Trust the IDF investigation

The case of Bassem Abu Rahme challenges the army’s claim that it can conduct a serious investigation of itself.Memorial for Bassem Abu Rahme, Bil'in, West Bank, 26.5.2009

On April 17th 2009, Bassem Abu Rahme was demonstrating against the separation wall in his village, Bil’in. After another demonstrator was hit by crowd-dispersal weapons shot by Israeli security forces, Abu Rahme shouted at the soldiers and Border Policemen that the person was wounded. Seconds later, a person in Israeli uniform (it is unclear whether he or she was an IDF soldier or a Border Policeman) fired a tear gas canister directly into Abu Rahme’s chest; the wound was fatal, and within hours Abu Rahme was dead.

These facts were not, until recently, in contention. Even so, almost seven years after his death, no one has been held responsible for Abu Rahme’s death. Seven years of foot dragging and avoiding investigation (more on that in these two posts). This is what happens when a member of the security forces shoots an unarmed man — who everyone agrees posed no danger to — and the cameras (three of them, actually) document the event – yet are not aimed directly at the shooter.

We do not know who shot Abu Rahme, whether he or she was an IDF soldier or a Border Policeman. We do, however, have forensic evidence pointing to where the shooters stood. According to the ballistics examination, conducted by the IDF itself, “the only possibility of this sort of armament hitting the target is only by direct fire and using a flat angle — in the single digits — no more than three or four angles.” That is, there is no possibility of Abu Rahme being hit by a canister shot according to the orders and hitting him by mistake; even were the canister to ricochet off a fence, it would still be fired directly, contrary to orders.

The Chief of the IDF’s Photo Reconnaissance Department told the Military Police Criminal Investigations Division (MPCID) in 2013 that direct fire of tear gas canisters is forbidden and that it should hold a lineup to determine where each of the shooters stood. The MPCID refrained from doing so.

Last week, Israel’s Supreme Court heard an appeal by Yesh Din and human rights NGO B’Tselem , in which we demanded that the shooter be indicted, or that at least the army indict his commander. The hearing was held ex parte due to a strike by the prosecution. We estimate that the state would have argued that the shooters cannot be identified; and that it would also try to avoid mentioning the fact that the MPCID and the military prosecution did everything in their power to refrain from investigating the case for 15 months, and were forced to open an investigation after our first petition to the High Corut of Justice. The government is likely to claim that the canister that hit Abu Rahme’s chest ricocheted off something – and will play down the fact that even if it did, its own ballistic diagnosis ruled that it was fired contrary to orders.

The government is further likely to argue that it has no clue as to whom it should prosecute, hoping the judges will not think too much of the fact that it strangled the investigation for years. Our demand is simple: even if there is no chance to indict the shooters themselves, and we contend this claim since the MPCID’s failure to investigate rendered the case no longer investigable, the commanders should still bear responsibility.

So far, none of this has happened. The justices decided to rescind the petition, since under the Turkel Commission’s recommendations one may now object to the Attorney General over the military prosecution’s decision – a process that did not exist when we made our appeal. Justice, it seems, will have to keep waiting.

It is important to emphasize this time and again: Abu Rahme was unarmed. He was a danger to no one. He was protesting an injustice in his village – an injustice recognized by the High Court of Justice. And yet, an Israeli security officer, perhaps more than one, fired at a demonstrator in a life-threatening manner and caused his death. We note that one of the suspects said in his interrogation that he never received proper training with the weapon he was using. The commanders of these warriors, who are responsible for their actions, continue dodging this responsibility to this day.

Over the last few weeks, the very well-documented murder in Hebron has been called an exceptional, unrepresentative, and isolated incident by senior IDF and political figures. Every person of conscience should wonder whether this is so; whether the important statement in the case was not made of by Chief of Staff Eizenkot, but rather by Prime Minister Netanyahu, who phoned the father of the shooter and told him (Hebrew) to “trust the IDF investigation.”

What ought an Israeli security officer understand from the prime minister’s remarks? A reasonable interpretation would be: “don’t worry, our investigation will find you acted properly.” This, after all, is the unwritten contract between the government and its soldiers: we send you to do the dirty work of oppressing a civilian population, and in return we will turn a blind eye if you sometimes exceed your orders – unless are caught red-handed, that is. In such a case, we shall regrettably have to begin the investigation show.

One Picture from the Hizma Checkpoint

How a regular ride turns into a nightmare, under the aegis of the Israeli investigative system gurvitz_kolhass_en

It began with a normal car ride in early January 2016. Zahada Fahdi Awani Tawfiq and his friend, Janem Naal Gamal Harbi Tayb, were driving from East Jerusalem to A-Ram, where Tawfiq withdrew money from his bank account. On their way back, they were stopped at the Hizma checkpoint. Present were some military policemen, Border Policemen, and private security contractors.

A military policeman checked Tawfiq’s ID before allowing him to continue driving. Seconds later, the soldier shouted at him to stop. Tawfiq stopped the car and the soldier walked over to him, demanding to know “why did you look at the girl?” in reference to one of the female soldiers present. Tawfiq denied looking at her, but the soldier ordered him to park the car on the side.

Freeze the frame. An Israeli soldier detains a Palestinian merchant at a checkpoint because, in his opinion, the latter insulted a female soldier – not by deed, not by word, but by a glance. Even were we to accept the ridiculous claim that a glance is enough to permit detention, the one who complained was not the female soldier, but rather a male soldier who apparently felt himself victimized by the alleged insult to her modesty.

A short while after Tawfiq and Tayb were detained, a Border Policeman arrived, taking their ID cards and leaving. He returned several minutes later, ordered Tawfiq to leave the car, and tore up Tayb’s ID’s attendant note (a paper document attached to the ID card). Tawfiq demanded he identify himself, but the policeman refused.

Tawfiq asked the policeman what was he doing, and was answered: “you’ll find out soon.” The policeman announced he had to “dismantle the vehicle,” and began throwing its content on the floor – including two Korans, some paperwork, and the booster seat. At this point Tayb tried to call the police, but the policeman snatched the phone out of his hand.

The policeman then ordered the two Palestinians to return the equipment to the car. When they did, the policeman fabricated – or pretended to fabricate – a traffic report against them: he called the police, gave the car’s license plate number, and told the officer on the other hand that they are to be issued a fine of NIS 500 and “that the driver confesses to the felony.” As far as we know, however, no such fine was ever actually issued.

