(I came to thinking about the following issue after reading the Goldstone report, but thoughts of this sort are running through my mind for quite some time now. I'm casting this stone into the cyber pond in hope that maybe someone would have something to add. As you will see, this is all just a beginning of a thought with no conclusion.)
The Goldstone report was issued by the committee of the Human Rights Council appointed to investigate human rights violations during the Israeli operation in the Gaza Strip in December 2008 and January '09. Among many other points regarding both sides to the conflict, the committee noted with concern that "[o]f protesters brought before the Israeli courts, it was the Palestinian Israelis who were disproportionately held in detention pending trial."
This conclusion seems to fit in well with my little experience with the Israeli system. To be clear, I have never seen or heard of a case in which a judge has intentionally or knowingly discriminated against a Palestinian Israeli brought before him. Not even close. However, unintentional and unconscious discrimination is quite clearly taking place.
The Israeli detention procedure is one of the most liberal detention processes that I know of. The police has the right to hold a person for detention only for a very limited number of reasons, and such a person must be brought before a judge or released within 24 hours from the time of the detention. Once a hearing is held, the judge may extend the detention only if the detainee is dangerous to his surroundings or the public in general, if he is likely to flee before his trial, or for special investigatory purposes.
Now, since the trial has not yet begun, the judge in the hearing is confronted with preliminary evidence provided by the prosecution, and an alternate explanation provided by the defense. After hearing both sides the judge must decide whether one of the reasons for detentions mentioned above applies, or whether the detainee can be released (either to house arrest or with no limiting conditions). Without conducting the survey, it seems to me that the most common reason used for prolonging of detention periods is that the detainee is that of the 'assumption of dangerousness'.
And here's the tricky part: more than one research show, that judges tend to assume that persons of similar background as their are less dangerous than those unknown to them. To (over)simplify the argument, a judge that sees a detainee with a similar background to hers feels as if she can understand his motives and tends to judge him less severely. persons of other backgrounds are usually less empathized with and portrayed according to racial/cultural stereotypes. Obviously, this is not something that's unique to the Israeli detention procedure. The research I linked above was conducted in the USA with regards to whites, blacks and Koreans, and the same problem can be shown to exists in any multicultural state around the globe.
Yet this issue becomes more crucial in legal procedures that are based almost solely on the judge's assessment of the facts, made in order to evaluate how dangerous the detainee is. It's as if cultural and racial minorities don't stand a chance in such a procedure, and there aren't many safeguards to protect them from such inequality.
I don't have a solution to this problem. Decisions regarding detentions are and should be made quickly, based on minimal amount of evidence, and without a substantial amount of litigation or witnesses. Even appointing more justices of minority backgrounds, a desired target in and of itself, might change the general statistics, but not solve the matter of any particular detainee. For such a detainee it would still be a matter of chance, whether he will or will not be lucky enough to have his case heard by a judge of a similar background. Since the appointment of judges for cases is arbitrary, there is no reassurance for a fair trial, not in the sense of the outcome nor in the sense of equal process.
So maybe what I wanted to say is just that these kinds of statements in human rights reports always seem to me to be the most disturbing. The way I see it, the army, the police, the government, the parliament, they can always go wrong, as they all have an intrinsic amount of violence in them. But the judicial system - that is the last frontier, meant to always raise a red flag against inequality and discrimination; protect the individual against the stronger powers of institutions. I guess it's just saddening to realize that the legal system can be tainted by inequality as well.
and here, not completely related, but what seems like a sincere expression of feelings and similar concerns of an African-American father.
The Goldstone report was issued by the committee of the Human Rights Council appointed to investigate human rights violations during the Israeli operation in the Gaza Strip in December 2008 and January '09. Among many other points regarding both sides to the conflict, the committee noted with concern that "[o]f protesters brought before the Israeli courts, it was the Palestinian Israelis who were disproportionately held in detention pending trial."
This conclusion seems to fit in well with my little experience with the Israeli system. To be clear, I have never seen or heard of a case in which a judge has intentionally or knowingly discriminated against a Palestinian Israeli brought before him. Not even close. However, unintentional and unconscious discrimination is quite clearly taking place.
The Israeli detention procedure is one of the most liberal detention processes that I know of. The police has the right to hold a person for detention only for a very limited number of reasons, and such a person must be brought before a judge or released within 24 hours from the time of the detention. Once a hearing is held, the judge may extend the detention only if the detainee is dangerous to his surroundings or the public in general, if he is likely to flee before his trial, or for special investigatory purposes.
Now, since the trial has not yet begun, the judge in the hearing is confronted with preliminary evidence provided by the prosecution, and an alternate explanation provided by the defense. After hearing both sides the judge must decide whether one of the reasons for detentions mentioned above applies, or whether the detainee can be released (either to house arrest or with no limiting conditions). Without conducting the survey, it seems to me that the most common reason used for prolonging of detention periods is that the detainee is that of the 'assumption of dangerousness'.
And here's the tricky part: more than one research show, that judges tend to assume that persons of similar background as their are less dangerous than those unknown to them. To (over)simplify the argument, a judge that sees a detainee with a similar background to hers feels as if she can understand his motives and tends to judge him less severely. persons of other backgrounds are usually less empathized with and portrayed according to racial/cultural stereotypes. Obviously, this is not something that's unique to the Israeli detention procedure. The research I linked above was conducted in the USA with regards to whites, blacks and Koreans, and the same problem can be shown to exists in any multicultural state around the globe.
Yet this issue becomes more crucial in legal procedures that are based almost solely on the judge's assessment of the facts, made in order to evaluate how dangerous the detainee is. It's as if cultural and racial minorities don't stand a chance in such a procedure, and there aren't many safeguards to protect them from such inequality.
I don't have a solution to this problem. Decisions regarding detentions are and should be made quickly, based on minimal amount of evidence, and without a substantial amount of litigation or witnesses. Even appointing more justices of minority backgrounds, a desired target in and of itself, might change the general statistics, but not solve the matter of any particular detainee. For such a detainee it would still be a matter of chance, whether he will or will not be lucky enough to have his case heard by a judge of a similar background. Since the appointment of judges for cases is arbitrary, there is no reassurance for a fair trial, not in the sense of the outcome nor in the sense of equal process.
So maybe what I wanted to say is just that these kinds of statements in human rights reports always seem to me to be the most disturbing. The way I see it, the army, the police, the government, the parliament, they can always go wrong, as they all have an intrinsic amount of violence in them. But the judicial system - that is the last frontier, meant to always raise a red flag against inequality and discrimination; protect the individual against the stronger powers of institutions. I guess it's just saddening to realize that the legal system can be tainted by inequality as well.
and here, not completely related, but what seems like a sincere expression of feelings and similar concerns of an African-American father.
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