The Pogrom Wasn’t The First, And Won’t Be The Last, If There Aren’t Consequences

The widely publicized settler pogrom in the South Hebron Hills this week was far from the first, and it won’t be the last if there continue to be a lack of consequences for the perpetrators.

In the first chapters of the Torah we read this week human beings are held responsible for their actions. When Adam and Eve eat from the tree of knowledge, they are consequences. When Cain murders Abel, there are consequences.

In 26 years of human rights work Israelis who launch pogroms, commit other acts of violence, and steal Palestinian land are almost never held responsible or punished. While many of the perpetrators are “true believers” who will continue to act criminally even if they suffer consequences, we have not even made a serious effort to create a deterrent effect.

Just last night I received a midnight call from Bedouin cattle herders who live near the Maskiot settlement in the North Jordan Valley. They had just been attacked by Israelis. When one of the herders said he was calling the police, an Israeli said, “We are the police here.  The police and army are ours.”  The police did not show up.

On December 5^th and 10^th 2018, I witnessed and filmed two mini pogroms against the residents of Turmos Aya on their lands carried out by Israelis who came from the direction of the Adei Ad outpost. (I didn’t see their ID cards, and do not know  whether or not they were from Adei Ad and other outposts and settlements in the area.). On December 5^th, the Israelis also threw stones at security forces.  In both cases the security forces did almost nothing to stop the Israeli aggressors from throwing rocks at people and breaking car windows. Many minutes later, when some of the Palestinians threw rocks back, the forces fired stun grenades at them.

On May 5^th of this year, I arrived a few minutes after a 74 year old man from Dir Jarir had been pepper sprayed and evacuated to the hospital.  I managed to see the cars with broken windows and punctured tires.  Video footage shows tens of Israelis showing up to back settlers from the Ma’aleh Ahuvia outpost throwing stones and chasing the Palestinians fleeing from their lands.  Soldiers are initially seen standing by and watching.

Over the years we dealt with many cases where settlers came from the direction of Har Brakha and Givat Ronen to set fire to the fields of Burin.  Even when we called the security forces, they prevented the Palestinians from putting out the fires and fired tear gas and stun grenades to force them to retreat.

In recent years we have documented well over 100 cases of agricultural theft just on the lands of Taibe had Dir Jarir alone. These are lands registered by Israel as private Palestinian land. In almost every case we asked the army and police to come and do their job.  We asked them to prevent settler owned flocks from entering these lands and eating what Palestinians were growing there. This has led to families losing tens of thousands of shekels per year. After settler threats and violence, many have stopped working the lands.  This year settlers also began to plow some of the lands themselves.

I have chosen examples that I personally witnessed, photographed and documented, but they are a drop in the ocean. Our fellow Israeli human rights NGO Yesh Din has represented Palestinians on countless cases of violence, vandalism and theft, Almost all the cases have been closed. Almost every Palestinian with lands next to a settlement or outpost has stories of violence and vandalism, and the pain of gazing at their lands they cannot access.

The common denominator between these various examples is that there has been no prosecution, and certainly no sentencing or other penalties.  In only a handful of cases has the outcome ever been different.

No consequences.

Despite photographs, videos and complaints by landowners, the police and army did not show in many of the cases where I called them, perhaps most.  When they came, we had to convince them to identify the suspects. Sometimes they would expel the flocks, or go to have a talk with the settlers to explain where they were forbidden to graze. They were almost always back the next day, and sometimes immediately after the police left.

Why not? There were no consequences.

This is not new. In our petition to the Israeli High Court back in 2004 regarding the denial of access and protection for Palestinian farmers, and lack of prosecution, the State was invited to submit its law enforcement record.  In the years preceding the petition, they were able to come up with a handful of prosecutions and two suspended sentences.

No consequences.

The court roundly criticized this dismal record, and ordered the State to get its act together. From the 2006 Morar High Court decision:

But notwithstanding the repeated discussion, both in the report and on other additional occasions, of the problems relating to law enforcement in the territories, and notwithstanding the steps taken in this field in the past, the petition reveals the ineffectiveness of the respondents in enforcing the law against those persons who break it and cause physical injury to the Palestinian farmers and damage to their property. The physical security of the Palestinian farmers is in real danger when they go to cultivate their land, because of serious acts of violence on the part of Israeli settlers. The property of the Palestinian farmers also suffers from lawlessness when, after a day’s work, under the cover of night lawbreakers return to the agricultural land in order to uproot trees and damage agricultural implements.

No one disputes that the petitioners are deprived of their basic rights to security and property because of these lawbreakers. Moreover, no one disputes that it is the duty of the respondents to prevent this infraction of security and public order. This duty is enshrined in the rules of international humanitarian law; see, for example, art. 27 of the Fourth Geneva Convention that states with regard to ‘protected persons’ that:

‘Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity’ (emphasis supplied).

