INTO THE FRAY: Duma-Guilt by conjecture?

 BY Martin Sherman

 Perhaps the most disturbing issue, raised by the cloud of doubt, enveloping the Duma-related legal proceedings, is the tangible possibility that the real perpetrators of the gruesome murders may still be roaming around free—secure in the knowledge that someone else will pay for the atrocity they committed

 Terror is terror. Whether it comes from Arabs or Jews”. Shai Nitzan, former State Attorney, on the Duma arson, December 31, 2018. 

This is a black day for the state of Israel…A day on which an Israeli court set its hand to convicting a man whose innocence cries out to the heavens—The defense team, after the conviction of Amiram Ben-Uliel for murder in the Duma arson case, May 18, 2020.

Imagine a country, in which a Jewish citizen was convicted of brutal murder, despite the fact that his confession was extracted from him by “enhanced interrogation” (aka infliction of physical pain); that his confession contradicted all eyewitness evidence at the scene; that he was denied access to legal counsel for an extended period during his interrogation; that, before and after his alleged crime, numerous similar attacks have been repeatedly perpetrated; and that all reasonable doubt and alternative accounts of the event were totally disregarded in assigning his guilt.

Clearly, such a case of blatant anti-Jewish bias would be expected to elicit dismayed outrage and virulent protest from Israel as the Jewish nation-state, whose very raison d’etre is, largely, to shield Jews from precisely such Judeophobic prejudice and prevent such flagrant cases of anti-Jewish abuse from taking place.

Yet the bitter irony is that it is not really necessary to imagine such blatant Judeophobic disregard of due process. On May 18th, it actually took place! In Israel!

Full disclosure: My natural bias 

On that fateful day, the Lod District Court convicted Amiram Ben Uliel, a religious Jew, of the murder of three members of the  Dawabsheh family, when, according to the ruling, he set their home ablaze in July 2015 

Now, as I have written in the past, I have a strong personal bias in favor of the Israeli security services and the intelligence community, in whose ranks I served for several years. I have the greatest esteem for the dedication, commitment and professional competence of those who serve in them. Perhaps more than many, I have a keen appreciation for the effort, risk and at times, sacrifice their work involves.

In stark contrast, I have little or no affinity for the “hilltop youth” (with whom the defendant was reportedly associated)—neither with regard to their theo-political ideology nor with the practical methods of operation by which they allegedly strive to implement it.

In large measure, my decidedly non-observant socio-cultural milieu is the antithesis of theirs, with its all-encompassing, faith-based fervor.

Yet, despite my natural proclivities, ever since the fatal torching of the Dawabshehs’ dwelling in the ill-fated village of Duma at the end of July 2015, I have felt a growing uneasiness at the handling of the affair—particularly regarding the official response—read “capitulation”—to the (understandable) outcry of public shock and fury that followed the tragedy.

Sadly, this took the form of what can only be described as a knee-jerk reaction, not only by almost immediately attributing blame for the act to Jewish “terrorists” (despite the absence of any evidence to substantiate the allegation), but by adopting extra-judicial measures to contend with it, similar to those employed against Arab terrorist organizations.

Grave misgivings

I articulated my misgiving in a series of almost ten articles, over a period spanning three and half years. In them, I also underscored the absurdity of the attempt to draw any parallels between transgressions of the Jewish “hilltop youth” and the those of organizations such as Hezbollah and Hamas, and hence to the totally unjustifiable denial of due process during their incarceration. See:

Jewish hate crimes and vandalism are NOT terrorism; Trivializing ‘terror’; Duma, ‘dirty dancing’ & deeply disturbing detention; Presumption of guilt; Jewish ‘terror’–A guide for the perplexed;  Duma-one year (and three arson attacks) later; The forgotten fire? ; and“Terror”, tigers and tabby cats.

Since then—and particularly after the May 18th conviction—those misgivings have only grown more perturbing.

True, the Lod District Court did find that Ben Uliel did not belong to a terrorist organization—but, somewhat paradoxically, that only made the rationale behind the ruling even more difficult to fathom.

