When Israeli Soldiers Kill Palestinians, Even a Smoking Gun Doesn't Lead to Indictments

An in-depth study of two incidents in which Palestinian protesters were shot and killed during demonstrations in the West Bank shows that the level of evidence required to indict an Israel Defense Forces soldier is substantially higher than that demanded when Palestinians are investigated.

Furthermore, the heavy media coverage given to the prosecution of Sgt. Elor Azaria – the Israeli soldier standing trial for manslaughter after shooting a subdued Palestinian assailant in March – is extremely rare, even though his actions are not.

Of the 739 complaints filed by the Israeli nonprofit B’Tselem concerning death, injury or beatings of Palestinians since 2000, only 25 resulted in prosecutions (less than 4 percent). And these charges were usually for the smallest possible violations, such as negligent use of a weapon.

Haaretz has obtained access to the IDF’s correspondence with the human rights group (which represented the families) concerning two high-profile cases – the deaths of Mustafa Tamimi and Rushdi Tamimi (no relation) – which were closed without any indictments being filed. The relevant documents and correspondence are classic examples of the manner in which the military advocate general conducts investigations into Palestinian fatalities.

Mustafa Tamimi’s death occurred in December 2011, in the West Bank village of Nabi Saleh. Following prayer services at the mosque, the local residents gathered in the village square, where their usual Friday ritual commenced. They attempted to march toward their farmland, which had been expropriated “for military purposes” and upon which the settlement of Neve Tzuf was established. The army deployed in order to prevent them from exiting the village. The two sides confronted each other. Initially there were songs, followed by curses, and then someone threw a stone at the soldiers. They responded with tear gas and the marchers dispersed. The stone throwers remained.

For hours, the two sides played cat and mouse, one side throwing stones, the other firing tear gas. This is the norm in the village every Friday.

However, things didn’t follow the usual script on December 9. Photos taken by Haim Schwartzenberg documented what happened at 14:26: An army jeep with soldiers from the Kfir Brigade inside was on a stone-strewn road outside the village. Two Palestinians wielding stones approached them, one with his face covered and the other wearing a gas mask. A stone was thrown and the back door of the jeep opened just a fraction. A tear-gas canister was fired from the jeep and hit the Palestinian wearing the gas mask in the head. The jeep moved away as the man fell to the ground, bleeding profusely.

The wounded man was Mustafa, a 28-year-old from the village. Soon, many of the marchers gathered around him, photographing his smashed head from all angles. He was quickly put into a Palestinian taxi, which took him to a nearby checkpoint.

“I opened the taxi door,” recounted a paramedic later, “and saw him unconscious, breathing with a rattle. The whole right side of his face under the eyes was ripped.”

Tamimi was taken to Beilinson Hospital, Petah Tikva, where doctors commended the treatment provided by the female paramedic. However, he died the next morning. A slingshot was found in his pocket.

Rushdi Tamimi’s death took place a year later, on November 17, 2012. The West Bank was seething as Operation Pillar of Defense raged in Gaza. There were incidents on the terraces lying between Nabi Saleh and the adjacent road, which links settlements in the Binyamin regional council and Israel’s center. A reserves’ military unit was summoned to protect the road.

Video footage documented soldiers running toward Rushdi Tamimi, who was lying on the ground. The soldiers surrounded him and moved those present back. He was taken to hospital with a bullet in his stomach, but died two days later. A military inquiry found that a “mistake” had occurred, contravening the army’s values.

For 90 minutes, the army had fired all the tear gas at its disposal, until it ran out. A medic was sent to get more, but in the meantime soldiers switched to using live ammunition, firing 80 bullets at demonstrators until the lethal one hit Rushdi Tamimi. In a highly exceptional move, the company commander was dismissed after the incident.

‘No way of explaining it’

The investigation of Mustafa Tamimi’s death was supposed to be a simple case, leading to a straightforward indictment. Gas canisters are defined by the IDF as nonlethal weapons. Tear gas is unpleasant, but it doesn’t kill people. Anyone not suffering from asthma or a heart condition recovers within minutes after being exposed to it.

Being hit by a canister, however, can be lethal. Army regulations specify that canisters must be fired from a distance of at least 30 meters (nearly 100 feet) and not be aimed at a person. They should be pointed upward, so that the canister lands at the feet of demonstrators, not hitting their bodies.

The soldier who fired the tear-gas canister is called Sgt. Aviram (Haaretz has his full name), who was the deputy company commander’s radio operator. At the inquiry, Aviram said the soldiers had entered the village with a bulldozer, under orders from the deputy battalion commander to clear a rock barrier on the road. When this was removed, they turned back. One of the soldiers testified that the deputy commanding officer was more aggressive than the battalion commander, who only wanted them to proceed 30 meters into the village.

Aviram and the other soldiers in the jeep testified that they were backing up and turning around in order to exit the village, with the jeep doors open. They were hit by two stones, one of which hit Aviram in the chest. He asked the driver to stop and opened fire.

But the video footage shows that the identical testimony of all the soldiers is false. The doors were closed while they were turning around, were slightly opened to allow the shooting of the canister, and then closed. No stone seemingly penetrated the jeep.

The brigade commander in the area, Col. Saar Tzur, also noted that the gunshots were unnecessary, since the task had been completed and the force was moving away.

