Became a Propaganda Machine”, Petra Marquardt-Bigman, Tower Magazine, Nov. 2015).

In her latest video, however, she crossed a line, slapping and lunging punches toward two IDF soldiers who had stationed themselves on the edge of the family’s yard as part of an effort to quell a nearby stone-throwing riot.

But she didn’t stop there. Tamimi then incited her followers to commit acts of terrorism, saying “[US President Donald] Trump has declared the decision and they have to take responsibility for whatever their reaction is whether it’s stabbing attacks, or suicide attacks, or stone throwing, everyone must do things so we can unite this way so we can get our message across in the required way, and get this result, that is the liberation of Palestine.” [Emphasis added]

Her arrest four days later and subsequent legal proceedings made Tamimi an international cause célèbre, including in Australia,with widespread media coverage, NGO outrage and parliamentary attention even in Canberra.

This seems unlikely to end despite Tamimi agreeing to a plea bargain for an eight-month jail sentence and a NIS 5,000 (about A$1,800) fine on March 21.

Yet media reports had overwhelmingly focused on unrealistic worst case scenarios, misleadingly suggesting much higher jail terms were likely in store for Tamimi. For example, an online report on the ABC’s website for the TV news program “7:30” by Middle East correspondent Sophie McNeill on February 20 stated simply that “The teenager was charged with assault and incitement – charges that could lead to up to 10 years in prison.” However an earlier ABC report from Jan. 2 composed of combined copy from Reuters and AP included some missing context, noting that “An adult found guilty of assaulting a soldier could be jailed for up to 10 years, but such an outcome would be unlikely for Ms Tamimi as a minor.”

In reality, under the terms of her plea bargain, Tamimi could be released for good behaviour as early as May 19 (six months from the date of her arrest).

In addition, despite the fact that the seven-page indictment against Tamimi is readily available in Hebrew and has been unofficially translated into English, virtually every news report left out vital details about the extent of the charges against Tamimi.

Far from being “jailed over a slap”, Tamimi faced 12 charges, only five of which involved the events of December 15, 2017. An additional three charges involved alleged crimes that took place on December 8, 2017, while one allegedly took place on May 26, 2017, two on May 12, 2017 and one on April 1, 2016, including attacking soldiers, throwing rocks, obstructing soldiers and incitement.

Moreover, the lengthy 20-month spread between her first alleged offence and the date of her arrest would certainly seem to suggest that, not only was Tamimi’s eventual arrest amply justified, but that the IDF showed a great deal of patience and restraint when dealing with Tamimi’s repeated violent outbursts over the years.

To shed more light on the subject, AIJAC contacted Israeli attorney Avi Skurik, who has spent his career on both sides of the Israeli military justice system.

Skurik served for nine years in the Military Advocate General’s (MAG) Office as a senior military prosecutor in hundreds of complex criminal cases. Today, he runs his own private practice in Haifa specialising in representing defendants in military court.

AIJAC conducted an exclusive email exchange with Skurik several days before the plea bargain. Skurik’s commentary demonstrates that the media reports about Tamimi’s potential sentence were not only grossly misleading given how sentencing in Israel actually works, but highly inconsistent with typical sentences given to Palestinian minors for similar offences.

We asked Skurik what the maximum penalties are for each of the 12 charges laid against Ahed Tamimi and whether the penalties could be accumulated into a long sentence. In response, he listed the charges and maximum penalties in years, grouping them by the dates of the incidents cited:

Avi Skurik: Dec. 15, 2017: Threatening a soldier, five; Attacking a soldier under aggravated circumstances, 14; Obstructing a soldier, five; Threatening a soldier, five, Incitement, 10.

December 8, 2017: Throwing of objects towards a person or property, ten (two years minimum, unless unusual circumstances exist); Attacking a soldier, seven; Obstructing a soldier, 5.

May 26, 2017: Obstructing a soldier, five.

May 12, 2017; Attacking a soldier under aggravated circumstances, 14; Obstructing a soldier, five.

April 1, 2016: Throwing of objects towards a person or property, ten (two years minimum, unless unusual circumstances exist).

In theory, these punishment periods can be served consecutively. In practice, this doesn’t happen because even for serious offences, prison terms for different offences overlap.

The indictment usually contains all possible offences the offender might be charged with, even offences with little chance of conviction.

Usually, punishment is determined through plea bargains between the prosecutor and the defendant’s lawyer, which leads to having a significant part of the offences being dropped as part of the plea bargain, or some indictments changed.

Specifically, regarding Tamimi, there are stricter legal procedures when it comes to the arrest of minors and with regards to enforcing significant prison sentences on minors.

Tamimi’s verdict will lead to a lot of media attention – hence, heavy punishment may result in unrest. This would also be a consideration.

The most significant offences in the indictment are attacking a soldier under aggravated circumstances and throwing stones towards a soldier. Even these offences are on a relatively low scale – the violence did not lead to the soldiers being injured, nor was it stated that the stones hit the soldiers. The scope of the final indictment is dependent on the strength of the evidence in every separate indictment and on the negotiations between the two sides. Particularly in cases involving Palestinians, we often see greater flexibility when it comes down to watering down the indictment in exchange for an admission to the core offences of the indictment.

