A Palestinian woman argues with an Israeli border policeman during a protest against Jewish settlements in the West Bank village of Nabi Saleh.
(photo credit: REUTERS)
Yesh Din has persuaded the IDF to reverse itself and to criminally probe the death of a Palestinian female bystander in November 2015.
Initially, the army decided to merely operationally review. Following Yesh Din: Volunteers for Human Rights’ appeal of that decision to the attorney-general and its petition to the High Court of Justice, the IDF changed course – though the sides dispute the reason for the reversal.
The sides issued dueling statements on Thursday and Friday, and whereas the IDF and the state prosecution want the High Court to reject Yesh Din’s petition, the NGO insists that the court address its broader allegation that the military is not criminally investigating enough incidents in which Palestinians are killed.
In November 2015, a 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 had admitted that Samah was entirely uninvolved in the attack, but until Thursday, it had asserted that she was killed during combat activity, while its soldiers were saving Israeli civilians from the attacker.
The IDF told The Jerusalem Post
on Friday that “in light of the new facts which were provided in the context of the appeal and in the petition to the High Court... the military advocate-general decided to open a criminal investigation to clarify the claims raised by the Abd Abdallah family.”
Late Thursday night, Yesh Din announced that the chief military prosecutor, Col. Sharon Zagagi-Pinhas, had decided to “open an investigation into the death of Samah Abdallah, who was shot to death by a soldier over two years ago at the Huwara checkpoint.
“The decision was made only following a petition to the High Court and after attorney Michael Sfard and Sofia Brodsky of Yesh Din’s legal counsel appealed to the attorney-general,” the group added.
The IDF has said the claims that led it to open a criminal investigation were that there were two separate stages of fire, one that hit the attacker, and a separate one which hit Abdallah.
has learned that the sides dispute what led to the IDF reversal.
Following the November 2015 incident and Yesh Din providing information to the IDF prosecution, the IDF prosecution decided in December 2016 that the file could be closed without a criminal investigation.
Yesh Din immediately appealed to the attorney-general, who over a year later, had not decided the appeal, leading Yesh Din to petition the High Court.
Why did it take more than two years for the IDF to decide to open a criminal investigation? On the Yesh Din side, it could be pointed out that media reports at the time of the incident in 2015 had already raised the possibility that Abdallah was shot by fire that was not the same as the fire that hit the terrorist.
On the IDF side, it could be argued that media reports do not have the same weight as testimony to police investigating an incident and that no clear statement was made to police by Abdallah’s father about there having been two stages of fire.
Regarding the more than year-long delay from the time of the appeal to the attorney-general until the decision to open the case, on the Yesh Din side it could be argued that the delay proves that, absent the pressure of a High Court petition, the IDF would not have opened a criminal investigation.
The group could further argue that if the IDF’s first priority was getting to the heart of an issue, it would not need to be pressed by High Court petitions.
From the IDF side, it could be argued that under the case’s complex circumstances and given the time needed for interagency consultation between the civilian state prosecution and the IDF prosecution, a little over a year was not beyond a reasonable amount of time.
Yesh Din also asserts that there are two other recent cases in which the IDF only undertook various legal actions after it filed High Court petitions.
Whereas the IDF prosecution wants the current petition dismissed on the basis that Yesh Din has achieved its goal of opening a criminal probe, the NGO wants the petition to continue.
It said that “the petition argues not only for an investigation into the death of Samah... but that the judges must also make it clear that the Military Police are required to open an investigation automatically into the deaths of Palestinians even in cases in which they are committing individual acts of violence or in cases of civil disorder.
“This is a challenge to the military’s refusal in recent years to investigate many deaths of Palestinians, labeling their deaths as an outcome of ‘hostilities,’” said Yesh Din.
The IDF has 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.