IDF soldier at West Bank checkpoint at Gush Etzion Junction..
(photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
The IDF must criminally investigate the death of a Palestinian female bystander and the death of other Palestinians killed by indirect fire in noncombat situations, Yesh Din told the High Court of Justice in a petition filed on Tuesday.
In November 2015, an IDF soldier shot and killed 18-year-old Samah Abdallah as she crossed through the Huwara checkpoint, south of Nablus. Nearby, a Palestinian attacked Israeli civilians with a knife.
The IDF has admitted that Samah was entirely uninvolved in the attack, but has asserted that she was killed during combat activity, while its soldiers were saving Israeli civilians from the attacker.
Therefore, it has said only an operational review, not a criminal investigation, was enough to close the matter. An operational review looks at mistakes from a military perspective as opposed to a legal one.
NGO lawyers Michael Sfard and Sofia Brodsky represented Abd al-Muamen Abdallah, Samah’s father.
Going beyond Samah’s case, Yesh Din asked the court to clarify that the IDF military police must automatically investigate any killing of a Palestinian in incidents involving violence by individuals and civil disturbances of the peace.
The NGO said that its request came as a response to “the military’s refusal in recent years to investigate many incidents in which Palestinians were killed, on the grounds that they took place during violent disturbances.”
Official IDF policy requires a full criminal investigation, not just an operational review, of every incident where a Palestinian civilian dies, other than incidents that are “clearly part of a combat situation.”
Yesh Din said that the IDF’s decision not to investigate, “in breach of official policy, is not unusual.”
It said that according to B’Tselem figures, 69 Palestinians were shot and killed by Israeli soldiers in the West Bank in 2015.
Both Yesh Din and the IDF have noted that many of the incidents took place in the context of the 2015 Palestinian wave of violence.
In 2016, 56 Palestinians were shot and killed by soldiers in the West Bank, said Yesh Din, adding that only 10 IDF criminal investigations were immediately opened as stipulated by the policy.
THE PETITION argued that the IDF’s definition of a “combat situation,” which includes a violent action by an individual without a firearm, does not comply with either international law, the quasi-government 2013 Turkel Commission’s recommendations, or even with the Office of the Military Advocate-General’s own definitions.
Recommendations from the Turkel Commission on the one hand demand a criminal investigation of all such incidents. On the other hand, they specify the same “combat- situation” exception and do not clarify that phrase’s definition.
The petition reiterates the international- law distinction between clearcut combat situations and civilian incidents, such as disturbances of the peace or individual acts of violence, which should be handled by a law enforcement response.
Acknowledging this distinction is not always easy; Yesh Din said incidents which are “clearly part of a combat situation” should involve actual combat, such as armed forces firing at each other.
The petition further argued that when a lone perpetrator attempts to stab or run over civilians, such as in the incident that lead to Samah’s death, the attack should not be categorized as combat, but as sporadic violence.
Abd al-Muamen Abdallah said: “Israeli soldiers murdered my daughter in cold blood. At first they claimed she’d been holding a knife, then they said she was shot by mistake. I lost my eldest daughter right next to me, and her blood spattered over her siblings. If she was Israeli, they would have opened an investigation. But in my case, no one took any notice.”
The IDF responded to the petition saying that Yesh Din had appealed its decision – to close the file without a criminal investigation – to the attorney-general and that his decision was still pending.
It also said it “rejects the overly general claims raised in the petition against IDF policy for opening and conducting criminal investigations in cases where Palestinian civilians were killed in the West Bank.
“The gap between the number of Palestinians killed... and the number of investigations stems mostly from the fact that most of those killed were terrorists trying to kill civilians and soldiers and were shot by security forces in circumstances which did not raise any suspicion that a crime was committed,” the IDF said.