Haaretz July 7, 2016
When Israeli Soldiers Kill Palestinians, Even a Smoking Gun Doesn't Lead to Indictments
Mustafa
Tamimi was killed when he was shot in the face with a gas canister in a
2012 protest. A year later, Rushdi Tamimi was shot in the belly with
live fire. No one ever faced charges. A closer look at the two cases
reveals that putting soldiers to trial is the exception, not the rule.
Chaim Levinson |
Palestinian
protester Mustafa Tamimi falls on the ground after being badly injured
by a tear gas canister fired by Israeli troops during a demonstration in
Nabi Saleh, West Bank, December 9, 2011.Credit: Haim Schwarczenberg, AP
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An
in-depth study of two incidents in which Palestinian protesters were
shot and killed during demonstrations in the West Bank shows that the
level of evidence required to indict an Israel Defense Forces soldier is
substantially higher than that demanded when Palestinians are
investigated.
Furthermore,
the heavy media coverage given to the prosecution of Sgt. Elor Azaria –
the Israeli soldier standing trial for manslaughter after shooting a
subdued Palestinian assailant in March – is extremely rare, even though
his actions are not.
Of
the 739 complaints filed by the Israeli nonprofit B’Tselem concerning
death, injury or beatings of Palestinians since 2000, only 25 resulted
in prosecutions (less than 4 percent). And these charges were usually
for the smallest possible violations, such as negligent use of a weapon.
Haaretz
has obtained access to the IDF’s correspondence with the human rights
group (which represented the families) concerning two high-profile cases
– the deaths of Mustafa Tamimi and Rushdi Tamimi (no relation) – which
were closed without any indictments being filed. The relevant documents
and correspondence are classic examples of the manner in which the
military advocate general conducts investigations into Palestinian
fatalities.
Mustafa
Tamimi’s death occurred in December 2011, in the West Bank village of
Nabi Saleh. Following prayer services at the mosque, the local residents
gathered in the village square, where their usual Friday
ritual commenced. They attempted to march toward their farmland, which
had been expropriated “for military purposes” and upon which the
settlement of Neve Tzuf was established. The army deployed in order to
prevent them from exiting the village. The two sides confronted each
other. Initially there were songs, followed by curses, and then someone
threw a stone at the soldiers. They responded with tear gas and the
marchers dispersed. The stone throwers remained.
For
hours, the two sides played cat and mouse, one side throwing stones,
the other firing tear gas. This is the norm in the village every Friday.
However, things didn’t follow the usual script on December 9. Photos taken by Haim Schwartzenberg documented what happened at 14:26:
An army jeep with soldiers from the Kfir Brigade inside was on a
stone-strewn road outside the village. Two Palestinians wielding stones
approached them, one with his face covered and the other wearing a gas
mask. A stone was thrown and the back door of the jeep opened just a
fraction. A tear-gas canister was fired from the jeep and hit the
Palestinian wearing the gas mask in the head. The jeep moved away as the
man fell to the ground, bleeding profusely.
The
wounded man was Mustafa, a 28-year-old from the village. Soon, many of
the marchers gathered around him, photographing his smashed head from
all angles. He was quickly put into a Palestinian taxi, which took him
to a nearby checkpoint.
“I
opened the taxi door,” recounted a paramedic later, “and saw him
unconscious, breathing with a rattle. The whole right side of his face
under the eyes was ripped.”
Tamimi
was taken to Beilinson Hospital, Petah Tikva, where doctors commended
the treatment provided by the female paramedic. However, he died the
next morning. A slingshot was found in his pocket.
Rushdi
Tamimi’s death took place a year later, on November 17, 2012. The West
Bank was seething as Operation Pillar of Defense raged in Gaza. There
were incidents on the terraces lying between Nabi Saleh and the adjacent
road, which links settlements in the Binyamin regional council and
Israel’s center. A reserves’ military unit was summoned to protect the
road.
