What was the judge of the Central District Court thinking?

According to a JNS report, on November 21, 2012, 18 year old Muhammed Mafarji -a Palestinian who was granted Israeli citizenship with his family in 2008, when he was 8 years old, detonated a bomb on a crowded Tel Aviv bus, wounding 24 passengers, two of them severely. He was charged with intent to aid Israel’s enemies; attempted murder, and causing severe injury, convicted and sentenced to serve a 25 year prison term.

However, the Court rejected the application of the Minister of the Interior Aryeh Deri who, in consultation with the Attorney General for an order revoking Mafarji’s Israeli citizenship.

The grounds on which the court rejected the application lead me to raise the question in the title. The judge held:

“…when measuring acts of terror-most of which are brutal and criminal –what [Majarfi] did, though severe, is not unusual or extreme enough.”

Hence, if I understand the judge’s reasoning correctly, henceforth Arabs who become citizens by naturalisation who commit acts of terrorism that are not unusual or extreme enough, need not worry about losing their rights and privileges conferred by Israeli citizenship.

As a general principle, judicial decisions in and related to criminal cases must address three sentencing objectives: punishment commensurate to the seriousness of the offence having regard to special circumstances such as the youthfulness   of the offender and the severity of the crime; individual and general deterrence, and rehabilitation.

The relative priority and weight  to be assigned to each of these objectives depends on the  seriousness of the crime on the facts; the rate of  incidence of the crime  and the trajectory of the rate; the rate of recidivism  among persons committing the same type of crime; the nature  and scope of the adverse impacts of the crime on its victims; on the victims’ dependants and families and on the community cum society  at large having regard to all the pertinent factors  at play; and on the prospects of the successful rehabilitation of the offender.

Terrorism threatens Israel’s national security; the security and well-being of Israelis and of the other lawful residents of Israel, of their dependents and families, regardless of their age and other personal characteristics.

Clearly, in keeping with the general principles of sentencing and the grant of related relief, save in exceptional circumstances, none of which save the offender’s youthfulness, appears to exist in the present case, punishment, individual and general deterrence prime over rehabilitation.

I propose to focus solely on the issue of general deterrence beyond the sentence.

I submit that he judge dismissed the application for  the revocation of the offender’s citizenship the judge by ignoring  the general deterrence principle and adopting  the subjective, arbitrary  and fortuitous  criteria of the crime not being “ ‘unusual’ or ‘extreme’ enough” ,which in turn,  raises two issues:

First, I have no idea what would be involved in a crime of terrorism that is “unusual enough”, keeping in mind that some of acts of terrorism committed nowadays would have been considered unusual enough in the past.

Second, with respect to the test as to whether the crime is extreme enough; the outcomes of certain types of crimes, and especially the crimes of terrorism, are often unpredictable. They range from the accidental self-inflicted death of the terrorist to the death and injury of a number of victims in various circumstances, ranging from cases involving shoot to kill scenarios to   one where a family ends up being burned alive, contrary to the terrorists’ original design to simply beat them up and ransack their abode.

In the present case, surely the objective of general deterrence ought to have focused the judge’s thinking on the seriousness of the offender’s intention in committing the act of terror in the light of the objectives he intended to achieve, rather than on the outcome of his crime. More specifically, he intended to blow up the bus and kill all its passengers.

And, in so doing he intended to further the Palestinian Authority’s (“P.A.”) ultimate goal to destroy Israel.

The facts that he failed to achieve his objective and as a result, ended up committing a crime that is unusual or extreme enough is neither here nor there.

Surely, in the circumstances I suggest that the revocation of his citizenship was warranted.

In this connection, I reckon that for an Arab living in Israel, the prospect of being deprived of the Israeli citizenship and the prospect of living a miserable life, lacking dignity and respect, in the West Bank under the control of the P.A.  is a far greater deterrent than anything else the Court may throw at him or her.

The decision has been appealed to the Supreme Court. Personally, given the liberal and compassionate stance of the Court in such cases, I very much doubt that it will reverse the decision of the lower court.

Nevertheless, I sincerely hope that while upholding the lower court’s decision, I hope that the “Supremes”, as we call the judges of the Supreme Court of Canada, will provide a better reasoned judgment that will in effect set aside the reasoning of the lower court. Half a Supreme Court loaf is better none.

 

About the Author
Doğan Akman was born and schooled in Istanbul, Turkey. Upon his graduation from Lycee St. Michel, he immigrated to Canada with his family. In Canada, he taught university in sociology-criminology and social welfare policy and published some articles in criminology journals After a stint as a Judge of the Provincial Court (criminal and family divisions) of the Province of Newfoundland and Labrador, he joined the Federal Department of Justice working first as a Crown prosecutor, and then switching to civil litigation and specialising in aboriginal law. Since his retirement he has published articles in Sephardic Horizons and e-Sefarad and in an anthology edited by Rifat Bali titled This is My New Homeland and published in Istanbul.
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