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VII. Denial of Justice

The Israel Defense Forces’ (IDF) investigative procedures in cases in which Palestinian civilians in the Occupied Palestinian Territories are the victims of use of lethal force are not impartial, thorough, or timely. Individuals in the IDF, Judge Advocate General’s (JAG) office, and Military Police may be dedicated professionals, but the IDF’s flawed policies and practices have nurtured a system that is incapable of providing accountability for serious abuses.

Under international law, Israel is obliged to investigate serious human rights violations and establish the truth about what happened. If wrongdoing is found, the authorities should bring to justice and discipline or punish those responsible. It should provide an effective remedy for the victims of human rights violations, and fair and adequate compensation to the victims and their relatives.

The IDF investigations discussed in this report have failed to meet these standards. IDF authorities have said that any investigative flaws are a result of the practical difficulties they face operating in the occupied territories. These practical difficulties undoubtedly influence some cases. But they do not explain the foot-dragging, inconsistencies, and systematic partiality that have marked IDF policy since September 2000.

The Role of “Operational Investigations

The IDF uses “operational investigations” as a first step in checking a suspicious killing or other possible crime. But this first step is seriously flawed, because it is based on the assumption that soldiers who acted wrongly will tell the truth. Since no external witness testimony is gathered during a debriefing, there is no means of checking whether someone is telling the truth or not – as illustrated all too clearly in the cases of Ahmad al-Quraini, Shadin Abu Hijla, and Tom Hurndall. The IDF defines the debrief as the standard procedure when investigating events outside Israel’s sovereign territory on the grounds that combat soldiers can more accurately interpret the propriety of a soldier’s action than a military policeman without combat experience.281 The line between an “accurate interpretation” and a self-serving account is hard to draw. Yet even the most conscientious soldier carrying out an “operational investigation” will probably lack training, experience, or contextual information crucial to the task, as in the case of Brian Avery. The “operational investigation” may be an appropriate routine for reviewing events for operational purposes. The problem is that they are treated as essential prerequisites to timely and impartial investigations in most cases where IDF use of lethal force results in Palestinian civilian deaths, thus delaying or foreclosing the possibility of a proper impartial investigation.

Another problem is that “operational investigations” do not appear to be conducted according to any identifiable standards beyond the language of the Military Justice Law. IDF media statements suggest no other regulations exist. Quoting Col. Daniel Reisner, deputy Judge Advocate General, the Los Angeles Times reported in late 2002:

Army officials also said there is no standard for how field investigations are conducted. Some delve deeply; others are quite superficial.

"Every commander determines whether he's reached the truth," Reisner said. "There is no textbook on investigations.... We see a great variety."282

This may be acceptable for purely operational purposes, but not for investigative purposes. Human Rights Watch has twice asked the IDF for information on the regulations for conducting “operational investigations.” The first time it was given irrelevant information regarding Military Police procedures. The second time it was directed to the military justice law.283

“Operational investigations” have another major flaw. Even when conducted quickly and competently, they delay the opening of Military Police investigations by several months. Yet every day that passes after an incident takes place, physical evidence is lost or degraded, the scene is compromised, and witnesses’ memory deteriorates. Israeli officials repeatedly emphasize the difficulties of investigation, ranging from lack of physical evidence to the difficulty of locating witnesses. These problems are aggravated greatly by flawed “operational investigations” that create delays of many months. For example, when Human Rights Watch asked the Military Police about the differences between investigations in the first intifada (1988-1993) and those conducted after September 2000, the representative replied, “We get complaints much later; this is one very strong limitation... . Getting to the crime scene is impossible, and usually too late.”284 Asked about the impact of other kinds of investigation on their work, he replied “it does take time; it can delay [our investigation].” Asked about the delays in accessing the scene of Shadin Abu Hijla’s killing, he replied:

It came to us on March 5, it happened in November [sic]. And after the IDF force was there... after the internal investigation was unsuccessful they ordered us [to do it]. It is a problem when we are not there.285

Finally, “operational investigations” are not transparent. They are routinely conducted without involvement of the victims, victims’ families, or non-military witnesses. Summary findings may be reported in the media or stated by the IDF spokesperson, but they are not given to families or publicly released.286 Of the cases Human Rights Watch researched, no Palestinian families had ever been directly informed of the findings of an “operational investigation.” Human Rights Watch is aware of three cases in which the families of U.S. and U.K. victims were given summarized versions of the investigation findings via their embassies, and one in which they were verbally briefed regarding the outcomes.

This lack of transparency undermines whatever credibility the investigation procedures and their findings may have. Without the right to be involved in the proceedings, victims and their families cannot challenge fabrications, bring forward additional evidence, or ever be confident that the truth has in fact been told. Without public disclosure, interested parties, the general public, and even the IDF cannot be confident that justice has been done. “Operational investigations” should not obstruct, as they now do, proper impartial investigations into possible criminal wrongdoing.