Maintaining an effective law enforcement system in the territories of Judaea and Samaria is naturally mandated also by the duties imposed on the respondents under Israeli law…

32. In their most recent statements, the respondents described the measures that were being adopted in order to re-establish order. To this end, we were presented with affidavits of the senior commanders in the area both from the police and from the army. In one of the hearings that took place, the Samaria District Commander was present and he described the treatment of the phenomenon of harassment of Palestinian famers, and we made a note of his undertaking to act in so far as possible to protect the Palestinian farmers when they go to cultivate their land. In addition, as we said in para. 9 above, it would appear that the matter is being considered at the highest level, as it ought to be. Nonetheless, despite the declarations that were made by the respondents in their responses, it would appear that no solution has yet been found to the problem of the repeated harassment of Palestinians when they go to their land in order to cultivate it and to the problem of the damage to the farmers’ property, and especially the uprooting of the trees. Notwithstanding the steps that have been adopted in order to ensure the security of the Palestinian farmers, and a certain improvement that has taken place, the position is far from satisfactory. As we described in para. 8 above, recently — while the petition was pending — we witnessed a significant increase in the violent acts against the farmers and their crops. Because of this deterioration, on 2 January 2006 the petitioners filed the application mentioned in para. 8, in which an urgent hearing of the petition was sought. At the hearing that was held, the respondents once again described the measures that have been taken, but it would appear that the facts on the ground speak for themselves and that too little has been done in order to protect the rights of the petitioners. This situation is intolerable and unacceptable and the respondents should take action in order to put matters to rights immediately.
33. In view of the aforesaid, we pondered at length the order that this court should issue with regard to enforcement of the law in the territories. ‘Law enforcement is a fundamental element of the rule of law… it is one of the main functions of any government. The competent authorities may not shirk this duty’ (HCJ 551/99 Shekem Ltd v. Director of Customs and VAT [21], at p. 125). It need not be said that there is no need for this court to issue an order that directs the respondents to enforce the law and carry out their duties (ibid.). This is especially the case where the respondents themselves confirm their commitment to protect the rights of the petitioners and promise to act in so far as possible in order to carry out their duties. There is therefore no doubt that the respondents should act with all the means at their disposal in order to protect the security of the Palestinian farmers who come to work on their land and they should act in order to protect the property rights of the petitioners so that they are not violated unlawfully. Even though the court does not have the power to determine the size of the forces that will be allotted for these tasks and what operations will be carried out, we do have the power to say that the protection of the security and property of the local inhabitants is one of the most fundamental duties imposed on the military commander in the territories. We are aware that the declaration of intentions made by counsel for the respondents in this matter is not mere words. We are persuaded that the establishment of the inter-ministerial committee and the experience in dealing with law enforcement in the territories are steps that were chosen in good faith and in recognition of the duty of imposed on the army and the police operating in the territories. But plans and intentions are one thing and results another, and the results do not indicate success in the field of enforcement.

Therefore, notwithstanding the difficulty in giving judicial directions in this matter, we have seen fit to address in general the principles that should guide the respondents in dealing with this matter. First, action should be taken to ensure the security of the Palestinian farmers when they go to work on the land and, if necessary, to protect them when the agricultural work is being carried out. Second, clear and unequivocal instructions should be given to the forces operating in the field as to how to act in order not to prevent those inhabitants who are entitled thereto from having access to their land, unless there is a lawful ground for doing so. Third, forces should be deployed in order to protect the property of the Palestinian inhabitants. Fourth, complaints that are made by the Palestinian inhabitants should be investigated on their merits and the investigation should be completed as soon as possible. Investigations should be made immediately when information is received with regard to acts of harassment, and patrols should be deployed by the army and the police in order to discover such acts. It should be noted that in the current situation it is very doubtful whether the police units that were established for this purpose in the territories have been given all the resources required in order to carry out the enforcement. The enforcement mechanisms — investigations and indictments — should be improved. The respondents should act on their own initiative in order to discover the lawbreakers and bring them to justice and they should consider which measures should be adopted in order to prevent recurrences of the blatant acts of lawbreaking.

I identify with the line in our prayers asking God to bring back to God all the evildoers of the world.  I would rather that the instigators of the pogroms and agricultural theft repent and change their ways, rather than be punished.  However, the reality is that we neither punish nor induce to change. In many cases there is tacit, if not explicit support.  The violence, terror, vandalism, theft and land takeovers serve a shared goal of dispossessing Palestinians.

I have written before how during a wave of violence in 2005, Ariel Sharon made it clear that outposts in areas where there was a great deal of violence would be moved to the top of the evacuation list.  The level of violence went down quite quickly.

It is significant that there has been an outpouring of condemnation of this week’s pogrom.  However, words are not enough.  If there are not convictions, fines, compensation, and/or evacuations, the commotion will die down and the pogroms will continue.

Our Torah portion teaches that fratricide occurred at the very outset of human history. The midrash asks what Cain and Abel were talking or arguing about before the murder.  One answer is that they were arguing about whose land the Temple would be built on. Another is that they were arguing about who would marry their sister (we don’t read about her in the Torah). A third answer is that they were arguing about who would possess what. Religion, sexual conquest and material possessions. The incentives for evil haven’t changed much, and we might ask why we should even try, if we have not succeeded in improving ourselves until now.  But, many have commented that the Torah begins with the letter ב, that is open looking forward.  Having just finished marking the High Holy Days, we live with the knowledge we do have our better selves, the future is open, and we must do our best to actualize the best of our potential.

Shabbat Shalom