Many of the reports of Tamimi’s case also note the high rate of convictions in Israeli military courts – the ABC’s report on February 20 cited a figure of 99.7% (an oft-quoted number that apparently has its origins in a claim made in single article in Ha’aretz from Nov. 2011). We asked Skurik to supply us with an explanation of this allegedly high rate of conviction and its significance.

AS: Conviction rates in the Israeli justice system, both the civilian and the military, are indeed high due to a few general similar characteristics of the legal systems.

1) Incidents are only submitted to the court when the quality of the evidence is high. This is because cases with reasonable doubt simply close.

2) Cases with no evidence or insufficient evidence to prove the offence are closed by investigators even before they reach the prosecutor’s office.

3) Most of the cases in Israel, and the same applies when it comes to the Palestinians, end with a plea bargain about the indictments, the offences and the punishment. Offenders agree to plea bargains because they know that chances of conviction are high, and that going to a trial would most likely mean a more severe punishment than what the prosecutors are asking for in the plea bargain.

4) There is an additional mechanism called “retracting on the indictment”. In cases where there is an indictment, but the prosecutors come to believe that conviction will not follow, the prosecutors can retract and annul the indictment. In such a case a person is neither cleared of the offence, nor convicted [and hence, not included in the statistics].

5) Indictments usually include many offences and events – some of them well founded and beyond doubt, others in some doubt or are such that the offender and the defence lawyer can raise doubts about them. As part of the plea bargains, which are a product of negotiations between the prosecutor and the defendant’s lawyer, the defendant would confess to the offences based on the strength of the evidence in each offence. Alternatively, indictments are changed or reduced based on the status of the evidence. Hence, a person facing multiple indictments is most likely to admit at least some of them as part of the plea bargain and then the defendant’s admission of guilt is counted in the 95% conviction rate.

6) Accused people who are under arrest are more likely to admit their guilt as laid out in the indictment as opposed to ones who are not under arrest (and almost all accused Palestinians remain under arrest until their case is brought to the court). There are many reasons for that, one of which is that while the case is maturing towards conclusion, the accused spends a substantial amount of time in prison and the chance of reaching an agreement with the prosecution increases.

In the matter of cases specifically against Palestinians, there are other unique factors:

1) The confession rates by Palestinians following investigations is very high when compared to other people. I assume this is a result of several factors: Palestinians may be more likely to admit ideologically motivated crimes (i.e., most Palestinian murderers admit to killing. Most other murderers deny it). Investigation of Palestinians is often conducted through the Shin Bet [a body similar to Australia’s ASIO] who have extended abilities and authority to achieve confessions (better technology, better training with regards to the psychology of investigation and interrogation etc.)

2) Palestinians often have incentives to admit a crime and even may wish to have their punishment be more severe, as families of Palestinian inmates receive an allowance from the Palestinian Authority which increases according to the length of incarceration. I have heard of cases where a nine-year sentence was offered to a Palestinian, who requested it be increased to 10 years to ensure his family’s allowance would be higher – and it’s a lifetime allowance for the family!

3) Furthermore, some Palestinians would actually commit an offence in order to receive the PA subsidy and would admit to an offence to ensure the allowance is granted [even if they had not committed the offence].

4) Serving time in an Israeli prison and/or conviction is a type of status symbol for a Palestinian and could assist him/her later socially.

5) The percentage of Palestinians incriminating others, whilst also confessing to their own crimes, is high. The content of investigations is well documented by the Shin Bet, using the latest technology. This means that even if five years have elapsed since the interrogation of a Palestinian, the Shin Bet are able to quickly access all previous interrogations where this person was mentioned.

6) Some of the investigations start with home searches. The soldiers conducting the search are trained to collect, preserve and document evidence, so in due course the people who committed the crime can be more easily tried in court (for example, holders of illegal weapons).

7) Some of the offences, as in the Tamimi case, are recorded on video either by the Palestinians or by the IDF. With such documentation available, conviction becomes easier.

8) The quality of the defence lawyers – accused Palestinians receive free legal representation paid for by Palestinian funds. A large number of these lawyers are graduates of Palestinian educational institutions and some don’t even speak Hebrew. The quality of representation may be a factor contributing to the high level of convictions.

Skurik concluded his correspondence with AIJAC with his personal reflection and insights on the military justice system:

AS: Conviction rates do not tell the whole story. There are, as I’ve explained, many factors which lead to these outcomes, some of which are contradictory. No prosecutor, not even a military one in Palestinian cases, wants an innocent person to be convicted.

You cannot examine conviction rates of Palestinians separate from conviction rates in the Israeli judicial system in general.

In my opinion, the key is to reduce the chance of convicting innocent people by increasing the quality of Palestinian legal representation on the one hand and adding more IDF prosecutors on the other. If the Palestinians would get better representation, they would be able to better defend the accused and flag problems with the evidence. And, if there are more army prosecutors – then the prosecutors could dedicate more time to each case, to make sure that only cases with enough evidence reach the court.

Another factor in my opinion that must be completely neutralised and we must fight against, if we want true convictions, is the issue of family allowances for terrorists and other Palestinians accused of crimes. The economical consideration leads to offences being committed and to accused suspects admitting to offences [they might otherwise challenge].

Postscript: Following the announcement of the Tamimi plea bargain, Skurik sent AIJAC the following update:

[In the end] Tamimi was only indicted in four [out of the 12] of the offences attributed to her. And to the best of my understanding, even those were converted to lesser offences than originally attributed to her.



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