The fight to demolish the grave area

Since the army would not allow Baruch Goldstein to be buried in the Jewish cemetery in Hebron, it was decided in co-ordination with the Local Burial Society and by agreement with the army, that the most suitable place for the burial was at the end of the Meir Kahane Park at the entrance to Kiryat Arba.[454]

Over every grave, a tombstone must be laid. In every cemetery, paths must be laid - otherwise visitors to the graves will be wading in mud during the rainy season. According to Jewish tradition, water has to be provided for the ritual washing of the hands after visiting a grave.[455] Thus taps, drainage and plumbing are essential. Psalms and memorial prayers are recited at the graves[456] - so a cupboard has to be provided to hold all these holy books.

Even though Baruch Goldstein's grave was the only grave in the park, it was essential to provide all these facilities and this fact was made clear to the army when they refused to let him be buried in Hebron.[457]

Friends of the family of Baruch Goldstein both in Israel and abroad donated money to defray the cost of these facilities. Work began on the construction even before the building license was granted and this caused some minor problems.

Towards the end of October 1994 contractors started laying a stone floor around the grave. Some ten days later, the Civil Administration issued a demolition order instructing the contractor to tear up the floor within seven days. However, a senior army officer informed Mayor Katzover that issuing this demolition order was a mistake,[458] and two days later it was replaced by an order to stop construction.[459] Within a few weeks the matter was clarified and an official signed and sealed building permit was issued by the appropriate authorities.[460]

Knesset member Ran Cohen, was, however, not satisfied. In November 1994 at a time when the work around this grave was still in the process of construction, he submitted a bill to the speaker of the Knesset which would prohibit the erecting of memorials to terrorists and prohibiting beautifying the area around their graves.[461] The Knesset did not give it a preliminary reading for over a year - despite the fact that it was an extremely left wing government depending on Ran Cohen’s party, Meretz, for its majority! It was only after the assassination of Yitzchak Rabin that the debate in the Knesset took place.[462] It was voted to pass on the bill to the Knesset Law Committee for preparation for a first reading.[463] However the 1996 elections to the Knesset took place and the bill was shelved.

For any country, including of course Israel, to have on its statute books a law against memorials for terrorists, is most desirable. The beautification and the setting up of monuments around the graves of terrorists, which could well become a site of pilgrimage, is something to be strongly condemned and prevented in a civilised society. Such monuments are a stain on the moral character of a state, negate the sense of fundamental justice in a society, are very negative educationally and might even encourage further acts of terrorism. However it is crucial that guilt be determined in accordance with all the judicial criteria before the label of terrorist be imposed.

Ran Cohen wrote in the preamble to his bill, that in the case of a person who is alive, the criterion should be that he has been found guilty of an act of terrorism.[464] This is of course perfectly acceptable. An accused standing trial has the full opportunity to present his defense and cross-examine the prosecution witnesses. If found guilty, he has the opportunity to appeal his conviction all the way up to the Supreme Court. The higher court will review the evidence and the judgment. They will check that the trial was fair and that the judge was not biased against the defendant. Only after that will they present judgment.

Regarding a person who is already dead, what Ran Cohen proposed is very problematic. He wrote that if there is a high degree of probability that the person committed an act of terrorism he is to be regarded as a terrorist for the purpose of Cohen’s bill.[465]

The question is: Who decides if there is a high degree of probability - politicians who have their own agenda, the newspapers, the electronic media? One would sincerely hope not. Justice demands that it be a court of law. Obviously in a court investigation to determine whether a person who is already dead was, in his lifetime, a terrorist, the family must be given the full right to cross examine witnesses, have full access to documents and be given the full opportunity to present a defense. If the family is not satisfied with the verdict of the court, they must have the full right to appeal to a higher court for a review. Ran Cohen’s proposal for a person who is already dead, is particularly disturbing in view of the fact that his Meretz Party includes the Citizens’ Rights Movement Party.

On 14 October 1996, Ran Cohen handed the identical private member’s bill to the Speaker of the Knesset.[466]

[At this stage, I will briefly explain the procedure for a private member’s bill to become law in the State of Israel. After the proposer has submitted the bill to the Knesset speaker, the bill is passed on to the plenum for a preliminary reading. If the plenum approves it, the bill is sent to one of the Knesset committees for preparation for its first reading in the plenum. If approved by the plenum, it returns to the Committee for a detailed analysis and discussion and preparation for the second reading in the plenum. At the second reading, the chairman of the Committee who has considered the bill reports to the plenum and the plenum then votes on each paragraph. At this stage any reservations by the Committee members are also voted on. If the bill passes this stage, the third reading takes place at which the plenum votes on the bill as a whole. If approved, the bill, after certain formalities are observed, becomes law. Although “Divrei Haknesset” (stenographic reports of Knesset debates) are readily available in many libraries, the minutes of the various Knesset Committees seem to be available only in the Knesset. Unless there are considerations such as state security, they can be inspected and photocopied by members of the public.]

