Fighting Auto Theft in Israel: MApp 4506/08 ‘Ajaj v. State of Israel (Judgment of May 1, 2008); MCrimApp 4343/08 ‘Ajaj v. State of Israel (Judgment of June 29, 2008)

One of the central tenets of the laws of occupation is that the discretion of the military commander of an occupied territory is constricted by two magnetic poles: the military needs of the occupying power on one hand and the interests of the population of the occupied territory on the other. The Supreme Court of Israel has ruled time and again that the military commander may not take into account the national interests of the occupying country, Israel.

Yet, when it comes to the pocketbook of Israeli insurance companies, this principle is forsaken.

The ‘Ajaj case reveals how far Israel went in trampling over international law in the service of Israeli capital

According to the 2008 annual report of the Ministry of Finance Commissioner of Capital Market, Insurance and Savings, 25,615 vehicles were stolen in Israel in 2008.[1] According to the Israel Police data (which are slightly but inconsequentially different), almost 10 out of every 1,000 vehicles were stolen in that year.[2]

According to additional Ministry of Finance figures for 2008, Israeli insurance companies collected some 5.5 billion ILS for property insurance for automobiles and paid policy holders over 4 billion ILS. After deductions for administrative costs and commissions paid to insurance brokers, the insurance companies made only 36 million ILS in profit, which is 0.7% of the insurance payments collected. The 2008 annual report does not specify how much money insurance companies spent due to auto theft and how much due to other damages.

In a claim filed against the Palestinian Authority in 2001, the Menorah Insurance Company alleged it alone paid its policy holders over 300 million ILS due to auto theft. The company sued the Palestinian Authority for 50 million ILS, claiming it could have prevented the thefts.[3] A decision respecting an application for the seizure of monies filed by the company against the Palestinian Authority includes estimates and evidence that most thefts are carried out by Palestinians and that the cars are transported to the Occupied Palestinian Territories (OPT). This was the situation in the 1980s and it has escalated, it is alleged, since the Israeli military left Palestinian population centers following the Oslo Accords. This is neither new nor surprising: considering the economy in the OPT, the limitations on alternative sources of income, the economic gap between the OPT and Israel and the geopolitical conditions, it is only reasonable that such an industry would develop there. The most interesting fact revealed in the decision is the deep and prolonged involvement by insurance companies in the pressure to enlist the authorities to fight the phenomenon – to the point where they participated in an official meeting between Israeli and Palestinian Authority representatives.[4]

The economic damage caused to the Israeli market (and in particular to Israeli insurance companies) as a result of auto theft – must not enter the array of considerations taken into account by the military commander in the Territories. The role of the courts is to stand guard in order to stamp out any deviation from this principle. In practice, the military commander exceeded his powers and the courts – including the Supreme Court – remained silent.

The ‘Ajaj case revealsd how far Israel went in trampling over international law in the service of Israeli capital. The case concerned a Palestinian resident of the OPT who was arrested in the OPT on suspicion of trafficking in stolen vehicles. Despite the fact that this is, prima fasciae, an offense that has no connection to security matters, his arrest was carried out under military law and extended in a military court. He was then transferred to Israel. Although the offenses attributed to him took place entirely in the OPT, an indictment against him was served in a civil court in Israel.[5] The state requested his arrest be extended until the completion of legal proceedings, and it was in this context that the question of whether an Israeli court has jurisdiction to try him for offenses committed in their entirety outside the country was reviewed.[6] Courts at every instance replied affirmatively: the offenses attributed to ‘Ajaj were indeed committed outside Israel and therefore, at first glance, Israeli courts have no jurisdiction in the matter. However, there are exceptions to this rule, one of which is the court’s competence to adjudicate (under certain circumstances) offenses which harm the country’s economy. Since the vehicles in which ‘Ajaj (allegedly) trafficked were vehicles stolen from Israel and since the phenomenon of auto theft from Israel to the OPT harms Israel’s economy, ‘Ajaj could stand trial in an Israeli court.

