Original title:`Void of Responsibility: Israel Military Policy not to investigate Killings of Palestinians by Soldiers`
From the beginning of the first intifada, in December 1987, to the outbreak of the second intifada, in September 2000, the Military Police Investigation Unit (MPIU) investigated almost every case in which Palestinians not taking part in hostilities were killed.
At the beginning of the second intifada, the Judge Advocate General’s Office announced that it was defining the situation in the Occupied Territories an “armed conflict,” and that investigations would be opened only in exceptional cases, in which there was a suspicion that a criminal offense had been committed. This policy, which led to a significant drop in MPIU investigations of homicide cases, ignored the varying character of the army’s actions in the Occupied Territories, and treated every act carried out by soldiers as a combat action, even in cases when these acts bear the clear hallmarks of a policing action.
The primary tool used to determine whether to open an MPIU investigation is the operational inquiry, whose principal purpose is to learn lessons to improve operational activity in the future, and not to identify persons responsible for past failings. In November 2005, in the framework of a hearing on a petition filed by B`Tselem and the Association for Civil Rights in Israel objecting to the policy of not opening MPIU investigations, the army instituted a procedure calling for preliminary investigation, within a limited period of time, of cases in which Palestinians not taking part in hostilities were killed. However, the procedure did not set a time framework for making decisions whether to order an MPIU investigation or to prosecute alleged offenders. As a result, these decisions may be delayed months, even years, thus preventing effective handling of suspected criminal acts within a reasonable time from the day that the incident occurred. The establishment, in 2007, of the Office of the Judge Advocate for Operational Matters, which was intended to improve the efficiency in handling complaints and reduce the handling time, did not bring about significant change.
During the period covered by the report (2006-2009), B`Tselem made a demand for an MPIU investigation in 148 cases. The Judge Advocate General’s Office ordered an MPIU investigation in only 22 cases. In 36.3 percent of the cases in which an MPIU investigation was opened, the investigation did not begin until a year or more after the incident occurred. Where an MPIU investigation was carried out, two ended with the Judge Advocate General’s Office’s decision to close the file without prosecution; the others await decision. In 95 cases, 1 6 of which date from 2006, preliminary handling by the Judge Advocate General’s Office has not been completed, and B`Tselem has not been informed whether an MPIU investigation will be ordered.
The lack of a decision in the vast majority of cases make it impossible to determine the considerations the Judge Advocate General’s Office takes into account in deciding whether to order an MPIU investigation or to close the file. To explore the considerations, the report analyzes a number of instances in which the decision was made not to open an MPIU investigation and finds that MPIU investigations were not opened also in cases in which there was a serious suspicion of clear breach of international humanitarian law. Also, it seems that the interpretation of the circumstances of the incident is based solely on the results of the operational inquiry and the testimonies of the soldiers, and not on other eyewitness testimony and evidence that conflicts with the soldiers’ description of the incident.
B`Tselem protests the sweeping classification of the situation in the Occupied Territories as an “armed conflict,” which effectively grants immunity to soldiers and officers, with the result that soldiers who kill Palestinians not taking part in hostilities are almost never held accountable for their misdeeds. By acting in this way, the army fails to meet its obligation to take all feasible measures to reduce injury to civilians, allows soldiers and officers to violate the law, encourages a trigger-happy attitude, and shows gross disregard for human life.
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Sample Case: Soldiers killed Hassan Hamid, 17, in Tuku`, Bethlehem District, on 13 Sept. ‘08. An investigation was not opened.
Testimonies given to B`Tselem indicate that, on Saturday, 13 September 2008, a few young persons from the village of Tekoa’ threw stones at two army jeeps parked on the main road of the village. The confrontation was minor and the soldiers did not open fire.
The eyewitness testimonies indicate that, about 2:30 P.M., Hassan Hamid, a high-school student, was on his way from afternoon prayers at the mosque. His cousin was with him. The street was empty. Near his house, the two separated, and his cousin continued on his way home. When his cousin had gone about 15 meters, Hamid called to him and asked him to wait for him. Hamid walked five meters toward his cousin and then an army jeep arrived from the main road. The cousin related to B`Tselem that he heard a shot and saw the jeep drive off. He rushed to Hamid and saw him lying on the road, bleeding from the chest. Hamid’s two sisters came to the scene. People took him to a medical clinic in the village and from there to hospital in Beit Jala, where he was pronounced dead.
On 21 September 2008, B`Tselem wrote to the office of the Judge Advocate for Operational Matters, demanding that an MPIU investigation be opened in the matter. More than one year later, on 11 October 2009, Lt. Col. Mishal-Shehori, the Judge Advocate for Operational Matters, responded, indicating that the Judge Advocate General decided not to open an MPIU investigation.
