The Policing of the Palestinian Minority in Israel: An International Law Perspective

In January 2017, the Palestinian Member of Knesset (MK), Haneen Zoabi, commissioned a report detailing multilayered omissions by the Israeli police force in combating the increasing crime rates within the Palestinian minority in Israel.[i] While the Israeli police force has prided itself in the last couple of years with halting the overall rate of violent crimes in the country, the report suggests that the police has failed miserably in halting violent crimes within Arab localities.
 

Currently Palestinians make up twenty-one percent of the general population of the State of Israel, however, crime rates in Arab towns are three times higher than those in Jewish towns.  Homicide rates in Arab localities are 7.4 higher than those in Jewish communities. In 2013, seventy percent of homicide cases occurred within Arab localities; seventy percent of those were committed with firearms. The survey further reveals that forty percent of the murdered women in Israel were Palestinians; among those eighty percent had previously filed a complaint with the police, compared to forty percent among their Jewish counterparts. Fifty-three percent of cases concerning Palestinian victims were closed due to lack of evidence compared to thirty-seven percent when the victim was Jewish. Almost seventy percent of cases concerning Palestinian suspects are closed without an indictment, compared to fifty-two percent when the suspect is Jewish. According to official estimation, there are 400,000 unlicensed firearms in Israel, eighty percent of which are in circulation in Arab towns. According to the report, the police force has shown no genuine interest in adopting a clear plan to confiscate these weapons. In fact, the few that are confiscated find their way back to the black market. According to the report, the police force justifies its failure to combat crimes in Arab localities by blaming the Palestinian culture for being “violent,” or by blaming the Palestinians citizens for their reluctance to cooperate with the police.   

The statistics published in the report are consistent with academic literature on policing in deeply divided societies across national or other lines. In summarizing some of the literature, Hasisi points out that in these societies, the minority perceives the state and its institutions as non-neutral, which, in turn, erodes the legitimacy of the police in the eyes of the minority group. The police’s own prejudice against the minority reinforces this suspicious attitude towards the police as an institution. Too often, the encounter between the members of the minority group and law enforcement agents results in negative experiences for the members of the minority. On its part, the state treats the minority’s suspicious attitude towards the police force as a matter of internal security. Enforcement measures against political offenses are prioritized at the expense of enforcement measures targeting ordinary crimes. It is not surprising, then, that in policing the minority group most police resources are used to strengthen the political control of the group. This is reflected in a strong police presence at public protests, and in resorting to harsh enforcement measures against “subversive” activities. At the same time, the police force shows substantially less interest in policing ordinary crimes when they pose no threat to the dominant majority.

Applied to the context of the Palestinian minority in Israel, the available data reveals clear patterns of distrust towards the Israeli police. A survey that was conducted by the Ministry of Internal Security revealed that 76.3 percent of the Palestinian respondents (respondents) stated that the police discriminates against them, 59.2 believed that the police uses excessive force, fifty-seven percent believed that the police force was hostile, and 68.6 percent believed that the police are unfair. In-depth interviews gave a more concrete exemplification of the widespread belief that the police force is discriminatory. For example, respondents believed that the police force is passive when the victims of crimes are Arabs, and that it is active when they are Jewish. In assessing the performance of the police force in politically charged cases, such as handling of protesters, land confiscation and demolition of houses, the results were extremely negative. Over eighty-four percent of the respondents stated that the police force was either "negative" or "extremely negative." 

There are also official accounts on the prevalence of prejudice against the Palestinian minority within the Israeli police force. For example, the Or Commission─formed to investigate the violent clashes between the police and the Palestinian minority in October of 2000─acknowledged the existence of such prejudice and demanded the relevant authorities to work in order to uproot it. The commission further emphasized that “The police must learn to realize that the Arab sector in Israel is not the enemy and must not be treated as such.”

The alarming statistics published in the report have clear international law implications for Israel. The protection of society and its members from violent crimes that violate the right to life and the right to physical integrity constitutes an integral part of states’ human rights obligation under international law. The right to life and the right to physical integrity are considered central human rights from which no derogation is permitted. Both rights impose negative and positive duties on the state. States must respect the right to life and the physical integrity of the person and they must protect them. The International Covenant on Civil and Political Rights (ICCPR) to which Israel is a party, requires each member state to respect and to ensure to all individuals within its territory and subject to its jurisdiction all the rights recognized in the convention without discrimination of any kind. The Human Rights Committee, which was established to monitor the ICCPR, has stipulated clearly that the duty to ensure rights entails protecting rights-holders not only from violations committed by state agents, but also from those committed by private individuals. This positive duty could be divided to two components. The first component is the duty to prevent; it obligates the state to take reasonable measures and to exercise due diligence to prevent future violations by private actors. The second component the duty to respond; it obligates the state to investigate, punish, and remedy violations by private actors. The failure of states to meet their obligation to prevent and to respond properly constitute a clear violation of international law. In one of the earliest cases dealing with the positive obligations in relation to the right to life by a supra-national court, the Inter American Court of Human Rights (The Inter-American Court) ruled in the Velasquez Rodriguez case that states have a legal duty to take reasonable steps to prevent human rights violations and to conduct serious investigation of violations, aimed at identifying perpetrators and bringing them to justice. Most importantly, the Inter-American Court emphasized that even when the right to life is violated by private actors, the violation could be legally attributed to the state “not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it”. The European Court of Human Rights (European Court) also recognized in a series of decisions the positive duties embedded in the right to life. In Osman v. UK, the European Court stipulated that states have the duty to put in place effective penal provisions to deter the commission of crimes, backed up by a law-enforcement machinery for the prevention, suppression, and punishment of crimes. In certain circumstances, the state must “take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual.” The state would be responsible for violating the right to life if the authorities do not do “all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge.” In Edward v. the UK the European Court held the United Kingdom responsible for the death of an inmate, who was killed by his mentally ill cellmate. The court found that the United Kingdom had failed to prevent the death of the inmate. It also found that the United Kingdom had failed to investigate the death of the victim properly, due the deficiencies found in the inquiry that was set up by the Prison Service.