The fundamental inadequacy of the operational debrief procedure for any investigative purposes is highlighted by the case of Gideon Levy, an investigative journalist for the Israeli daily Ha’aretz. He is an Israeli citizen, native Hebrew speaker, and easily contactable via the Ha’aretz office. Levy told Human Rights Watch:

I was traveling in an Israeli taxi, an armored taxi, with all the signs of an Israeli taxi and even a small press sign, traveling in Tulkarem under curfew. We coordinated ahead of time with the army spokesman. It was all coordinated we had all the permissions. One of the officers told us to use another lane, and when we did a soldier from another point started to shoot us. He shot eight bullets into the car. Thank God it was bulletproof or I’d be dead.287

Several weeks later, the minister of defense invited Levy to his office to discuss the investigation into the shooting. The minister said he could not let Levy take or view a copy, but read it to him aloud:

And can you believe it, no one [had] interviewed me! The minister of defense invited me into his office to see the official investigation report, and no one had asked me what happened to me! First, this is terrible for the victims. Secondly, it sends the message to soldiers that they can do anything they like and it does not matter.288


The Military Police emphasized to Human Rights Watch that delays hamper investigation proceedings. Yet it is IDF procedures that delay the opening of investigations by many months. In the first place, this delay is imposed by the insistence on completing inherently flawed and inadequate operational examinations before opening a criminal investigation, as discussed earlier. A second element is the period that an investigation request may sit at the JAG’s office pending the decision to open an investigation (and later, a decision whether to indict).

A third factor is the absence of continuity caused by the frequent use of reservist investigators, who work on a file for only one month before returning to civilian life. The file is thus passed from investigator to investigator. Time delays and administrative obstacles accrue as each investigator must familiarize him or herself with the case, re-establish relationships, and commence work. As B’Tselem researcher Ronen Schnayderman points out, “all those [cases] already opened are being conducted by reservists. How do we know? Because they call us to help! Each only serves thirty days and if a case takes a year, well... .”289 Another B’Tselem employee, Najib Abu Ruqaya, is a Palestinian citizen of Israel and is frequently asked by investigators to contact complainants and arrange for their testimony. He told Human Rights Watch:

Deal with the same person? No way! People come for reserve duty, begin to work for two or three weeks, and then until someone new begins, no work is done. It’s very, very boring. They do not really repeat the same ground, but it takes a huge amount of time to re-start the case. And I have not ever really met someone who spoke Arabic.

When Human Rights Watch asked CID officers about the prevalence of reserve investigators, they said “[e]verything has to do with money... but the main decision to bring on reservists is that they are older and have more experience.”290 This contrasts starkly with the practice of the first intifada, when Human Rights Watch reported that Military Police investigators tended to begin questioning alleged perpetrators in killing cases the same day.291

When Human Rights Watch asked the chief military prosecutor what accounted for the long investigation delays, she replied, “[t]he time lag is because of the objective difficulties. First of all people report late, ... after this it is the objective difficulties. I do not feel the investigations are delayed. It is OK. We manage.”292 This statement is at best wishful thinking. As the cases discussed in this report show, there are often lengthy delays in opening investigations even in cases in which the IDF had immediate notice and abundant evidence at its disposal.

Obtaining Testimony

Without exception, every Israeli official interviewed by Human Rights Watch emphasized the difficulty of obtaining witness testimony. There are undoubtedly many witnesses who are reluctant to cooperate with IDF investigations, for reasons ranging from fear of retribution to cynicism about the intentions and effectiveness of the investigators. Yet, as the cases reviewed in this report show, there are also many cases in which IDF investigators do not attempt to contact witnesses to abuse, even when they are readily available. Human Rights Watch documented twelve cases of the alleged use of lethal force in which Military Police investigations were opened. Investigators had attempted to contact non-IDF witnesses in only half of these—namely, those in which the complainants had themselves presented the IDF with witness testimony and contact details.

This phenomenon is not new. More than twenty years ago, an Israeli inquiry into Israeli abuses in the Occupied Palestinian Territories emphasized the same problem; in 1988, the International Committee of the Red Cross reportedly followed up ninety-eight incidents that it had reported to the IDF, thirty-four of them fatal. In more than 70 percent of cases, no Palestinians had been questioned.293

Several factors complicate Military Police efforts to obtain Palestinian testimony. Both Military Police officers and the non-governmental organizations (NGOs) that liaise with them cited a nearly total lack of Arabic-speaking investigators, meaning that even the most routine means of finding witnesses are blocked – such as the efficient telephone directory service run by the Palestinian Authority. The lack of language competence is aggravated by a lack of training in interview skills with Palestinian witnesses, whose language and cultural background usually differ dramatically from that of the Israeli investigators. When Human Rights Watch asked directly whether investigators received training on working with Palestinian witnesses, the officer replied “It is not different from a complaint on another issue. The training is the same training, and experience counts.”294

In practice, IDF authorities appear to rely on two main means of contacting witnesses: first, by referring to a small number of Israeli NGO intermediaries for assistance, and second, by means of the joint Israeli-Palestinian District Coordination Offices (DCOs), set up as part of the Oslo process, which continue to operate in many parts of the occupied West Bank and Gaza Strip.