An inquiry made with the relevant military officials indicated that, in the afternoon of the day of the incident, a military force entered the village of Tekoa’ following stone throwing at a major traffic route, which injured two tourists from the United States. The objective of the force was to locate the stone throwers. While the force was engaged in its activity in the village, extremely violent disturbances broke out in a very narrow, winding alley. The disturbances included the throwing of cinder blocks from roofs of the houses, rocks, and iron bars at the force, whose way was blocked by boulders. Therefore, when the force encountered a situation that was liable to deteriorate to a life-threatening situation for the soldiers, the force reacted with a single shot that was not aimed at the persons causing the disturbances, so as not to endanger anybody.
The response ignores the suspicion that the soldiers acted with forbidden haste in selecting the direction to fire so as not to hit the persons causing the disturbance, without ensuring that the shot would not endanger bystanders. Since this hastiness led to the death of a person, a criminal investigation should have been opened.
B`Tselem sent another letter to Lt. Col. Mishal-Shehori, on 24 November 2009, demanding reconsideration of the decision. The letter pointed out that the response of the Judge Advocate for Operational Matters, like the findings of B`Tselem’s inquiry, indicated Hamid was not taking part in any violent activity and that despite this, the soldier shot him with live ammunition. B`Tselem also noted that firing of live ammunition at a person in a non-life threatening situation breaches the Open-Fire Regulations. This fact alone warrants opening an investigation.
The letter remains unanswered as of Sept. 2010.
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`Void of Responsibility` Sample Case: On 13 Jan. ’09, soldiers took Yasser a-Tmeizi, father of two, from his field and led him handcuffed to Tarqumya checkpoint, where they shot him to death. For over a year, the investigation file has awaited a decision by the Judge Advocate General’s Office.
Around 10:00 A.M. on Tuesday, 13 January 2009, Yasser a-Tmeizi and his seven-year-old son were riding on a donkey on their way to their plot of land. Shepherds from the area told B`Tselem that, around 11:00 A.M., they saw four soldiers speaking with a-Tmeizi on his land. About fifteen minutes later, the witnesses saw one of the soldiers push a-Tmeizi in the chest. A-Tmeizi pushed the soldier back, and the soldier fell to the ground. The four soldiers then knocked a-Tmeizi to the ground and tied his hands behind him. A-Tmeizi’s son told B`Tselem that the soldiers ordered him to leave, but he refused. When his father told him to go home, the child left. When he got home, he told his mother that his father had had a confrontation with the soldiers.
Yasser a-Tmeizi with his children. Family photo.
One of the shepherds who was passing by told B`Tselem that he saw the soldiers beat a-Tmeizi. After two or three soldiers aimed their weapons at him, he moved away and continued to watch from a distance. He claimed that the soldiers sat a-Tmeizi on the ground and one of them blindfolded him. About half an hour later, a jeep arrived and the soldiers took a-Tmeizi to it, and they left. It was later learned he had been taken to Tarqumiya Checkpoint. Later in the day, his wife was notified that he had been killed.
Ten days after the incident, Ha’aretz reported the results of the operational inquiry carried out in the company, in which the commander of the Yehuda Regional Brigade, Col. Uri Ben Moha, and the Judea and Samaria Division commander, Col. Noam Tibon, took part. The article stated that, according to the inquiry, the soldiers stopped a-Tmeizi even though he did not threaten them and was not armed. A reserve-duty soldier at the checkpoint who was supposed to watch him claimed that a-Tmeizi managed to get free and touched his weapon, so he shot him twice. At the end of the inquiry, the commanders determined that the processing of the case “entailed serious failures,” and an army official stated that, “it is a serious incident, and one cannot avoid getting the impression that if regular forces had been posted at the site, it would not have happened.”
On 25 January 2009, B`Tselem wrote to the office of the Judge Advocate for Operational Matters demanding an MPIU investigation. The following day, an MPIU investigator called and informed B`Tselem that an investigation was under way and requested B`Tselem’s assistance in coordinating the taking of testimony of one of the shepherds. That same day, the shepherd gave his testimony at Tarqumiya Crossing.
In August 2009, B`Tselem was informed that the investigation had ended and the file forwarded to the office of the Judge Advocate for Operational MattersJudge Advocate for Operational MattersJudge Advocate for Operational Matters.
B`Tselem’s repeated inquiries as to the results of the investigation have gone unanswered.
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`Void of Responsibility` Sample Case: Soldiers killed four Palestinians in an undercover operation in Ramallah, on 4 Jan. ’07. An investigation was not opened.
On Thursday, 4 January 2007, around 3:00 P.M., the streets of Ramallah were crowded with people shopping for the weekend. An undercover unit entered a place adjacent to the vegetable market, in the city center, to arrest a wanted person. They opened fire at the man, wounding him seriously, but he managed to flee. With the gunfire, the identity of the undercover unit was exposed and people began to throw stones, sticks, iron bars, and empty bottles at them. A few people also fired bullets at them.
