July 2, 2005
Human Rights Watch and B’Tselem describe how Israeli soldiers routinely get away with murder
Since the beginning of the Second Intifada, thousands of Palestinian civilians have been killed by Israeli Defense Force (IDF) troops. Most of these deaths have occurred outside of combat situations: at checkpoints, during arrest operations, and even in towns and villages during periods of calm. Many of those killed have been people wanted for crimes they may or may not have committed who were summarily executed while in Israeli custody. Hundreds of others were civilians engaged in no hostilities, or even political activities, whatsoever at the time they were killed.
In light of the overwhelming evidence of systematic abuse and an astounding lack of official investigations into them, Israeli human rights group B’Tselem released a report in May 2005 entitled Take No Prisoners - The Fatal Shooting of Palestinians by Israeli Forces During Arrest Operations. This report speaks about “the fatal shooting of Palestinians by Israeli Security forces during ‘arrest operations’” when such killing was unnecessary and unjustifiable.
Shortly thereafter, U.S.-based Human Rights Watch (HRW) released a report entitled Promoting Impunity: The Israeli Military’s Failure to Investigate Wrongdoing, which describes the IDF’s failure to investigate the vast majority of the killings of at least 1,600 Palestinians who were killed outside of combat situations. The report determines that this current state of affairs leads to a trigger-happy culture in the IDF ranks and a sense that there will be no punishment for killing or injuring Palestinian civilians.
Both reports note numerous violations of international law by IDF troops, and they come to similar conclusions: That the IDF must implement clear regulations regarding the use of deadly force against Palestinian civilians and detainees, and it must hold soldiers who violate them responsible for their actions.
Take No Prisoners by B’Tselem
The B’Tselem report exposes alarming trends regarding IDF arrest operations. Take No Prisoners examines four cases of suspected assassinations that occurred “under the guise of arrest operations.” The first case involves the death of Muhammad Abu Qabar Diriyah, who was killed by IDF soldiers in April, 2004. According to military sources, Diriyah was not wanted himself but was in the house with two wanted persons when he was killed. The wanted persons, according to the IDF, were later apprehended.
The soldiers who participated in the operation that killed Diriyah claimed that after they had surrounded the house, they had ordered the wanted men to surrender. When the wanted men apparently refused, the soldiers opened fire. The soldiers reported that Diriyah was struck by one of a number of bullets that the soldiers had fired through a window.
An on-site investigation by B’Tselem, however, “raised grave concern that Muhammad Diriyah was shot by the IDF soldiers as soon as he opened the door, in accordance with the soldiers’ orders.” The investigators also found that the two wanted men had not been in Diriyah’s house at the time he was killed. Furthermore, the fact that Diriyah was found dead on the doorstep indicates that he did not attempt to hide or run from or otherwise defy the soldiers as they had claimed.
The three other case studies exhibit similar trends, i.e., hard evidence and eyewitness accounts indicating that the persons to be arrested did not pose any significant threat to the IDF forces when they were killed. In each of case, IDF spokespersons maintained that Israeli security forces had acted appropriately and that military investigations had found the IDF soldiers to bear no responsibility for the killings.
The B’Tselem report notes that the increase and lack of culpability in such killings is “the result of the changes introduced in the Open-Fire Regulations applied by the IDF during the second intifada.” Prior to the outbreak of the Intifada, Open-Fire Regulations in the West Bank and Gaza Strip were based on the Israeli penal code, according to which the use of live ammunition is only permitted only “in the presence… of real danger of the loss of life of a person or severe bodily injury.”
However, since the Intifada began, the Israeli government has defined the situation in the Occupied Palestinian Territories as “armed conflict.” This redefinition has resulted in both an “artificial extension of the term ‘life-threatening danger,” and a failure to provide IDF solders with a “clear and unambiguous understanding” of Open-Fire Regulations.
Open-Fire Regulations are not even officially published by the IDF, leaving their precise nature unclear to soldiers and lawyers alike. It is extremely difficult to prosecute soldiers for violations of regulations neither they nor the prosecuting legal council are sure of.