On 12 November 1996, a meeting of the Knesset Interior Committee took place at which the only item on the agenda was “Tending of the Grave of Baruch Goldstein in Kiryat Arba.”[467]

Instead of its being a mature debate on the subject on the agenda, this meeting degenerated into an exchange of words between members of the left and right wings of the political spectrum on the timing of this debate. The Committee finally decided to ask the State Comptroller to thoroughly and speedily investigate how a license was given to build such beautiful surroundings around Goldstein’s grave. They also decided to ask the Ministry of Religious Affairs and the Civil Administration about the possibility of moving of the grave to a more modest site.

A study of the minutes of this meeting shows that the Chairman and all the members of the Committee - both of the right and left wings - strongly condemned Baruch Goldstein for his “act of terrorism.”

On two occasions during the meeting, one of the Committee members, Rafael Elul of the Labour party stated that Goldstein had committed suicide after killing the Arabs.[468] In fact the Shamgar Report clearly states twice, that Goldstein was beaten to death by Moslem worshippers after his weapon had been taken from him.[469]

What is especially worthy of concern, is that no member of the Committee pointed out to Elul that Baruch Goldstein had in fact not committed suicide, thus indicating that they had not even read the Shamgar Report. Members of the Knesset are representatives of the public who have a great responsibility. As such they need to “do their homework thoroughly” before speaking at Knesset Committee meetings.

A month later, the Knesset gave Ran Cohen’s bill its preliminary reading. Cohen admitted that his decision to introduce such a bill was prompted by, in his words, “the abhorrent murderer Baruch Goldstein” and “the abhorrent murderer Sallah Nazal” (who was involved with the killings on the number 5 bus in Tel-Aviv).

He claimed that Goldstein’s grave had become a site of pilgrimage. On some days, Cohen asserted, whole groups of people accompanied by a guide would visit the site. “to cleave to the ways of the murderer and to follow in the ways of the murderer.... There were other days when there were all kinds of ceremonies of identification with the man and his ways.” He added that one could not protect Israeli society, its culture, its ethics and its conscience so long as this monument remained.[470]

These remarks of Ran Cohen’s would be perfectly acceptable, but for one thing - Baruch Goldstein has never been found guilty, under the accepted rules of justice and fair-play, of being a murderer. As we stated earlier, no less a person than Supreme Court Judge Zvi Tal stated that since a stigma might attach to Baruch Goldstein, his widow should be given the opportunity to present a defense. But this opportunity was not granted her.

Ran Cohen claimed that since by law burial must take place in a recognised cemetery, and since the “murderer Goldstein” had not been buried in such a cemetery, his grave should be moved in order to observe the law.[471]

[From these comments of Ran Cohen’s, one might conclude that the only person in Israel not buried in a “recognised cemetery” is Baruch Goldstein. But there are other people in Israel not buried in recognised cemeteries: Chaim Weizmann buried in the grounds of the Weizmann Institute; David Ben-Gurion buried in the grounds (but not in the cemetery) of kibbutz Sde Boker; a Rabbi of the Gur Hassidim buried in the courtyard of the Sefat Emet Yeshivah in Jerusalem. Why did Ran Cohen refrain from suggesting that these graves be moved to “recognised cemeteries”?

It should also be mentioned that the moving of a grave is controlled by Jewish religious law[472] and must be authorised by the appropriate Rabbis.]

In reply to Ran Cohen, the Minister of Justice, Tzachi Hanegbi said that there were two reasons that this bill could not be applied to the grave of Goldstein. One that it would make this law retroactive and the second was that Kiryat Arba was over the “green line” and not within the State of Israel.[473] (Hanegbi cannot claim originality for this second reason. He was beaten to it a year earlier by the then Minister of Justice, David Libai, when Cohen first submitted his bill.[474] )

During the course of the debate on his bill, Ran Cohen accused Hanegbi several times of playing for time to enable him (Hanegbi) to assemble members of the Knesset in order to defeat the introduction of Cohen’s bill.[475] However the debate in the Knesset on Ran Cohen’s bill ended with a vote giving a narrow majority of 36 to 32 in favour of allowing a first reading of the bill and passing it onto the Knesset Interior Committee for preparation for a first reading.[476]

The meeting of this Committee took place about a month later. Of the 15 members of the Committee,[477] the only one who bothered to turn up to this meeting was the Chairman![478] All the other participants were invitees - Ran Cohen, an Arab member of Knesset and officials from various government ministries.

A major problem raised was that Kiryat Arba was not within the boundaries of the State of Israel and thus Ran Cohen’s bill would, under normal circumstances, not apply there. The Chairman of the Committee, Arab Knesset Member Salah Tarif was concerned that if the bill was made to apply in Judea and Samaria, a more serious problem would arise - it would be annexation of these territories![479]

One of the government officials pointed out that there were a number of unclear points in the formulation of the bill. One of them was - “What is the definition of a murderer who has not been found guilty in a Court of Law?”[480] [I might add - if he has not been found guilty, what right has anyone to call him a murderer?]