After all, it cast grave doubts on the justification for the use of “enhanced interrogation”, without which it is unlikely that any confession would have been extracted from Ben-Uliel. Indeed, to the best of my knowledge, no information has been released (read “even exists”) on the identity of the organization he was suspected of belonging to; where its headquarters were; what its sources of funding were; what menacing infrastructure it has/had for staging waves of terrorist activity; what its planned attacks were to be and when/where they were to be carried out?

The “ticking bomb” claim

The latter issue is of crucial importance.

For, despite the vigorous legal debate on the justification of “enhanced interrogation”, the courts have only tended to condone the use of “physical pressure” on detainees if the situation is considered a “ticking bomb” one—i.e. when it is imperative to extract information to prevent an impending terror attack and to save lives that otherwise might well be lost.

Clearly then, if a detainee is not a member of a terrorist organization—but acting on his own, as the Court ruled Ben-Uliel was—he is highly unlikely to constitute a “ticking bomb”—as the very fact that he is in custody would imply that he is unable to perpetrate any planned act of terror. In other words, “enhanced interrogation” is not an admissible measure to be used in resolving acts of terror perpetrated in the past, but may be so when used to prevent an impending one, intended to be perpetrated in the future.

Thus, in an otherwise mealy-mouthed editorial, the Jerusalem Post writes: “There is no reason for the Shin Bet to act to extract a confession at any cost; there is every reason for the security agency to act to obtain the intelligence that can thwart planned violent attacks before [it] can take place…”

Of course, given the grave ex post doubts as to whether he committed the Duma arson, one might well be excused for feeling a puzzled concern over what ex ante suspicions Ben-Uliel’s interrogators entertained regarding some future atrocity he was scheming to commit.

Intentionally false pretexts, or unintentionally false assumptions

Indeed, in a 2018 conference on the enhanced interrogation methods of the Israel Security Agency (Shin Bet), even one far-left, pro-Palestinian activist singled out the Duma episode as one, where use was made of “a ‘ticking bomb [claim]as a reason to torture suspects even when, like in the Duma case, the interrogation is dedicated only to solving a past issue.”

Accordingly, there seems little doubt that permission for “enhanced interrogation” was obtained—if not under intentionally false pretexts—then under unintentionally false assumptions.

Indeed, in this case, the “ticking bomb” claim rings increasingly hollow in light of the fact that Ben-Uliel remained un-apprehended for around six months, during which he never engaged in—and was never accused of engaging in—any other terror-affiliated activity—leaving concerned citizens to ponder over just what “bomb”—if at all— was “ticking” anywhere outside the interrogators’ unbending resolve to bring about a conviction.

There is, of course, considerable justification for the adoption of harsh interrogation methods when there is a genuine and well-founded suspicion that a detainee is withholding information that could prevent a planned terror attack and may save lives. However, its abuse, in instances where there is little indication that this is so, will be seized on by the measure’s opponents and can only work to jeopardize its future use in cases where such belief is far more substantial and substantiated.

Significantly, in a recent media interview, the former Deputy Head of the Shin Bet, Yitzhak Ilan, recalled an incident in which a confession to and even a reenactment of terror attack proved to be false,  much to chagrin of many in the law enforcement establishment.

Ilan warned: “When you get a false confession from a suspect and imprison him, you cause   damage–[as] the actual terrorist in the field keeps carrying out attacks and the security forces’ alertness drops because you supposedly caught the [culprit]”.

Coerced confession

On the day of the conviction, (May 18), the unequivocally Left-wing daily, Haaretz, reported: “Ben-Uliel confessed to the crime three times. Two of Ben-Uliel’s confessions were ruled inadmissible, the first because it was extracted by physical force and the second because it had been given soon after physical force was used. A third confession was eventually accepted.” 

Somewhat bafflingly, the Court dismissed Ben-Uliel’s request that his third confession should also be considered inadmissible—on the eminently plausible grounds that it was only made because he feared being subjected to “enhanced interrogation” again, if he refused to confess to his guilt.

Indeed, some of the statements made by the Court, as reported by the media, are—at least to the layman—both puzzlingly and perturbing.