The IDF rarely contacts Palestinian groups, but deals regularly with a small number of Israeli NGOs, such as the Public Committee Against Torture in Israel (PCATI), B’Tselem, and Physicians for Human Rights – Israel. Staff members from both PCATI and B’Tselem told Human Rights Watch that investigators’ requests were so frequent and so detailed that it seemed that the IDF had devolved the duty to investigate onto human rights groups, which had far fewer resources than the IDF itself. B’Tselem’s Abu Ruqaya explained:

A good example is a letter the Military Police wrote to me on March 8, 2003. It’s regarding a death in Netzarim. They said they wanted the medical papers, description of individuals wounded the same day, a death certificate, and a copy of the victim’s identification. They gave the victim’s name as [withheld] according to the Palestinian newspapers. So we didn’t even send them the case. We have only one person in Gaza, and they ask us to do this — when they have the DCO and the General Security Service! I called them and said politely that they should give it to the DCO.

They just don’t have any mechanisms to work with Arabs. The Military Police are really there to check soldiers’ doings inside military encampments. They do not really have any way of investigating what happens with Palestinians.295

In several cases, NGOs have been contacted to locate Palestinian witnesses, only to find that the individuals in question are being detained by the IDF or inside Israeli prisons. For example, Gabby Lasky, a lawyer at PCATI, said,

They see themselves when it comes to Palestinians as defending the army, not looking at the complaints... . Most frequently they ask us to locate witnesses. Mostly they cannot locate them – often they are still in jail or the phones do not work. Again, when they want to arrest them, they know where to find them.296

The lack of commitment to accountability is demonstrated by two cases in this report in which the Israeli authorities had custody of victims of serious human rights abuses, and knew of their allegations, but made no effort to assist or interview the victims. Tha’ir al-Samudi was arrested two months after he was allegedly severely beaten by IDF soldiers. Al-Samudi repeatedly told his captors of his allegations and required medical treatment during his detention. Yet none of the Israeli officials he met raised the possibility of investigation. The IDF had used Faisal Abu Sariyya as a human shield in the Jenin refugee camp in April 2002. He was detained in a mass roundup two months later, but his interrogators, though they knew of the abuse, made no effort to facilitate any kind of investigation (see below).

Almost every person interviewed by Human Rights Watch noted the huge contrast between the difficulties the Military Police report in locating witnesses and the government’s efficiency in locating and arresting suspected militants. Al-Haq, the Palestinian human rights group, noted that the military’s reluctance to use Palestinian testimony evaporated when that testimony could advance the government’s position in court. Shawan Jabarin, Al-Haq’s research and advocacy director, told Human Rights Watch:

I think the military does not try to do real investigations. They have never contacted us for information. That is, they did use our information once when a lawyer complained to us in a Jenin killing. Israel used our information to prove that the witness statement disproved the complainant’s testimony and supported their version of events.297

Witness Fears

While many Palestinian witnesses are willing to testify to investigators, many others are not. In an environment where the Israeli army has controlled almost every facet of daily life for more than three decades and abuses are reported daily, many individuals fear abuse, humiliation, or other repercussions in any contact with the IDF. Others doubt the possibility that the institution that has committed an abuse is capable of investigating it in good faith. The bitter contrast between the consistent IDF spokesperson’s accounts justifying IDF actions and the realities lived by the civilian population is a powerful disincentive. Still others may refuse to cooperate for political reasons.

Witnesses are almost always asked to go to the local district coordination office, often far away from their place of residence. In some areas, such as Jenin, these offices are located close to Israeli detention and interrogation centers. The association between the two is reinforced by the fact that the Arabic word most frequently used for investigation, tahqiq, is also a synonym for interrogation, with strong associations of forced confessions, ill-treatment, and collaboration. Even individuals with enough social standing or personal conviction to disregard these associations must have the time, resources, and commitment to overcome the curfews, checkpoints, and other movement barriers that so severely affect Palestinian civilian life.

Not surprisingly, some Palestinian witnesses fear that they will suffer official retribution for criticizing Israeli soldiers. Human Rights Watch encountered several witnesses who were reluctant to testify because of fears or threats of retribution. The brother of a man who had died in custody in 2002 believed that the Israeli officials had learned of his testimony to human rights groups and had retaliated by blocking his permit to work in Israel.298 A child who witnessed James Miller’s shooting in Rafah told Human Rights Watch that a soldier had summoned her to speak with him and told her not to give testimony against Israeli soldiers or they would demolish her house.299

One man who had been used as a human shield had considered taking his case to the Israeli High Court, but decided against it. “I was worried I would be arrested on some pretext and then thrown in jail for six months. I am a schoolteacher. If I am arrested, I will lose my job.”300

Other witnesses were worried about being arrested or humiliated as a result of agreeing to meet with Israeli representatives – particularly witnesses who had been arrested in the large-scale sweeps of thousands of men that marked the military operation in March 2002. They were very clearly unaware of the protections that the Israeli chief military prosecutor told Human Rights Watch she was prepared to extend to such witnesses, including the right to have another party present and the ability to check whether any of the individuals in question were wanted for arrest by the intelligence services. “If I can see that he is not wanted, I can guarantee he will not be arrested. If they have been on the list, that is a different matter.”301 No witness Human Rights Watch spoke to was aware of this guarantee against arrest.