This with respect to Israeli law. However, what does a military court in the OPT have to do with offenses of possession of stolen vehicles? The judgment of the District Court in the ‘Ajaj case[7] reveals that in September 2007, the West Bank military commander signed a unique order. The order empowered military courts to adjudicate criminal offenses relating to stolen goods, but only when the stolen good is an Israeli vehicle.[8] The court even quoted extensively (without a hint of embarrassment), from the grounds provided by the military legal advisor for the Order:

The amendment grants authority to military courts to sentence individuals who committed various offenses connected to trading in – and dismantling stolen vehicles registered in Israel. It even imparts, indirectly, powers of detention, search and capture, connected to trial powers, to IDF soldiers, and police officers of the Israeli Police, in appropriate circumstances.

The amendment to the legislation was conceived after extensive administrative work led by our unit in cooperation with Israel Police officials, the Ministry of Justice, the military courts, and the different military advocacy officials, with the aim of finding an appropriate legislative solution that would enable the arrests of individuals present in Area A who are suspected of trading in and stealing Israeli cars, in the context of coping with the widespread phenomenon of Israeli cars being stolen and brought to these areas.

We would like to emphasize that this amendment contains a certain deviation from the provisions of the Interim Agreement, which granted powers to take action against non-security related offenses in Area A to the Palestinian Authority. We opined nevertheless, that in the absence of effective enforcement on the part of the Palestinian Authority vis-à-vis this criminal phenomenon, and the severe, continuing damage to the State of Israel, there is room for amending the legislation and granting the necessary powers, even as a temporary order.

Against the backdrop of the deviation from the provisions of the Interim Agreement, we asked for the consent of the political echelon for the legislative amendment. The issue was presented by the legal advisor of the Ministry of Defense to the Deputy Minister of Defense, who authorized the completion of the legislative amendment.[9]

In other words, the military commander, following consultations with senior legal officials in the security establishment, issued an order, the sole purpose of which is to serve the economic interests of the State of Israel (or, more precisely, Israeli moguls who control the insurance companies) and has nothing to do with security considerations or considerations relating to safeguarding the normal life of the population of the OPT.

In September 2007, the West Bank military commander signed a unique order empowering military courts to adjudicate criminal offenses relating to stolen goods, but only when the stolen good is an Israeli vehicle

As implied in the explanatory notes, the order’s goal is not to have criminals tried in the military courts in the OPT. Conferring authority on the military courts is simply a ploy designed to vest Israeli soldiers and police officers with powers to arrest Palestinians suspected of possession of and trafficking in stolen Israeli vehicles, inside Area A. After the latter are arrested in the OPT, they are transferred to Israel with no extradition proceedings, pursuant to the schedule to the Law Extending the Validity of the Emergency Regulations (Judea and Samaria and the Gaza Region – Judgment of Offenses and Legal Aid), 5727-1967. Once transferred to Israel, they are tried in Israeli courts in accordance to the provision allowing the courts to adjudicate offenses which were committed abroad and harm the economy of the state.

This is, obviously, an abuse of Israel’s military control of the OPT, and of the Israeli military apparatus and a violation of fundamental principles relating to the limits of the military administration’s powers.[10]

And the courts: they obediently play the role assigned to them in the twisted mechanism manufactured by the legal advisors. The District Court, in the words of Judge Shapira, finds, after quoting from the outrageous explanatory notes presented above, that ‘Ajaj’s arrest was lawful. And the Supreme Court, in the words of Justice Joubran, completely ignores the unacceptable military order. It approves the extension of ‘Ajaj’s arrest pending the completion of proceedings against him and in so doing, puts the final seal of approval on a maneuver wherein the occupier’s power is used for protecting the interests of Israeli businessmen.[11]

Adv. Yossi Wolfson

The author is an attorney and an activist for human and other animals’ rights. Formerly on staff at HaMoked: Center for the Defence of the Individual.