Another government official pointed out that the Military Commander could issue an order to demolish the memorial. Ran Cohen retorted that he wasn’t interested in what the Commander could do, since he had not made use of this ability during the past three years.[481]

Two weeks later another meeting of the Knesset Interior Committee took place whose agenda was to discuss why Goldstein’s grave happened to be in that particular location and how a license had been granted for the decorative items which had been built around the grave. For this purpose, three senior representatives of the army were present.[482]

They explained how the events and atmosphere of that Purim prevented the burial from taking place in the old Jewish cemetery in Hebron, and also explained how all the decorative items around the grave came to be authorised. The members of the Committee spoke of the desirability of moving the grave to another site and very strong sentiments were expressed that the decorative items around the grave had to be demolished.[483]

During the debate, various members of the Committee said what they thought should be (or should have been) done with Baruch Goldstein’s body. Micha Goldman felt he should be buried “in a separate corner [of a cemetery], in a corner for murderers”.[484] Ze’ev Baum made a far more extreme comment, “The State of Israel once took the enemy of the Jews, Eichmann, cremated him and scattered his ashes far away in the sea. If it were possible to do this to a Jew, perhaps this would have been the solution for this murderer. But it is impossible to do this.”[485]

[Even if this act of Goldstein’s were to be found to be a massacre, it is completely and utterly obscene to couple his name with Eichmann’s. Adolf Eichmann was found guilty of implementing over the course of a number of years, in infamous places like Auschwitz. Treblinka, Mauthshausen etc, Hitler’s “Final Solution” which aimed at annihilating 11 million Jews, and in which tragically he succeeded in over half his objective.]

At this meeting, Ran Cohen said that if a way were to be found to demolish Goldstein’s grave, he would withdraw his bill[486] - a clear contradiction of his claim made at the previous meeting of the same Committee that his bill was “general, universal and not personal”![487]

The First Reading of the bill in the Knesset plenum took place on 25 March 1997. Ran Cohen opened the debate by reiterating the points he had made in the plenum four months earlier.[488] In the ensuing discussion, the only speakers were from left wing parties.

Shevach Weiss described Baruch Goldstein as a “Jewish fascist,” one “who has a pathological hatred for Arabs” and participates in every march where “death for Arabs is screamed out.”[489] Weiss submitted no evidence in support of such an assessment of Baruch Goldstein. In fact as we shall see later, Baruch Goldstein gave medical attention to Jews and Arabs alike.

At the debate a grand total of 12 Knesset members (out of 120) were present! All 12 voted to send the bill to the Knesset Interior Committee for consideration.[490]

The bill was then returned to the Interior Committee to prepare it for the second and third readings. At a meeting held in July 1997, the members were informed that at the request of Ran Cohen an addition had been made to the bill to enable it to be effective in Judea and Samaria - which of course includes Kiryat Arba.[491]

The Knesset seems to have been in no hurry to proceed with this bill. Seven months were to pass before the next meeting of this Committee took place to discuss it. When it did finally meet, Ran Cohen was quick to complain about all the delays commenting that “all this time this cursed memorial is standing.”[492] Later at the same meeting he again complained about the delays and asked “How much more patience must we display in this matter?[493]

Rafael Elul of the Labour party was of the opinion that non-removal of the monument would be non-educational, He claimed that in five years time, when the massacre had been forgotten, children visiting Kiryat Arba would see this glorious site and say what a great person Baruch Goldstein was.[494]

At the next meeting held about a month later, Ran Cohen again complained, this time about the fact that nobody - not the army, not the Ministry of Defense, not the Ministry of Justice, not Kiryat Arba, not the Settlers’ Council - had done anything to advance the passage of this proposed law. Only the Interior Committee had done something![495]

The main part of this meeting was taken up with a new proposal which would involve completely removing the grave of Baruch Goldstein. This caused an exchange of words between the Knesset members of the Left and the religious members, the latter stressing that they would follow the Rabbinical rulings forbidding the transfer of the grave. During this exchange Ran Cohen retorted: “... the Rabbis dabble in politics, this is not a matter of Jewish law.”[496]

The discussion about the removal of the grave was continued at the next nd final meeting of the Committee. It was pointed out that the Rabbi of Kiryat Arba, Rabbi Dov Lior had ruled that it was forbidden to move the grave[497] and that the two Chief Rabbis, Rabbi Eliyahu Bakshi-Doron[498] and Rabbi Israel Meir Lau[499] , had concurred.[500] On this Ran Cohen commented: “This is a disgrace. They are indeed the Chief Rabbis, but it is a disgrace.”[501]

The Chief Rabbis had given their ruling following a request by David Shmidal, chairman of the “Atra Kadisha”,[502] an organisation who works to prevent the desecration of graves all over Israel.