Jenin – Cases of Human Shields

The cases of civilians used as human shields by Israeli forces in April 2002 is instructive.302 Although military investigations were opened into cases documented by Human Rights Watch, witnesses did not respond to IDF requests to take their testimony. IDF officials told Human Rights Watch that pursuing the cases had been made difficult because of the lack of specificity as to locations, and because there had been no cooperation from Palestinian or Israeli NGOs in contacting the witnesses.303 Human Rights Watch re-interviewed five of these men, four of whom said they had been contacted via the DCO. Several of them had discussed together whether they should agree, and went to meet the Palestinian DCO officers to discuss the issue. The meeting turned them against the idea, partly because of the experiences of another group of witnesses that had gone to give testimony the same day. According to `Aziz Taha:

When I was sitting in the DCO, the Abu `Aziz family was there and they had been searched and gone through very strict procedures. The officer told us that might happen to us, said he couldn’t guarantee it would not happen. So that was one of the reasons we decided not to do it... . When we got there, the DCO people said, “I am a little afraid that if you go there something will happen or you might not be treated well.” And my brother Kamal asked whether he could guarantee that if he went there, there would be no problem to go back home. And the DCO said, “I cannot guarantee you whether there will be a problem or not. After that we decided not to go.304

Faisal Abu Sariyya, another resident of Jenin refugee camp, was used as a human shield in April 2002 and injured as a result.305 He told Human Rights Watch that he had been detained with a group of other men two months after the incident, in June 2002. When he was taken to the nearby Israeli base at Salem, an Israeli official checked a computer and said, “You were with the soldiers inside the camp.” The official asked Faisal to show him his injury and then asked whether he was interested in receiving medical treatment in Israel. He said no. “I was worried about being arrested or something else would happen,” he told Human Rights Watch. “So then I went back home. I was surprised that he knew I was injured.”306 The official did not ask him what happened or mention the possibility of investigation. Around September 2002, Abu Sariyya was contacted by the Palestinian DCO who told him the Israeli DCO had requested that he come and give testimony. Abu Sariyya said he agreed but that the next day, Sunday, a curfew was imposed. The area remained under curfew for twelve days, and he was never contacted again.307

Abu Sariyya said he was still willing to testify if contacted again. He had seen the officer who had led him through the streets of Jenin in a program on Israeli Channel Two television in early 2003. The presenter said the officer had been injured as a result of fighting in Nablus. Abu Sariyya had learned his name. In the television presentation, the officer reportedly told viewers how carefully the IDF had treated civilians in Jenin. Abu Sariyya was infuriated: “This was the officer of the troops who spent three days with me, he shot me in the street and left me without assistance. He let that happen. I want to make sure it does not happen to others.” This officer had been assisted by two others who had slept at the Abu Sariyya house for two days; one of them had struck Abu Sariyya’s pregnant wife, who miscarried soon afterwards. During the three days he was held by soldiers, Abu Sariyya had directly asked the officer at least twice to let him go. Abu Sariyya told Human Rights Watch, “I learned his name from the television and so now I have learned it by heart.”308

Treatment of Witnesses

Even when the IDF locates witnesses and secures their agreement to testify, other problems emerge. Witnesses in some cases felt the investigators had behaved professionally, but witnesses in other cases did not. Given differences of language, social status, and power, it is no wonder that some Palestinian witnesses would perceive they were being treated suspiciously or unfairly. Many felt their testimony would be of little value because of a widespread Israeli assumption that Palestinians are liars. Several witnesses, however, described treatment that indicates troubling behavior by Military Police investigators.

Case of Ahmad and Jamil Abu `Aziz

The Abu `Aziz family had testified to Military Police investigators regarding the killing of its two sons, Jamil (aged thirteen) and Ahmad (aged five and a half). Both were killed on a Jenin city street on June 21, 2002, when an IDF tank open fired at them without warning as they went to buy chocolate. Two other civilians were also killed. The IDF’s initial response was to apologize, but say that the tank had opened fire to “deter” Palestinians breaking a curfew and approaching them.309 The incident was captured on video, broadcast by news organizations, and a copy given to the IDF. The Abu `Aziz family had hired a lawyer, who coordinated the taking of witness statements with the IDF.310

Dr. Samir `Awad, a neighbor, had been badly injured in the same incident. He agreed to give testimony to the Military Police investigators. He went with the family to the DCO some two months after the incident, in August 2002. Dr. `Awad had spent three to four hours at the DCO, closeted with one investigator and a translator. Although he had arrived accompanied by Palestinian DCO officials, he was searched and made to lift his shirt to show he was not carrying weapons, something most Palestinians find extremely humiliating. When asked about the interview, `Awad said:

