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Israel applies its penal code across the West Bank

By Chaim Levinson

[28 March 2015] - Central Command chief Nitzan Alon signed an order applying Israel's penal code to Palestinians in the West Bank, hours before he left office earlier this week.

The new order’s significance is mainly declarative. Parts of the Israeli penal code have already been adopted by military judges in the West Bank. And in general, arrest, detention and penal procedures are significantly harsher when applied to West Bank Palestinians than to Israeli citizens.
However, an aspect that will not apply to the West Bank is the so-called Shai Dromi amendment enacted in 2008, which exempts a person from criminal responsibility for an “act urgently required to ward off someone who breaks into his home, business or farm.”
This aspect would have let Palestinians ward off settler attacks without bearing criminal responsibility.
Attorney Smadar Ben-Natan, who researches military law, told Haaretz that while the move is positive, since the Israeli penal code contains clearer definitions, it would also confuse Palestinian defendants and attorneys.
“It provides a whole world of precedents and terms they are unfamiliar with," she said. "Also, the amendment (the order) continues the application of foreign law in the West Bank without considering the possibilities of using local Palestinian law.”
Palestinian civilians are tried in military courts in the West Bank based on the Defense (Emergency) Regulations introduced by the British in Mandatory Palestine, the Jordanian penal code and orders issued by the Central Command.
In 1994, at the initiative of Prof. Mordechai Kremnitzer, Israel introduced Amendment 39 in Israel proper, redefining the offenses in its penal code.
The new definitions require proving the existence of criminal intention; they also introduce the element of negligence and the notion of an offense that was attempted but did not succeed . The definitions distinguish between a perpetrator, abettor and someone who persuades another to commit a crime.
The amendment also contains exemptions from criminal responsibility, such as in cases of children under 12, insanity and a lack of self-control.
In the past decade the military prosecution has prepared the grounds for applying the amendment to the West Bank. The decision was delayed by the Shin Bet security service, which argued that the definitions of persuader and abettor did not fit the characteristics of terror cells in the West Bank. The Shin Bet also objected to taking into consideration an offender's remorse.
Recently, following discussions with the Justice Ministry, the Shin Bet dropped its objections, and on Tuesday Maj. Gen. Alon signed the 11-page order hours before leaving office.
The Justice Ministry feared that applying the same procedures to the West Bank could be interpreted as an annexation of the territory, but it agreed to the amendment in a bid to achieve legal clarity and to protect defendants’ rights.
The military prosecution said in a statement the amendment would introduce “new arrangements considered more advanced and appropriate, in keeping with the unique reality of the region.” It would also bring the penal code for the West Bank Palestinians closer to Israeli law, which military courts frequently lean on.