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Impunity on Both Sides of the Green Line
Jonathan Cook
November 23, 2005
Middle East Report Online
As
Israeli Prime Minister Ariel Sharon strode up to the podium at the UN General
Assembly on September 15, 2005 to deliver a speech recognizing the Palestinians’
right to statehood, government officials back in Jerusalem were preparing to
draw a firm line under unfinished business from the start of the Palestinian
uprising, five years earlier.
The
Justice Ministry held a muted press conference three days after Sharon’s speech
to publish the findings of its investigation into the deaths of 13 unarmed
demonstrators -- 12 Palestinian citizens of Israel and one Palestinian laborer
from Gaza -- at the hands of the northern police force in the first week of
October 2000. In the warm afterglow of the prime minister’s New York appearance,
hardly anyone noticed the publication of the Justice Ministry report on
September 18.
The
director of the ministry’s Police Investigations Department -- better known by
its Hebrew acronym, Mahash -- announced that his team had been unable to
identify a single policeman responsible for any of the 13 deaths or for the
injuries, some of them horrific, to hundreds of other demonstrators shot in
Palestinian towns and villages across northern Israel during clashes with the
security forces. The protests had been in solidarity with the suffering of the
Palestinians in the Occupied Territories.
RUBBER BULLETS
The
news from Mahash was greeted with outrage from Palestinian members of the
Knesset and members of the Higher Follow-Up Committee for Arab Citizens in
Israel, many of whom began a hunger strike outside the Prime Minister’s Office
in Jerusalem. They pointed out that an earlier report, from a state-appointed
commission of inquiry, noted that the police used the same lethal armory --
rubber bullets and live ammunition -- as the army in the Occupied Territories,
even though the protesters in Israel were all civilians and, in most cases, had
not left the confines of their own communities. The commission concluded that
the police regarded Palestinian citizens “as an enemy.”
In
ignoring these findings, argued the Palestinian representatives, Mahash was
proving that the police force enjoy the same lack of accountability as the army,
which has killed thousands of Palestinians, many of them civilians, in the
Occupied Territories. Police and soldiers were being allowed to kill
Palestinians on both sides of the Green Line with impunity. “We understand the
significance of this report and the danger it represents to us as citizens, as
well as to democracy itself, and we will not let it pass quietly,” said Abed
Anabtawi, spokesman for the Supreme Follow-Up Committee, the Arab minority’s
highest political body. Palestinian MK Abd al-Malik Dehamsheh added that the
report “signals to security forces that it is permissible to spill the blood of
Arabs without fear of punishment or trial.”
Another commentator, Nazir Majali, wondered aloud in the liberal daily
Ha’aretz whether “someone is looking out for the Israel Police. After all,
the police had to be rewarded for their decisive role in the successful
disengagement and evacuation of the settlements.” In stark contrast to the
violent repression of the Palestinian citizens’ demonstrations in October 2000,
throughout the summer of 2005 the police had handled violent protests by Jewish
right-wingers opposed to the Gaza disengagement with kid gloves.
The
timing of the report’s publication -- exactly a fortnight before the fifth
anniversary of the 13 deaths -- also caused consternation. One lawyer close to
the events explained: “My impression was that the government didn’t even notice
that the fifth anniversary was approaching. They were far more concerned that
the report be delayed long enough not to upset Sharon’s reception by world
leaders at the UN.”
LIMITED MANDATE
The
long, tortuous path that led to the Mahash report began much earlier, in the
weeks following the outbreak of the intifada, in the dying days of Ehud
Barak’s premiership. On November 8, 2000, Barak appointed a commission of
inquiry into the 13 deaths in the vain hope that he might prevent the victory of
his political rival, Ariel Sharon, in the impending general election. He needed
to win back the support of the country’s Palestinian minority if he was to stand
any chance of beating Sharon’s right-wing coalition.
Nonetheless, Barak made sure that the mandate of the three-man commission of
inquiry, headed by Supreme Court judge Theodor Or, was limited to investigating
events occurring after September 29, 2000, effectively excluding much of the
necessary background for understanding the October protests. In particular, Or
was not allowed to examine Barak’s decision to authorize Sharon’s incendiary
visit to the site in Jerusalem’s Old City known to Jews as the Temple Mount and
to Muslims as the Noble Sanctuary (Haram al-Sharif). Nor was the judge to
revisit Barak’s order deploying police snipers against Palestinian worshippers
who protested the visit.