Unexpectedly, at that same time, two of Tawfiq’s nieces stepped off a bus at the checkpoint. He went to talk to them, and according to his testimony, the policeman then jumped on him and began beating him, including with the butt of his rifle. The policeman dragged Tawfiq to the truck checking facility, where there are no security cameras, and continued beating him. Then, according to the testimony, the policeman took the bundle of cash Tawfiq earlier withdrew from the bank. He told Tawfiq: If I ever see you again at this checkpoint, I will kill you.

And Tawfiq believed him.

Why did a Border Policeman allow himself to act as a common highwayman? Because he knew nothing would happen to him. He knew that we no longer consider justice to be a private matter, that it is no longer left to the decisions of a man who returns home humiliated, and that there is almost no chance that he will embark on his own personal war. We have a legal system, we have courts.

Both the cop turned-highwayman and Tawfiq know that when it comes to Palestinians, the system exists on paper — nowhere else.

Several days after the incident, we lodged a complaint on behalf of Tawfiq and Tayb with the Police Investigative Division (PID). Let’s just say that if it turns into an indictment, it would be a major surprise. The policeman was not acting alone: there were other policemen present, as well as MPs and private security contractors. None of them interfered, even though Tayb spoke to one of the private contractors. Tayb called the police as the event unfolded, yet received the vapid response familiar to every Israeli, “come to the station and file a complaint.” He actually did, but at the precinct they recommended he’d contact PID.

The PID knows, and has known for years, that there is a culture of lies among Israeli police. The former chief of PID, Herzl Shabiro, said so himself (Hebrew). Nor was he the first: the Orr Commission wrote that “the police has a culture of lies and cover-ups” (Hebrew) when it investigated the killing of 13 Israeli Palestinians by the Israeli police in October 2000.

Now we are asked by well wishers: why won’t you go the PID? They forget that the PID closes some two thirds of its cases without any investigation (Hebrew), and that the success rate of the cases it does investigate is nothing to write home about.

But, Israeli readers, please note: you are the ones paying the policeman’s salary. He is your responsibility. When PID closes his case, it will do so with your complicity. You are the citizens; you own this house. Does this incident shock you? Then act. Flood the PID’s mailbox with letters inquiring about the case (their address is PO Box 45208, 8th Hartom St., Har Hozvim, Jerusalem 91450). You could also contact a Knesset member from the party you voted for and ask him if he feels safe when a policeman who carried out what is for all intents and purposes a highway robbery still wears the uniform. If something deters PID, it’s public exposure.

The right to own property — for Jews alone

A central problem of the implementation of the Levy Report by the government is the effective abolishment of Palestinians’ property rights 12782452_10153614243709118_943715411_n

Our previous post on Yesh Din’s new position paper, “From Occupation to Annexation,” explored the various ways the Israeli government implements the Levy Report. This post will focus on another critical point: the erasure of the Palestinians’ right to property.

Prior to the Levy Report, the Israeli government was careful to avoid legalizing the seizure of private Palestinian property, except when it could argue it was done due to pressing military needs (“military seizure”) or by declaring it state land and claiming that it was never, in fact, private property at all. This took place, in part, because the laws of occupation demand that the occupier protect the private property of protected persons in occupied territory. The legal appeals against the illegal outposts, about 80% of which are at least partially built on private Palestinian land, challenged this way of thinking.

And then came the Levy Report, which claimed the government has the right to build settlements and outposts in the West Bank. On paper this claim may have been harmless, had its implementation not directly threatened the property of private persons.

Let’s look at some examples. The future of the Adei Ad outpost – which was at the heart of another one of our reports, “The Road to Dispossession” – is being debated by the High Court of Justice. The report detailed how Israeli civilians took over private Palestinian land while using violence against Palestinian residents who tried to hold on to their land, all while the Israeli authorities stood aside. Although the report was published in 2013, the reality it describes continues even today.

As our position paper shows, the Israeli government relies on Levy’s exceedingly broad legal interpretation to legalize a series of illegal outposts, under the pretense they are in fact neighborhoods of already existing settlements – even when they are outside the jurisdiction of their “mother settlement.” Justice Minister Ayelet Shaked even boasted that “anyone who knows the Adei Ad [appeal], knows that the state responds differently these days.”

Therefore the state informed the High Court that although the outpost was illegal, it does not intend to remove it. On the contrary, it announced that it would try and legalize it. In practice, then, what Shaked meant to say was that “we decided to give criminals a prize.”

If the state told the court in 2008 that it – some day — intends to enforce the law and evacuate the outposts, its position had radically changed by 2011. Now, said the state, it will enforce the law only vis-a-vis structures built on private land, while legalizing structures built on state land. The Levy Report came out in 2012; by 2013, the state was telling the courts that in some cases “state reasons” may supersede the need to enforce the law. By 2015, the state spoke expressly about retroactive legalization.

Another case that represents the erasure of Palestinian property rights is that of Amona. Amona is the largest illegal settlement outpost in the West Bank – a significant part of the land on which it stands belong to Palestinian residents, whose theft was followed by violence against the Palestinians. In court, the state opposed the evacuation of Amona time after time. At the end of 2014, the High Court of Justice ruled that Amona was to be evacuated by the end of this 2016. So what did the government do? Did it accept the ruling and follow the instructions of the court? Of course not. It tried to bypass the court through a new bill titled the “re-ordering bill.”

This law follows one of the comments made in the Levy Report, according to which compensation for Palestinians whose land has been taken from them is preferable to evacuating the invaders. Once it can be proven that an outpost was illegally built on Palestinian land, the Palestinian owners would be forced to accept compensation and give up their rights to their own property.

According to the Levy Report, therefore, all people are equal before the law, but some are more equal. You own land? Jewish invaders took it with government aid? We won’t evacuate them, we simply legalize the invasion. Here are your 30 pieces of silver. Oh, you don’t want to take them because you’re afraid of living next to Israelis who have already proven their affinity for violence? You won’t take the silver because you don’t want to take part in Jewish expansion over parts of Palestine?  Tough. Your property rights are secondary to our historical rights. Do yourself and us a favor and take the money, because, you see, this outpost won’t be removed. It will remain here whether you like it or not. The court ruled otherwise? We’ll try and change the law. What about your rights? What rights?

