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The Racialization of Ethiopian Jews in Israeli Law by Inbar Peled

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The Racialization of Ethiopian Jews in Israeli Law by Inbar Peled From Michael Brown To Yosef Salamsa: The Racialization of Ethiopian Jews in Israeli Law By Inbar Peled A thesis submitted in conformity with the requirements for the degree of Master of Laws Faculty of Law University of Toronto © Copyright by Inbar Peled 2018 From Michael Brown To Yosef Salamsa: The Racialization of Ethiopian Jews in Israeli Law Inbar Peled Master of Laws Faculty of Law University of Toronto 2018 Abstract This thesis presents a comparative analysis of the racialization of Israelis of Ethiopian descent in the Israeli justice system. Located at the intersection of criminal law doctrine and Critical Race Theory, the thesis analyses Israeli search and seizure cases by comparing them to Fourth Amendment law cases in the U.S. I argue that the lack of a lexicon with which to express harms caused to racialized minorities in the Israeli context stems, in part, from a reciprocal relationship between the Israeli national and legal cultures. I will show how aspects of this relationship can be used to reform the legal system. As the first extensive legal research on racial disadvantage faced by Ethiopian Israelis in the criminal justice system, this thesis seeks to add to the conversation regarding the lived experience of vulnerable communities of colour. ii Acknowledgments I am deeply grateful to my supervisor, Prof. Sophia Moreau, that with her sharp intellect and immense knowledge, helped enrich this thesis. Traces of her kind guidance can be seen throughout this paper. I am grateful for the delicate way in which she has managed to help me transcend my intuitions about the marginalization of Ethiopian Israelis into sound arguments. I would like to thank Prof. Anver Emon for his close reading of this thesis, for his inspiring teaching and scholarly work, and for his encouragement to pursue this project further and expand it into doctoral work. My special gratitude goes to Dr. Yofi Tirosh of Tel Aviv University, for her unbounded support, and for setting for me an example of brave academic leadership and legal activism. I am indebted to my family for their love and support. To my mother who is my greatest (and most consistent) supporter; and to Jay, for reading and rereading versions of this work and for breathing positivity into everything I do. Finally, I would like to thank the individuals whose stories reside in this work. Some of them have lost their lives, yet their stories live on in the spirits of communities and social struggles. (Inbar Peled) iii Table of Contents Acknowledgments…………………………………………………………………………..…....iii Table of Contents…………………………………………………………………………………iv List of Figures………………………………………………………………………...…………..ix A Brief Introduction…………………………………………………………………………..…...1 Chapter 1 The Untold Battle: Ethiopian Israelis and The Justice System….........................……6 1. Eternal Immigrants………………………………………………………………………...7 2. Petah Tikva Case: Exclusion in Education………………………………………………...9 3. Law and The National Culture……………………………………………………………11 4. Cultural Accommodation as Distraction…………………………………………………14 5. Segregation: The Larger Context…………………………………………………………15 6. The Barrier Within: Overcoming Institutional Racism in Education…………………….17 7. From the Blood Affair to Segregating Patients…………………………………….…….20 8. The Exclusion of Keses and Employment Discrimination………………………………..24 9. Multiculturalism in Israel: The Missing Piece of Ethno-Racialism………………………28 10. Conclusion ……………………………………………………………………………….31 Chapter 2 Ethiopian Israelis: Between Law and Protest………………….……...........................33 1. A Turning Point?................................................................................................................34 2. On “Naming” Racism………………………………………………………………….…36 3. Between Global and Local Ethnicity……………………………………………………..37 4. Trapped between Naming and Claiming…………………………………………………40 5. Conclusion……………………………………………………………………………….43 iv Chapter 3 In Search of a Lexicon: on Labels, Institutional Racism and the Role of Culture…….43 1. From Racism to Institutionalism……………………………………………………........44 2. Institutional Racism in Context………………………………………..…………………48 3. Preliminary Comments…………………………………………………………………...49 4. From Segregation to Criminalization (or: is it all about race?)…………………………..50 5. Racial Profiling, Police Brutality and the New Wave of Critical Race Theory………….53 6. New Institutionalism and the Social Theory of Racial Discrimination……………….…..60 Chapter 4 Racialized by Law: The Ethiopian Israeli Case…………………………….…..