In August 2009, Arik Karp, 59, died when a gang of young men beat him viciously
on Tel Baruch Beach in north Tel Aviv. Almost two years later the Tel Aviv
District Court convicted three men of manslaughter. At the time, the media noted
that they were “only” convicted of this lesser charge, rather than
The judges in the case, Nurit Ahituv, Miriam Diskin and Ra’anan
Ben-Yosef, explained that “to our understanding, the accused’s arrival on the
scene and their use of kicks and punches is insufficient to prove the act was
The judges elaborated: “Even had we determined that the
accused possessed the mental element to prove a murder offense, we would still
have had difficulty in determining an ‘intent to kill,’ as required by
At the time, many voices were raised demanding that the judicial
system add second degree murder to the list of offenses a person can be
Yet this huge gap in Israel’s legal system has still not
been closed. The recent cases of stone-throwing in the West Bank have once again
brought to light the weakness of the law in its ability to deal with
intentionally violent behavior that can result in the death of the
The West Bank is under the jurisdiction of military courts that
judge Palestinians accused of crimes, but like their civilian cousins, they can
only convict defendants of murder or manslaughter. In September 2011, Asher
Palmer and his son Yonatan were killed when a rock struck Asher in the face and
he lost control of his car. The courts views stone-throwing as a form of
“disorderly conduct” or at worst a form of terrorism related actions but do not
go so far as to call it murder or attempted murder.
For instance, in a
December case, Judge Amir Dahan claimed that “throwing large stones at a car on
a highway is a dangerous act which might lead to injuries or even death.” He
concluded, however, that “a higher extent of probability of death is necessary
in order to convict the four of a more serious offense.”
logic was that since most stone-throwing attacks do not result in serious
injury, when they do, one cannot assume an intent to kill and therefore the
thrower cannot be convicted of murder.
The problem with the law is that
it places a burden on the prosecution to prove intent. Absent a note by the
attacker where he declares that he wants to kill someone, this is not always
easy to do, and prosecutors in Israel frequently accept plea bargains or do not
even bother with the tougher to prove charge of first degree murder. This means
a gang of drunk youths who beat a man to death are not said to have “murdered”
him simply, because they did not set out to commit a murder earlier that night.
Similarly, a young man who sits above a highway and throws large rocks at cars
is not considered a murderer simply because in most cases he fails to strike his
The most recent case of three-year-old Adele Biton, who remains
in critical condition and in intensive care, has once again brought to light the
failure to seriously examine this issue. Biton was wounded on March 14 when a
truck in front of the car she was traveling in on Route 5 came to a sudden stop
due to stone-throwing and her car slammed into its rear.
Four members of
the Biton family – Adva Biton, 40, and her daughters Adele, Avigail, four, and
Na’ama, five, were wounded.
In the buzz regarding the formation of a
government and the Obama visit, the media mostly ignored the grievous harm done
Five Palestinian teenagers from the nearby town of Kifl Hares
were arrested on Sunday for their suspected involvement in the attack.
the past week, activists have tried to draw attention on Facebook and in other
social media to the fact that “stones can kill.”
The opportunity exists
for Justice Minister Tzipi Livni to highlight the need to add second degree
murder to the statute book.
Relatives of victims need the solace of
knowing that those who kill their loved ones are not merely involved in
“disorderly conduct” or “manslaughter,” as if their crime involved a bad road
accident caused by drunk driving.
In addition, potential criminals need
to know that the legal system will no longer tolerate increasing levels of