Video
footage documented soldiers running toward Rushdi Tamimi, who was lying
on the ground. The soldiers surrounded him and moved those present
back. He was taken to hospital with a bullet in his stomach, but died two days later. A military inquiry found that a “mistake” had occurred, contravening the army’s values.
For
90 minutes, the army had fired all the tear gas at its disposal, until
it ran out. A medic was sent to get more, but in the meantime soldiers
switched to using live ammunition, firing 80 bullets at demonstrators
until the lethal one hit Rushdi Tamimi. In a highly exceptional move,
the company commander was dismissed after the incident.
‘No way of explaining it’
The
investigation of Mustafa Tamimi’s death was supposed to be a simple
case, leading to a straightforward indictment. Gas canisters are defined
by the IDF as nonlethal weapons. Tear gas is unpleasant, but it doesn’t
kill people. Anyone not suffering from asthma or a heart condition
recovers within minutes after being exposed to it.
Being
hit by a canister, however, can be lethal. Army regulations specify
that canisters must be fired from a distance of at least 30 meters
(nearly 100 feet) and not be aimed at a person. They should be pointed
upward, so that the canister lands at the feet of demonstrators, not
hitting their bodies.
The
soldier who fired the tear-gas canister is called Sgt. Aviram (Haaretz
has his full name), who was the deputy company commander’s radio
operator. At the inquiry, Aviram said the soldiers had entered the
village with a bulldozer, under orders from the deputy battalion
commander to clear a rock barrier on the road. When this was removed,
they turned back. One of the soldiers testified that the deputy
commanding officer was more aggressive than the battalion commander, who
only wanted them to proceed 30 meters into the village.
Aviram
and the other soldiers in the jeep testified that they were backing up
and turning around in order to exit the village, with the jeep doors
open. They were hit by two stones, one of which hit Aviram in the chest.
He asked the driver to stop and opened fire.
But
the video footage shows that the identical testimony of all the
soldiers is false. The doors were closed while they were turning around,
were slightly opened to allow the shooting of the canister, and then
closed. No stone seemingly penetrated the jeep.
The
brigade commander in the area, Col. Saar Tzur, also noted that the
gunshots were unnecessary, since the task had been completed and the
force was moving away.
The
main question at the inquiry was whether Aviram saw Mustafa Tamimi
approaching the jeep. Aviram said he didn’t see anything and that he
directed his fire upward.
“I
looked through the crack. The driver turned around and I asked him to
stop so I could fire toward the terraces. I looked to determine that no
one was close by and fired two or three canisters,” Aviram said in his
testimony.
So
how did the canister hit Tamimi – who was only meters away – in the
face? Aviram said he had no way of explaining how this happened. When
shown photos documenting the incident, he changed his version and
claimed that he had fired directly, not upward.
In
order to prove the scientific aspect of the issue, investigators
requested two professional opinions. One came from Lt. Col. Yoav, the
head of the ballistics department in the Ordnance Corps. He stated in
his report: “It is impossible that the victim was hit by someone firing
at a 45- to 90-degree angle. My statement is unequivocal, based on my
familiarity with this weapon, the ammunition and its ballistic behavior,
as well as the photos I saw of the incident, which documented the
conditions in relation to distances and elevations.”
The
second opinion was from Lt. Col. N., from Military Intelligence, who is
an expert in deciphering aerial photographs. He also stated that
indirect fire was impossible: “The angle of the rifle barrel at the time
of firing was zero or even lower.”
N.
attempted to reconstruct the incident on-site, but was interrupted when
stones were thrown. Ultimately, his testimony was favorable to the
shooter: The firing was direct, but Mustafa was approaching the jeep in a
manner in which he could not be seen – in other words, the canister was
not aimed at him, Mustafa moved toward it.