….....63 1. A Methodological Comment…………………………………………………………64 2. “Hands up: Don’t shoot!”: Yosef Salamsa…………………………………………...65 i. The Facts……………………………………………………………………..65 ii. The Complaint and Machash Investigation…………………………………..66 iii. The Appeal……………………………………………………………….......67 iv. The Process of profiling………………………………………………….......68 v. Stun Guns and Reasonable Force…………………………………………….70 vi. The Assault on a Police officer ‘Defense’……………………………….......71 3. Daniel Kassahun and the New Vagrancy Laws……………………………….……..73 I. The Facts……………………………………………………………………..74 II. The Trial………………………………………………………………….......75 4. Damas Pakedeh: The Spectacle of Violence in Court………………………………..76 I. The Facts……………………………………………………………….….....77 II. The Procedure……………………………………………………….……….78 v III. The Supreme Court Decision…………………………………….……...…...79 IV. Discussion……………………………………………………….…………...80 5. Tapara Bahata: Profiling in a Time Capsule…………………………………………81 i. The Facts……………………………………………………………………..82 ii. The Proceedings……………………………………………………………...83 iii. Discussion…………………………………………………………………....84 6. Shmuel Adama and Dangerous Escapes……………………………………………..85 i. The Facts……………………………………………………………………..85 ii. The Proceedings……………………………………………………………...86 iii. Discussion....................................................................................................…87 7. Israelis of Ethiopian descent and the Criminal Justice System………………………………………………………………………………..89 8. Carbado’s Model and The Israeli Cases …………………………..……………….…93 I. Creating Vulnerability………………………………………………………..93 II. Mass Criminalization and Revenue Generation…………………………...…95 9. Conclusion…………………………………………………………………………...98 Chapter 5 Search and Seizure: Between Israeli and American Law…..…………………..…….99 1. Fourth Amendment Case Law……………………………………………..……...100 I. Terry and Fourth Amendment First Principles…………………………….100 II. From Garner to Scott v. Harris: Between Reasonableness and Dangerousness………………………………………………………….....104 III. Stopping based on Appearance ……………………………………….…..106 IV. Reasonableness, Dangerousness, Appearance: The Doctrinal Triad…...…108 2. The Shooting of Michael Brown…………………………………………….…….109 vi I. The Facts….……………………………………………………..………..110 II. The Reasonableness -- of Profiling…………………………………….…112 III. On Dangerousness, Racialization and the Crime of Being “Big”……..…116 IV. Fleeing Felon and Missouri Use-of-Force Force Statute……………...….118 V. Use of Force and Police Perceptions…………………………………..…121 3. Conclusion………………………………………………………………………...124 Chapter 6 Search and Seizure: The Missing Perspective…………………………………….…126 1. Understanding Search and Seizure: The Role of Law………………………...……..128 2. Comparing Israel and the U.S: What’s to Gain?........................................................130 3. The Search and Seizure Regime: From Lethal Shooting to Revenue Generation….131 4. Impediments to Prosecuting Police officers………………………………………..133 5. The Narrative War…………………………………………………………………..138 6. Conclusion………………………………………………………………………….140 Chapter 7 Towards a Cross-Cultural Approach to Racial Profiling and Police Brutality…..….144 1. Current Reform Models………………………………………………………….….….145 i. Diversification……………………………………………………………...….146 ii. Cultural sensitivity……………………………………………………………..148 iii. Anti-Racism Policies vs. Cultural Sensitivity: The Case of Racial Profiling…..150 2. Transforming Our Assumptions…………………………………………………………152 i. Minority Rights Between Individuation and Social Construction……………………………………………….…………………………....153 ii. Minority Participation…………………………………………………………..154 iii. State’s Responsibility…………………………………………………………...155 3. Cross-Cultural Approach to Systemic Racism…………………………...………..…….156 vii i. Habit 1: Degrees of Separation and Connection……………………....…………..157 ii. Habit 2: Expanding the Analysis: ‘Rings in Motion’ ……………………….……158 iii. Habit 3: Parallel Universes……………………………………………….….…....160 iv. Habit 4: Red Flags and Remedies……………………………………………..…..162 v. Habit 5: The Camel’s Back……………………...…………………………...........162 4. Conclusion ……………………………………………...……………………….............163 Conclusion…………….………………………………………………………………….…….165 Bibliography…………………………..…………………………………………………….….169 Copyright Acknowledgments………………………..………………………………………....179 viii List of Figures Figure 1: Ethiopian Israelis Employed in cleaning and Kitchen Jobs (page 25) Figure 2: Recommendations of the Probation Services for minority youth (page 91) Figure 3: Charges of Unlawful Use of Force against Israeli Police 2006-2015 (page 143) ix A Brief Introduction For many observers, the catalyst for the Ethiopian Israeli protests of May 2015 was this: a short clip of Demas Pakedeh, a young Israeli soldier of Ethiopian descent, being beaten by a police officer for no reason other than standing in the middle of a road as the officer evacuated the area, following the discovery of a suspicious object. An Israeli story, if you like. This incident came as little surprise to anyone familiar with Israel’s socio-political climate. Just half a year earlier, the police arrested another young Ethiopian
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