The officers were sarcastic, and they said they were not responsible. They didn’t even accept the live evidence of the tape... . They refused to speak English, and I do not speak Hebrew. I asked for a translator and they brought one. They asked me bad questions; I did not want to answer them. All of them seemed to be with bad will; they just tried to show I was wrong and to prove [the soldiers] were not guilty. I was very nervous because he [the investigator] was trying to upset me. I was sitting on the edge of my chair... .311

Recently released from hospital, `Awad said he tried hard to behave calmly and answer the questions in detail. He had brought photographs and drew maps. He was concerned by the possibility that the investigator was not writing exactly what he told him, but summarized notes. He was asked to sign the officer’s paper, in Hebrew, but refused. He signed the interpreter’s statement in Arabic with some hesitation. At the end of the interview, `Awad said, the investigator told him that “it was the Palestinians that injured me, not the Israelis.”312

Lieutenant S. L., the soldier who killed the Abu `Aziz boys, has been indicted for killing four civilians by using tank fire to enforce a curfew. According to media reports in January 2004, he had left Israel and was traveling overseas.313

In March 2004, the chief military prosecutor indicated that charges would be filed against an armored battalion commander in connection with the killing of the four boys.314

Good Faith?

In July 2003, Human Rights Watch asked the Israeli military prosecutor what she considered an example of a good faith effort by the Military Police to locate Palestinian witnesses. Her answer focused on a later stage of proceedings – asking Palestinian witnesses to come to Israel to testify in courts martial. She said:

We need help for this. It is so difficult. Sometimes we give them cars, and say come to the place you want and we will take you to the court, give you whatever you want — just come because we cannot finish without you.

I am trying to guess why it is so difficult. They’re maybe afraid; some times they are not so happy to come to Israel to testify. It takes a whole day to come, and it is not so nice to pass [pause] to come to Israel. It is not easy. I do not know what we could do to make it easier.315

In reality, these efforts represent the bare minimum required to ensure that witnesses are physically able to attend the court-martial. Palestinian residents of the West Bank and Gaza Strip are forbidden from entering Israel, and frequently from leaving their own village or town of residence, without an Israeli-issued permit. Vehicles with Palestinian plates are forbidden to travel on almost all major roads in the West Bank; in some areas, all vehicular traffic is forbidden. According to maps prepared by the U.N.’s Office for the Coordinator of Humanitarian Affairs, more than 700 checkpoints, earth walls, or other movement barriers existed in the West Bank as of January 2004.316

When asked further about steps to obtain witness testimony, Col. Ron said it would be possible to negotiate the location in which witnesses meet with Military Police officers: “If you give us an alternative, we will come. We will come to a place that Israelis can come to without putting the Military Police in danger.” A Palestinian neighborhood “without troubles” would be one such place, she said. Travel permissions could be organized, and, after checking with the intelligence service, she could guarantee that someone not wanted by the authorities would not be arrested. Witnesses, she said, could have another party present with them at the interview — although it was unclear whether this was a privilege or a right — and translators could be arranged.

None of the witnesses Human Rights Watch spoke to was aware of these possibilities. It is not clear whether the Military Police or DCO officials who actually perform the task of contacting witnesses are aware of them or explain them to potential witnesses. In several cases discussed earlier, the opposite occurred. When Human Rights Watch asked the prosecutor whether DCO officials know of these arrangements, she said, “I think the people in the DCO know our policy — I do not know if all the DCOs really do the job. Sometimes it is probably impossible and it depends on relations between people.”317

Israeli military officials have repeatedly commented to Human Rights Watch that the success or failure of investigations largely depends on personal relations between the IDF and nongovernmental groups, and that to procure witness testimony successfully depends primarily on whether human rights groups will help them. Yet despite repeated criticism over more than two decades, the IDF appears to have taken few if any steps to improve its capacity to liaise with Palestinian complainants and witnesses. This failure appears to be a function of political will. When Human Rights Watch asked Col. Ron what policy steps the IDF had taken since the 1982 Karp Commission Report to encourage the gathering of Palestinian testimony, Col. Ron replied: “I do not know what to say. There are changes from time to time and it depends on the intifada, Oslo... it depends.”318

There are many practical steps Israeli officials can take to improve the likelihood of obtaining victim testimony in investigations. The first and most obvious is to create an independent organization to receive and investigate victim complaints to help overcome witness fear of the IDF. Even without this, they can ensure that all complainants and prospective witnesses are clearly informed about the testimony arrangements mentioned by Col. Ron, thereby encouraging witnesses to come forward, and enabling the IDF to demonstrate these protections are truly available. They can ensure that these are passed in Arabic to Palestinian DCO officials and human rights groups. They can publicize their procedures, protection guarantees, and legal explanations on the internet and in the Palestinian media. They can recruit staff with the language skills and training to specialize in victim and witness liaison, set up a direct hotline to report incidents or provide information to potential complainants and witnesses. All of these steps are simple and achievable.