The Knesset Committee finally decided not to include a paragraph regarding the removal of graves,[503] and the bill was sent to the Knesset plenum for the second and third readings. This took place on 2 June 1998[504] and the bill was voted into law.[505]

Following the passage of this new law, the Defense Minister, Yitzchak Mordecai immediately gave an official order to apply the law to the grave of Baruch Goldstein.[506] According to the press, at the same time he asked that the family of Baruch Goldstein be approached in order to try and reach an agreement on the dismantling of the area of the grave.[507]

On 1 July, the Goldstein family was officially informed by letter of the planned dismantling of the surroundings to the grave, the deletion of certain words from the tombstone and other changes the army intended to make.[508]

In Jewish tradition when referring to a righteous person who has died, one adds after his name, “the memory of the righteous shall be for a blessing”[509] or alternatively “the memory of the righteous and holy shall be for a blessing.” The latter designation appeared on Baruch Goldstein’s tombstone and this was one of the wordings which the military authorities wanted to be deleted. [It is of interest to note that in a signed letter from Judge Meir Shamgar, Dr. Baruch Goldstein’s name is followed by “the memory of the righteous shall be for a blessing.”[510]]

The parents of Baruch Goldstein employed the lawyer Naftali Werzberger to act for them and he informed the army of the family’s objections to any action which would affect the grave or the surrounding area.[511]

Nearly three months later, the Legal Adviser for Judea and Samaria informed Werzberger that he had considered his objections but was unable to accept them, adding that during the following 48 hours they would not carry out any demolition.[512] Werzberger, immediately petitioned the High Court, calling for a restraining order to stop the planned demolition,[513] which was granted.[514] During this period, Ran Cohen, who had sponsored this bill in the Knesset, called upon the High Court to issue an order that would compel the army to carry out the demolition immediately.[515]

Werzberger presented his argument against demolishing the area of the grave. The office of the State Attorney answered this argument giving their reasons why the demolition should take place.[516] The reasons listed by Werzberger were in the main technical.

Among the non-technical reasons, was that no court had found Baruch Goldstein guilty of a terrorist act and that no-one had been given the opportunity to submit a defense for him.[517] In reply the State Attorney’s office commented that “it would have better had this argument not been raised at all.”[518] To support this comment, they quoted from the Shamgar Report that the killings had been done by Baruch Goldstein and from the conclusion of the Report which described this “massacre ... [as] a base and murderous act” against “innocent people.”[519]

We have already stressed that the majority of the members of the Shamgar Commission repeatedly called Baruch Goldstein a “murderer” before hearing all the evidence. This fact in itself would cause a court to disqualify the ruling of a lower court which acted in such a manner. Also, according to the law on “Commissions of Inquiry,” the family of a person who could be harmed and who has since died, must have the right to put up a defense and cross-examine witnesses. The Goldstein family were not given this opportunity. Thus the reply of the State Attorney’s office shows somewhat specious reasoning since their whole case seems to rest on those few statements of the Shamgar Commission!

Werzberger also argued that there were many people to whom the term “perpetrator of a terrorist act” could apply - those who before the establishment of the State of Israel took terrorist action against Arabs, or those who took terrorist action against Jews. He claimed that to apply the law solely to Dr. Goldstein, would be showing inequality before the law.[520]

Towards the beginning of October 1998, the car belonging to Ran Cohen was set ablaze whilst parked in front of his house and completely destroyed. At 4 o’clock in the morning Ran Cohen was awoken by shouting in the street.[521] The “Jerusalem Post” reported that, “Cohen said he believes the arson was the work of a new Jewish underground” and he “held Kach [followers of Kahane] responsible, saying the group has threatened to hurt members of the Left if Goldstein’s grave is touched.” However, in this newspaper report, no evidence was offered by Cohen in support of his charges, and “former Kach activist Noam Federman denied involvement in the incident.”[522] At a later date Cohen reported on the slashing of his car tires, graffiti painted on his house and verbal assaults against himself and his family.[523] These acts of arson, malicious damage, graffiti and verbal assault must be condemned in the strongest possible terms.

On 5 November 1998, the High Court postponed, for a month, the hearing on the appeal made by Baruch Goldstein’s parents against demolishing the area of the grave. The judges then added an oral recommendation to the State Prosecutor, that during that month he should come to a compromise with the parents,[524] but nothing came of this.[525]

Ran Cohen who had been present in the Courtroom came out, according to the newspaper Ha’aretz, full of criticism against the judges: To quote from this newspaper: “He protested and angrily complained about ‘the tendency to compromise and the acquiescence of the judges to the existence of a site which encourages terror and murder.’ He added: ‘It is very serious in my opinion that the monument and the inscription on the grave which states that the murderer is ‘holy’, ‘free of iniquity and of a pure heart’ and ‘gave his life for his country, his Torah and his people’ remains in place, and furthermore with the patronage of the High Court’.”[526]

At a hearing on 3 December, the High Court instructed the army to present evidence within 45 days justifying demolishing the area around the grave.[527] At this hearing (on 3 December) Baruch Goldstein’s father asked to be allowed to speak, but his request was refused.[528]

On 22 February 1999, the High Court stated that the two sides had agreed that the retired Judge Dov Levin be asked to act as an arbitrator in this matter. However were he to refuse, the matter would be returned to the High Court. [529] Judge Levin refused the offer, and attempts were made to find other arbitrators acceptable to both sides.

