By Peter Beaumont
2 May 2018
Two sharply contrasting sentences were handed down recently by Israeli courts.
In the first case a teenage Palestinian girl, Ahed Tamimi, was accused of slapping an Israeli soldier. Although she caused the soldier no physical harm, her assault was regarded by the Israeli military court that tried her behind closed doors as warranting incarceration for eight months.
The second example concerns an Israeli border police officer, Ben Deri, who shot and killed a Palestinian teenager, Nadeem Nawara, at a demonstration in 2014 where – the court in Jerusalem accepted – the youth posed no threat to the policeman officer or other security forces.
Nawara was one of three teenagers shot that day, two of whom were killed, with Deri prosecuted only in one killing.
The court gave him the benefit of the doubt that his act was not deliberate but a mistake. It accepted that Deri had negligently loaded a clip of live ammunition, and in a second act of negligence he had also fired his weapon, not noticing he had failed to load a plastic round into a barrel extension attached to the gun.
Because of this Deri will serve just nine months in prison, a month longer than Tamimi who killed no one.
It is an issue that has been dramatically underlined in the past few weeks by the dozens of fatalities – including two journalists and four minors – inflicted by live fire from Israeli troops on Palestinians protesting at the Gaza border fence.
The UN human rights chief, Zeid Ra’ad Al Hussein, has condemned the Israeli military’s use of “excessive force”. But the evidence suggests there is little chance of those deaths being adequately investigated.
Because what is doubly disturbing about the two cases mentioned above is that they are not in any way unique. Instead they are examples of a widespread discrepancy between how Israel’s justice system deals with soldiers accused of illegal acts, including killings of Palestinians – and how it treats Palestinians who come before its courts.
The Nawara case, in particular, is one that has a special resonance for me. In the almost four years I spent reporting from Israel and the occupied Palestinian territories, covering violence by both sides, the shootings on that day in 2014 seemed particularly egregious.
Ben Deri, in all probability, would not have been prosecuted at all if not for Nadeem Nawara’s father, Siam – a man I found to be dignified and brave in his grief. He allowed his son’s body to be exhumed for an autopsy, unusual in the prevailing culture.
And the long drawn-out trial process did little to dispel the suspicion that justice had not really been done in a place where there is not one but two justice systems: Israel’s civil courts inside the green line and a system of military justice in the occupied territories whose main function, allege critics, is to underpin the occupation.
The result is what the Association for Civil Rights in Israel has described as a mechanism for “institutionalised discrimination” which has “given rise to two separate and unequal systems of law that discriminate between the two population groups living in the one territory – Israelis and Palestinians.”
In other words, the quality of justice you can expect is defined by who you are.
And while in cases like that of the Israeli medic Elor Azaria – videotaped delivering the coup de grace to an incapacitated Palestinian attacker – Palestinians and Israeli soldiers might be dealt with by the same prosecutors working for the army, it is there the comparison ends.
For Israeli soldiers and police, in particular, a broad assumption of innocence exists in Israeli Jewish society, reflected in the high level of political and public support for Azaria that was quick to find excuses for his actions.
The consequence, as available data reveals, is a highly systematic bias. As a 2016 report by the Israeli human rights group Btselem revealed that in investigations involving Israeli soldiers accused of wrongdoing, there is an overwhelming, although tacit, assumption that they acted “lawfully”.
In 739 incidents in which Btselem asked for an investigation – including cases where soldiers killed, injured and beat Palestinians, or used them as human shields or damaged Palestinian property - a quarter of those requests resulted in no investigation ever being launched.
In addition, in nearly half the cases the investigation was closed with no further action, with only a handful of cases in the period – 25 in total - seeing charges brought, usually against “low ranking soldiers only”.
Another feature of many of these cases – before both the civil and military courts – is how the proceedings can be dragged out for years with the severity of the charges often being incrementally reduced by successive negotiations over plea bargains whose aim appears to be the delivery of the lightest sentences.
In the Ben Deri case, that saw an initial proposed charge of manslaughter reduced to causing death by negligence.
For Palestinians before Israel’s courts the story is entirely different, indeed almost inverted. Where few Israeli soldiers or settlers are ever even charged, for Palestinians before the Israeli military court system the rates of conviction for many years has been upwards of 90%.
The use of plea bargains in these courts, critics contend, serves an entirely different function: to persuade defendants – usually already being held in custody – to agree to a guilty plea, often against the threat of an even longer sentence, or of a process that can seem open ended.
It is not only cases involving the security forces where the disparity is evident. According to the Israeli NGO Yesh Din, last year in a survey of what it described as “ideological” offences by settlers against Palestinians, only 3% of such crimes since 2005 had led to a conviction.
For Palestinians before the justice system - or, like Siam Nawara and his family, seeking justice – it looks very much like a rigged system.
Peter Beaumont is a Guardian writer who has reported extensively from conflict zones including Africa, the Balkans and the Middle East