Molotov cocktails constitute a 'weapon', as defined in section 144(c)(2) of the Penal Law, since: "a vessel capable of emitting a substance intended to harm a person, including a part, an accessory and ammunition for such a vehicle, and including a container containing or capable of containing such a substance...". This is in view of its purpose, its manufacture - for the purpose of harm, and the lethal potential inherent in its harm (Criminal Appeal 9821/16 Anonymous v. State of Israel, para. 13 (November 30, 2017); Criminal Appeal 4324/16 Nagar v. State of Israel, para. 12 (July 31, 2016); Kubakov case, para. 4).
Therefore, and in view of the existence of the definition of "terrorist act" according to the definition that arises from section 2(a) of the Counter-Terrorism Law, the elements of the offense of operating a weapon for terrorist purposes exist in the defendant's case.
Ignition
- The defendant was charged with the first charge of a terrorist act of arson under section 448(a) of the Penal Law, together with section 37 of the Counter-Terrorism Law, and the second or fourth charge of arson under section 448(a) of the Penal Law.
Section 448(a) of the Penal Law states as follows:
- (a) Anyone who intentionally sets fire to something that is not his own, shall be sentenced to fifteen years' imprisonment; if he does so with the intention of harming state property, property used by the public, a nature site, vegetation or the safety of the surrounding residents, or with the intention of harming human beings, shall be sentenced to twenty years' imprisonment.
The more stringent alternative to the offense of arson is enshrined in section 448(a) of the Penal Law. This alternative concerns the dispatch of fire with the special intention of harming people or causing damage to one of the assets listed at the end of the section.
- On the factual level, it is necessary to send fire on a property that is not in a proprietary connection to the arsonist, and without the consent of the owners of the property rights in the property that is being ignited. Although the language of the section focuses on conduct - sending fire, and given that the existence of a fire is an essential component of the offense, case law has maintained that the offense should be regarded as a consequential offense (see Criminal Appeal 510/22 Twito v. State of Israel, para. 15 (December 27, 2022); Criminal Case (Tel Aviv-Jaffa District) 68846-07-19 State of Israel v. Kostika (June 23, 2021)).
In our case, the defendant deliberately set fire to something that was not his own, in the first charge - in residential buildings in the Sheikh Jarrah neighborhood, in the second charge - at the post office, on the third charge - at Bank Leumi and Mercantile Bank - and on the third charge - in the Magistrate's Court. In each of the scenes, a fire broke out as a result of Molotov cocktails. Therefore, the elements of the factual basis are fulfilled in these cases.
- The mental element is criminal thought, which includes awareness of behavior and awareness of the circumstances, as well as a requirement that the fire be fired with the aim of harming people or causing damage to one of the assets listed at the end of this section. A special intention is also required to cause this outcome, under the assumption that we are dealing with a consequential offense. As explained above, a special intention can be proven by direct testimony, by circumstantial evidence, and also by means of the presumption of intention and the rule of expectation.
In the first charge, the circumstances of the case do indicate that the mental element exists, including the requirement for special intention. The defendant deliberately committed the acts of arson. The acts were carried out in the middle of the night, when people were at home and sleeping at night. Molotov cocktails were thrown at three different homes, which could have been expected to be occupied by people at the time. It is clear, therefore, from all the circumstances, that the defendant was aware of the probable possibility, which is very close to certainty, that in any of the three houses at which he threw Molotov cocktails, his occupants were located (cf. Criminal Appeal 5025/04 Bachar v. State of Israel (February 17, 2005)).