The bill currently names three outposts and a part of a settlement – three outposts that the court had already ordered be removed, and one whose case is still debated. Amona is mentioned specifically as an outpost covered by the bill. Politicians are not even trying to conceal the fact the point of the bill is to prevent the High Court from slowing down the violation of Palestinian rights. Just in case, the bill – which has been frozen for the time being – allows other outposts to be added to it even after it passes.

The state’s responses to the court and the “re-ordering bill” deal outposts whose fate were either ruled on by the High Court or are still being debated. But the government ministers, being people of vision, take care not only of the past and present but also of the future. The “re-ordering committee,” created by Prime Minister Netanyahu, is supposed to provide other solutions, as it has a mandate to “examine the current process of evidence needed for proof of land ownership.” To put it more bluntly: its purpose is to make it even more difficult for to prove they are landowners. The purpose of the committee is to create “an outline for the legalizing of structures and neighborhoods in Jewish settlements in Judea and Samaria that were built with the support of the authorities.”

The Israeli government never authorized the Levy Report’s recommendations while effectively endorsing and carrying them out in secret. The government implements an unofficial policy of annexation – one that does not grant equal rights to those being annexed, while at the same time depriving them of the legal defenses they are entitled to as protected persons, since, allegedly, there is no occupation.

As for the people who live there? It’s their own problem. They should have lived someplace else. Didn’t they get the hint already?

Shhhhhh, We’re Annexing

A new Yesh Din position paper takes a look at the steps taken by the Israeli government toward the de facto annexation of the West Bank 12714498_10153600101804118_526296192_n

Last week we published our new position paper, “From Occupation to Annexation,” which deals with the way the Israeli government is implementing the conclusions of the Levy Commission Report without any public debate or even an official government decision – an implementation in which is dragging Israel into de facto annexation of the West Bank, one that does not grant the annexed their rights.

First, we must distinguish between annexation and occupation. International law recognizes the legitimacy of an occupation, i.e. a state in which one power occupies a territory where a local population lives. But the assumption of international law is that occupation is a temporary affair; the occupier is considered to be a trustee who maintains what he has conquered until the conflict is over. Furthermore, the occupier is not allowed to make long-term changes in the region. An annexation is a one-sided takeover by a state of a territory by use of force or threats of it, and is impermissible under international law – a part of the lessons of the Second World War on which so much of international law is built on.

Our position paper does not deal with the Levy Report itself (to which we dedicated a whole report of our own) but with its implementation. Nevertheless, we must say a word about the report itself: it is nothing less than a revolution in the how the State of Israel has come to regard the occupied Palestinian territories. According to the report, the state’s legal position is that the occupied Palestinian Territories are not occupied, since they were promised to the Jewish people by the British Mandate.

The Israeli government never officially adopted the Levy Report. Prime Minister Benjamin Netanyahu appointed Levy (former minister Silvan Shalom noted the PM knew precisely why he was appointing him) but never dared to officially adopt his document. Why? To begin with, the present situation of occupation is actually good for Israel. It confers partial legal legitimacy to its military presence (not its civilian presence) in the West Bank. If the West Bank is not occupied, then the situation looks suspiciously like annexation. And as we noted earlier, annexation is prohibited.

Secondly, no one in the world would accept the legitimacy of Israeli control that leaves Palestinians devoid of rights. An official adoption of the Levy Report would be a hasbara catastrophe; no one in the world would accept the Israeli claim that nearly 50 years of military control is not an occupation.

But even though the government never officially adopted the report, it effectively began implementing it. On the legal front, the Foreign Ministry published a document in late 2015 that adopts the spirit of the Levy Report. According to the document, Israel has a right to build settlements, based on the British Mandate charter. This claim became part of the Foreign Office Cadet Training Program and was distributed to all Israeli delegations in the world, accompanied by a directive saying this is the Israeli position and that it should be translated and published on the website of every delegation.

The Justice Ministry also adopted the spirit of the Levy Report and its position vis-à-vis the legality of the illegal construction in the settlements and outposts, particularly when it relates to the possibility of future legalization.

At the same time, on the more practical (if long-term) side, the Justice Ministry began carrying out one of the report’s recommendation and on started on creating a new court that would deal exclusively with issues related to land in the West Bank. This court will only include Israeli judges, as it will likely be a military court. The meaning for a Palestinian who wants to protect his property will be clear: don’t waste your time. Palestinian trust in the Israeli military courts is already low and is in decline.

But the more immediate aspect of the Levy Report, which was also noted by Justice Minister Ayelet Shaked, is the retroactive legalization (in Hebrew, “kosherization” – turning something impure into something kosher) of the illegal outposts in the West Bank. Some 80 out of around 100 outposts are built, at least partially, on private Palestinian land. As such they are illegal intruders, and in addition most of the buildings have been served with demolition orders due to illegal construction. Until recent years the government did not bother to enforce its own orders, telling the courts that the buildings are in fact illegal and that they would be demolished at some future date, and according to its own preferences. This happened only in the relatively few cases in which an appeal was filed against the illegal construction. As for illegal construction that did not make it to the courts?  The government had no plan of doing anything about it.

The government has changed its position since the report was published: now it tells the courts, time and again, that those same outposts are intended for legalization. True, even in the past the government delayed the evacuation until the arrival of the messiah, but at least it stated its intent to evacuate them. Not any more.

In order to legalize the outposts, the Netanyahu government has taken two main steps. In July 2015, Netanyahu ordered the creation of a “re-organizing committee” — a governmental team whose goal is the purification of the impure through “re-organizing” the legal situation vis-à-vis land, thus granting a legal cover for the outposts. This team is supposed to finish its work in the coming weeks. Needless to say, changing the rules in order to create settlements in the West Bank is a violation of international law. But international law is for the gentiles — we have the Balfour Declaration.

The second tool used by the Netanyahu government is the “re-ordering law.” This law is supposed to force the Palestinian owners of land to accept compensation for giving up their legal rights to the land they own, so as to prevent the evacuation of outposts and illegal structures. The Netanyahu government believes in private property, unless the person in question is Palestinian. The “re-organizing” law is an attempt to turn the Levy Report into legislation. The bill, as presented by MK Yoav Kish, specifically names four settlements and outposts whose evacuation or partial evacuation was ordered by the High Court of Justice. Such a law, were it to pass, would lead to land confiscation not intended for pressing military needs – an act prohibited by international law. In addition, the law itself is a declaration by the Knesset it has the right to pass legislation regarding the West Bank — a symptom of annexation. It is an acceptance of the Levy Report’s position that the laws of occupation are invalid in the West Bank, and that the territory is under the sovereignty of the Knesset.