Lack of Transparency and Victim Involvement

There is strong international consensus that if investigations are to promote accountability, they must be open to the victims, victim representatives, and their families. Victims and victim representatives are entitled to participate in investigative proceedings, be made aware of the evidence, and have full access to the results. Yet the families of Husni Amer, Nuha al-Muqadama, Nahla `Aqil, and many other victims have no idea what has happened to Israel’s public promises of investigation. The families of James Miller, Shadin Abu Hijla, and Ahmad al-Quraini have yet to see any result. Without access to investigative proceedings and results, the victims of human rights violations and their families can never learn what happened, and can never be sure they have been told the truth. Without transparency and disclosure, investigation procedures inevitably seem partial, conducted in bad faith, or intended to cover up possible crimes. Likewise, if the public (including public officials) is to have confidence in the accountability of state agents, investigation findings must be made public. It is only then that the findings can be discussed, challenged, and trusted.

The Israeli system fails this test spectacularly. One line “findings” of “operational investigations,” in which victims or witnesses have had no input, are released to the media. No effort is made to contact the families — except in the cases of high-profile foreign victims. Victims hear updates via rumor, sympathetic Israeli journalists, and human rights organizations. In theory, victims have the right to obtain the final file of Military Police investigations. Out of the thirty cases it researched, Human Rights Watch knows of only one in which the Military Police investigation file may have been given to the victim’s family.319 Regulations appear to be secret, as are often the minutes of the military courts. Information on indictments and sentencing has been available only on request. The lack of public knowledge severely undermines the deterrent effect of disciplinary or judicial action. It compromises the credibility of the Israeli army and government. It denies justice to the victims.

The case of Ibrahim Abu Turki highlights the absurdity of current practice. Abu Turki’s shooting is one of the sixteen cases since September 2000 in which the IDF has investigated and indicted the perpetrator. On October 13, 2000, an IDF officer at the settlement of Beit Haggai ordered a soldier to shoot Abu Turki, who was riding a donkey from his village of Qalqas to a neighboring village.320 Although at the time the IDF had stated that a soldier had fired warning shots against a suspicious Palestinian,321 it later indicted “Officer A. P.” for illegal use of a weapon. The officer received a suspended sentence and was removed from his position.322 When Human Rights Watch visited different members of the Abu Turki family in July 2003, not one of them was aware that the indictment had been issued and the perpetrator sentenced.323 The IDF’s lack of contact with victims and their families not only undermines the principles of fairness, but also detracts from the effectiveness of those measures that they actually do take.

Hamid al-Qut

Hamid Jabr Ahmad al-Qut was shot on August 19, 2001. Fifty-eight years old, al-Qut had been making a two-hour trip to fetch drinking water when an IDF soldier stationed at a post between Tel and Burqin shot him in the left side. Another Palestinian civilian was killed in a second incident the same day. Four days later, B’Tselem informed the JAG’s office of the al-Qut shooting and provided it with witness testimony. Four months later, the Palestinian DCO informed the family that the IDF wanted to interview al-Qut, his son, and two other witnesses. They eventually went to the DCO three times because the appointment was twice postponed. Ibrahim al-Qut, the victim’s son, traveled to the Israeli city of Lod to take a polygraph test in December 2002, facilitated by B’Tselem after Ibrahim had made several fruitless attempts to obtain travel permission from the Israeli authorities for the journey.324

Hamid al-Qut himself testified at the April 2003 court-martial of Lt. Y.K., who was indicted for illegal use of a weapon after he fired a machine-gun at a group of civilians some 500 yards away. Human Rights Watch interviewed the al-Qut family three months later, on July 9, 2003. Hamid al-Qut told Human Rights Watch, “[t]here were no results. They took my affidavit and that is all. No one has told me what happened. We checked again today and there is still no news.”325 Ibrahim al-Qut was angry:

There are still no results, as far as we are concerned. I paid. I had to lose time at work and paid to go to the investigators and paid to go to get the license at the DCO at `Awarta, and it’s all for nothing. The Lid people demanded my number and address and said they would call me to tell [me] the results and compensate me for my time and costs, and they did not even call me back. Their information is public relations.326

In January 2004, an Israeli journalist reported that Lt. Y.K. had been found guilty of illegal use of a weapon and given a suspended sentence of an unknown duration.327 No notification had been given to the family.328

Journalists, Knesset members, and human rights groups have all repeatedly criticized the current state of affairs, and the IDF has taken some steps to release more statistical information to the public. This is positive, but not enough. For justice to be done, it must also be seen to be done. Public accountability is the best defense against indifference, incompetence, and collusion. Without this, Israel’s system will not be credible.