Behind the scenes at the Justice Ministry, officials took an equally damaging
decision. Despite its legal duty to investigate the incidents in October 2000,
Mahash collected no evidence from the scene and interviewed no witnesses. It was
many days after the October events that the wheels of Mahash finally started to
turn, and then only two incidents were examined: the shooting of two Palestinian
youths in the town of Sakhnin by Guy Reif, the local police commander, and the
serious wounding of a woman, Marlene Ramadan, in Nazareth by a sniper who opened
fire repeatedly on her car. Another 11 deaths and hundreds of injuries went
entirely uninvestigated. Even the two limited inquiries were halted by Eran
Shendar, then head of Mahash, the moment Barak announced the creation of the Or
Commission. It is not clear why.
Shendar’s controversial closure of open investigations,
however, was effectively sanctioned later by the state prosecutor of the time,
Edna Arbel, now a Supreme Court judge. In May 2001, after the Or Commission
hearings had begun, she ordered that Mahash freeze all its investigations into
the deaths, arguing that witnesses might be reluctant to testify if they were
also under criminal investigation. (Arbel’s demand was both without legal basis
and superfluous, as Mahash had already stopped its inquiries.)
For
the next three years, neither Mahash nor the Or Commission carried out any
forensic investigations. Instead, Justice Or was forced to rely on the bits of
evidence that had already been collected and on the conflicting testimonies
presented by witnesses at the hearings. Many police officers refused to
cooperate with the inquiry.
DAMPING DOWN EXPECTATIONS
When
the Or Commission report was published in September 2003, it contained two
shocking revelations. First, the testimonies showed that the police command --
and possibly the government -- had authorized for the first time the use of a
special anti-terror sniper unit against unarmed demonstrators inside Israel.
Second, the police, again possibly with sanction from the government, had
labored assiduously for many months to conceal the fact that live fire had been
used against the protesters.
But
while Justice Or severely criticized the culture of racism against Palestinian
citizens among the police, even at the highest ranks, he threw almost no light
upon the question of which policemen were responsible for the 13 deaths.
Instead, he recommended that Mahash restart its investigations, noting that the
commission had already accumulated enough evidence to warrant indictments
against two policemen: Guy Reif and a low-ranking Druze officer, Murshad Rashad,
who had shot a rubber bullet at close range into the face of Rami Jara, 21.
The
government lost no time in damping down expectations. The justice minister,
Yosef Lapid, told reporters the day after the Or Commission report’s
publication: “It is extremely complicated to begin three years later to
investigate events in which hundreds of people were involved. The bodies have
long since been buried. There are no bullets, no scraps of evidence and no
witnesses.”
It
was a convenient excuse, but hardly true. There were hundreds of witnesses who
had never been called to give evidence by Or, including most of the injured
Palestinian demonstrators; there was evidence, including bullet rounds collected
from the scene by the families and their lawyers, which was hidden away in
forensic laboratories; and there were the testimonies of the police snipers who
admitted that their commanders, including Alik Ron, had approved firing at stone
throwers, almost certainly in violation of the law.
But
Mahash did not need much prompting to read the government’s signals with regard
to police actions. Despite a series of letters from Adalah, a non-governmental
organization offering legal services to the Arab minority in Israel and
representing the families of the demonstrators who were killed, demanding that
an investigation be launched, no action was taken. Finally, a year after his
report’s publication, Justice Or took the unprecedented step of castigating the
government and Mahash for their “apathy.”
After
Or’s public rebukes, the Justice Ministry changed tack. On the fourth
anniversary of the deaths, on October 1, 2004, the ministry announced
unexpectedly that its investigations were “almost complete.” But as Marwan Dalal,
a senior lawyer with Adalah, later observed, the bereaved families were simply
entering a new phase of their struggle.
A
FAMILY’S ORDEAL
Hassan Asleh, whose son Aseel, 17, had been shot dead at
point-blank range, almost certainly as he lay on the ground after being hit with
the butt of a police rifle, received a letter from Mahash a short time later
demanding that Aseel’s body be exhumed for an autopsy. The Mahash investigators
said they needed to analyze the round that killed him so that they could
identify the officer who shot him.
Aseel
Asleh and three other young men killed by the police on October 2, 2000 had been
hurriedly buried without any post-mortem examinations being performed. Mahash
had approved the release of the four bodies, in violation of the law, knowing
that no autopsies had been carried out. (In total, nine of the 13 bodies were
never examined.)
