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 murder.

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 premeditated.”

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 law.”

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 convicted of.

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 victim.

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.”

The judge’s 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 target.

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 to Adele.

Five Palestinian teenagers from the nearby town of Kifl Hares were arrested on Sunday for their suspected involvement in the attack.

In 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 violence.

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