Beyond all these tricks, whose purpose is to prevent the evacuation of Israeli land invaders, the government is busily working on enlarging the pool of state land, in a way that will permit the enlargement and legalization of outposts. This is done under the so-called “blue line team” – a team whose duty is to examine and fine-tune the borders of land that had previously been turned into “state land.” Between 2012 and 2015, state land in the West Bank grew by 63,771 dunams; state land is not allocated to the Palestinian communities in the occupied territory, as might be expected of an occupying force that obeys its legal obligations. Instead, most of it goes to the settlements and outposts. According to the data supplied by the government, the Civil Administration allocated only 7% of state land for Palestinian use.

And these are only a few of the examples presented in our position paper. When it comes to dispossessing Palestinians of their land, the Netanyahu government and its jurists are showing impressive creativity. The final result of all these processes is the creeping, de-facto annexation of large swaths of the West Bank. Beyond the fact that this is in direct contravention of international law, it is all happening without the government allowing public debate. After all, it’s taking place behind closed doors by committees whose work is anything but transparent or exposed to public criticism. Most of the time we only hear of them after they have made their decision.

Contrary to what is often said, the Netanyahu government does have a policy in the West Bank. It simply prefers you won’t hear of it. So here it is, before you.

“And there they did not beat me”

Soldiers held a 13-years-old for hours and beat him, while his family is left unaware of his fate. 12482875_10153517055194118_1113545881_o

J., a 13-year-old Palestinian, lives in the village of Al Janiya. One cold morning in the beginning of last December, wearing pajamas and slippers, J. left his house and went to collect items from a nearby place for his relative’s engagement party. A large carob tree stood near the place. J. was accompanied by A., a six-year-old child.

As J. would later describe it afterward, upon reaching the tree, several soldiers jumped on the children and began hitting them. The altercation attracted the attention of an adult, who arrived and began yelling at the soldiers. The soldiers released A. but kept hold of J.

J.’s mother rushed to the scene and tried to dislodge the child from their grasp. In response, one of the soldiers pressed his rifle’s barrel to her chest. The mother, who suffers from an illness, lost consciousness. In the ensuing chaos, the soldiers threw stun and tear gas grenades, taking off in a car with J.

Meanwhile, at home, J.’s father heard the news from children who came to his doors in tears. He and his relatives would spend the next hours in desperate attempts to talk to the Palestinian District Coordination Offices (DCO) to try and find out where their son is.

J. was first taken to a military base, where – as he later described – the soldiers tied his eyes with gun cloth, and then tied his hands and beat him with their rifle butts. The soldiers demanded he admit to throwing stones. J. denied this allegation, pointing to the fact he was in pajamas and slippers. One of the soldiers threatened him that if he would not be released without confessing.

The tactic of taking children away and demanding they incriminate themselves, while isolating and denying them access to their parents is nothing new. In 2011, Israeli human rights NGO B’Tselem published a report titled “No Minor Matter,” which documented this phenomenon. The report found that the children, isolated and often tortured (yes, the beating of the defenseless may amount in some cases to torture), are required time and again to agree to a Kafkaesque deal: confess and incriminate others, and they will be released immediately; refuse, and they remain in detention. Since the children have no adult or lawyer to consult with, and because 13-year-olds are rarely human rights scholars, many believe what they are told.

The result is often coerced incrimination, of themselves and others. And there is almost no exit route from a confession in what we usually call the justice system: B’Tselem’s report found that out of 835 cases of indictments of Palestinian juveniles, only one was acquitted. Note that while in Israel, the parents of a detained juvenile must be informed of the detention (their presence in an investigation is mandatory), and the interrogator must be a trained juvenile interrogator, there are no such rights for Palestinians in the West Bank. Any soldier may thus serve as an interrogator.

Yet despite it all, J. refused to confess to what the allegations, and continued pleading his innocence. In turn, his captors increased the pressure. He says he was put in a cold room with the air conditioner fully on. He does not know how long he was left there – a gun cloth over one’s eyes will cause the loss of sense of time – but he was freezing. That didn’t work either, so the soldiers later took him out of the room, handcuffed him in a particularly painful way, trussed him in a car and drove to a different military base where they delivered him to the police. “And there they did not beat me,” J. said.

The time was around 8:30 p.m., about 12 hours since J. was kidnapped by the IDF, at least as far as he and his family were concerned, since they had no idea where he was. He was then turned over to the Palestinian DCO and went home. J. was not summoned to a second interrogation, he simply left his home one cold morning in pajamas and slippers, met IDF soldiers, was captured, beaten, and released. There is no visible process in action here. Suspiciously, J. was released after precisely 12 hours – the maximum length of time soldiers may detain a juvenile without having to obtain authorization.

So here we have here an incident  of disappearing a juvenile without informing his family — who is now looking for him in a panic — which ends suddenly after 12 hours. What was the point? It’s unclear. No one said anything.

In the beginning of January, we lodged a complaint on behalf of J.’s father with the Operation Affairs Prosecutor. We can chart the complaint’s future route in advance. First, the prosecution will take a few months, perhaps even a year or more, to think it over. Was a crime committed? Is there truly a need for an investigation? After who knows how many months, when it will be clear to all that there is no chance of an actual investigation, the prosecution will either close the case without investigating it, or send it to the Military Police Criminal Investigations Division (MPCID), which will also take its time. The passing time will allow the soldiers responsible for the act to be discharged and avoid military justice. It will also cloud the memory of everyone involved. You say we detained some kid in slippers two years ago? I really don’t remember, the soldier will say. And he truly won’t. But wait a minute – can the kid actually identify those who beat him? He had gun cloth over his eyes, did he not?

So the military prosecution will decide in three or four years that something may have happened. And it may have been improper — possibly even lamentable. Perhaps we should even condemn it, and at one point there may have been a time for some judicial action, but there is nothing we can do about it now. And anyway, we haven’t the foggiest idea who was involved.

