In releasing five teenagers to house arrest on March 25, a Haifa district court judge noted that “the use of the word ‘Jew’ [in the assault] was part of the mistaken identification and not connected to nationalist motivations.” The five young men, and a sixth who has been kept in prison for several more weeks, were part of a group who brutally beat two off-duty IDF soldiers outside Haifa’s Rambam Medical Center on February 26.

That evening Shnir Dahan and Roie Sharaff were going to the hospital when they were attacked. The two men spent four days in doctors’ care as a result of the attack, having suffered a fractured nose, mild concussion, head, wrist and hand wounds and cuts and bruising.

As is typical in these types of inter-ethnic cases, generally where the victim is Jewish, the judge was asked to rule on whether this was a “nationally motivated attack.” The term “nationalist” is used to define attacks motivated by political-terror motives, where the attacker might be in cooperation with a terror network.

In releasing the young men to house arrest the judge followed apparently normal guidelines for teenagers charged with assault. But the public should worry that the judge caused damage to the justice system in his comments about the racial aspect of the crime.

The victims reported that their attackers called them “Jew,” “stinking Jew” and “Jewish Jew.” The judge determined that this was part of a case of “mistaken identity.” It turns out the six attackers, who are Arab, reported having rocks thrown at their house earlier in the evening, and that they believed two Jewish men had done it. So they were searching for “Jews” and in that sense the judge claimed their use of the word “Jew” wasn’t part of a “national” attack, but was merely used to identify the victims.

According to this logic, if a group of men thought an Ethiopian had shouted abuse at them, they would not be considered a greater threat to society for attacking some other Ethiopian while shouting “cushi” (an anti-African racial epithet sometimes compared to the English word “nigger” in its offensiveness), because “mistaken identity” is, apparently, a mitigating circumstance.

The reason for the law’s, and by extension the media’s, confusion on this issue is the question of whether the attack was “nationalistically” motivated.

The word “nationalist” in this context is unique to the Israeli public discourse. When a crime occurs in Israel that involves Jews and Arabs, the police and the media examine the attacker’s political motives.

Thus Baruch Goldstein’s murder of 29 Arabs in Hebron in the 1990s was a “nationalist” crime. The same goes for Arab attacks on Jewish soldiers, such as two recent attacks in Jerusalem. The idea of a “nationalist” crime is that the attacker was motivated by hate and political ideology. In some cases this triggers the involvement of the Shin Bet (Israel Security Agency) or security services in the case and the suspension of some rights for the accused.

But the problem with the “nationalist” motive is that it ignores the “racist” motive. The West has become used to the concept of the hate crime, but this concept does not exist in Israeli law. Yet there are attacks in Israel that are described as “racist.”

The recent attack on Arab workers in the Malha mall by Beitar soccer hooligans was described as a racist attack in the Hebrew media and in this newspaper (“Beitar Jerusalem has a history of racist incidents”).

On Wednesday a march by the Interreligious Coordinating Council in Israel took place in Jerusalem, where the well-meaning activists gave the Arab victims flowers and candy. There is no march for the Jewish victims in Haifa, despite the fact that their injuries were worse, because the discourse decided that they were not victims of racism.

This is where the law, media and society become confused, to the detriment of all the victims. When Jewish soccer fans beat Arab workers while shouting “Death to Arabs,” “Arabs are sluts” and “I hate Arabs” it was reported that this was a racist incident. No “mistaken identity” here. No humming and hawing over how “national” the motives of the hooligans were.

But had the situation been reversed, had Arab soccer fans attacked and harassed Jewish workers, would the media be saying that it doesn’t seem to have been a “national attack” – and thus it isn’t serious? The problem is that the evidence for the “national” assault must be more compelling than the “racist” attack. In order to prove nationalism, courts and media want to see evidence of planning and membership in a terrorist organization. This is because the public has been led to believe that Arab violence must be motivated by “political” issues, rather than simple ethnic hatred.

When “Benjamin”, a Jewish rent collector, was murdered in Morocco this week the Jerusalem Post reported “the police are investigating whether the murder...

was nationalistic or criminally motivated.” This was also the case with George Sa’ado, a Jewish resident of Ramle who was shot by an Arab teenager while walking his dog after he had been harassed and accosted by the teenager’s friends.

Yisrael HaYom noted: “Ramle man murdered in possible nationalist attack.” That description, inadvertently, takes the public’s concentration off of the evil of the act and makes people wonder about the “national” motives. This ignores a third possibility, that the crime might be motivated by racial or religious hate.

Consider that the headline “Ramle man murdered” focuses our attention on the murder, whereas “in possible nationalist attack” makes us wonder about opaque motives. Then when we are told “it isn’t national,” the original part of the sentence, the murder, seems less relevant. The country must change its discussion about “national” attacks because this diversion is harming the ability of the public to understand the brutality of crimes that are being committed on an almost weekly basis.

When beating a man while shouting “stinking Jew” is considered a crime, the perpetrator of which can be released to house arrest, the legal system must be examined and the media that is not raising an objection must also be held to account. We must reject the notion that a person can be beaten for their race, religion or ethnicity simply on the excuse of “mistaken identity.” While western style hate crimes legislation may not be the right path, those who beat others based on identity deserve harsher prison terms, not relaxation in house arrest. (© 1995-2011, The Jerusalem Post 03/29/12)