A Shot in the Dark

In May 2003, British photojournalist James Miller was killed while filming in the Rafah refugee camp. Britain's attorney general gave Israel an ultimatum for trying those responsible. The deadline has expired, but Miller's death is still shrouded in mystery.

The narrow alleys of the Rafah refugee camp were empty on Friday night, May 2, 2003. It was a very dark night, with particularly poor visibility. Two Israel Defense Forces armored personnel carriers moved slowly in the darkness along the border with Egypt, searching for tunnels used for smuggling weapons. At about 11 P.M., only the home of the Shaher family was still lit up. The family members were parting from British photojournalist James Miller and the members of his crew, a female British journalist and a Palestinian correspondent, who had come to interview them for a documentary about violence against children in Gaza.

The soldiers in the APCs, under the command of the deputy company commander, First Lieutenant H. of the Bedouin Battalion responsible for the sector, noticed suspicious individuals emerging from the house. The sound of six bullets whizzing by was heard, followed by calls for help. The APCs looked for the source of the shouts. H. got out of the APC and found Miller sprawled on the ground, blood covering his chest. The woman of the house was kneeling next to him, wringing her hands anxiously. The soldiers took the photographer and the woman into the APC and rushed to the nearby Termit outpost. The doctor could do nothing but fill out the death certificate.

Miller was 34 years old when he died. He left behind a wife, two children and many plans for documentaries. An IDF spokesman expressed regret over the photographer's death and added: "The entry of photographers to war zones when there are exchanges of fire endangers both sides."

Nobody was found guilty for causing Miller's death. H. stood disciplinary trial for violating the instructions for opening fire, was acquitted and has meanwhile been promoted to captain. The military prosecutor closed the criminal file with the approval of the attorney general, claiming that it is impossible to determine with certainty the source of the fire.

In November 2004, Sophie Miller filed a suit for damages against the State of Israel in the Tel Aviv District Court. On June 2, 2007, a few days before he retired as Britain's attorney general, Lord Peter Goldsmith sent a letter to his Israeli colleague, Attorney General Menachem Mazuz. It consisted of an ultimatum: Either you carry out justice on your own in this affair, or we will do so. We have new evidence, wrote Goldsmith. If you do not try the guilty parties, we will begin proceedings with the accusation that a British citizen was willfully killed. In practice, this means extraditing H. and perhaps also other soldiers who were there that night, as well as their superiors.

This Tuesday, which marked the ultimatum's expiration date, Mazuz sent a letter to the Public Prosecutor's Office in London with a request to be sent the new evidence, which consists of a report by an expert in authentication of audio and video tapes, who analyzed the video filmed by the crew of journalists in Rafah. According to the expert, and contrary to an earlier ruling by an expert from the Military Police's investigation department (Metzah), it is possible to determine with certainty that the bullet that pierced the photographer's neck was fired from the direction of the APCs.

A series of circumstances came together in this case against Israel: Miller was a famous television personality. His family and close friends have connections to 10 Downing Street. Former prime minister Tony Blair did not miss an opportunity to urge his Israeli colleagues to reach an agreement that would satisfy the widow and the brother, John, who also works in television and who has taken charge of the battle.

Early in 2006, coroner Andrew Reid turned to Goldsmith and recommended that he consider criminal proceedings in the U.K. against H. and against the soldiers who abetted him for an offense of willful killing. In a preliminary session, a jury decided that there was cause to begin proceedings, since, "on the basis of the evidence brought before us, we agreed unanimously that the firing at Miller was carried out with the intention of killing him."

Israeli officials say off the record that the British government is not interested in exacerbating the crisis, but the Miller family is continuing the fight, including making repeated requests to its friends in high places and in the media. For the time being, the Israeli officials believe that the British will do everything possible to avoid demanding extradition. In other words, the chances that there will be a request for extradition are slim.

In contacts outside the courtroom, Israel's state prosecutor has offered the Millers about 1 million sterling (about NIS 9 million) to remove the affair from the agenda. But the family, acting through its Israeli attorneys, Avigdor Feldman and Michael Sfard, is interested in forcing Israel to take responsibility for the shooting and to increase the offer of compensation significantly, pointing out Miller's potential income..