We have seen all of these excuses. When it comes to inaction, the military investigative system is a champion. When it comes to indicting criminals who harm Palestinians – unless they harm the army’s own effectiveness – it is much less so.

The sum of all their failures

A story of assault in Hebron perfectly exemplifies how police investigations fail when the victim is Palestinian 12375071_1188917944470872_6386268292489763196_o

More than five years ago, on July 16, 2010, a young Hebronite by the name of Muhammad Abd Al-Raouf Abdrazeq was attacked by two Israeli civilians without any reason. In his police statement, which was backed by the testimony of a Border Police officer as well as by security cameras, Abdrazeq described how a group of Israeli civilians came from the direction of the Cave of the Patriarchs, when suddenly two men split off from the group. One of them grabbed him by his shoulders and prevented him from escaping, while the other one beat him severely.

An Israeli soldier standing idly by decided it was none of his business. A Border Policeman who noticed the attack came running, and according to his testimony called out to the soldier,  yet the latter refused to budge. The assaulters escaped, saying “Good Shabbos” to the soldier, and vanished without him trying to stop them.

The incident led to two parallel investigative paths: Abdrazeq lodged a complaint with local Hebron Police, and, aided by Yesh Din, with the Military Police Criminal Investigations Division (MPCID). This post will track the two paths.

The police track is relatively simple. The police undertook a rather effective investigation: they took a statement from the victim, who immediately identified his attacker as Y.H. They then took a statement from the victim’s father who came running to the scene, from the apathetic soldier, and from the police officers who arrived on the scene. It examined the local security cameras and reached the conclusion that the incident happened as Abdrazrq and the policeman described it.

The police then interrogated Y.H. several times. The suspect obstinately denied any involvement, even when he was presented with the security camera footage. In his first statement, Y.H. claimed he wasn’t even in the area of the Cave of the Patriarchs at the time of the attack. Instead, he claimed that he was innocently walking down the street with a friend, accompanied by a group of boys he did not know personally. In his second statement, he managed to remember the full name of the man who was supposed to supply an alibi; however, when the police summoned the friend for testimony, he declined to confirm Y. H.’s alibi.

pic a

So, let’s summarize what we have here:

A. A victim who identifies one of his assailants.

B. A policeman who confirms the details of the incident, as described by the victim.

C. Security footage that shows the assault (albeit only capturing the back of the attackers).

D. An alibi witness who refuses to support the suspect’s version.

So what did the police do? Closed the case for lack of evidence, naturally.

This was a ludicrous decision even by the standards of the Samaria and Judea Police Division (SJPD), and thus in January 2011 we appealed the decision. Less than a month later, the case was reopened and a first draft of an indictment against Y.H. was prepared. He was charged with aggravated assault. This is how it looked then:

pic #1

A draft is one thing and a final indictment is quite another. On July 2nd 2013, the prosecution presented an amended indictment as part of a plea bargain with Y.H.

pic #2

Note the deletions. The charge of aggravated assault, as well as acting in concert with another – whose identity Y.H. refrained from providing to the police – were dropped. Instead, we were left with “ordinary assault.” What is this good for? Well, it allows Judge Hanna Miryam Lump of the Jerusalem Magistrates’ Court to decide that Y.H. will not be convicted, and that given the circumstances of the crime (as dropped from the indictment), and the fact that three years had passed, sentencing him — without convicting — to 100 hours of community service would suffice.

As shown by our data sheet, the practice of punishing without conviction is relatively rare in Israeli courts: in the magistrate courts, such a decision is reached in only 5.3% of the cases, while in the district courts, it happens in 1.2% of the cases. When the victims are Palestinians, however, the rate jumps to 24.6%.

This case is in itself a rarity for one reason alone: it made it to court. In most cases, when the police close a case for some excuse, it stays closed.

[…]

But this case has another side: the military side. On the face of it, there are two issues here. For starters, Y.H. served as an IDF soldier at the time of the assault. Secondly, there is the issue of standing idly by: an IDF soldier was present during the assault, but decided not to get involved. He heard “a blow,” but decided that “an altercation between Jews and an Arab” is none of his business.

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Except it most certainly is. The military commander is the acting sovereign in the West Bank. The duty of IDF soldiers is to prevent harm from coming to protected persons. The soldier in question was both unaware of his duty and of the fact that he is charged with enforcing the law, which includes preventing quarrels between Jews and Palestinians. When the victim and his father demanded from the soldier from stopping the retreating settlers – as both of them testified (the testimony was supported by the policeman who arrived on the scene) – he did nothing.

None of this should surprise anyone who has read our “Standing Idly By” report. Looking away is the standard behavior of IDF soldiers whenever they notice Israeli civilians assaulting Palestinians. The IDF does not recognize standing idly by as a crime and, accordingly, does not punish soldiers who practice it. Again, what is surprising is the very fact that the soldier was even questioned by the police.

The MPCID case file focused on the question of whether Y.H. should be indicted for assaulting a Palestinian as an off-duty soldier. Following the investigation is important, as it shows us the worth of an MPCID investigation and the worth of the prosecution overseeing that investigation.

In the beginning of November 2010, after a coordination process of two months, we managed to get Abdrazeq to the MPCID base in Be’er Sheva to give a statement. Why Be’er Sheva? Because the MPCID does not have bases in the West Bank.

The investigation lasted five months, and at the end of March 2012, the MPCID informed us that it had transferred the case to the Operational Affairs Prosecution. The latter needed four months to inform us that it has not the foggiest clue of what we are talking about and that it is not in possession of such a file. In July 2012 – a year and four months after MPCID claimed to have sent the file – the prosecution informed us that it did not yet have the file.

Only in January 2013, some two years after “the end of the investigation,” we were told that the file reached the prosecution at last – only to be sent promptly for re-investigation. A year later, in January 2014, the prosecution informed us that the investigation was ongoing. In February 2015, after we sent them a sharply-worded letter, the prosecution said that the case was closed a month earlier due to lack of evidence.

