In the 10-month wave of lone-wolf attacks by Palestinians, many of them stabbings, only once have the police been thoroughly investigated and questioned on suspicion of opening fire in violation of regulations. This, despite video evidence showing that officers may have acted improperly.
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For its part, the Justice Ministry’s unit for investigating the police says it must consider “the obligation to let the police fighters protect the lives of the public effectively ... out of recognition that a police officer who happens upon a terrorist attack uses his judgment and makes decisions in a very few seconds.”
There are several key examples from the past 10 months; one took place on October 12, two weeks into the terror wave, when 17-year-old Mustafa al-Khatib went to the Lions Gate in the Old City of Jerusalem. The police say he pulled out a knife and tried to stab a Border Police officer. The officer, who was wearing a protective vest, was unharmed and Khatib was shot and killed.
Khatib’s family did not accept the police’s version and asked the Justice Ministry’s unit for investigating the police to look into the matter, as is customary when the police shoot someone dead.
Four months later, the family finally received an answer. “No evidentiary basis exists that shows the committing of a criminal act by any of the police officers,” the unit wrote.
But the case file shows that the investigators never even questioned the officers involved. They sufficed with the report the policemen wrote after the event and the internal police inquiry in which the three officers were questioned.
And the report by the three cops — the only report in the file sent to the Khatib family’s lawyers — did not even concern the incident in which Khatib was killed. It was about an incident that occurred two days earlier.
Security-camera video that Haaretz has obtained shows how Khatib shoved a policeman and then ran from police officers; only then was he shot in the back. The investigators also did not question eyewitnesses.
Because the police objected to an autopsy, an autopsy was conducted at Al-Quds University’s forensic medicine institute, at the initiative of the family’s lawyers from rights groups Adalah and Addameer. The autopsy’s findings were consistent with the video: The shots that killed Khatib were aimed at his upper body.
“The evidentiary file raises [the suspicion] that there are many investigative flaws in this incident and many questions in the case,” said Fadi Khoury, one of the lawyers. He said the Justice Ministry unit “completely relied on the police’s conclusions, even though the visual documentation of the shooting clearly raises [the suspicion] that it violated the regulations on opening fire.”
The Justice Ministry investigators said the police were forced to open fire.
In the past 10 months, a number of requests have been submitted to the Justice Ministry about examining the rules concerning the shooting of assailants. But in all but one incident, the cases have been closed without the unit investigating and questioning the officers.
Another such incident took place only two days after Khatib was shot, after a 72-year-old woman was stabbed in Jerusalem’s Central Bus Station. Police shot and killed the suspect, 22-year-old Ahmed Abu Shaaban, near the station. In a video, a police officer can be seen opening fire while Abu Shaaban was lying on the ground.
Abu Shaaban’s family said he was not involved in the attack and asked the Justice Ministry to investigate. The answer was similar to that in the Khatib case.
“From an examination of the relevant material, it seems the shooting happened immediately after Ahmed stabbed a 72-year-old woman, and after he was identified by civilians as the person who committed the stabbing, and while he was still holding the knife in the city center,” wrote Liora Nahon, the deputy head of the Justice Ministry unit. She said the police had to shoot to prevent further stabbings.
When Adalah sought to appeal the closing of the case and receive the material that produced the decision, it received a surprising answer: “There is no material in our file except for the complaint received in our department from your organization.”
The unit told Haaretz this response was apparently sent because the materials involved had not been electronically scanned. Either way, the decision was based on testimony gathered by both the police and Justice Ministry investigators.
“I think that if there is an a priori assumption that the police officers in a case acted legally, and the only way to discover that they acted improperly is based on internal police memos or questioning when one avoids questioning witnesses and gathering objective evidence, this guarantees that every case will be closed and a case of violating [regulations] will never be found,” said Prof. Mordechai Kremnitzer, vice president of the Israel Democracy Institute and a professor emeritus of law and former law dean at Hebrew University.
The rules on opening fire
Repeatedly appearing in these cases are the regulations on the police opening fire. The rules of engagement state that officers must warn that they intend to shoot, and must first shoot in the air.
“It is possible to do without the warning when there is seen to be a real and immediate threat to the life or body of the police officer or another person,” the regulations state. “The police officer is required to use the weapon with maximum caution, in a way that will cause as light an injury as possible.”
But last October then-Attorney General Yehuda Weinstein said the regulations on opening fire should be even more carefully adhered to. “The use of [live] fire after danger has been prevented to life or limb will be a deviation from the law’s instructions,” Weinstein said.
Five months ago, the Justice Ministry unit received another case on exactly this question. On March 8, Bashar Masalha went on a stabbing spree on the Jaffa promenade, killed American tourist Taylor Force and wounded 11. Police shot and killed Masalha.
In a video of part of the incident, Masalha can be seen lying on the ground apparently unable to get up. A police officer and an older police volunteer are seen standing over him, their guns out.
Bystanders can be heard telling the volunteer things like: “Give it to him in the head, don’t be afraid, give it to him in the head. Good, you’re a king.” A policeman is then heard telling his superiors over the radio, “I’ve neutralized him.” But the bystanders keep egging the volunteer on to “give it to him in the head.”
At that point, at least one shot is heard, apparently from the volunteer. That shot is suspected of causing Masalha’s death. Afterward, the other policeman can be heard saying,
“Yossi, enough! He’s lying there neutralized. What are you doing firing for no reason?” A civilian can also be heard urging the police to stop shooting.
Immediately after the events, the Justice Ministry unit announced that it was investigating, but Haaretz has learned that the volunteer has never been questioned. In fact, it has not yet been decided whether his testimony is needed. The case has not been closed, but it is not clear whether or when the investigation will be completed.