Thus, the Times of Israel quoted the judges as stating: “We cannot rule out the possibility that this was an act of revenge motivated by racist perceptions held by the defendant, even if he wasn’t a member of an organized terrorist infrastructure.” Similarly, Haaretz noted that: “The judges wrote that they could not rule out that the attack was motivated by a desire for revenge or racism without Ben-Uliel actually being a member of an organized group.” 

I wonder if it is only me who finds this formulation appalling! Indeed, it appears to be a total inversion of due process, wherein the judges are imparting dastardly motives to the accused—unless he is able to prove otherwise.

Judicial acrobatics: Bridging gaps between evidence & confession

After all, in our justice system it is not for the accused to definitively rule out any conceivable incriminating “possibility”, but for the prosecution to definitively rule it in—at least beyond reasonable doubt. If the prosecution cannot do so—and judging by the Court’s somewhat circuitous formulation, it has failed to do so—then it must be ruled out.

Indeed, this is the very essence of the presumption of innocence and the corner stone of the Western justice system.

Unsurprisingly, one member of the defense team excoriated this conduct by the Court, declaring: “After the court accepted the confession and recreation [of the crime] which had been extracted under torture, getting to a conviction was just a matter of judicial acrobatics bridging the confessions with the contradictory evidence which was found in the field.” (See also here.)

Indeed, one of the gravest aspects of the conviction is the stark inconsistencies between all the eyewitness accounts of the arson and the acts admitted by Ben Uliel in his confession, which formed the foundation of his conviction.

Moreover, as we shall see, when such contradictions emerged, the Court seemed eager to provide an alternative explanation to override any benefit, which  such contradiction might provide the accused. 

When several became one?

Significantly, all witnesses reported that at least two assailants were involved, while Ben-Uliel confessed to acting completely on his own.

Moreover, witnesses reported that the assailants arrived and left the village in two motor vehicles. In his confession, Ben-Uliel claimed he entered and exited the village on foot.

Ironically, even members of the Dawabsheh family were at the time highly skeptical as to the veracity of Ben-Uliel’s confession.

In a July 2016 interview, a year after the lethal arson, Hussein  Dawabsheh , grandfather of the infant who died in the blaze, expressed his skepticism at the purported confession. Citing the account of his other grandson, five year old Ahmad, the sole survivor of the attack, he stated: “Ahmad said he saw a number of people. He could not say how many but he talked about several men who beat his father.”

Dawabsheh also wondered how only one man could carry out the attack: “I do not believe it. It needs a number of people—not one or two. Who can enter the village and do this alone. People saw two cars leaving the village.” With considerable justification, he asked: “How can it be one man with two cars? It’s not logical.”

Curiouser and Curiouser?

Indeed, on the very day of the arson (July 31, 2015), several mainstream media entities published numerous reports of eyewitness accounts on what transpired just several hours before. All of them mention multiple assailants.

Thus, for example in the international press:

Amy Davidson of The New Yorker, wrote: “The house had been set on fire by men who… are believed to be Jewish settlers.… Eyewitnesses saw FOUR men, who fled to the settlement of Ma’aleh Efraim.” 

Jodi Rudoren and Diaa Hadid, reported in the New York Times: “Two witnesses said they saw TWO masked men outside the house watching as the family burned.”

In the local media:

Jack Khoury, Chaim Levinson, and Gili Cohen told Haaretz readers: “According to witnesses… TWO masked men arrived at two homes in the village of Duma… They spray-painted graffiti… in Hebrew, breaking the windows of the homes and throwing two firebombs inside… Local resident Mesalem Daoubasah said he saw FOUR settlers fleeing the scene, with several local residents following in pursuit…”. 

Amira Hass, a radical pro-Palestinian journalist, recounted in Haaretz: “A relative of the Dawabsha family, whose house was torched early Friday in a terror attack that killed 18-month-old Ali Sa’ad Dawabsha, has told Haaretz that he saw TWO masked men standing next to the infant’s parents as they lay burning on the ground outside their home.”

