How did Baruch Goldstein die?
The manner in which a man dies could have an effect on the amount his widow receives as pension. The widow of a man killed in an Israeli war or in a terrorist attack would receive a larger pension than would the widow of a man dying of a heart attack. We shall therefore look at the way that Baruch Goldstein died.
About three minutes after the shootings in the Cave of Machpelah, soldiers entered the Isaac Hall.[596] Major Stelman reported that one of the soldiers had told him that in the Hall they saw a “doll” in army uniform.[597] It was Baruch Goldstein's mutilated body.
The police report on the state of his body speaks of a smashed in skull.[598] The pathologist's report gives more details and says that death was caused by numerous blows to the head from all directions by long blunt instrument(s). It also speaks of a smashed in skull, damage to the brain, broken ribs and a broken left arm.[599]
In her evidence to the Shamgar Commission, the widow, Miryam Goldstein, said that the face was so mutilated that even Baruch's brother had difficulty in identifying him.[600]
The question to be asked is: Why was the body in such a state? Did the Arabs have to do all this as an act of self-defense?!
The answer can be found in statements made by Arabs who were in the Isaac Hall at the time.
One of those present was the Moslem worshipper Awad Abu-S'nina, who was subsequently questioned by the organisation called “B'tselem”. The material was handed over to the Shamgar Commission. [“B’tselem” is an organisation which describes itself on its logo as “The Israeli Information Center for Human Rights in the Occupied Territories.”] Abu-S'nina said that whilst Goldstein was changing the magazine in his rifle, he succeeded in grabbing the weapon and immediately his father, Ayub Abu-S'nina took the weapon from his son[601] and threw it aside.[602]
When questioned by the police, another Moslem worshipper, Al-Mutlab Natshe, stated that about ten Arabs then fell on Goldstein, knocked him onto the ground and beat him to death with metal poles.[603] In a further statement that he gave to the Israeli police on 31 October 1994, Natshe said that he saw a large number of Arabs hitting Baruch Goldstein with sticks and shoes when he was already lying on the ground.[604]
A statement that a large number of Arabs beat him with a fire extinguisher and (the metal poles of the) room dividers was made by a 12 year old boy, Ala S'eid Ali Ashur.[605] The Moslem worshipper Ashraf Karaki told the police that he saw Baruch Goldstein lying dead on the floor with a lot of blood on his neck and head and he also saw a large metal pole on his body and a large number of similar type poles around him.[606]
Evidence on this subject also comes from Private Avihai Zahala, who over a closed-circuit television system operating in the Cave of Machpelah, saw, after the shooting had finished, about three Arabs with metal poles going towards the area of the Hall where Goldstein met his death.[607]
From all this we can see that Baruch Goldstein was beaten to death after his rifle had been taken from him. This fact is confirmed in two places in the Shamgar Report, and this Report specifically states that this was done by Moslem worshippers.[608]
Furthermore, the official death certificate issued by the Israeli Ministry of the Interior, states the cause of death as “murder”.[609] A death certificate is not just another piece of paper. It is a legal document certifying both the death and cause of death of a person and has legal sanction by virtue of the “Population Registry” Law of 1965 [610] and by regulations issued by the Minister of the Interior.[611]
It is true that Baruch Goldstein also had a handgun in his belt. However when questioned by the police, at least two of the Moslem worshippers said that they did not see this gun at all.[612] In fact when he was lying on the floor being beaten by numerous Arabs, it would have been physically impossible for Goldstein to have used such a gun!
During her evidence to the Commission, Miryam Goldstein said that it would be a travesty of justice if the Commission were to investigate the entire affair with the exception of the murder of her husband.[613] Judge Shamgar said the Commission would investigate the affair in its entirety[614] and as we have just seen the Report did include the cause of death of Baruch Goldstein.
Many of the cases which have come before the Israeli Supreme Court, in which the accused claimed that he was acting in self-defence have been rejected on the grounds that the accused continued hitting the deceased after the latter was on the floor and no longer offered any danger to the accused.[615]
The police investigated the murder of Baruch Goldstein and by December 1994 [616] they reached the conclusion that he had been murdered in cold blood by Moslem worshippers after his weapon had been taken away. [617]
One of the Arabs present that Purim in the cave of Machpelah was a collaborator with the Israeli authorities. [A document from the file of the “pension case” (described later) gives his name, but for obvious reasons, I will not repeat it here.] This collaborator knows the names of the Arabs who murdered Baruch Goldstein and also to which organisation they belong.[618]
One might also mention that the file containing the police investigation of the murder of Baruch Goldstein is not, as is usual, being kept in a filing cabinet. It is stored in a safe and what is more in the safe of the security officer.[619] Why all these precautions? Why all the secrecy regarding the murder of Baruch Goldstein? Surely the proper thing is to bring to a speedy trial those suspected of this murder, in the same way as other suspected murderers are brought to trial.