During the course of these attempts, the parents of Baruch Goldstein had a meeting with retired Judge Shilo, on (it would seem) 12 May 1999,[530] which produced no results.[531]

Since these attempts failed, the case was returned to the High Court who heard it on 7 September 1999.

As stated above, among Werzberger’s arguments was that no Court of Law had ruled that Goldstein’s act was “an act of terrorism.” The court rejected this argument and ruled that “valid administrative proofs provided they are consistent with the observance of the principles of natural justice” were sufficient. They considered that “valid administrative proofs” were “plentiful” and that “the principles of natural justice were strictly observed.”[532]

With the greatest respect to the judges of the Israel High Court, I personally find it very difficult to accept this conclusion, since the verdict fails to give a list of these “plentiful valid administrative proofs.” Also how can one suggest that “the principles of natural justice were strictly observed” when neither the widow nor any other representative of Baruch Goldstein was given an opportunity to submit a defence or to cross-examine witnesses. In addition, a majority of the members of the Shamgar Commission were calling Goldstein a “murderer” before they had heard all the evidence. The same Court has on numerous occasions disqualified a lower court decision on the basis of the judge doing something, far less serious than repeatedly calling an accused a murderer (17 times by just one of the judges), before hearing all the evidence.

The High Court asked who would stand in the dock in any trial to determine whether Goldstein was guilty of an act of terrorism.[533] But why even ask such a question? This point is specifically dealt with in the 1979 amendment to the “Commissions of Inquiry Law” which states that a relative of the deceased would present the defence. In addition, from the proceedings of the case brought by Baruch Goldstein’s widow Miryam and Yoel Lerner, (introduced earlier in this book) one sees that a judge of the Supreme Court, Judge Zvi Tal, suggested that Miryam Goldstein be given the opportunity to defend her husband - in other words she would be her late husband’s representative.

Even if the widow had been granted all the rights of defence embodied in this law, there would still be a serious problem for the State Prosecutor arising from paragraph 22 of this law. This states: “The Report of a Commission of Inquiry shall not be evidence in any legal proceedings.” Werzberger used this paragraph in his argument to show that anything stated in the Shamgar Report could not be used in evidence in this case.[534] However, the learned judges did not so much as refer to this argument in their ruling, let alone justify why this paragraph of the law should not be applied.

Werzberger also argued that Goldstein had made a pre-emptive strike to prevent an Arab attack on the Jewish community he lived in.[535] There is not even so much as a mention of this argument by the High Court Judges in their ruling!

The unanimous ruling of the High Court[536] was given on 14 November 1999. It rejected the written appeals by both Baruch Goldstein’s father[537] and mother[538] that demolition of the surroundings of the grave would cause upset and suffering to his family. An appeal for a rehearing was also rejected.[539]

Following the Court ruling, Tzvi Katzover, the Mayor of Kiryat Arba contacted Avraham Ben-Yosef, the Mayor of the Hebron Jewish Municipal Council. The latter advised Katzover that the Kiryat Arba Local Council should not get involved with the demolition. Any such work should be left to the army.[540] So early in the morning of 29 December 1999, the army and police arrived in force. As reported in the newspaper Ha’aretz: “The bulldozers then began their work, removing lamps, breaking up decorative tiles and turning over a small, enclosed stand for prayer books and memorial candles.”[541] They even destroyed the hand-washing facilities, which are an essential part of every Jewish cemetery, since by Jewish law, one is required to wash ones hands after visiting a grave.[542]

As the dismantling proceeded about 100 demonstrators came to protest. Baruch Goldstein’s father lay prostrate on the gravestone, told the television crew who were present to witness what was being done to the grave area and said that his son had given his life and left a widow and small children in order to make a pre-emptive strike to prevent a massacre of Jews. In tears he condemned what was being done to the grave. “Look what we’ve come to!” he was heard to cry.[543]

When a structure which has been built with the appropriate building license is for some reason demolished by the authorities, the owners are given financial compensation. The Goldstein family had all the relevant building licenses for the surroundings to the grave. Yet they have been given no financial compensation whatsoever by the authorities.[544]

From the time the Court confirmed the demolition order for the area around Baruch Goldstein’s grave until the actual demolition, only about a month and a half elapsed. Prompt work! Unfortunately, however, there is not always “prompt work” in such cases. An Arab illegally built a house in the area under the jurisdiction of the Kiryat Arba Local Council. This was at the beginning of the 1990s. At that time, the Civil Administration issued a demolition order for this illegal structure.[545] Over nine years later, the house was still standing!