Furthermore, expert graphological examination of the Hebrew graffiti on the walls of torched houses in Duma found a “complete lack of similarity” between Ben Uliel’s handwriting and the graffiti, as well clear indications that the graffiti was written by two different people—contradicting both the claim that Ben Uliel sprayed the grafitti and his  confession that he acted alone.

However, according to Haaretz, “In their ruling, the judges wrote that it was impossible to know, based on the evidence they saw, whether there was another perpetrator in the crime. ‘The possibility that the accused is concealing another person who was with him is not unfounded’.”

So, in the absence of any evidence to support the confession, the judges simply speculate there might conceivably be such evidence—but the prosecution merely failed to produce it!!!

Hair-raising stuff this!

As before, the principle of assumption of innocence does not mandate that the defendant prove that possibly incriminating conditions are unfounded. To the contrary, it mandates that the prosecution prove that they are well-founded!

Indeed, this would certainly tend to corroborate the defense’s previous claim that—in order to secure a conviction—the judges were engaged in “judicial acrobatics bridging the confessions with the contradictory evidence which was found in the field.”

But the apparent vagaries in judicial conduct are not the only difficulty that arise with the conviction. There is also the “small” matter of common sense.

Indeed, immediately after Ben Uliel was indicted, Chaim Levinson of Haaretz wrote:

“Apart from the difficulty with the admissibility of the confessions, two additional substantial problems arise. The Shin Bet [Israel’s internal security service] were always convinced that the act was committed by a group. Yet Ben Uliel claims he was alone. Prime facie, his version that he arrived on foot alone, then prepared the fire bomb on the spot and [after torching the houses] fled, raises questions.” 

Stretching the bounds of credibility

Levinson points out trenchantly: “No such event of this kind has ever been perpetrated by one person alone. The second problem is the question of the car. During the investigation, an 18-year old man was arrested on suspicion that his car was used in the arson attack. Together with him, another 30-year old man was arrested…In any event, if there are indications that a car was involved in the arson, how did Ben Uliel commit the attack on foot?”

Indeed, the confession, the methods by which it was obtained and the discrepancies with all eyewitness accounts, raise deeply disturbing questions.

For, to give credence to the claim that Ben-Uliel is indeed guilty as charged, what do we necessarily have to believe?

We would have to believe that: Ben-Uliel, a then-recently married man and father of an infant girl, without any Special Forces training; (a) had the “cojones” and skill, not only to walk over five kilometers—late at night—undetected and unarmed, to reach the village; (b) he by-passed numerous, more-exposed, alternative targets on the outskirts of the village; (c) he managed to infiltrate, again, undetected and unarmed, into the center of an unfriendly village; (d) set one uninhabited building ablaze; (e) then, still undetected, sprayed copious amounts of paint to write the incriminating Hebrew graffiti; (f) then torched the Dawabsheh home; and (f) finally, make a phantom-like escape, egressing the village without trace, never mind being apprehended, leaving no clue to indicate where he had vanished to—all this entirely on his own!! Really?

Ominous and onerous misgivings…

Of course, it should be underscored that he did all this, apparently, without arranging for any back-up contingency for extricating himself, should he be discovered and set upon (read “lynched”) by the inhabitants of the village?

But that’s not all. If Ben-Uliel was merely looking for a random Arab target, why would he not choose a house on the outskirts of the village rather than one in the center, making escape easier? And why would he choose Duma –a village in which the Dawabsheh clan’s homes were being regularly targeted anyway? Perhaps under “enhanced interrogation”, he came up with a plausible answer?

These are all deeply troubling questions, which should be a source of grave concern to every fair-minded citizen of Israel and its advocates abroad.

But perhaps the most disturbing aspect raised by the cloud of doubt, enveloping the Duma-related legal proceedings, is the very tangible possibility that the real perpetrators of the gruesome 2015 murders are still roaming around free—secure in the knowledge that someone else will be punished for the atrocity they committed.

We can only hope that the planned appeal will help disperse some of these ominous and onerous misgivings.

Martin Sherman is the founder & executive director of the Israel Institute for Strategic Studies

---