Marwan Dalal said he immediately suspected a trap. “It was
very strange. We were reading in the media that Mahash was preparing to finish
its investigations, and then suddenly they request permission to do an autopsy
on Aseel’s body. From their point of view, Hassan Asleh was the obvious target
for such a request both because he had become a spokesman for the families and
because he had made it clear during the Or Commission hearings that he would not
allow his son’s body to be exhumed. So Mahash knew beforehand what his response
would be.”
In
fact, there were no forensic grounds for exhuming the bodies of Aseel or any of
the other victims all these years later, as Meir Gilboa, a leading criminologist
and former chief of Israel’s Serious Crimes Investigations Unit, pointed out. He
argued that Mahash’s request demonstrated either an astonishing degree of
incompetence on its part or a desire to stymie the investigation.
“All
the [fatal] injuries were either from rubber-coated bullets, which cannot be
traced to a specific gun, or from live rounds fired from M-16 rifles that
shatter in the body and so cannot be matched with a weapon.” In any case, metal
bullets would almost certainly have deteriorated over five years, making their
forensic value nil, wrote Gilboa. He further noted that the point of an autopsy
was to determine how someone died and not who killed them. As the cause of death
-- lethal police fire -- was already known in all 13 deaths, an autopsy was
redundant.
But,
as would become clear, Mahash was creating the excuse it needed to slip
suspected police officers off the hook for any of the deaths. When Mahash
published the findings of its investigations in September 2005, its director,
Herzl Shviro, blamed lack of cooperation from the bereaved families for the lack
of progress in the inquiry.
At
the press conference of September 18, as Shviro sat next to Shendar, his
predecessor and now the state prosecutor, and Menachem Mazuz, the attorney
general, he declared that even in the cases where the responsible policemen had
been identified they had acted in situations where their lives were in danger.
“UNWORTHY OF BEING RAISED”
Many
mainstream Israeli Jewish commentators were dumbfounded by the press conference.
The historian Tom Segev observed that Mahash “comes across as defense counsel
for the policemen.” He added that the report’s language evoked the mindset of
the 1950s and 1960s, when the country’s Palestinian minority lived under martial
law. “Arab public figures are described as ‘notables’; the people from the
‘sector’ are not ‘residents’ or ‘citizens,’ but ‘locals.’ Most of them are
identified over and over by their first names: ‘the deceased Ahmad,’ ‘the
deceased Muhammad.’ Of two of the Ahmads and Muhammads, the report says that
‘they found their death.’ The police were supposedly not there at the time of
the ‘finding.’”
Segev
was not alone in his assessment. Shimon Shamir, another distinguished academic
-- and more damagingly also one of the three members of the Or Commission --
lambasted the Mahash report, calling it “hard to accept.” He said the team’s
conclusions “stretched our patience to the very limits, and sometimes beyond
those limits, regarding the claim that the police faced an immediate and
substantial threat to their lives as justification for firing live bullets and
using snipers.”
Shamir also denounced as “unworthy of being raised” an
excuse used by Mahash for its initial failure to launch any investigations.
Shviro claimed that it had been too dangerous for Mahash investigators to enter
Palestinian communities to collect evidence. Shamir objected: “All the
journalists, security people and ordinary people who were milling about [in
Palestinian communities] in masses will certainly regard this claim as very
strange.”
Finally, Shamir noted that Mahash’s argument that there was insufficient
evidence to indict a single policeman contradicted the opinion of his two
colleagues on the Or panel -- one a Supreme Court judge and the other a district
court judge. “The panel found serious suspicions with regards to at least two
policemen [Guy Reif and Murshad Rashad].… If two important and respected judges
are of this opinion, is there not a way to bring at least these two cases to
trial?”
SPECIAL PLEADING
Adalah, in its analysis of the report’s conclusions,
agreed with Segev’s view that the Mahash team was acting as defense lawyers for
the suspected policemen rather than as investigators. Most of Mahash’s verdicts,
even though they were based on the same evidence examined by Justice Or,
contradicted his findings.
For
example, Justice Or determined that Guy Reif could have prevented clashes with
the demonstrators in Sakhnin and that he fired at them without justification,
killing two youths. Mahash, in contrast, concluded that Reif had exhausted all
his other options and faced “a clear and present danger” that justified his
actions.