One could quibble that the demolition order for the area around Goldstein’s grave was confirmed by the Courts, whereas the demolition order for the Arab house was not submitted for such confirmation, (although such confirmation is not obligatory to implement such a demolition), but one could quite rightly ask why during these nine years, the Civil Administration, seeing their order was ignored, did not apply to the Courts to confirm it.

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Partisan action at Baruch Goldstein’s grave

In November 1995, a Tel-Aviv artist named Avraham Pesso went to visit Baruch Goldstein’s grave.[546] His purpose, however, was not to read Psalms nor to recite a memorial prayer. It was quite different!

Three days after the assassination of the Israeli Prime Minister Yitzchak Rabin, Pesso, after much thought, decided that he had to take some action by the grave of Baruch Goldstein and that this action would be taken with the aid of black paint. He mixed this paint with turpentine and put it in a bottle. He then travelled from Tel-Aviv to Jerusalem by bus and from there took a taxi to Kiryat Arba. There he went to the grave, threw his black paint over the tombstone and damaged the lighting around the grave.[547]

Pesso’s actions could thus not be considered to be done on the spur of the moment or brought about by a momentary loss of self control. By his own admission he had planned and thought out his actions whilst in Tel Aviv. He had specially prepared his paint - turpentine mixture. His journey from Tel Aviv to Kiryat Arba took several hours. He had plenty of time to reconsider his planned actions and withdraw from them. His act was therefore clearly premeditated.

Yisrael Goldstein, the father of Baruch, heard about the damage that same afternoon and went to inspect it. That evening, Pesso’s actions, which had been filmed by a news cameraman, were shown on Channel 1 of Israel television. Goldstein made a video recording from the television and on the following day filed a complaint against Pesso with the police.[548]

In addition, two other people, Binyamin Yosef and Amos Zoaratz, (both of whom lived well away from Kiryat Arba), after seeing the newscast, independently filed complaints with the police asserting that Pesso’s actions affected the sensibilities of the public.

Pesso claimed that he had told nobody of his plans and had not invited any reporter to be present.[549] Allegedly, the news cameraman just happened to be present at the right place at the right time!

Others however gave different versions. Arbel Aloni, from the newspaper Ma’ariv testified that he had received advanced notice that at a specific day and hour Pesso intended to go to Goldstein’s grave in Kiryat Arba and that he intended to paint it. At this appointed time Aloni arrived at the grave together with a photographer and about half an hour later Pesso arrived.[550]

Furthermore, a reporter for a foreign television station, George Kiliaris, together with his photography team was at the time in Kiryat Arba. Kiliaris reported: “An Israeli man [Pesso] came close and said follow me... We went to the grave of Goldstein. He paced and then he just took out a bottle of black paint and started spreading it over the grave and smashed the lamps.”[551]

The following day ten policemen were put to guarding the grave, since it was thought that there might be another attempt to desecrate the grave which could spark off violence.[552]

For his actions, Pesso was put on trial and the case was heard about two years later, at the Jerusalem Magistrates Court, where he admitted to most of the facts.[553]

His lawyer had written no fewer than three letters to the Attorney General asking him to drop the charges[554] - but in vain. The lawyer argued that “since the Law enforcement’s and the Courts’ time was limited, it was not right to waste such resources on this case.” Yitzchak Rabin’s son Yuval offered to pay for Pesso’s defence.[555]

The minutes of the trial give a verbatim report of what each of the witnesses said. The witness for the prosecution Zoaratz said: “In my opinion the man [Pesso] did acts which in Israeli law could be classed as Nazi crimes.” When cross-examined on this point, he explained that the Nazis desecrated Jewish graves.[556]

Obviously, Pesso’s actions were far less serious than those of the Nazis. However it is probable that Zoaratz was concerned with the principle, rather than the degree of desecration of graves.

[This policy of the Nazis was later inherited by the Jordanians who wreaked havoc with the ancient Jewish cemetery on the Mount of Olives in Jerusalem. They did even worse with the Jewish cemetery in Hebron. Sections including that of the Jews murdered in the 1929 pogroms were completely uprooted, fruit and vegetables were planted and a latrine was erected on the site.[557] ]

The prosecution witness Yosef was asked under cross-examination: “What is your opinion of the actions of the murderer Baruch Goldstein?” His answer: “No one knows what happened there [in the Cave of Machpelah that Purim].”[558]

Bringing Pesso to trial, (as might be expected) caused a lot of objections from the Left, and outside the court there were arguments between the Left and the Right. Knesset Member Ran Cohen, who was present in the court told Israel Radio: “Although I am a great believer in upholding the law, I feel revulsion on hearing the words ‘The State of Israel against Avraham Pesso’ when those who continue in the footsteps of Goldstein and Yigal Amir are walking around free.”[559] The Secretary-General of the left-wing “Peace Now” movement commented that whilst he condemned Pesso’s action’s, one had to relate to the fact “that the tombstone should not be there. This file could be closed.”[560]

Although the penalty for damage to a grave is three years in jail,[561] the two sides came to an agreement that Pesso would not go to jail but would do community service.[562] The judge fixed this community service at 60 hours[563] and imposed no monetary damages.

