Into the fray: Presumption of guilt

The attempt to equate Arab terrorism against Jews with Jewish “terror” against Arabs is playing right into the hands of Israel’s most vehement detractors.

By Martin Sherman, JPOST

The cumulative feeling left by this [Duma] case is… something that ought to worry every Israeli citizen. – Haaretz, January 5

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. – Amy Davidson, “A Toddler Dies in the West Bank,” The New Yorker, July 31

Two witnesses said they saw TWO masked men outside the house watching as the family burned. – Jodi Rudoren et al, “Jewish Arsonists Suspected in West Bank Attack That Killed Palestinian Toddler,” The New York Times, July 31

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… the settlers fled toward the settlement of Ma’aleh Ephraim. – Jack Khoury et al, “Palestinian Infant Burned to Death in West Bank Arson Attack; IDF Blames ‘Jewish Terror,’” Haaretz, July 31

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. –Amira Haas, “I Saw Two Masked Men Standing by as They Burned,” Haaretz, July 31

My column last week “Duma, ‘dirty dancing,’ & deeply disturbing detention,” in which I argued against drawing any equivalence between Arab terrorist organizations and Jewish radical religious renegades, spurred a flurry of reaction – some highly supportive, some strongly critical. However, rather than respond to this criticism today, I should like to devote attention to events that occurred after the publication of the column and perhaps – subject to breaking news – engage in rebuttals next week.

Glaring inconsistencies

Clearly, the most significant development since last Friday was the filing of indictments against Aviram Uliel and a minor whose name has been withheld – identified only as “A.” – with regard to their (as yet, still alleged) involvement in the arson attack on the Dawabsha family home, resulting in the death of the father, mother and 18-monthold son.

The preceding excerpts are but a smattering of the conflicting and contradictory accounts of what occurred early on the tragic Friday morning in the village of Duma last July, published hours after the appalling incident took place. Some referred to two assailants, some to four. Significantly, some witnesses spoke of the attackers arriving and leaving in one or more cars, others of an approach and flight on foot, with villagers in hot pursuit.

Yet in the indictment filed against Ben- Uliel, he is alleged to have acted alone, detailing precisely what he prepared, what he wore, what he took with him and what route he followed into the village. There are also troubling question marks as to the direction of the assailant(s) exit from the village.

Initial reports are of flight toward the town of Ma’aleh Efraim, which lies to the northeast of Duma, precisely 180 degrees opposite to the direction in which Ben-Uliel is alleged to have approached the village, i.e. from the southwest.

Witnesses’ statements ‘contradictory & confused’

On January 4, Haaretz, hardly a radical right-wing “rag,” readily suspected of providing biased, knee-jerk apologetics for “hilltop” detainees, published a sober analysis (in Hebrew) of the indictments, titled: “Confession under Torture, the Car and the Number of Perpetrators: Questions and Problems in the Duma File.”

Significantly the sub-headline read: “The indictment… against Amiram Ben-Uliel is based entirely on his confession and reenactment, and on the confession of the minor ‘A.’ In light of similar previous cases, the prosecution will have to make considerable efforts to convict him.”

In it, Chaim Levinson, Haaretz correspondent covering Judea-Samaria, writes: “… however, apart from their confessions, which were extracted under torture [sic], the Shin Bet and police have no additional evidence incriminating them. The [Duma] file has a several additional problems the Shin Bet and the prosecution will have to contend with in order to convict the two.”

He notes: “Except for the confessions of A. and Ben-Uliel the Shin Bet and police have no further evidence tying them to the crime. At the scene there were no forensic indicators at all and surveillance of the area produced nothing useful. The statements of the Palestinians witnesses were contradictory and confused.”

Indeed, so they would seem to be.

Disturbing disparities

Levinson continues: “Apart from the admissibility of the confessions, two further substantial problems arise….”

These relate to the number of perpetrators and the involvement of a motor vehicle.

The Shin Bet was initially firmly convinced that the arson attack was conducted by a group of several people, yet Ben-Uliel was unable/unwilling to divulge the names of any collaborators. This, it could be argued, shows either (a) his confession is at odds with what happened, and is thus false, extracted under duress, or (b) that he was not involved and hence cannot name those who were.

According to Levinson, another detainee was put under administrative detention, because a motor vehicle in his possession was allegedly used by the perpetrators of the Duma arson. This, too, is irreconcilable with Ben-Uliel’s confession that he infiltrated/exited the village on foot.

Of course, it is difficult to resist raising the question that, if the initial determinations in this case (multiple perpetrators, involvement of a motor vehicle) have apparently proved unfounded, could it not be within the bounds of possibility that other aspects might prove equally unfounded, including not only the number of assailants, and their mode of mobility, but also their identity, and even, heaven forfend… their ethnicity?

Presumption of guilt

The issues that Levinson raises reflect a perceptible sense of unease as to the manner in which the Duma investigation has been conducted, in a number of mainstream media channels, not usually known for their sympathy toward the Jewish residents of Judea-Samaria, much less the hill top youth. Thus, the popular Walla website (Hebrew) ran a report (January 3) headlined: “Confession in the Shin Bet and problematic testimonies: Holes in the indictments in the Duma episode,” while a Ynet headline (January 4) raised “questions about [the] Duma arson investigation.”

