Israel's investigations of alleged incidents of misconduct in the West Bank1

1. Overview

The responsibility to investigate allegations of misconduct by the Defence Forces ("IDF") or the Israel ("Border Police") in the is divided between several investigative authorities in Israel, as described below. Further detailed information regarding Israel's system of investigations into alleged violations of the Laws of Armed Conflict is available in Israel's reports related to the Gaza Operation previously released in July 2009, January 2010 and July 2010.2

Allegations against Border Police units regarding incidents that occurred in the West Bank are investigated by the (hereinafter: "the police"). The results of the police investigations are transferred to the Office of the relevant District Attorney for consideration. Where necessary, the District Attorney may request the police to perform supplementary steps of investigation. Upon completion of the investigation, the District Attorney determines whether to file an indictment against any person involved in the alleged incident or whether to close the matter. A decision to close the matter may be appealed to the State Attorney, and if denied, the complainant may also seek judicial review of the matter by way of petition to the Israeli Supreme Court sitting as the High Court of Justice.

Allegations against IDF soldiers are considered by the Military Advocate General (hereinafter: "MAG"). As explained in the January 2010 Update,3 in cases where per se criminal behavior has been alleged, the MAG will immediately order a criminal investigation by the Criminal Investigation Division (hereinafter "MPCID"). In other cases, a command investigation will be conducted, and the MAG will examine the findings, together with all other available information (including, for example, any evidence submitted together with the complaints, reports published by non-governmental organizations or information reported in the media) before deciding whether to order initiation of a criminal investigation, disciplinary proceedings or to close the matter. In cases where a criminal investigation has been conducted, the MAG will review the results and decide whether to file an indictment, order disciplinary proceedings or close the file. The decision by the MAG whether or not to open a criminal investigation, as well as his decision whether or not to file an indictment, may be subject to further review by the Attorney General, and may also be challenged before the Israeli Supreme Court sitting as the High Court of Justice.

Israel investigates all allegations of misconduct in the West Bank. The Israeli authorities have investigated 14 incidents in which misconduct was alleged to have taken place in the West Bank during the period of the Gaza Operation (27 December 2008 to 18 January 2009), as well as other incidents mentioned in the Report of the U.N. Human Rights Council Fact Finding Mission on the Gaza Conflict, chaired by Justice Richard Goldstone (hereinafter:

1 Last updated March 10, 2011. 2 See The Operation in Gaza: Factual and Legal Aspects (July 2009), available at http://www.mfa.gov.il/MFA/Terrorism-+Obstacle+to+Peace/+war+against+Israel/Operation_in_Gaza- Factual_and_Legal_Aspects.htm; Gaza Operation Investigations: An Update (January 2010), available at http://www.mfa.gov.il/NR/rdonlyres/8E841A98-1755-413D-A1D2-8B30F64022BE/0/GazaOperationInvestigationsUpdate.pdf; and Gaza Operation Investigations: Second Update (July 2010), available at http://www.mfa.gov.il/MFA/Terrorism- +Obstacle+to+Peace/Hamas+war+against+Israel/Gaza_Operation_Investigations_Second_Update_July_2010.htm 3 See Gaza Operation Investigations: An Update (January 2010), supra at paragraphs 50 – 53, 63 – 70 and section III more generally. "HRCFF Report").4 Out of the 14 incidents investigated (11 of which were referred to in the HRCFF Report), two led to indictments,5 six were closed with no charges and six are still ongoing. A table summarizing the status of each of the investigations is attached as an annex. In addition, this paper provides further information concerning three examples of such investigations.

2. Specific examples

A. Basam Abu Rahma

Basam Abu Rahma was alleged to have been killed as a result of being hit in the chest by a high velocity tear gas canister, during a violent demonstration in the West Bank village of Bil'in on 17 April 2009. The incident was described in the HRCFF Report.6

Based on the findings of the IDF command investigation into the matter and the information available, the Military Advocate for Operational Affairs did not find evidence of criminal behavior by the soldiers involved in the incident, and thus decided not to initiate further criminal investigation of the matter.

The attorney representing the deceased's mother was informed accordingly, following which the deceased's mother challenged the decision, claiming that Mr. Abu Rahma was hit by direct fire of a tear gas canister. The challenge was supported by forensic analysis of a film- strip documenting the event.

In light of the new evidence brought before him, the Military Advocate General ordered initiation of a criminal investigation. Since both IDF and Border Police forces were operating at the scene, all decisions pertaining to this case were made in consultation with the office of the State Attorney, and parallel investigations are being conducted by the MPCID and the police. The investigations are still ongoing.

B. Ahmad Musa

On 29 July 2008, a demonstration in the Ni'lin village area led to violent clashes between demonstrators and Border Police. A complaint submitted to the police by two Israeli NGOs alleged that Ahmad Musa, a 10-year-old boy, was injured by shots fired by Border Police during the course of the riots, and later died as a result of his injuries. The incident was also described in the HRCFF Report.7

Following the complaint, the Commander of IDF ordered a command investigation, the Head of the Civil Administration coordinated a joint medical inquiry with Palestinian officials, and a police investigation was opened regarding the incident. While the

4 It may be noted that the HRCFF Report discussed incidents which appear to go beyond the temporal and substantive mandate of the HRCFF Mission. 5 One of the indictments was later withdrawn following a ruling of the Supreme Court obliging the State to disclose privileged evidence (see incident number 3 in the attached annex). 6 HRCFF Report, para. 1395. The incident was mentioned in the HRCFF Report although it occurred three months after the Gaza Operation and had no connection with it. 7 HRCFF Report, para.1388. The incident was mentioned in the HRCFF Report although it occurred five months after the Gaza Operation and had no connection with it. request of the police to perform an autopsy was refused, they did receive medical documents which were transferred from the Palestinian side via the Civil Administration. Police investigators interviewed a Palestinian eye-witness and the deceased's father, and questioned the commanders and four personnel from the Border Police unit involved in the incident.

