High Court Rejects Petition to Probe Palestinian's Death at Bil’in Demo

Jawaher Abu Rahmah died a day after reportedly inhaling tear gas, but the Military Advocate General refused to open a criminal investigation into her death, a view now backed by the court.

Revital Hovel
Revital Hovel
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Jawaher Abu Rahmah
Revital Hovel
Revital Hovel

The High Court of Justice rejected a petition Thursday to instruct the Military Police Criminal Investigation Unit to probe the circumstances of the death of Jawaher Abu Rahmah, a Bil’in resident who died following a demonstration there against the separation barrier in late 2010. One of the justices to reject the petition was Miriam Naor, who two years ago had suggested that the State Prosecutor’s Office should investigate the case.

Abu Rahmah died on January 1, 2011, a day after reportedly inhaling tear gas during the dispersal of protesters. She was watching the demonstration from an area near her home in the village, which was several dozen meters from the site of the demonstration.

After her death, there were contradictory versions over the circumstances of the incident. While her family claimed that she died in hospital in Ramallah after inhaling a substantial amount of gas and that there was a negligent use of tear gas by Israel Defense Forces soldiers, the army claimed she was not present at the demonstration and that she may have been suffering from blood cancer. It later retracted these claims.

The Military Advocate General refused to open a criminal investigation to ascertain the circumstances of her death. Its response referred to the findings of the operational investigation, which indicated that the military force operating in Bil’in to disperse the demonstration acted in accordance with the open-fire orders, and dispersed the demonstration in accordance with the circumstances. It also claimed that medical and intelligence investigations indicated that there was no causal connection between the incident and Abu Rahmah’s death.

Abu Rahmah is the sister of Bassem Abu Rahmah, whose death from a gas canister during a demonstration against the separation barrier in Bil’in in April 2009 was documented in the film “5 Broken Cameras.” The prosecution closed the investigation into his death for lack of evidence.

Abu Rahmah’s mother, Subhiya, and the Bil’in Popular Committee, with the assistance of Yesh Din – Volunteers for Human Rights, petitioned the High Court via attorney Michael Sfard. They asked that the Military Advocate General open a criminal investigation into the circumstances of Jawaher Abu Rahmah’s death. They claim the MAG’s decision not to open such an investigation is completely unreasonable, and therefore the High Court has the authority and justification to intervene.

In response to the petition, the MAG submitted a Civil Administration report that described the initial findings from the investigation into the incident. “The body was transferred from the intensive care unit in the hospital directly for burial, which took place in relative quiet, without belligerence as is customary in the case of ‘shahids’ [martyrs],” the report stated.

It also included a description by the Civil Administration health coordinator, Dalia Bassa, to the effect that “the medical material we received was written in clear and orderly handwriting and was complete – which is unusual for them, and surprising … Usually the medical material we receive from them is concise and written negligently, with a speed that suits incidents of this kind, and we also receive X-rays … in order to prove the guilt of our forces.”

The prosecution noted that, according to the ambulance driver – who was also the gravedigger – the medical material was concealed; he was not informed about the deceased’s death; her body was not transferred to the cold room (as is the usual practice); there was no autopsy, and the clothes she wore did not smell of gas. The ambulance driver added that the burial took place in relative quiet.

It was also mentioned that, according to the medical reports from the hospital, there was apparently an unusual dosage of medications. The medical documents also note that although Abu Rahmah had no medical history, conversations held by Bassa with various doctors indicated that she had been treated at the hospital in the past.

After the petition was filed, the IDF changed its procedures for investigating the deaths of Palestinians. Previously, the procedure demanded that the initial means of clarification in a case where a Palestinian resident was killed as a result of IDF activity was the operational investigation. Only if the initial investigation raised a reasonable suspicion of a criminal offense was a criminal investigation instituted.

The IDF had followed that policy from 2000 – the outbreak of the second intifada – until April 2011. According to the new policy, which applied from then on, the IDF immediately institutes a criminal investigation in every case where a Palestinian resident in the West Bank is killed as a result of IDF activity, except in cases where it is clear that the activity is of a “genuine combat nature.”

The decision as to whether or not to open a criminal investigation is made after an initial examination of the incident, like the examination conducted according to the previous policy. A petition filed by B’Tselem against the new policy was rejected by the High Court.

In July 2012, there was a discussion of the Abu Rahmah petition, when Justice Miriam Naor referred to the proximity of the fatal incident to the date of the change in IDF policy, which presumably would have led to the opening of a criminal investigation of her death. During the discussion, Naor said to a representative of the State Prosecutor’s Office that they should “consider opening an investigation with an open heart. After all, demonstrations do not usually end in death.”

Despite these words, Naor rejected the petition on Thursday, along with Justice Uzi Vogelman and Justice Daphne Barak-Erez. Naor noted that the examination conducted by the army was more comprehensive than an operational investigation.

“The requirement to investigate the cases of death of uninvolved civilians, which took place as a result of military activity, stems from the need to protect the right to life. The right to life is a basic right, which is protected both in Israeli and international law,” wrote Naor. “I’m willing to accept that in this case weight should be given to the proximity of the incident to the date of the change in policy of the respondent [the MAG],” she added. “But that’s not the whole picture. All the above-mentioned circumstances, in my opinion, do not change the conclusion I have reached. Taking all the evidence gathered into account, the examination of the circumstances of the deceased’s death was thorough. The death of the deceased in the prime of life is a difficult and unfortunate event. Naturally, the petitioners – among them the mother of the deceased – wanted to get to the root of the matter and to fully examine the circumstances of the deceased’s death. Nevertheless, I did not find any justification for intervening in the decision of the respondent.”

Jawaher’s other brother, Ashraf Abu Rahmah, was shot in the leg when he was bound and blindfolded at an incident recorded by B’Tselem’s cameras in July 2008, and which was dubbed “the Nil’in shooting affair.” In that case, the High Court intervened and instructed the MAG to try the soldier and brigade commander for an offense more serious than conduct unbecoming.

Following the ruling Thursday, Yesh Din said, “The ruling handed down this morning on the petition constituted a significant reinforcement of the IDF policy of ‘no investigations,’ in the guise of the High Court refusal to intervene in this policy.”

Attorney Sfard, Yesh Din’s legal adviser, added, “A young woman who was present in the area of an unarmed civil demonstration was hospitalized after inhaling large amounts of tear gas, and died. The refusal by all branches of the Israeli judicial system to do the minimum required and to investigate the serious incident demonstrates that the IDF and the State of Israel are not interested in investigating human-rights violations. This also has implications for the good faith of the Israeli claim that the government itself can investigate the events of the most recent military operation [in Gaza].”

Attorney Michael Sfard.Credit: Tomer Appelbaum

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