The main question at the inquiry was whether Aviram saw Mustafa Tamimi approaching the jeep. Aviram said he didn’t see anything and that he directed his fire upward.

“I looked through the crack. The driver turned around and I asked him to stop so I could fire toward the terraces. I looked to determine that no one was close by and fired two or three canisters,” Aviram said in his testimony.

So how did the canister hit Tamimi – who was only meters away – in the face? Aviram said he had no way of explaining how this happened. When shown photos documenting the incident, he changed his version and claimed that he had fired directly, not upward.

In order to prove the scientific aspect of the issue, investigators requested two professional opinions. One came from Lt. Col. Yoav, the head of the ballistics department in the Ordnance Corps. He stated in his report: “It is impossible that the victim was hit by someone firing at a 45- to 90-degree angle. My statement is unequivocal, based on my familiarity with this weapon, the ammunition and its ballistic behavior, as well as the photos I saw of the incident, which documented the conditions in relation to distances and elevations.”

The second opinion was from Lt. Col. N., from Military Intelligence, who is an expert in deciphering aerial photographs. He also stated that indirect fire was impossible: “The angle of the rifle barrel at the time of firing was zero or even lower.”

N. attempted to reconstruct the incident on-site, but was interrupted when stones were thrown. Ultimately, his testimony was favorable to the shooter: The firing was direct, but Mustafa was approaching the jeep in a manner in which he could not be seen – in other words, the canister was not aimed at him, Mustafa moved toward it.

However, Schwartzenberg’s photos seem to show the opposite. Mustafa Tamimi was standing still when the jeep stopped, his knees bent as he prepared to throw a stone at the vehicle. He didn’t move when the door opened. He was directly across from the door facing Aviram. N. conducted some experiments to establish fields of vision, in order to find out what Aviram could see. The photos show that the opening of the jeep door was sufficiently wide so that people standing in front of it could be seen.

The file against Aviram and the others in the jeep was closed in December 2013. B’Tselem appealed in February 2015, but the military advocate general rejected their appeal a year later. The revision of a firing angle from 90 degrees to 0 degrees was defined as a “correction it’s certainly possible that Sgt. Aviram didn’t remember the exact angle.”

As for the possibility that the deceased entered the line of fire within a fraction of a second of Aviram pulling the trigger – implying that he wasn’t observed at that point – Chief Military Prosecutor Sharon Zagagi-Pinhas wrote, “This is an uncommon likelihood, but it’s possible, giving reasonable doubt in the matter.”

‘Soldiers’ lives were in danger’

In the case of Rushdi Tamimi, the vigorous operational investigation conducted by the army fizzled out when it passed into the hands of Military Police investigators.

Shooting at stone-throwing demonstrators from this distance is contrary to the rules of engagement. “They came within meters of our forces,” company commander Yisrael testified. “I felt my soldiers’ lives were in danger. We were worried about a lynching or an abduction. I asked permission to use live fire, but received no answer from battalion headquarters. My operator was hit by two large stones and another soldier was hit in the leg from a range of five meters. I realized that if we didn’t open fire we’d be stoned and a soldier might be abducted. I and another soldier opened fire.” Other soldiers testified that they didn’t aim at anyone specifically.

In May 2014, the military advocate general decided to close the file for two reasons: First, under the circumstances, no one could disregard the risk to the soldiers’ lives. Second, in the absence of a bullet, the identity of the soldier who fired the lethal shot could not be determined.

Asked to respond to the two incidents and the army’s approach to investigating such cases, the IDF spokesman said: “The law enforcement system in the IDF operates independently, professionally and precisely. Each case is judged on its own merits, based on evidence that was gathered and according to legal criteria. This is done for cases dealing with operational activity, including these two incidents.

“The Military Police investigation of the circumstances that led to the death of Mustafa Tamimi on December 9, 2011, was thorough and comprehensive. Testimonies were collected from soldiers and civilians, and a reconstruction of the incident was conducted. Video footage and photographs documenting the shooting were collected and expert opinions obtained.

“The soldier who fired the tear-gas canister said he followed the regulations in response to extensive stone throwing, without seeing anyone in his line of fire. An expert opinion determined that Mustafa was moving toward the jeep while throwing stones, and entered the line of fire without the shooter being able to see him. The evidence suggests that the firing followed guidelines and regulations, and the file was closed without taking any action against the soldier.

“The evidence collected in the investigation of the circumstances leading to the death by gunshot of Rushdi Tamimi on November 19, 2012, shows he was taking part in a particularly violent demonstration, which included extensive throwing of rocks from a short range at soldiers and civilians. The soldiers fired into the air and took further action following procedures for the arrest of a suspect, firing at the legs of a demonstrator who was trying to hurl a large rock at one of them. The soldiers didn’t see [Rushdi Tamimi] or others getting hit, and when trying to administer medical aid they didn’t see a bullet wound. There was no way of obtaining the bullet that was extricated from his body, or an explanation of the medical complication that led to his death.

“Examining the evidence showed that, in light of the operational circumstances on the ground, the soldiers dispersing the demonstration did not act in a way that warrants taking legal action against them. There were some professional flaws in the actions of the commanding officer, but these were unrelated to Tamimi’s death. The officer was disciplined after the incident.”