Also,
the Or Commission found that commanders Alik Ron and Moshe Waldman had taken the
unprecedented decision to bring snipers into the Palestinian towns of Umm al-Fahm
and Nazareth and directed the snipers’ fire, and that their purpose in using
snipers was “deterrence.” This policy was found by Justice Or to have had
disastrous consequences. Mahash, however, argued that the snipers had fired only
when facing life-threatening situations and that therefore it was impossible to
determine whether Ron and Waldman’s decision was illegal. Waldman, according to
the Or Commission, directly interfered in the investigation into the fatal
shootings of two inhabitants of Nazareth and, despite a clear conflict of
interest, assigned a subordinate to investigate his actions that night. Mahash
completely ignored these grave charges.
Finally, Justice Or urged a criminal investigation into the extensive use of
rubber bullets against demonstrators. Mahash, in contrast, dismissed this
recommendation, stating simply that “it was allowed to use this measure under
some conditions.”
Having found that it could not identify any of the policemen who killed
demonstrators, or hold accountable any of their commanders who ordered the use
of live fire, Mahash then ignored all other potential charges that could be laid
against individual officers. Lesser charges -- or even disciplinary proceedings
-- were not leveled against officers known to have committed perjury, fabricated
evidence or refused to cooperate with the Mahash investigation. For example,
Yitzhak Shimoni, one of the chief suspects in the shooting of Aseel Asleh,
refused to take a polygraph test to explain inconsistencies in his testimony.
“Why is he still with the police?” demanded Hassan Jabareen, Adalah’s director.
“A policeman has to cooperate in the investigation of a fatality, so in this
case, he should at least have been convicted in a disciplinary court.... They
didn’t even take the minimal step of suspending him.” The reverse, in fact,
occurred: a short time later the news broke that Shimoni had been promoted to a
local chief inspector.
ABOUT-FACE
As
criticism was heaped on Mahash, the attorney general Mazuz stepped in on
September 21 to express his “full confidence” in the investigators, adding that
he was persuaded that there was no evidence for filing charges against officers.
“None of us wants to live in a country in which indictments are filed just to
mollify one sector of the public or another,” he said. “There shall be none of
this in the state of Israel.” The bereaved families responded by threatening to
bypass the Justice Ministry and take their case directly to the Israeli Supreme
Court, and possibly beyond it to the International Court of Justice at The
Hague. “We do not rule out any possibility that would bring these criminals to
justice,” said Hassan Asleh.
But
as Adalah began preparing a petition for the Supreme Court, the Justice Ministry
again acted to forestall the threat of legal action against the police. In a
dramatic about-face less than a week after his press conference, Mazuz announced
that he was now approving a reexamination of Mahash’s findings.
The
reexamination is to be performed by Shai Nitzan, a Justice Ministry official
answerable to the state prosecutor, Eran Shendar -- the head of Mahash in
October 2000 and the man who was responsible for its original failures to
investigate the 13 deaths. As a Jerusalem Post editorial observed:
“[Shendar] is personally suspected of improperly handling the [Mahash]
investigation during the critical first month after the riots ended, and he
should not be in charge of an examination.” (Nitzan, incidentally, was the
lawyer representing the state when Adalah recently filed and won its petition
against the army’s use of human shields in the Occupied Territories.)
Mazuz
justified his change of heart on the legal grounds that an appeal had been
submitted against the Mahash report, although he did not specify who had made
the request. Only later did it emerge that no one had appealed. The head of
Mahash, Shviro, later clarified Mazuz’s decision on Israeli television: “Since
the representatives of the families have already announced that they might
appeal, we have decided to examine our conclusions as though an appeal had been
made.”
Hassan Asleh called Mazuz’s decision a “dirty trick.”
“This is an attempt by the justice minister and the attorney general to sabotage
our just struggle to bring about the trial of the criminal police officers,” he
said. By reexamining the files, the Justice Ministry was blocking the families’
path to the Supreme Court, a tactic Marwan Dalal of Adalah characterized as
“illegal.”
Meanwhile, Mazuz has explained that one of the avenues his officials may explore
in trying to find new evidence against police officers is to demand again that
the victims’ bodies be exhumed. “I would be happy if the families that refused
throughout to agree to an autopsy will change their minds in instances in which
there is a reasonable chance that an autopsy will advance the investigation.”
But if they continued to refuse, he added: “We will need to consider whether to
ask the court, in opposition to the family's position."
(Jonathan Cook is a writer and journalist living in Nazareth. His first book,
Blood and Religion, is forthcoming from
Pluto Press.)
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