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Palestinian protester’s death: Many complex arguments, few clear answers
By YONAH JEREMY BOB
09/12/2013
IDF closes case against soldiers who killed Mustafa Tamimi in 2011 when he was hit by a tear gas canister.
 
It is clear that the death of Mustafa Tamimi, a Palestinian protester hit by a tear gas canister during a protest in December 2011, was a tragedy.

Beyond that, however, there are many more questions by both sides than there are satisfying answers.

The IDF told Reuters it had closed the case against the soldier who fired the canister, saying that although Tamimi had not been lethally armed, he had put himself at risk by throwing rocks at the IDF jeep carrying the soldier, and moving into the line of fire.

A December 5, 2013, letter to B’Tselem went into further detail, stating that the jeep had been the target of a “massive” volley of rocks and the soldier did not see Tamimi.

B’Tselem, though, raised several piercing questions. It said that even with the charge of manslaughter off the table, if the soldier could not see whom he was aiming at, he clearly violated the IDF’s rules of engagement by using potentially lethal force in a mere law-enforcement situation.

The point about the legal framework and principles applied to a situation are important. If the IDF claimed that the rock throwing constituted a danger to human life and was not a mere “law enforcement situation,” the soldiers potentially would have been permitted to use live fire, and not just tear gas.

But since the army did not claim this, B’Tselem says neither lethal force nor the closerange firing of tear gas canisters was allowed.

Tear gas canisters are a repeat issue for B’Tselem, which says the IDF officially claims that it prohibits firing tear gas from close range, something that can be deadly, as with Tamimi.

In practice, though, the rights group says commanders on the ground regularly break the rule without a second thought.

B’Tselem notes that stun grenades and other kinds of weapons designed for nonlethal, close-range encounters would have avoided a fatality.

While these are solid questions, anyone who has studied the history of Palestinian protests that involve rock throwing knows that the answer could be a clear IDF error, although it could also reflect more complex circumstances, as the IDF claims.

From the vantage point of the photo that has been a main reference point for the incident, one could say that it speaks a thousand words in damning the soldier’s conduct.

It seems to show a gun barrel firing directly at Tamimi from close range.

But what about rock throwers not in the photo? The IDF’s letter to B’Tselem mentions massive rock throwing, maybe implying that the soldier was aiming at rock throwers farther away.

The photo, which seems to show a direct line of fire between the soldier’s weapon and Tamimi, does not show what the soldier saw the moment before he fired, or any sudden last movements Tamimi might have made to enter the line of fire.

The IDF did not anticipate all of B’Tselem’s criticism and gives no discussion of alternative, non-lethal means the soldier could have used. But what if the soldier had been armed solely with the long-range tear gas and most of the rock throwers were reachable only with a long-range canister, a situation the army would call “disturbing the peace?” All of this might be counterfactual apologetics, and the IDF would probably do itself more justice if it released greater detail about its investigations to the public.

Also, regardless of Tamimi, the army could consider more aggressive restrictions for the use of long-range tear gas in order to preempt future situations of this type. Of course, it could also say that protesters should stop throwing rocks.

Another complex debate is whether the IDF properly implemented the February 2013 recommendations of the Turkel Commission to speedup its investigations. It is hard to evaluate recommendations published 14 months after an incident and when an interministerial committee still has not finished its going over them.

It will be easier to evaluate cases arising after February 2013, but both sides have serious claims for why the investigation dragged on for too long and why additional complexities, including soliciting a special expert report, necessitated more time.

None of the questions or answers are simple, and at the end of the day, without an end to the conflict, Tamimi is, unfortunately, not likely to be the last tragic casualty.
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