Indeed, on the next day (January 5), the English version of Haaretz published a Q&A session on “Duma Attack and Jewish Terrorists,” in which Levinson responded to readers queries. Some of his answers ought to be cause for grave concern.

Thus, to the question “Can we trust the Shin Bet to have extracted a legitimate confession if indeed it is true that it was elicited under torture?” he replied, “No. The torture definitely casts a heavy shadow over the confessions…”

Yet, when asked, “Do you expect the episode will end in jail sentences for the suspects?” he answered: “Unfortunately, it’s hard for me to see three judges in Israel who will disqualify the confessions because of the methods by which they were extracted. In the final analysis the judges here are looking for a way to convict rather than to acquit, and therefore those involved will be imprisoned for long periods.”

Presumption of guilt, anyone?

… something that ought to worry every Israeli citizen

Since the proceedings are reportedly to be held in camera, it is difficult to conceive of a more troubling indictment of the prejudicial way in which the Duma investigation has been handled and the justice the suspects are likely to be accorded.

It is difficult not to concur with Levinson’s assessment: “… the cumulative feeling left by this case is… something that ought to worry every Israeli citizen.”

Let me be clear: I have no idea who committed – and who did not commit – the lethal arson attack in Duma last July. I cannot discount the possibility that Ben-Uliel may, indeed, be the perpetrator, or at least one of them. If this can be proven persuasively, he (and any of his accomplices) should be punished severely, to the full extent of the law.

As I was at pains to point out last week, I have a strong personal bias in favor of Israel’s security forces and little to no empathy for the hill top youth, neither for their theocratic political doctrine, nor their prescribed modus operandi for its implementation.

I would like nothing better than to feel I could place blind faith in the Shin Bet’s determination of guilt and the authenticity of the case brought against the detainees.

Sadly this is not the case.

Subterfuge is their trade

Regrettable precedents have shown unequivocally that the Shin Bet is neither infallible, nor above fabricating evidence – either to protect its image or when it is under intense pressure from its political masters or the public to produce results.

With regard to its fallibility, this week provided a case in point when 18-year-old Mordechai Mayer, who was held under administrative detention on suspicion of being involved in the attempted arson of the Dormition Abbey in Jerusalem, was released – without indictment. He was initially apprehended for belonging to the same “Jewish terrorist organization” as Ben-Uliel and the basis for his detention was, allegedly, “the immediate risk he posed as a member…” (Ynet, January 6). He was released without charge after it was found that the intelligence on which the administrative detention order was issued was “erroneous.”

Then there is the appalling case of the imprisonment of the then-20-year old Marglit Har-Shefi, for “failing to prevent a crime” by not reporting Yigal Amir’s intention to assassinate Yitzhak Rabin, of which she was allegedly aware. Har-Shefi was imprisoned on the basis of Shin Bet interrogators’ findings.

Two former heads of the organization – Carmi Gillon and Ami Ayalon, both decidedly left-leaning in their political predilections – have since publicly declared that they are utterly convinced she did not know of Amir’s intent (Ynet, October 4, 2015), making her little more than the victim of vindictive public sentiment that swayed both her interrogators and the judiciary.

One of the more prominent cases was that of Avishai Raviv, who was inserted as an agent provocateur to fabricate incriminating evidence against right-wing activists, and whose activities were exposed in the wake of the Rabin assassination.

Indeed, the Shin Bet has not even been adverse to manufacturing evidence to incriminate an IDF general, Yitzhak Mordechai, in the 1984 Bus 300 Affair in which its agents tried to implicate Mordechai in the deaths of two captured terrorists whom he transferred into the agency’s custody. The deception was only discovered when a press photographer’s picture of the scene revealed the prisoners being handed over alive to the Shin Bet.

After all, we should bear in mind the Shin Bet’s trade is… subterfuge, which it employs with great effect and dedication in the service of the nation. However, there are times when it errs in plying its trade, and we should be on our guard to prevent such lapses and to rectify them if/when they occur.

Mindless Mantra: ‘Terror is terror is…’

In closing, let me offer a word of caution to those hand-wringing, moralistic mea culpa folk, who feel that mindlessly reciting “terror is terror is…” somehow affords them the moral high ground and that their “even-handed” outrage enhances Israel’s standing abroad.

Quite the opposite is true.

Indeed, those who strive to equate Arab terrorism, and the terrorist organizations that perpetrate and propagate it, on the one hand, and the ideologically motivated crimes of renegade radical Jews, however heinous, on the other, do a massive disservice to the country and its international standing.

By blurring the qualitative difference between the two, they gravely undermine Israel’s ability to accurately convey to the world the nature, scale and scope of the threat it faces and the danger the Arab terrorist organizations pose. By so doing they severely sabotage Israel’s effort’s to generate international understanding for the policies it needs to adopt to contend with them – precisely because of the nature, scope and scale of the peril they pose.

Playing into hands of detractors

So whether motivated by genuine, but misguided, concern for Israel’s international image; or by visceral opprobrium for strange-looking fellow Jews, the attempt to equate Arab terrorism against Jews with Jewish “terror” against Arabs is playing right into the hands of Israel’s most vehement detractors.

Martin Sherman (www.martinsherman.org) is the founder and executive director of the Israel Institute for Strategic Studies. (www.strategic-israel.org).