However,
Schwartzenberg’s photos seem to show the opposite. Mustafa Tamimi was
standing still when the jeep stopped, his knees bent as he prepared to
throw a stone at the vehicle. He didn’t move when the door opened. He
was directly across from the door facing Aviram. N. conducted some
experiments to establish fields of vision, in order to find out what
Aviram could see. The photos show that the opening of the jeep door was
sufficiently wide so that people standing in front of it could be seen.
The
file against Aviram and the others in the jeep was closed in December
2013. B’Tselem appealed in February 2015, but the military advocate
general rejected their appeal a year later. The revision of a firing
angle from 90 degrees to 0 degrees was defined as a “correction … it’s
certainly possible that Sgt. Aviram didn’t remember the exact angle.”
As
for the possibility that the deceased entered the line of fire within a
fraction of a second of Aviram pulling the trigger – implying that he
wasn’t observed at that point – Chief Military Prosecutor Sharon
Zagagi-Pinhas wrote, “This is an uncommon likelihood, but it’s possible,
giving reasonable doubt in the matter.”
‘Soldiers’ lives were in danger’
In
the case of Rushdi Tamimi, the vigorous operational investigation
conducted by the army fizzled out when it passed into the hands of
Military Police investigators.
Shooting
at stone-throwing demonstrators from this distance is contrary to the
rules of engagement. “They came within meters of our forces,” company
commander Yisrael testified. “I felt my soldiers’ lives were in danger.
We were worried about a lynching or an abduction. I asked permission to
use live fire, but received no answer from battalion headquarters. My
operator was hit by two large stones and another soldier was hit in the
leg from a range of five meters. I realized that if we didn’t open fire
we’d be stoned and a soldier might be abducted. I and another soldier
opened fire.” Other soldiers testified that they didn’t aim at anyone
specifically.
In
May 2014, the military advocate general decided to close the file for
two reasons: First, under the circumstances, no one could disregard the
risk to the soldiers’ lives. Second, in the absence of a bullet, the
identity of the soldier who fired the lethal shot could not be
determined.
Asked
to respond to the two incidents and the army’s approach to
investigating such cases, the IDF spokesman said: “The law enforcement
system in the IDF operates independently, professionally and precisely.
Each case is judged on its own merits, based on evidence that was
gathered and according to legal criteria. This is done for cases dealing
with operational activity, including these two incidents.
“The
Military Police investigation of the circumstances that led to the
death of Mustafa Tamimi on December 9, 2011, was thorough and
comprehensive. Testimonies were collected from soldiers and civilians,
and a reconstruction of the incident was conducted. Video footage and
photographs documenting the shooting were collected and expert opinions
obtained.
“The
soldier who fired the tear-gas canister said he followed the
regulations in response to extensive stone throwing, without seeing
anyone in his line of fire. An expert opinion determined that Mustafa
was moving toward the jeep while throwing stones, and entered the line
of fire without the shooter being able to see him. The evidence suggests
that the firing followed guidelines and regulations, and the file was
closed without taking any action against the soldier.
“The
evidence collected in the investigation of the circumstances leading to
the death by gunshot of Rushdi Tamimi on November 19, 2012, shows he
was taking part in a particularly violent demonstration, which included
extensive throwing of rocks from a short range at soldiers and
civilians. The soldiers fired into the air and took further action
following procedures for the arrest of a suspect, firing at the legs of a
demonstrator who was trying to hurl a large rock at one of them. The
soldiers didn’t see [Rushdi Tamimi] or others getting hit, and when
trying to administer medical aid they didn’t see a bullet wound. There
was no way of obtaining the bullet that was extricated from his body, or
an explanation of the medical complication that led to his death.
“Examining
the evidence showed that, in light of the operational circumstances on
the ground, the soldiers dispersing the demonstration did not act in a
way that warrants taking legal action against them. There were some
professional flaws in the actions of the commanding officer, but these
were unrelated to Tamimi’s death. The officer was disciplined after the
incident.”
Chaim Levinson
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