Had Pesso’s act been a momentary loss of self-control, one could understand this light sentence. But by his own admission, he had carefully planned his actions; there is also evidence that he had pre-publicised his intentions.

In fact, Yisrael Goldstein expressed his amazement to the prosecuting counsel for his having accepted a plea-bargaining agreement when he had such an airtight case, but was brushed aside by him with no answer.[564]

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The grave of Izz al-Din al-Kassam

While Ran Cohen was doing his utmost to have Baruch Goldstein’s grave demolished, similar attempts were being made to have the grave of Izz al-Din al-Kassam demolished. Who was this Izz al-Din al-Kassam and what was his claim to fame?

Izz al-Din al-Kassam was born in 1883 in what is now northern Syria. As a result of his activities immediately following World War I, he was sentenced to death in absentia by the French military authorities, [Syria was allocated to France after World War I.] Al-Kassam fled secretly to Haifa where he became a preacher in a local mosque, constantly exhorting his worshippers to carry out jihad - holy war. Following the large massacre of Jews in 1929, Izz al-Din al-Kassam enlisted and organised terrorist groups who would go out and attack Jewish settlements, resulting in the death of a number of Jews. In November 1935 al-Kassam was killed in a confrontation with the British police force. The Hamas faction of the PLO has named its military wing the “Brigades of Izz al-Din al-Kassam.”[565]

Izz al-Din al-Kassam was buried in the Moslem cemetery in Nesher which is in the vicinity of Haifa. His grave consists of one flat stone covering his grave and two upright stones. On one of them is an inscription and included in this inscription is the appellation “holy man” and the wish that others should follow “in the footsteps of al-Kassam.” The cemetery is in a very neglected state - most of the graves are without even tombstones. However, in the last few years restoration work has been done by various Islamic groups in the area of the grave of al-Kassam. A fence around the grave was painted green - the colour of the flags of the Hamas and their brigade![566]

Work on this grave did not pass without comment in the Knesset. In May 1997, Knesset Member David Re’em asked in a “Parliamentary Question” which group was refurbishing the grave, adding that the work was being done without coordination with the appropriate authorities and demanding to know what was being done in the matter? He was told that the grave was being refurbished by an Islamic movement and was assured that the authorities would look into the matter and see if they could do anything and if so what. Immediately Knesset Member Benny Elon tried to ask whether the authorities were going to destroy the monument to al-Kassam but he was constantly interrupted by Arab Knesset Member Abdul Darawshe. Elon then asked whether left wing Knesset Members who thought it necessary to destroy Jewish graves, thought likewise about al-Kassam’s grave.[567]

Mention of this grave was also made on several occasions in the Knesset during the debates on Ran Cohen’s bill against monuments to terrorists. At the meeting of the Knesset Interior Committee held on 2 February 1998, convened to consider this bill, Knesset member Nissan Smolensky of the National Religious Party (Mafdal) said he hoped that the law would also apply to the monument to Izz al-Din al-Kassam. Although he made this statement twice, the members of the Committee (and also Ran Cohen!) were strangely silent on this subject.[568] The representative of the Ministry of Internal Security present at this meeting commented that if they were to touch the monument of al-Kassam, it would cause unrest![569]

The issue of al-Kassam’s grave was again brought up in a meeting of the same Committee a month later and the Arab Knesset member Ahmed Sa’ad commented: “Izz al-Din al-Kassam was not a murderer of worshippers. He fought for his people.”[570] [When mentioning “worshippers”, it is a pity that Ahmed Sa’ad, did not utilise the opportunity to mention that al-Kassam whilst preaching to worshippers in the Mosques would regularly incite them to jihad against Jews and others!]

Indeed in July 1998 Leah Bachrach, the grandmother of Ehud Bachrach, who was murdered by Arab terrorists in Wadi Kelt, wrote to the Minister of the Interior demanding that the law regarding terrorist tombstones be enforced in the case of the grave of al-Kassam. She said that they should demolish his tombstone, or alternatively remove the inscription which includes calling him a “holy man” and the phrase “together in the path of al-Kassam,” which she claimed praises and encourages acts of terror. She added that if the authorities did not act in this matter she would petition the High Court. [571] Her request was not complied with[572] and so using the lawyer Shmuel Casper, Bachrach submitted a petition.