Testimony from soldiers serving in the Occupied Palestinian Territories, however, reveals some of the changes that have been introduced in these regulations, including: the use of live ammunition against stone-throwers; the use of firearms to enforce curfew; and authorization for the use of ammunition which “has an impact on an extremely wide area,” such as flechettes (also referred to as “dart shells”) fired from tanks. This kind of ammunition kills indiscriminately and does not distinguish between combatants and civilians.
The B’Tselem report concludes that “the indiscriminate redefinition of the situation [in the West Bank and Gaza] ignores the fact that a substantial part of the operations of the security forces during the second intifada… are classic policing and law enforcement operations, defined as such prior to the intifada and continuing to have the same character.” The redefinition of an entire overwhelmingly civilian area as a conflict zone invites and encourages severe abuses against civilians, effectively turning everyone into a potential combatant and therefore a target.
The majority of arrest operations such as those described above did not take place in a combat context. The IDF enjoys complete military control of the West Bank; the change in Open-Fire Regulations “cannot, therefore, withstand legal review, and the former Open-Fire Regulations, which were applied prior to the outbreak of the intifada, should have continued to apply to security forces.”
In addition, the report asserts that “the methods employed by the security forces… mean that the operations [such as those described earlier] were in fact assassinations,” rather than arrest operations, as Israel and the IDF claim. Such policies therefore create “unacceptable norms of extra-judicial execution” among Israeli security forces, which is illegal under international law.
Promoting Impunity by Human Rights Watch
The Human Rights Watch report focuses on the Israeli military’s failure to investigate civilian deaths which occur outside of combat situations, such as shooting children who are sitting in classrooms or hanging laundry on their roofs, shooting-to-kill unarmed children and elderly people without warning who wander too close to restricted zones, and shooting peaceful protestors and/or bystanders with live ammunition or deadly anti-personnel ordnance.
The report states that IDF soldiers have killed over 1,600 Palestinian civilians who were not engages in hostilities between September 2000 and November 2004. However, by its own admission, as of May 2004 the IDF had launched investigations into only 74 of these deaths – less than five percent. These investigations resulted in only 6 convictions, the longest of which was 20 months for “grave intentional harm.” No charge of murder or even manslaughter was ever handed down.
Human Rights Watch found that Palestinian civilians deaths are treated as “lowest priority” cases and thus are rarely subjected to criminal investigations. Moreover, the IDF investigation system relies on soldiers’ own accounts to determine whether the circumstances surrounding a civilian casualty incident merit serious investigation. If a case is seen to merit investigation, the IDF then relies on “operational debriefings” in which IDF soldiers “investigate” other soldiers, often from the same unit or command, without seeking hard evidence or testimony from eyewitnesses.
Sarah Leah Whitson, the executive director of the Middle East division of HRW, characterizes such investigations, essentially peers investigating their peers with no oversight, evidence, or opposing eyewitness accounts, as “basically a sham.”
In the exceedingly rare cases in which criminal investigations are launched, they tend to be of poor quality, and nowhere near international standards. During the course of such investigations, it is common practice for the IDF not to interview eyewitnesses or collect evidence with any level of professionalism. Many of cases are even ignored or “lost” by the IDF, who will then deny knowledge of any incident. The injured party rarely has the means or the power to reopen a case extra-judicially dismissed in this manner.
The Israeli government has attempted to justify its refusal to investigate civilian deaths by claiming that the entirety of the Occupied Palestinian Territories constitutes a “combat zone.” The IDF argues that “investigating civilian deaths would harm the special nature of combat operations,” and therefore only “exceptional” cases should be subject to criminal investigations. The IDF has not disclosed the criteria for determining what constitutes an “exceptional” case.
The HRW report notes that, while it is true that “not all deaths or injuries of civilians need trigger an independent investigation,” current IDF policy “cannot be reconciled with Israel’s obligations under the international human rights and humanitarian law treaties that it has ratified.” The IDF is committed under international law to launch criminal investigations when there is prima facie evidence or credible allegations of unlawful killings. Such investigations are also necessary in situations where death or serious injury resulted from the lethal use of force “under circumstances that do not constitute armed conflict.”
The report is careful to say that incidents in which Israeli forces have killed foreign nationals – usually Westerners – are investigated more frequently than Palestinian deaths. One of the reasons for this double standard is that both the IDF and the Israeli government are “highly sensitive to the media impact of such killings.” Moreover, the families of non-Palestinian victims in general have far greater access to financial and media resources. They also, unlike the Palestinians, have powerful nations and governments that can put pressure on the Israeli government.