However the State Attorney Dorit Benish (who was later appointed a judge in the Supreme Court) decided not to open criminal proceedings against the Arabs who were accused of murdering Baruch Goldstein.[620] In June 1995, the Legal Adviser to the Government, Michael Ben-Yair endorsed this decision of Benish’s.[621]
Baruch Goldstein’s widow Miryam, appealed this decision of Ben-Yair’s[622] and her lawyer Gidi Frishhtik submitted the professional opinion of Professor Enker arguing that those who killed Baruch Goldstein could not claim the defence of self-defence.[623]
To date, no Arab has been charged with Baruch Goldstein's murder. This can be contrasted with the case of a Jewish settler, Yoram Skolnik, who killed an Arab terrorist after he had been disarmed. Skolnik was immediately arrested, charged, brought to trial and sentenced to life imprisonment for murder.[624] Later, President Ezer Weizman reduced Skolnik’s sentence first to 15 years and then to 11 years. After serving 7 years, a parole board followed standard practice and took off one third of his remaining sentence for good behavior. This did not find favour with Meretz Knesset Member Zahava Galon who challenged the parole board’s decision in the High Court, who then ruled that this decision was unacceptable.[625] Yoram Skolnik thus remained in jail. To the best of my knowledge, Zahava Galon has never challenged the fact that the Arabs who murdered Baruch Goldstein have never been brought to trial!
A civilised society quite rightly demands from its citizens that they obey and respect the law. However it also necessary for those in charge of law enforcement to show that the law is impartially enforced. To charge, bring to trial and imprison one person for an offence, and at the same time turn a blind eye to someone else committing a similar offence, (and more especially if it is a serious offence), will certainly not encourage citizens to have the respect for the law! Woe to a country where the law and the judicial system is not respected!
The fight for the pension
A few weeks after Purim 1994, Miryam Goldstein put in an application to the Ministry of Defence to be recognised as the widow of a victim killed in a hostile action by enemy forces. Her request was dismissed with the remark that the cause of Baruch’s death was not regarded under the law as hostile action.[626] Following a further letter by Miryam, the Ministry elaborated and said that “the death of your late husband was caused by the [Arab] worshippers in the Cave of Machpelah, when your late husband shot, killed and wounded tens of them.”[627]
Under the law, one has the right to appeal such a decision to an “Appeals Committee” which is headed by a judge.[628] Miryam Goldstein did this using her lawyer Gidi Frishtik. The case was held in the Tel-Aviv District Court.[629]
Frishtik quoted from the Shamgar Report showing that Dr. Goldstein had been killed by the Moslem worshippers after his weapon had been taken from him and was therefore no longer any danger to anyone. He described such a killing as a “lynch” and thus a “hostile action” as defined by the law. He brought further support from the evidence given by Moslem worshippers present in the Cave of Machpelah.[630]
Frishtik also submitted a legal opinion by Professor Enker, who in his memorandum, after summarising the facts, gave three Israeli legal precedents to show that the defence of self-defence only applies so long as the danger applies. Once it has passed, one can no longer utilise it, and this, in his opinion was the situation in the Goldstein case.[631]
Frishtik argued that the definition of “hostile action” had included people who had been stabbed in the Old City of Jerusalem, even when the attackers had not been caught or had not been members of a terrorist organisation. He pointed out that in Hebron, 12 people had been killed by Arabs and had been recognised as “victims of hostile action.” In his opinion, even if the Jews had provoked the attack, once the defence of self-defence no longer applied, one had to look at the murder detached from any previous provocation.[632]
In their judgment, the Committee members ruled that only a Court can decide that an act of violence which caused a person’s death is murder.[633] Why then has no Court tried those accused of killing Baruch Goldstein to decide whether or not it was murder?
The Committee also ruled that under the Population Registry Law, the cause of death must be accompanied by a medical certificate.[634] The pathologist’s report spoke of death as a result of a smashed in skull, damage to the brain, broken ribs and a broken arm. Surely this is a clear case of murder.
The Committee were not prepared to express an opinion as to whether, if the Arabs who killed Baruch Goldstein were brought to trial, they could claim self-defence.[635]
In conclusion they ruled that the attack by the worshippers on Baruch Goldstein was a direct reaction to his shooting and the casualties caused by it. Hence whether the cause of his death was by murder or by the worshippers taking the law into their own hands and lynching, it could not be classed as a hostile action, but as a reaction to Goldstein’s actions.[636]
This conclusion by the Committee would be acceptable if it were to be determined that Baruch Goldstein’s action was a massacre. The Arabs should then have taken the necessary steps to disarm him and then hand him over to the police. To murder him was of course absolutely forbidden, but in such circumstances one could not class Baruch Goldstein as a “victim of hostile action.”
However if it were to be determined that his action was a pre-emptive strike to prevent a massacre of Jews, a possibility not even mentioned by the learned Committee members, then one could argue as follows: Had the Arabs succeeded in carrying out their terrorist attack and killed Jews, these murdered Jews would, without question, be regarded as “victims of hostile action.” However, instead, a Jew pre-empted this terrorist attack and whilst doing so was murdered by these same Arabs. Surely in such circumstances, one cannot divorce the murder of this Jew from the context of the planned terrorist attack and decide that he is not a “victim of hostile action.”
I cannot claim credit for the comment regarding not being able to divorce the murder of Baruch Goldstein from the planned Arab terror attack. It was the learned members of the Appeals Committee who said that one cannot separate the killing of Goldstein from what preceded it.[637] Surely this statement would be just as applicable if it were proved that Goldstein was killed whilst making a pre-emptive strike to prevent a massacre of Jews.