There was pandemonium in the Jerusalem District Court on Monday as a three-judge panel found that all three defendants perpetrated the murder of Muhammad Abu Khdeir, but delayed formally convicting the ringleader, Yosef Haim Ben-David, after an unprecedented eleventh-hour insanity plea.
The court did convict the two defendant minors – one from Jerusalem and one from Beit Shemesh, whose names are under gag order – of murder, kidnapping and a range of other offenses, despite their protests that only Ben-David committed the murder, and they had only intended to “rough up” Abu Khdeir.
Abu Khdeir, a 16-year-old Arab from Shuafat in east Jerusalem was abducted while waiting to enter a mosque on July 2, 2014, and burned alive by the trio.
Ben-David and the two Jewish minors burned Abu Khdeir to death as a nationalist revenge murder following the kidnap and murder of three Jewish teenagers by Hamas in June of that year.
News coverage of the slaying led to Arab riots throughout east Jerusalem and the rest of the country.
Following the indictment of the three, the Defense Ministry recognized Abu Khdeir as a victim of hostile action, granting his family identical compensation rights as the victims of Arab terrorism, such as suicide bombings – assuming its decision is also adopted by the National Insurance Institute.
At the time, Attorney-General Yehuda Weinstein called the murder a “horrifying act,” and praised law enforcement for the swiftness with which they arrested the three defendants.
Throughout a year-long trial, Ben-David claimed insanity, but never filed a psychiatric report which could give his plea a chance.
Coming into Monday’s verdict, therefore, there was little doubt that Ben-David would be convicted by the three-man panel of Judges Jacob Zavan, Rivkah Friedman-Feldman and Rafi Carmel, with the insanity plea having nothing legal to stand on.
But right before the verdict, Ben-David’s lawyer, Asher Ohayon, shocked the courtroom, having quietly (without notice to the public) produced to the court on Thursday an insanity plea based on a psychiatric opinion just in time for the verdict.
Although such conduct is not allowed according to legal procedure, because Ben-David was not yet convicted, the court decided it will review the opinion.
With major judicial rulings like this one often mostly finished several days or even weeks in advance, the court likely had to make last-minute major revisions to its ruling.
Prosecutor Uri Korb, famous for being the prosecutor who took on former prime minister Ehud Olmert, jumped out of his chair objecting to the opinion being considered.
Korb’s position was that he was in favor of reviewing the issue at any earlier stage, but that once the trial was closed, the court drafted its verdict and it was only days before announcing it, that the court should not even review the opinion.
The court will now decide whether the opinion is significant enough to do a full review, in which case the trial for Ben-David will be reopened for the prosecutor to attack the opinion, or whether to disregard it as too little too late. In that context, Korb did not object to the opinion being considered as part of Ben-David’s sentence.
That decision is expected at or soon after the next hearing on December 20. Sentencing is scheduled nominally for January 13, but with the outcome of Ben-David’s psychiatric situation still up in the air, it is possible that there could be further delay.
The sentencing hearing will be highly dynamic, since normally convicted murderers get a full life prison sentence, but there was speculation that the convicted minors might get only 15 years or less since they are underage and were under Ben-David’s influence.
The press conferences following the decision seemed as if there were alternate universes operating.
Ohayon said the court’s decision was “very disappointing. There is a legal opinion that says he’s insane,” and the “court is choosing procedure over substance.”
His lawyer had wanted the court to accept the legal opinion without objections from the prosecution that it must be disqualified for being late and was only relevant to the sentencing stage at court.
Fuming, Abu Khdeir’s father, Hussein, said “a crime” has been committed, asking about Ben-David, “how can he say suddenly that he is insane, where was this opinion last year or two months ago? I hope the court throws out” the opinion. I conclude with words from your book of Ecclesiastes – Futility futility, all is futility.”
Korb spoke last, saying, “the court found unambiguously that all the defendants perpetrated the act against an innocent only because of his background.” He said the state would oppose the opinion being considered by the court.
“We need to build a society of values that is different from our enemies; these defendants went to build the opposite. Will continue to fight against all lynchings. “There are judges” in Israel who stand for the rule of law, said Korb.
In response to the court verdict, PLO Secretary- General Saeb Erekat alleged that it was a “green light from the Israeli government to continue killings and summary executions” of Palestinians. Erekat claimed that the court had “acquitted” the main suspect and held the Israeli government fully responsible for “all killings.” He called on the UN to provide international protection for the Palestinians.
Erekat also called on the US administration to stop defending Israel at the UN Security Council.
Adnan Damiri, spokesman for the Palestinian Authority security forces in the West Bank, claimed that the Israeli government was trying to help the court exonerate the suspects.
He said that the Israeli government, judges and “settlers” were partners in committing “crimes” against the Palestinians.
The ruling Fatah faction also responded to the verdict by accusing the Israeli government of “collusion” in the murder of Abu Khdeir.
“We have no confidence in the courts of the ‘occupation’ state,” Fatah said in a statement.
It accused the Israeli judicial system of being “complicit in terrorism and racially motivated crimes.”
Hamas said that the court verdict provided proof of the “racism of the ‘occupation’ and its sponsorship of ‘settler’ crimes against the Palestinians.” Hamas spokesman Sami Abu Zuhri said that the Palestinians were entitled to defend themselves with all available means and called on the international community to “assume its responsibility toward this state terrorism.”
During the trial, one of the minors took the stand and said “he never dreamed” that they were going to kill Abu Khdeir, trying to place all of the blame for the murder on Ben-David.
The minor said that Ben-David was “like my father” and that he felt compelled to follow his lead. Hussein called the minor a “liar” in response to his testimony.
The court, partially due to the fact that the minors were involved in multiple kidnapping attempts, ultimately sided with Hussein, disregarding the minors’ stories and convicting them of the full murder charge, though a social worker’s report must be submitted as part of the conviction process, since they are minors.
Ben-David never had much to stand on in his defense, since he refused to testify in his own defense, confessed to the crime, was blamed by both minors and did not tend to answer questions from the court in a coherent manner. Also, the prosecution had produced evidence of Ben-David’s sanity, including its own psychiatric report – which was uncontested until Monday.
The indictment included charges against Ben-David and one of the minors for attempting to kidnap seven-and-a-half year-old Musa Zalum of Beit Hanina and striking him and his mother, with whom he was walking, while she was pushing another one of her children in a stroller.
Ben-David drove the car, while the minor got out to attack the seven-and-a-half-year-old.
They wore non-haredi clothes to try to mask their identities during their attempts to kidnap Arabs.
There were separate charges for multiple attempts by the same two to burn Arab cars in the Sur Bahir neighborhood.
In the case of Abu Khdeir, the indictment alleged that Ben-David drove the car, while both minors attacked and threw the victim into the car. Abu Khdeir tried to call his uncle, attempted to escape and even kicked one of the defendants in the face before they overpowered him.
The defendants partially strangled and struck Abu Khdeir on the head multiple times, as Ben-David called out the names of murdered Jews, such as Shalhevet Pas, the Fogel family, Gil-Ad Shaer, Eyal Yifrah and Naftali Fraenkel.
Next, Ben-David told the minors to burn his body to erase the evidence, and that they doused him with gasoline and started to burn him while he was still alive. The three defendants had confessed that the murder had been an act of revenge following the murder of the three teenagers in June.
Police found the teenager’s badly burned remains at 5:20 a.m., approximately one hour after he was reported kidnapped.Khaled Abu Toameh contributed to this story.