In the petition, Casper wrote that the law passed by the Knesset applied to all memorials of those perpetrating acts of terror and not only to those against whom the Government wanted to act.[573]

(At first, the High Court ruled that they would hear this petition together with that of the petition regarding the grave of Baruch Goldstein which was then pending.[574] However at a later date, they decided to separate the two petitions. The reason: on the day scheduled to hear the petitions, the Court schedule was crowded, and there was only time to hear the petition regarding Baruch Goldstein’s grave.[575] )

After hearing the arguments for both sides, the High Court unanimously decided that al-Kassam’s grave was not a memorial and should not be touched nor should anything be done regarding the wording on the tombstone.[576]

The State argued that since the Minister of the Interior had not promulgated regulation on how to implement the law against memorials for terrorists, no action could be taken regarding the grave of al-Kassam.[577] However more than two years had passed since Ran Cohen’s bill became law. How long does it take the Ministry of the Interior to write a few regulations? In contrast, within just days, the Minister of Defense started taking action to dismantle the area around Goldstein’s grave and remove words from the tombstone.

Another argument introduced by the State was that the petitioners had not placed before the Court evidence that al-Kassam had performed cruel murders and terrorist act against Jews.[578] Neither has any Court of Law established that Baruch Goldstein was a terrorist.

The State also argued that this law excluded the stone covering the grave and since the inscription was on the tombstone it could not be touched.[579] This is true. However the State argued precisely the opposite with regard to Goldstein’s grave,[580] vehemently claiming that words such as “Holy man” were an incitement to terrorism and should thus be removed.[581]

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Pandora’s Box

During his pleading before the Israel High Court, the lawyer Werzberger said that acting against Baruch Goldstein’s grave would be like opening a Pandora’s box, quoting as an example those members of Etzel and Lehi (underground organisations during the period of the British Mandate over Palestine) who were tried, found guilty and hanged by the British for what the British considered to be terrorist acts.[582] This example was also given in the Knesset plenum by the Minister of Justice, David Libai, when Ran Cohen first introduced his bill.[583]

In the East Talpiot area of Jerusalem, streets have been named after these people - Moshe Barazani Street, Meir Feinstein Street, Dov Gruner Street, Avshalom Haviv Street, etc. According to this new Knesset law does one have to rename these streets? There is also a memorial in the cemetery in Safed to these people. Does it have to be demolished? There is a square in Ramat Gan named after Dov Gruner. Does it have to be renamed? What can one do about the postage stamps which were brought out in 1982 to commemorate members of the Etzel?[584]

... and what about those members of the Haganah responsible for planting a bomb (or explosives) on the immigrant ship Patria bringing Jews to the Promised Land, resulting in the deaths of over 200 Jews?[585]

... and what about those members of the Etzel responsible for blowing up a wing of the King David Hotel in Jerusalem killing 98 people, Jews, Arabs and British?[586]

... and what about those responsible for the killing of 13 people and wounding a further 50 on the ship the Altalena off the shores of Tel-Aviv? This was the Etzel ship sunk under the command of Yitzchak Rabin under the orders of Ben-Gurion.[587]

... and what about those members of the Israeli army who massacred between 60 and 94 inhabitants of the Arab village of Saliha, at the end of October/beginning of November 1948. They were squeezed into a house (possibly it was the village mosque) and the house was then blown up.[588]

… and what about those members of the Israeli army, who at the end of October 1948 entered the Arab village of Dawaymeh and massacred about 75 of its inhabitants. These included many old men who were on their way for Friday prayers at the local Mosque.[589]

... and what about those members of the Israeli army, who in October 1948, (according to the diary of Yosef Nachmani, a Director of the Jewish National Fund office in eastern Galilee), were responsible for the massacre of Arabs in the village of Safsaf? Nachmani wrote in his diary: “The inhabitants had raised a white flag, the [Israeli] soldiers collected and separated the men and women, tied the hands of 50-60 fellahin [peasants] and shot and killed them and buried them in a pit.”[590]

... and what about those members of the Israeli army responsible for the killing of 69 Arabs, including many women and children, of Kibya? Kibya is a village in Samaria and the killing took place in October 1953. Ben-Gurion told his ministers to say that it was not the army but angry Israeli citizens who killed the inhabitants of Kibya.[591]

... and what about those members of the Border Police responsible for the massacre of 43 Arabs, including 9 women and 7 children in the village of Kfar Kassem in 1956?[592]

... and what about Israeli air-force pilots on a bombing mission in Lebanon killing innocent Lebanese citizens? This example was brought up by the then Minister of Justice, Tzachi Hanegbi in the Knesset plenum.[593] Some months earlier, in an Israeli shelling of a United Nations refugee camp in Qana, Lebanon, over 100 innocent Lebanese civilians, including women and children were killed.[594] If there a radical change of government in Israel, these bombings and shellings might be regarded in a different light. [This happened in practice in Germany. When West and East Germany became re-united some East German border guards found themselves brought to trial and sentenced to prison terms for shooting and killing those trying to escape to the West, even though at the time of their actions they were acting according to East German law.[595] ]

... and so on...

... and so on...

Note: The material introduced in the section “Pandora’s Box” was taken from historical works, newspaper clippings, etc. Where possible two or more independent sources were consulted for each event. If despite this, the historical accuracy of any of the material is found to be inaccurate, I humbly apologise to those concerned and sincerely regret any distress which might have been caused.

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