Aside from the astounding fact that a file can go missing between the MPCID and the military prosecution for 16 whole months, when we asked for the case file so we could file an appeal, we found out the following:

  1. A significant part of the investigation allegedly carried out by MPCID was actually carried out by the Hebron police. Logical, yes – the Hebron police did most of the work. But then we must ask: what did MPCID do with all this time?
  2. Even though we referred to this incident, time and again, as one in which soldiers stood idly by, the MPCID refrained from opening an investigation against the soldier who saw the incident and did nothing. Had we the time, we would have appealed – but since more than four years have passed, this was not practical. Why? Because military law applies to soldiers for only six months (12 months in unusually severe cases) after they are discharged. When an investigation lasts four years, there is simply nothing to talk about.
  3. The case file contained a memo by an MPCID investigator from May 2, 2012, in which he notes that the case against Y.H. was closed on January 16, 2011, since he was investigated by the Hebron police for the same crime.

And this decision, admittedly, makes sense. Hebron police investigated the case, gathered the evidence, and Y.H. was prosecuted. There is no point in a second indictment, this time by the military prosecution.

What doesn’t make sense is the fact that after the MPCID effectively closes the case, it disappears for years. What doesn’t make sense is a four-year-old investigation, in which most of the investigation is actually carried out by an external unit that ended its work back in 2011. What doesn’t make sense is the fact that the MPCID and the prosecution have no clue as to what each of them is doing. What doesn’t make sense is that one can indict a soldier for six months after his discharge, yet the investigation is drawn out for nearly almost four-and-a-half years.

This isn’t news — it is how the system works. And we dealt with the essence of this system here.

There’s no “can’t,” only “won’t”

Why does the military police prefer to indict soldiers who loot rather than those who kill? 12366088_1185149894847677_1653458888243511272_o

In 2014, a total of 15 Israeli soldiers were indicted for harming Palestinians, as can be seen by our latest data sheet regarding law enforcement on IDF soldiers in the territories. Eight of those indictment were the result of investigations that began in 2014; seven as a result of older investigations. Of all investigations opened last year, only 3.5% ended indictments.

Israeli police, as is well known, aren’t the sharpest tools in the shed. Our earlier data sheets reveal how they regularly fail to investigate crimes against Palestinians. And yet, the IDF managed to reach an indictment rate double that of MPCID: seven percent or more.

What more, when the Samaria and Judea Police Division closes a cases, it will do so — in most cases — under the “Unknown Perpetrator” clause. It will claim not to have the faintest idea as to who may be the suspect. Unfortunately for MPCID, its ability to use this clause is almost nonexistent. The IDF knows, or at least can know, where every one of its soldiers was at any given time. If the criminal is described as being a part of a force acting in village X on day Y, MPCID can find out all the details. It may still not obtain enough evidence against a specific soldier, but it generally crosses the main obstacle of an inability to identify suspects quite easily.

Yet it succeeds less than the Samaria and Judea PD. So what’s going on?

Looking at the cases that did make it to court provide us with a partial answer. In 2014, as noted in our datasheet, MPCID opened 229 investigations relating to soldiers who harmed Palestinians. 41 cases, around 18%, dealt with the killing of Palestinians by IDF soldiers; 154 cases, around 67%, dealt with violence against Palestinians; 20 cases (9%) were opened on suspicion of looting; and 14 investigations dealt with suspicion of conduct unbecoming.

Out of these 229 investigations, only eight of them ended in indictments. But when one looks at the indictments themselves, an interesting phenomenon becomes clear: even though most of the investigations were opened over cases of killing or wounding/assault, nine of the 15 indictments (some 66%) dealt with property-related crimes. In other words, theft.

Some of them were of low value. One soldier was indicted after looting a car in a roadblock, taking two car flashlights, a set of LED bulbs and a flickering flashlight. Another soldier was indicted for passing Palestinian cars through a roadblock for a bribe of some 200 NIS per vehicle.

Two caveats are in order. Firstly, due to the slow pace of the military investigation apparatus (of which you can read more fully here), it is quite possible that some of the 2014 investigations may turn into indictments in 2015 or 2016. Also, in MPCID’s defense we must note that property crime leaves solid evidence, which it may then seize as part of the investigation. And yet, the gap is astonishing. Why does the IDF systemically fail in investigating incidents of soldiers who physically harm Palestinians? And why does the IDF indict soldiers far more often for property-related crimes, while closing cases in which soldiers are suspected of wounding or killing Palestinians?

Here we must carefully move from measured data to conjecture, as we are not likely to get a straight answer, particularly not from the IDF.

It is quite clear there is no military order from on high that calls to neglect such incidents, nor is such an order needed. Every soldier knows full well the spirit of command. Why is MPCID so bad at investigating physical harm against Palestinians? To quote an old IDF saying, “there is no ‘can’t,’ there’s only ‘won’t.’” There are issues that are of the utmost importance to the army. Discipline, for instance. Looting is a severe breach of discipline. A military unit that begins to believe looting is permitted is quickly reduced to a gang, and its effectiveness plummets. Corruption harms, by definition, the effectiveness of military activity: a situation where, for instance, a soldier allows someone to pass through a checkpoint for the equivalent of six packs of cigarettes is unacceptable. The soldier, after all, does not know who he is letting through.

So these are the severe cases, those which draw full attention, which every investigator knows he has to treat seriously: offenses that harm military effectiveness. For instance, no less than 40% of MPCID’s investigations are drug-related, and 83% of these deal with personal drug use (Hebrew).

Other issues, such as physically harming a Palestinian or opening fire in questionable circumstances, are of lesser importance. However it may sadden us, an army is an organization whose goal is the use of institutionalized violence. A soldier who kills someone has essentially done what he was trained to do, even if he, unfortunately, broke the rules of engagement. A dead Palestinian, to sum, does not threaten military effectiveness. A soldier who takes bribes for opening a checkpoint or is busy looting does constitute a threat.

And since the number of investigators is limited, and as they have a limited amount of time, naturally – without any need for an order or directive – their energy is channeled to the places the organization sees as important. Thus we find ourselves with a pyramid turned upside down:  even though the number of cases of corruption and damage to property is relatively small, it is precisely these cases that lead to indictments.

This is yet another reason why we should consider taking the investigation of IDF soldiers who harm Palestinians out of the hands of the IDF. Because these cases require an investigation by people who consider harming an uninvolved person (or a disproportional harm of an involved person) to be a grave crime — a crime in itself, not merely a hassle on the way to the next looting or drug case. We need people whose goal is first seeing justice, and only then the needs of the military.

Has anyone seen my responsibility?