The statistics presented in the report suggest that Israel is violating its legal obligations under international law to protect the life and the physical integrity of its Palestinian citizens. It is worth mentioning that Israel’s domestic law also recognizes both the negative and the positive duties embedded in the right to life. Articles 2 and 4 of the Basic Law: Human Dignity and Liberty state respectively that “There shall be no violation of the life, body or dignity of any person as such” and that “All persons are entitled to protection of their life, body and dignity.” However, the low indictments rates when both the suspect or the victim are Palestinians, indicate that the police force is not meeting its obligation to prevent and punish violation of the right to life as required by law.
Economic analysis of punishments strongly suggests that the certainty of punishment is more likely to produce deterrent effects compared to the severity of punishment. According to von Hirsch et. al., analysis of various research material on deterrence clearly supports the existence of a negative statistical correlation between certainty of punishment and crime rates, compared to much weaker statistical correlation between severity of punishment and crime rates. Accordingly, the consistent failure of the Israeli police to identify and indict perpetrators of violent crimes in Arab localities, constitute a fertile ground for further escalation of ordinary and organized crime. It seems that perpetrators do not have to worry too much about being caught. This was manifested in the testimony of victims and their families who were interviewed for the purpose of preparing the report. Their impression was that criminals felt very confident and moved freely in town because they knew nothing was going to happen to them. The duty to prevent is also clearly violated when the police force fails to present a professional operational plan to seize illegal weapons circulating within Arab towns.

Furthermore, the duty to prevent crimes should also be understood in a broad sense that requires the state to address root causes that are positively correlated with crime rates. Politically and economically marginalized minorities suffer almost always from higher crime rates compared to the general population. This could be explained by poverty and higher unemployment rates, low economic status, unequal access to education, and high residential density. Such marginalization is well documented in relation to the Palestinian minority in Israel. In its report, the Or Commission acknowledged the historical discrimination against the Palestinian minority in Israel. As a result of the discriminatory policies of the successive Israeli governments, the Or Commission noted a “serious distress” in myriad fields of life affecting the Palestinian minority, including “poverty, unemployment, a shortage of land, serious problems in the education system, and substantially defective infrastructure.” Fourteen years after the publication of the Or Commission Report, the gaps between the Jewish majority and the Palestinian minority are far from being bridged. In its “Human Rights in Israel – Situation Report 2016,” the Association for Civil Rights in Israel presents alarming data on the discrimination against the Palestinian minority, including the failure of the state to implement a five-year plan for the economic integration of the Palestinian minority. The said plan included substantial allocations of budgets for housing, education, health, welfare, infrastructure, and industry.

One more interesting point that was addressed by the Inter-American Court in relation to the positive duties of states is the prevalence of stereotypical views within the police force, and its contribution to perpetuating certain human rights violations (albeit the rights of women). In  Gonzalez et. al v. Mexico the court emphasized that when stereotypical views against women are embedded, explicitly or implicitly, in policing practices, the reproduction of such stereotypes becomes one of the causes of violence against women. The same reasoning could be applied to the prevailing prejudice against Palestinians in the Israeli police force. Today, this prejudice, i.e., Palestinian culture being too violent and tribal, is used to justify the failure of the police to combat crimes in Arab localities. There seems to be a complete denial of the fact that the excessive use of force against Palestinian citizens is a key factor in the reluctance of Palestinians to trust the Israeli police force. According to Brown, between 2000-2015, the Israeli police force killed fifty-one Palestinians citizens compared to three Jewish citizens. These killings are met with almost complete impunity. Ninety-three percent of the complaints filed against police officers for illegal use of force were closed, most of them without even being investigated. Instead of blaming the Palestinians of lack of cooperation, the police force should follow the recommendation of the Or Commission and stop treating them as enemies.

In sum, the report commissioned by MK Zoabi strongly suggests that Israel is violating its international legal obligation to protect the life of its Palestinian citizens without any discrimination. International law is clear: ordinary crime committed by private actors could be attributed to the state, when the latter fails to prevent and punish crimes that violate two of the basic human rights, i.e., the right to life and physical integrity. Every time the Israeli police force fails to prevent a preventable crime, or fails in investigating and punishing perpetrators when these options are objectively possible, the victims and their families should be encouraged to seek a remedy. The failure of the state to provide remedies, amounts by itself to an additional violation of Israel’s international obligations.