Testimonies given to B`Tselem indicate that, following exposure of the undercover unit, a few army jeeps arrived at the scene along with bulldozers and two combat helicopters to rescue them. The witnesses told B`Tselem that the bulldozers crushed dozens of vehicles, market stands, and peddlers’ wagons. Security forces – both on the ground and in the combat helicopters – fired at the Palestinians, killing four of them. According to B`Tselem’s investigation, none of the four were armed and three of them did not take part in the clashes. The four fatalities were:
Khalil al-Beirouti, 36, a tea and coffee vendor, was killed next to the vegetable market by a bullet that struck him in the chest.
Yusuf ‘Adur, 24, a vendor in the market, was killed by helicopter fire.
Jamal Jawalis, 29, a resident of East Jerusalem who was shopping in the market, was shot and killed when he tried to remove his vehicle from where the bulldozers had advanced.
‘Alaa Hamran, 16, was struck while in the vegetable market by a bullet that hit him in the head, and died at hospital in Ramallah. He took part in the disturbances that broke out but was unarmed.
More than forty Palestinians were injured, ten of them seriously.
The the Ramallah vegetable market after the operation. Photo: Reuters, 4 Jan. 2007.
On 21 January 2007, B`Tselem wrote to the Judge Advocate General, demanding that he order an investigation into the events. In its letter, B`Tselem noted that the extensive injury to residents and the great damage to property raised a grave suspicion that the army had breached the principles of discrimination and proportionality in international humanitarian law. It was doubtful that the military advantage from the arrest of one person exceeded the anticipated harm to civilians, as occurred in this case. B`Tselem also pointed out that actions by undercover units inside a civilian population, carried out in the afternoon in the city center, endangers bystanders who are completely unaware that they are in danger. The fact that, shortly after the undercover unit was exposed, a rescue force arrived indicated that the planners anticipated such a possibility, and they should also have anticipated the serious risk that civilians would be injured.
B`Tselem also demanded that the army cease using undercover units. Such use contravenes binding rules applying to the sides to an armed conflict as well as rules applying to law- enforcement operations. The laws of armed conflict prohibit “perfidy,” in this case dressing up as civilians. The prohibition is aimed at protecting civilians, in that it requires the combat forces to distinguish themselves from the civilian population in a way that allows them to be identified. Regarding law-enforcement actions, the rules on opening fire differ from those applying in combat actions, and are much more restrictive. The actions of undercover units do not comport with these rules.
On 7 April 2008, 15 months after B`Tselem’s first letter, Major Yehoshua Gortler, legal assistant to the Judge Advocate General, responded to B`Tselem as follows:
Having examined the inquiry of the incident and its findings, along with other relevant material (including material from B`Tselem and other human rights organizations), the Judge Advocate General concluded that it was not proper to order an MPIU investigation in the matter.
The findings of the inquiry reveal that the use of force by IDF forces during the incident was in response to massive gunfire at them, and in response to the hurling of heavy, dangerous objects at them from various sources and by various people, which posed a real and present danger to the soldiers’ lives. The findings of the inquiry (including the aspects relating to the scope of the involvement of “undercover” forces in the incident), did not raise a suspicion of commission of criminal offenses by IDF soldiers who took actions in the framework of the incident (in this context, it should be made clear that the findings of the inquiry do not indicate a connection between the involvement of the “undercover” forces in the action and the harm that was caused during its course to uninvolved persons, as described in your letter).
he Judge Advocate General also does not believe that the use of “undercover” forces in the incident is contrary to Israel’s obligations under the laws of war of international law, or that these laws require that an order be given, as you request, to end completely the use of forces in disguise.
Major Gortler’s response is unconvincing and does not justify the refusal to open an MPIU investigation. Firstly, the letter does not relate to the decision to engage in the action in the given circumstances or to the considerations taken into account by the decision makers. It is unclear whether the decision makers considered in advance the anticipated harm to civilians and whether this consideration was weighed against the military advantage anticipated from the arrest of the person they sought.
Secondly, Major Gortler ignores the fact that three of the Palestinians who were killed did not take part in the clashes with the soldiers and were not killed in the specific area where they took place. They did not throw any objects at soldiers, so it cannot be argue that they threatened them in any way. ‘Alaa Hamran, who took part in the clashes, was not armed, and it is doubtful that it could be argued he endangered the soldiers’ lives in this case.
Thirdly, Major Gortler’s response regarding the participation of undercover forces in an “armed conflict” is unsatisfactory, as it provides no explanation for the Judge Advocate General’s determination on this point. The response does not explain why the Judge Advocate General believes that the use of undercover personnel is lawful, and whether he classifies the incident as a combat action or a law-enforcement action, each of which is subject to different laws. One way or the other, the use of undercover soldiers in this incident was not lawful: if it was a combat action, the use of undercover forces was unlawful in that it breached the prohibition on perfidy. After the forces found themselves in trouble, the principle of discrimination and the obligation to take precautionary means were breached. On the other hand, if the action was carried out within the law-enforcement framework, although the use of undercover forces was proper, in this case, the soldiers grievously violated the Open-Fire Regulations applying in law-enforcement actions.
A.K. |