However, even in these cases, Human Rights Watch has found that the quality of the investigations is poor, and the delays and lack of transparency in IDF investigations “results in investigations that fall badly short of the ‘effective remedy’ required by international law.”
HRW concludes that Israel has failed in its obligations under international law to hold responsible soldiers who illegally use lethal force against Palestinians civilians. The report finds that, because it creates an environment in which Palestinians may be killed without consequence or fear of legal prosecution, the failure of the IDF to investigate illegal killings by Israeli soldiers has effectively promoted impunity within IDF ranks.
Both B’Tselem and Human Rights Watch come to similar conclusions regarding the Israeli Defense Force’s use of force in non-combat situations. They make a number of recommendations to the IDF and the Israeli government.
B’Tselem makes five specific demands. These are that the Israeli government:
The Bottom Line – Getting Away With Murder
B’Tselem’s Take No Prisoners and Human Rights Watch’s Fostering Impunity make a number of similar points and largely criticize the same elements of IDF procedure and policy. Both reports confirm with hard evidence and powerful case studies what has been apparent since the beginning of the second Intifada, and indeed throughout the 38-year occupation: that the upper echelons of the Israeli Defense Forces foster an environment in which many soldiers do not hesitate – indeed, are at times even encouraged – to use indiscriminate force against Palestinian civilians. And the vast majority of soldiers who do so are never punished for their crimes.
The IDF has long employed double standards regarding the treatment of Palestinian civilians and Israelis during combat and arrest operations. Armed Israeli settlers, for example, are only allowed to be shot as a last resort, and only when an Israeli soldier is in imminent danger of death or serious injury. Unarmed Palestinians, on the other hand, may be shot during any escape attempt as long as warning is first given. As repeatedly noted by B’Tselem, even this lax regulation is rarely followed thoroughly, and Israeli soldiers very often shoot first and ask questions later.
The standards for investigations are also drastically different. Fostering Impunity reprints an interview with an unnamed Israeli veteran reserve investigator published in the Israeli daily Yedioth Ahronoth. In it, he discusses investigative procedures for Palestinian civilian deaths. The investigator is quoted as saying, “If we were talking about an incident where Israelis were shot by IDF soldiers, or a soldier shot by another soldier, the level of investigation would be entirely different.”
On the June 28, 2005, after the publication of both the B’Tselem and Human Rights Watch reports, the IDF soldier responsible for the killing of British activist Tom Hurndall was convicted of manslaughter, obstruction of justice, and giving false testimony. Hurndall was willfully shot in the head and killed while trying to shepherd Palestinian children to safety in the Gaza Strip. According to the Israeli newspaper Haaretz, these convictions carry a sentence of up to 20 years in prison, which would by far be the longest sentence handed down any IDF soldier for the unlawful killing of a civilian since the beginning of the Intifada, and the very first charge of manslaughter.
While the above conviction is a sign of progress, albeit modest, regarding the IDF’s willingness to hold its soldiers responsible for unlawful use of lethal force, Hurndall’s killer was held accountable for his actions only in response to massive international media attention and pressure as well as Hurdall’s father’s initiative to travel to Gaza himself and collect eyewitness accounts and evidence. If these forces hadn’t intervened, the soldier’s original testimony – that Hurndall was armed and threatening soldiers when he was shot – would simply have stood.
Hurndall’s tragic case reinforces HRW’s assertion that foreign nationals, due to their greater access to financial and media resources, have an ability to seek justice from the IDF which far exceeds that enjoyed by the families of Palestinian victims.
In short, current IDF policy is sorely lacking in procedural guidelines for holding IDF soldiers accountable for wrongful killings. If the IDF were to implement the recommendations suggested by B’Tselem and Human Rights Watch, the effects would be tremendous to reduce drastically both the number and the severity of the Israeli army’s human rights abuses and violations of international law.
The question remains, however: if various United Nations resolutions, human rights resolutions signed by the Israeli government, and the Geneva Conventions have failed to change the Israeli government’s policies toward the IDF and its use of lethal force, how much of an impact can be expected from the demands of two grassroots human rights organizations?