In the 10-month terror wave, the only police officer investigated on suspicion of opening fire in violation of regulations was the officer who shot two Palestinian teenagers who stabbed two people with scissors in Jerusalem in late November. One of the female attackers was killed and the other seriously wounded.
This investigation has not yet produced a decision, even though the police officer, a sapper who happened to be passing by, was questioned under caution that he might be charged back in December. The decision is now up to Attorney General Avichai Mendelblit.
The investigation seems to have been opened only because of the intervention of Mendelblit’s predecessor Weinstein and State Prosecutor Shai Nitzan. The Justice Ministry hitherto opposed an investigation.
According to one of the police officer’s lawyers, “It became clear that the sapper called out to the terrorists to toss their weapons away, but they refused. If our client had not happened to be passing by, the incident would have ended differently.”
In February, Israel Defense Forces chief Gadi Eisenkot touched on the incident indirectly when he was asked by a high school student whether the army’s rules of engagement put soldiers at risk. Eisenkot said the rules were good.
“The IDF cannot speak in slogans such as ‘if someone comes to kill you, kill them first,’ or ‘everyone who carries scissors should be killed.’” Troops can act only if there is threat to life, Eisenkot said.”I don’t want a soldier to empty a magazine on a girl with scissors,” he added.
In such cases, soldiers can be investigated by the Military Police, not the Justice Ministry.
Disciplinary proceedings only
Haaretz has also learned that another police officer was investigated on suspicion that he acted improperly after a terrorist attack, though he did not shoot. In a November incident in south Tel Aviv, two Israelis were stabbed to death by a Palestinian who worked in a nearby restaurant and had a permit to work in Israel.
In this incident, after the assailant was subdued by civilians, a police officer arrived who is now suspected of attacking the assailant when there was no longer a need to do so. The police say the officer is expected to face disciplinary proceedings; he could be dismissed.
Still, many cases that end with the death of the assailant don’t reach this stage, and police and witnesses don’t get questioned by the Justice Ministry unit. In an October stabbing case, East Jerusalem resident Fadi Alloun moderately wounded a 15-year-old boy. A video shows that Alloun was shot dead by a police officer while walking from the scene. Civilians can be heard shouting “Shoot him” and telling Alloun “You’re going to die.”
The Justice Ministry justified closing the case by saying the video and testimony of two eyewitnesses showed that “after Alloun came close to the police officer and threateningly waved the knife, he was shot by a police unit .... The police unit fired at the center of Alloun’s body to neutralize him.”
The Justice Ministry unit told Haaretz that firing at the center of an attacker’s body is a matter of judgment based on the fear the assailant will try to kill others. Thus the case was closed because no crime was committed, the unit said.
Prof. Amichai Cohen, a research fellow at the Israel Democracy Institute and a professor of law at Ono Academic College, has criticized the way Justice Ministry investigators rely on the conclusions of internal police inquiries. The main lesson learned by the army in recent years is that a criminal investigation can’t be based on an internal inquiry by the military unit involved, Cohen says.
After the 2014 Gaza war, the army set up an independent system of “factual inquires” outside the regular chain of command. Conclusions are sent to the military advocate general to decide whether to open an official investigation. In comparison, the Justice Ministry unit is only authorized to conduct a criminal investigation, which creates a media storm and a stigma by its very existence, Cohen says.
The Justice Ministry unit’s treatment of complaints is also sometimes lacking outside the lone-wolf terror wave. This has been the case with four complaints about police attacks filed by Palestinian rescue workers and Physicians for Human Rights. The cases were quickly closed.
“Our conclusions were reached, among other reasons, because of a lack of cooperation on your part during the investigation,” the unit said.
In one case, Ra’ed Fathi Yakub al-Khutri, who works for the Red Crescent Society, said that in October 2015, when he arrived with his ambulance to evacuate people during confrontations near Al-Bireh in the West Bank, he was attacked by the Border Police. After evacuating a man injured during the clash, the police fired at his vehicle a number of times. Later, after he stopped, a police officer kicked a volunteer, he said.
In January he testified in a Justice Ministry investigation but since then no one has been in contact with him on the matter, he said. In April he was told the case had been closed in light of “his lack of cooperation.”
The Justice Ministry unit told Haaretz: “It is possible that because of a technical mistake an incorrect statement was sent to the complainant. At this stage the file is under consideration by the appeals department.”
The Justice Ministry’s unit for investigating police officers said in response: “The wave of terrorism that has struck the country recently has included numerous incidents of the use of deadly force by police officers who found themselves at the scene of an attack facing those who went out into city streets armed with [knives and other] weapons and showed intent to kill Israelis .... In a large number of these cases, the police officer who fired was not necessarily a skilled combatant but someone who for the first time happened upon an extreme event and responded instinctively.”
The unit said it thus had to “carefully preserve the delicate and fine balance between the legal requirements and the essential need to protect human lives of any person, and between the obligation to let the police fighters protect the lives of the public effectively ... out of recognition that a police officer who happens upon a terrorist attack uses his judgment and makes decisions in a very few seconds.”
According to the unit, “Most of the incidents ended with findings that rule out a suspicion of criminal offenses in accordance with the laws of self-defense accepted in law and justice.”
As for the allegations about the harassing of medical teams, the Justice Ministry unit said: “Without the cooperation of the complainants, and without receiving their versions, it is impossible to carry out the relevant investigative activities. There is no reason to examine the operation logs and the forces that operated during incidents without receiving the complainants’ version of events, without which there is no basis for investigating a suspicion of carrying out a criminal offense.”