Each arm of the military investigation system is unaware of the acts of the other, and the system as a whole is intended for dodging accountability12313880_1180554305307236_1521482635935657552_n

Who is in charge of the military investigative system when soldiers harm Palestinians? This turns out to be a rather complex question that the IDF is at pains to answer. The running of the investigation itself is the responsibility of Military Police Criminal Investigations Division (MPCID), but it does not always decide whether to open an investigation. In cases of a suspected crime during operational activity, the decision over whether to open an investigation comes from the Operational Affairs Prosecution. Yet neither of these has any real control over the way investigations are handled.

As we do every year, we recently published a data sheet about law enforcement regarding IDF soldiers suspected of harming Palestinians. This year, one critical piece of data point is absent: the IDF did not know how many complaints were lodged against its soldiers in 2014.

How did this come about? Well, let’s begin with the fact that a Palestinian who wishes to lodge a complaint about being harmed by soldiers cannot simply walk into an MPCID base and do so – for the simply reason that there are no MPCID bases in the West Bank. To lodge a complaint, a Palestinian must choose one of several paths, all of them twisted.

He can try to reach an Israeli police station in the West Bank, but in order to do so he would need a. an escort, as in some cases the station is within a settlement; b. hope there will be an Arab-speaking investigator on duty on the day he arrives, because there isn’t one as a matter of course; c. hope his complaint won’t get lost, and we have seen many complaints go missing on this journey.

Alternately, he can send the complaint through a human rights organization, which will pass it on directly to the military prosecution.

Why the prosecution? Because, again, MPCID does not always decide on opening an investigation; a decision by the prosecution is often required. Experience shows that this kind of decision can take months or over a year after the complaint is lodged. So instead of the complaint being turned over to MPCID, and from there to the prosecution before being returned to MPCID for investigation, it is better to lodge it directly with the prosecution. The latter ­— if it decides to open an investigation — will direct the file to MPCID; in turn, MPCID will send the file back to the military prosecution, which will decide whether to indict or send the file back to the MPCID for additional investigation, and then wait for it to be received again.

Thus, instead of two steps — a complaint to MPCID leading directly to an investigation, whose results are turned over to the prosecution — we have at least four: 1. A complaint reaches the prosecution. 2. The prosecution decides whether to open an investigation. 3. The case is turned over to MPCID, which investigates it. 4. The prosecution decides whether the investigation merits an indictment.

Now let’s add another variable: when the prosecution receives a report about a Palestinian being harmed, it opens a case and numbers it. When the case is turned over to MPCID for investigation, it gets a new number. When it returns from MPCID to the prosecution, it takes on a third number (a second prosecution number). Should it be sent to MPCID for further investigation, the file will be renumbered yet again.

That’s not a filing system. That’s a system for losing files.

Confused? Now put yourself in the shoes of a Palestinian who merely wants the soldier who hurt him to be investigated and punished. Now we can understand why the IDF does not have a clear idea of how many complaints were lodged against soldiers for harming Palestinians. The army can tell us it opened 229 investigations in 2014, but the military prosecution has no idea how many complaints or complainants reached it, because it does not differentiate between various kinds of information; it can receive “reports” from military units or from itself, which may refer to more than one event. Nor does it know how long any specific investigation lasts.

And that’s not the only problem — we’re only just beginning. Officially, the prosecution is supposed to oversee MPCID’s investigations. In practice, time after time it turns out it doesn’t have a clue. You ask about a specific investigation, and the prosecution simply has no way of knowing its status. In practice, to quote our data sheet, “the division between the two bodies creates a situation in which the IDF does not currently have one body which runs and centralizes the treatment of complaints, follows the advancement of the investigation and checking processes, measures the length of investigations and has a systematic view intended for heightening the effectiveness of investigations and their fulfilling.”

And so we find ourselves with cases like the investigation of the death of Musab Badwan Ashak Dan’a, where after three years of investigation the MPCID investigators had less information than they had when the investigation began, after managing to lose a medical file. And of course, no one at the prosecution was standing over their shoulder with a stopwatch asking what’s going on, because as things stand the prosecution has no clue as to how an investigation is going.

The Turkel Commission, which published its report in February 2013, noticed that IDF investigation procedures are not tight enough and demanded tighter controls and fixed time tables for investigations and prosecution decisions on cases. It realized that the element of time is critical: if an effective investigation does not take place within a short while, evidence will disappear and human memory will fade on its own, even without malicious tampering.

The Ciechanover Commission, which was supposed to rule on how to implement the Turkel Commission’s recommendations, recommended a period of 14 weeks maximum for the decision whether to open an investigation, nine months for the investigation itself, and nine more months for deciding what to do with the case. So far, the IDF has not implemented those conclusions, despite the fact that nearly three years have passed since the Turkel Commission Report was published. Feels like a standard MPCID investigation.

The time element is crucial for one additional reason: the Military Justice Law says one cannot try a soldier after six months since his discharge, or a year since the discharge in severe cases. This means that just like the examination of the case, its investigation, the re-examination of the investigation and the repeated re-numbering of the file are dragged out across many months, only increase the chances that even if the investigation does succeed, the prosecution would find it problematic to indict the felon, meaning the case will be transferred to a civilian authority.

The result of all this is a system that is not geared toward promoting accountability among soldiers; rather, it is a system geared to tell them everything will be fine, just count on us.

 

Grab it hard

We appealed to the High Court to order the release of land seized by the IDF almost 40 years ago, which it makes no use of12250796_10153423524214118_2135121104_o

Two weeks ago, the council chiefs of the West Bank villages of Jaloud, Douma and Qusra appealed to Israel’s High Court of Justice, demanding that the hundreds of dunams of land seized by the IDF in 1978 be returned to their rightful owners. The IDF built a military camp (Jaloud camp) on a small part of the land, yet it has been abandoned for many years. It’s time to revoke Seize Order T/5/78.

Readers of this blog are already familiar with the practice of land seizure by military order: we dealt with it in the case of the Dura Al Qara seizure (of which the Dreinoff houses affair is a descendent of): a seizure that was on its face illegal, as an IDF officer specifically wrote in the seizure order that it is to be hidden from the Palestinian residents. We also dealt with this very seizure practice when we managed to return the land taken from the residents of Burkeh for the purposes of building the settlement Homesh.