Hamid al-Qut was shot and wounded along with other civilians by IDF machine-gun fire while he was fetching drinking water on August 19, 2001. Al-Qut testified at the court martial of a lieutenant for the shooting.   The officer was reportedly convicted of illegal use of a weapon and given a suspended sentence.  The soldier implicated was reportedly convicted of illegal use of a weapon and given a suspended sentence.
© 2002 Miranda Sissons/Human Rights Watch

Lack of Compensation

Israel has avoided as much as possible paying compensation to civilian victims of IDF wrongdoing. Article 5 of the Torts Law (State Liability) 5712-1952, titled “Warfare Operation,” declares that the state will not be liable for damage caused during war-related operations of the IDF. In mid-2002, the Israeli Parliament amended this law, greatly expanding the scope of acts for which compensation would not be paid by extending the definition of “wartime action” to include “any action of combating terror, hostile actions, or insurrection, and also an action as stated that is intended to prevent terror and hostile acts and insurrection committed in circumstances of danger to life or limb.”329

The amendment includes a complex procedure that allows Palestinians to ask for compensation in an Israeli court in only limited circumstances. Within sixty days of the date of the incident, the injured person must file a written notice of intent to make a claim and then must file a civil suit within two years from the date of the incident. The provisions of section 38 and 41 of the Torts Ordinance [New Version], which offer lower evidentiary standards for some injury claims, cannot be applied. If it is proven to the court that the State of Israel is denied a fair opportunity to defend the claim because the Palestinian Authority has failed to comply with the legal assistance provisions set out in the Oslo Accords, it may deny the claim.

In addition, a new draft amendment has been pending since 2002 that almost completely abolishes any possibility of compensation for injuries inflicted intentionally or negligently during the second intifada. Amendment Number Five to the Civil Wrongs (Liability of State) Regulations has already passed its first reading in the Knesset and is now before the Knesset’s Constitution, Law, and Justice Committee. Once approved by the Committee, it will be brought for second and third readings in the Knesset, at which point it becomes law. According to the proposed amendment, “a national of an enemy state or a resident of a conflict zone” will be denied the right to bring claims for the compensation against the state in Israeli court for harm allegedly inflicted by Israeli forces.

These measures violate Israel’s commitments under international human rights law to provide an effective remedy to victims of human rights abuses. They are also spectacularly poor public relations, and cause additional resentment even in those cases in which the Israeli authorities have admitted responsibility for error or wrongdoing. In contrast, although the U.S. Foreign Claims Act has a combat-related exclusion, the U.S. has interpreted the exclusion more narrowly and paid compensation claims or arranged third-party payment of claims during operations in Vietnam, Grenada, and Iraq.330 In Iraq, commanders may give “gratuitous payments” of up to $2,500 without any ruling or admission of responsibility. Claims of up to $15,000 can be decided at the divisional level, with claims up to $50,000 being reviewed by a three-person claims commission. Between May 1 and September 18, 2003, the coalition Foreign Claims Commissions had adjudicated 4,148 claims, 1,874 of which were denied, and paid in total $901,545.331

In practice, Israeli officials have offered foreign victims of IDF deadly force payments as “humanitarian gestures” or as part of confidentiality agreements. In several Palestinian cases, individuals that the IDF informally admitted responsibility for injuring were quietly offered access to medical treatment in Israel. This practice, while commendable, falls short of Israel’s obligations. Not one of the families of Palestinian victims interviewed by Human Rights Watch had received any compensation.

[281] Alex Fishman and Guy Leshem, “Poorly Investigated, Forgotten and Buried,” Yedioth Ahronoth, January 23, 2004.

[282] Tracy Wilkinson, “Israeli Army Probes Slaying of Palestinian Grandmother,” Los Angeles Times, December 30, 2002.

[283] Letter to Human Rights Watch from Maj. Sam Wiedermann, head, International Organizations Section, IDF Spokesperson’s Unit. May 10, 2004.

[284] Human Rights Watch interview, Col. Shami Cohen, Military Police, Tel HaShomer Military Base, July 13, 2003

[285] Ibid.

[286] According to Art. 539 (B) (2-7) of the Military Justice Law, material from operational investigations is always confidential. It may be provided to the JAG, to military entities that require it for the fulfillment of their duties, or to another government office if approved by the chief of staff. It can never be used for criminal proceedings. The Knesset Foreign Affairs and Defense Committee may view the material if it requests to do so, but only in a privileged meeting.

[287] Human Rights Watch telephone interview, Gideon Levy, Jerusalem, July 1, 2003.

[288] Ibid.

[289] Human Rights Watch interview, Ronen Schnayderman, B’Tselem, April 29, 2003.

[290] Human Rights Watch interview, Col. Shami Cohen, Military Police, Tel HaShomer Military Base, July 13, 2003

[291]  Human Rights Watch [Middle East Watch], The Israeli Army and the Intifada, p. 101.

[292] Human Rights Watch interview, Col. Einat Ron, Chief Military Prosecutor, Tel Aviv, July 7, 2003.

[293] “Conflicting Data,” Ha’aretz, June 16, 1989, cited in Human Rights Watch [Middle East Watch], The Israeli Army and the Intifada,p. 82.

[294] Human Rights Watch interview, Col. Shami Cohen, Military Police, Tel HaShomer Military Base, July 13, 2003

[295] Human Rights Watch interview, Najib Abu Ruqaya, Jerusalem, July 9, 2003.

[296] Human Rights Watch  interview, Adv. Gabby Lasky, Public Committee Against Torture in Israel, Jerusalem, July 8, 2003.