The police investigation found that the unit had been alerted of violent riots in the Ni'lin village area and were also notified that a group of Palestinians were trying to sabotage the security fence. When a Border Police vehicle arrived in the area, it was heavily attacked with stones thrown by Palestinians. The commander of the vehicle requested and received permission to respond by firing rubber bullets. One of the Border Policemen, however, shot a number of live-fire rounds, without having requested or received permission to do so. One of the live rounds fired allegedly hit Ahmad Musa.

On 25 May 2010, the District Attorney filed an indictment against the relevant Border Policeman, charging him with causing death by negligence. According to the indictment, the defendant is charged with having fired live rounds towards demonstrators (and the deceased among them), in an unjustified manner, without authorization and in violation of procedures. The trial is ongoing.

C. Tristan Anderson

On 13 March 2009, Tristan Anderson, an American citizen, was severely injured during a violent demonstration in the village of Ni'lin in the West Bank. Mr. Anderson was allegedly hit in the forehead by a high velocity tear gas canister. The incident was described in the HRCFF Report.8

In the course of the investigation, the police interviewed five persons who had participated in the demonstration (including three foreign nationals and two Ni'lin residents), as well as the medical personnel who evacuated Mr. Anderson, and the physician who treated Mr. Anderson in the Tel-Hashomer hospital in Israel. Additionally, investigators questioned the company commander and three Border Policemen from the unit involved.

The investigation found that on 13 March 2009, at around noon, a violent demonstration took place in the Ni'lin village area. The demonstrators threw stones, thunder flashes and detonators, and used improvised gas devices to shoot at Border Police personnel who were present. After obtaining permission to do so, Border Police personnel fired tear gas canisters from a distance of 200m. It was found that the firing of tear gas was not directed at the demonstrators, but rather at an elevated trajectory towards an open space.

Based on the findings of the investigation, the Central District Attorney decided to close the file with no charges on 11 January 2010. On 9 June 2010, Mr. Anderson brought a challenge regarding the decision before the State Attorney, requesting him to overturn the decision of the District Attorney to close the file and claiming that in addition to the Border Police personnel who were investigated by the police, there was another group of Border Police

8 HRCFF Report, at para. 1394. The incident was mentioned in the HRCFF Report although it occurred two months after the Gaza Operation and had no connection with it. which was closer to the demonstrators (approximately 50-70m), that might have fired the canister which hit Mr. Anderson in the head.

The State Attorney instructed the police to conduct a supplementary investigation in order to examine the new allegations. The additional investigation found no evidence to support the appellant's allegations, and on 6 January 2011, the State Attorney informed the appellant's attorney of the findings, and advised him that he could either withdraw the appeal or amend it. Thus far, no further appeal has been submitted.

Annex: Status of West Bank Investigations

No. Date of incident Name Current status of the investigation

1 29 July 2008 Ahmad Musa An indictment has been filed. Trial is ongoing.

2 4 August 2008 Yusef Amera A Police investigation was conducted. The file was closed with no charges.

3 4 December 2008 El-Matariyeh Family An indictment was filed. The State Attorney withdrew the indictment following Supreme Court decision requiring disclosure of information privileged for national security reasons. 9

4 28 December 2008 Mohamed Khawaja, A command investigation was Arafat Khawaja and conducted. The file was closed with Mohammed Srour no charges.

5 4 January 2009 Mufid Walwel A command investigation was conducted. The file was closed with no charges.

6 8 January 2009 Haled el-Daher A Police investigation was conducted. The file was closed with no charges.

7 8 January 2009 Yaacov Nazer A criminal investigation by Police was conducted regarding actions of Border Police. The file was closed with no charges. A parallel criminal investigation by Military Police regarding IDF conduct is still ongoing.

8 13 January 2009 Yaser Tmeizi A Military Police investigation was conducted. A decision regarding the case has not yet been made.

9 19 January 2009 Mus'ab Da'na A criminal investigation by Police was conducted regarding actions of Border Police. The file was closed with no charges. In parallel, a command investigation was

9 For the sake of clarity, it is noted that while referred to in the HRCFF Report, this incident does not relate to allegations concerning misconduct by Israeli authorities. conducted regarding IDF conduct. A decision concerning the matter has not yet been made.

10 23 January 2009 Hamis Abu-Rahma A Police investigation was conducted. A decision concerning the case has not yet been made.

11 13 February 2009 Az-a- Din el-Jamal A command investigation was conducted, following which a criminal investigation was opened. The investigation is still ongoing.

12 13 March 2009 Tristan Anderson A Police investigation was conducted. No charges were filed. Reviewed by State Attorney who affirmed decision of District Attorney, but offered complainant opportunity to submit additional information.

13 17 April 2009 Basam Abu Rahma Parallel investigations are being conducted by Police and Military Police. Investigations are ongoing.

14 5 June 2009 Aqel Srour A Police investigation was conducted. The file was closed with no charges.