Military seizure have served, time after time, not to fulfill a military need but for settlement building. The government stopped using this procedure after the Elon Moreh ruling (the film “The Law in These Parts” has some interesting things to say on the ruling), despite holding a significant part of the land seized prior to that ruling.

What is a military seizure? First, we must differentiate it from confiscation. International law prohibits an occupying power – the West Bank, even according to the government of Israel, is under belligerent occupation – from confiscating property or equipment of the residents of the occupied territory. On the other hand, it demands that the military commander protect the property of protected persons. The High Court has maintained, time and again, this double duty: to refrain from harming — and protect — private property.

And yet, international law permits – as an exception to the above rule – the military commander to seize private property when there is a pressing need to do so. If you are contending with a counter-attack or an invasion, you may seize land to use it for defense. But the rights of the owner do not expire: when the emergency is over, the property is to be returned to its owners.

Does the case of Jaloud comply with the law? Not quite. True, originally the seizure order was used for military purposes – the construction of a military camp that only made use of a small part of the land, and which has not been active in years. There is a small communication installation there, but it is unclear whether it is a military or a civil one, and anyway it sits on a small portion of the land seized. If the IDF has a need for the land it seized, it doesn’t show.

To quote the appeal, “In practice, a military seizure intended for unknown purposes, and which is anyway not in use in the last few years, which no one denies harms the property of the persons and the communities represented by the appellants, has in practice become confiscation. This is contrary to law and contrary to the rulings of this honorable court.” The military commander, we note, has held on to the land for 37 years.

The State of Israel is not the habit of releasing land it seized, even when it does not use it. We have seen this in the Burkeh case: the state seized the land on which Homesh was built in 1978. The official pretext was the creation of a settlement for Nahal soldiers – officially a military use. But, as expected, within a short while the military settlement turned into the civilian settlement of Homesh.

The act of theft via the offices of the military commander has been completed: private land, through the designation of “military need,” has been transferred into the hands of the settlers. Had the Gaza Disengagement not taken four West Bank settlements, including Homesh, with it, the thieves would have still been holding on to the plunder.

But the Disengagement happened, and once Homesh was dismantled there was no longer any logic in maintaining the seizure order. And yet, the state adamantly refused to cancel it and allow for a legal struggle against the cancellation until 2013. Why were so many resources directed toward this struggle? Perhaps one day we will know.

The suspicion regarding Seizure Order T/5/78 is that most of the land seized under it was never used for a military purpose. History shows that this scenario leads to – as in the case of the Dreinoff houses – the creation of a semi-wildcat settlement, which the government and the prosecution later attempt to legalize. There is no military need? Obey the law and return the land to its rightful owners.

We’ll keep you posted.

Providing terrorism with a tailwind

The police request to postpone the demolishing of an illegal structure due to fears of right-wing reprisal attacks is a clear surrender to threats of violence

The case of the Givat Ze’ev synagogue combines almost all of the ills of the Israeli occupation in the West Bank. Last week we witnessed a new low, when the High Court of Justice dealt with a request that has sadly become all-too-common: to rescind, through postponement, its own verdict. This was a cowardly and audacious request by the police, to which the court acceded. How did we get here?

Let’s begin with the legal picture. On July 31st, 2014 the High Court ruled that an illegally-built synagogue in Givat Ze’ev is to be demolished, as it was built on private Palestinian land belonging to Rabah Abdallatif. In plain words: Israeli civilians stole and built a synagogue on it.

The sharp-eyed among you may notice that the original demolition date, July 31st, 2015 is more than three months behind us. Due to a series of empty motions, the demolition was postponed time after time. First to August 10th and then to October 13th – after the prime minister himself asked to postpone the demolition until after the Jewish High Holidays. A day before the demolition date, a new empty motion was served to the court, which was quashed with prejudice.

The new demolition order was set for October 20th. Two days earlier, the government asked for a new postponement, claiming the security situation does not permit it to allocate the forces required for the demolition. You would be surprised to hear, then, that a day after that request was served, Israeli Police actually found the necessary forces to evacuate two Palestinian families from a house in the village of Silwan in East Jerusalem, enforcing a court ruling in favor the far-right Ateret Kohanim organization. Turns out that finding the “adequate forces” is a matter of will. The government sought to postpone the demolition of the synagogue to December 1st; the High Court allotted it a shorter period of time – until November 5th.

Lo and behold: in what became a routine procedure for a government that dares not enforce the law when it comes to its political supporters, the police informed the High Court on the eve of November 2nd that due to the security situation, it once more wants to postpone the demolition.

This time, the police came up with an even more audacious and dangerous claim, according to which the security situation and terror attacks are “causing bitterness, frustration and restlessness with the current situation. These feelings are a platform among extreme right wing for ‘price tag’ actions.” Thus, the police asked for a postponement.

This is what the police is telling us: :Listen, there are some hooligans here. If we try to enforce the law, they will harm people and we can do nothing to do about it.” In the classic blackmail scenario, there is a goon and the person who kindly explains to you that you’d better do as the goon says. Threatening you? Not at all! He’d be insulted at the suggestion. He merely suggests you do the logical thing, security-wise. It would be such a shame if a fire broke out here, no?

And if the lawbreakers are the hooligan in this story, then the police plays the part of the person convincing you to give in to the threats. The police. You know, the people supposed to protect you from lawbreakers.

In case the justices of the High Court didn’t get the hint, on Wednesday morning (a day before the planned demolition) — in a step that was no less than a threat toward them — a protest slogan was spray painted on the walls of the court. The message is clear: we can get to you, just as we can get to the houses of Palestinians in the West Bank.

And if the High Court folds before the threats presented by the police, one thing is certain: these threats will repeat themselves. The government of Israel is happy to give in to the threats of these fearless, uncontrolled zealots. And if it could convince the court that there is no choice but to do so, the threats will continue. Because when all is said and done, these threats work.

The government came out of the courtroom with some success: the demolition was postponed – again – to November 17th, with the justices unable to hide their own impatience.

And one more thing: the people barricading in the synagogue call the structure a “minor temple.” Let them learn that a temple is not built on robbery, that it is not built on blood, and that virtue is not supported by sin. Let them learn that King David bought the thrashing floor of Aruanah the Jebusite by paying its full worth, not seizing it by force. Zion shall be redeemed with justice, and her repentant ones with righteousness.