[297] Human Rights Watch interview, Shawan Jabarin, al-Haq, Ramallah, June 6, 2003. The case in point is the killing of Jamal Thalaji and Mahmud Khalil in al-Zababda village on July 1, 2001. See, al-Haq press release, “Three Palestinian Activists Assassinated, and Two are Killed In Israeli Instigated Attacks,” July 2, 2001. Available at

[298] Human Rights Watch interview, name withheld, Jenin, July 4, 2003.

[299] Human Rights Watch interview,   name withheld, Rafah,  June 17, 2003.

[300] Human Rights Watch Interview, name withheld, Jenin, July 4, 2004.

[301] Human Rights Watch interview, Col. Einat Ron, Tel Aviv, July 7, 2003.

[302] See Human Rights Watch, Jenin: IDF Military Operations, Vol. 14, No. 3 (E), May 2002, pp. 29-33.

[303] Human Rights Watch meeting, Col. Daniel Reisner and Captain David Benjamin, legal adviser, Southern Command, IDF, October 28, 2002.

[304] Human Rights Watch interview, `Aziz Muhammad Hussain Taha (Talib), Jenin, July 4, 2003.

[305] Human Rights Watch, Jenin:  IDF Military Operations, pp. 30-31.

[306] Human Rights Watch interview, `Ali Mustafa Hussain Abu Sariyya, known as Faisal al-Sariyya, Jenin,  July 4, 2003.

[307] Ibid.   The curfew  statistics contained in the weekly United Nations Office for the Coordination of Humanitarian Affairs Humanitarian Updates indicate that Jenin was under strict, almost continuous curfew throughout September 2002.

[308] Human Rights Watch interview, `Ali Mustafa Hussain Abu Sariyya, known as Faisal al-Sariyya, Jenin, July 4, 2003.

[309] “Jenin Deaths Video Implicates Army,” BBC News, Friday July 5, 2002, available online with video footage at (accessed October 2003).

[310] Human Rights Watch interview, Yusuf `Abd al-`Aziz `Abd al-Khala` Abu `Aziz, Jenin, July 4, 2003.

[311] Human Rights Watch interview, Dr. Samr al-`Awad, Jenin, July 5, 2003.

[312] Ibid.

[313] Akiva Eldar, “The IDF’s Standards of Punishment,” Ha’aretz, January 6, 2004.

[314]  Amos Harel, “IDF battalion commander to be charged in deaths of 4 Palestinians,” Ha’aretz, March 18, 2004. 

[315] Human Rights Watch interview, Col. Einat Ron, Tel Aviv, July 7, 2003.

[316]  U.N. Office of the Coordinator of Humanitarian Affairs, “West Bank Closures,” January 2004 (map). Available at  (accessed April 4, 2004).

[317] Ibid.

[318] Human Rights Watch interview, Col. Einat Ron, Tel Aviv, July 7, 2003.

[319] Ibid. Col. Ron told Human Rights Watch, “[i]f the families ask for findings, we will give them, not directly, but via the NGOs. We cannot give them directly because we do not have their address. But for Rachel Corrie and others, we give the full thing.” She also said other interested parties might be given a summary of the file, depending on the group in question.

[320] See, Human Rights Watch, Center of the Storm, A Case Study of Human Rights Abuses in the Hebron District, May 2001, pp. 56-57.

[321] The area IDF commander explained that a soldier “fired towards a Palestinian whose behaviour was perceived to be suspicious. The soldier that spotted the Palestinian intended to fire warning shots and mistakenly injured him.” Louis Meixler, “Israelis Shoot Palestinian Farmer,” Associated Press, October 14, 2000.

[322] Akiva Eldar, “The IDF’s Standards of Punishment,” Ha’aretz, January 6, 2004.

[323] Human Rights Watch interviews, Fadil Abu Turki, Ibrahim Muhammad Khalid Abu Turki Qalqas, and Isma`il Ibrahim Muhammad Abu Turki, Hebron and Qalqas, July 3, 2003.

[324] Human Rights Watch interview, Ibrahim Hamid Jabr al-Qut, Ma’adamah, July 3, 2003.

[325] Human Rights Watch interview, Hamid Jabr Ahmad al-Qut, Ma’adama, July 9, 2003.

[326] Human Rights Watch interview, Ibrahim Hamid Jabr al-Qut, July 3, 2003.

[327] Akiva Eldar, “The IDF’s Standards of Punishment,” Ha’aretz, January 1, 2004.

[328] Human Rights Watch telephone interview with son of Hamad Jabr al-Qut, June 4, 2004.

[329] A translation of the law by B’Tselem can be found at

[330] “The combat-related claims exclusion often directly interferes with the principal goal of low intensity conflict/foreign internal defense ‑ obtaining and maintaining the support of the local populace.”  See, Berger, Grims, and Jensen (Editors), Operational Law Handbook, International and Operational Law Department, Judge Advocate General’s Legal Center and School, Charlottesville, Virginia, 2004, pp. 13-9 to 13-10.

[331] Human Rights Watch, Hearts and Minds: Post War Civilian Deaths in Baghdad Caused by U.S. Forces, Vol. 15 No. 9 (E), October 2003, pp. 47-49.

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