The roots of the evil in this affair stem from a decision made by the IDF's previous judge advocate general (JAG) Menachem Finkelstein. During the first stages of the second intifada, he decided to freeze the standing order to launch a Metzah investigation in case of suspicion of deliberate harm or negligence affecting "non-involved" citizens, except in special cases. In a letter Mazuz sent to Goldsmith in May 2007, he wrote that "at the instructions of the JAG in August 2003 [three months after the event - A.E.], a Metzah investigation was launched."

Mazuz mentioned that the investigation had determined that "there is a real possibility that the shot that killed the deceased was not fired from the soldiers' weapons." He claimed that an examination of the soldiers' weapons indicated that there was no connection between the marks on the bullet removed from the photographer's body and the marks on the bullets fired from the same weapons during a test.

However, the attorney general confirmed that the weapons were not collected and checked right after the incident, "but only after a period of at least several days, which created a window of opportunity for switching the barrels of the weapons." He says this possibility was examined during the investigation by interrogating all nine soldiers, by carrying out interrogation tricks (the detention of one of the soldiers, and bringing an agent provocateur into the cell), through a lie detector, etc. According to the attorney general, during their interrogations, all the soldiers involved denied that they had switched the barrel of their personal weapon, or that they knew that one of their friends had done so. The lie detector, continues Mazuz, also did not confirm this suspicion. However, he continues, "contradictions were found in the testimony on this matter."

Mazuz also mentions "contradictions on certain points between the testimonies of the soldiers" regarding the circumstances of the incident, but he emphasizes that "there is no real debate, because at the time of the last shots, around 11 P.M., the only one firing was the commander of the force, First Lieutenant H." As opposed to the announcement by the IDF spokesman, who claimed that at the time of the incident there were exchanges of fire in the area, Mazuz points out that the investigative report determines "that for quite a while prior to the last firing carried out by First Lieutenant H., there was quiet at the scene. When First Lieutenant H. engaged in firing, there was no additional firing from inside the two APCs, nor from outside. The calls for help were heard a short while after the firing. Therefore, there is a real possibility that First Lieutenant H. was the one who hit the deceased when he fired."

Mazuz mentioned that the videotape that was filmed by the journalists was examined in a shooting experiment conducted by Metzah at the site of the incident a short time later. This examination demonstrates that the source of the firing in the first two cases differs from the source of the firing of the shots heard afterward. "Therefore, there is a possibility that there was more than one source of fire during the time of the incident." Another part of the report states that the last shot was fired at one of the APCs 20 minutes earlier. "On the basis of logic and common sense," wrote Mazuz, "it is hard to believe that the British crew knowingly walked toward the APC when, at the same time, the vehicles were under fire."

The report indicates that H. fired five to seven bullets from his personal weapon, without night-vision equipment. Apparently, with regard to the direction of the firing, "it is reasonable that First Lieutenant H. fired toward the estimated direction of the 'target wall' (the ruins of a house, 10-15 meters away from the APC), but it cannot be ruled out that he also fired somewhat to the west and somewhat to the east of this wall."

According to the report, H. and his soldiers knew in advance that there were journalists at the site. In a videotape filmed by the crew, the reporters are seen holding a white flag and a flashlight. Yet the report states that "this was a weak light, and because no use was made of night-vision equipment, it is doubtful whether the light of the flashlight could be seen." The journalists shouted at the soldiers to stop firing, but although the investigators say that listening to the tape indicates that the APCs' engines were not running at the time, "since the soldiers in the force were inside the vehicles, wearing helmets, and assuming that the two-way radios operated intermittently, it is hard to believe that the soldiers heard the calls." In summary: "No indication was found in the investigative material that any of them noticed the journalists as they left the house and advanced toward the force."

The report determines that "in his behavior, First Lieutenant H. exceeded what constitutes reasonable firing under the circumstances (even if the firing cannot be linked to the lethal result)." Therefore, it was recommended that he stand disciplinary trial for the offense of illegal use of a weapon. As mentioned above, H. was acquitted of any wrongdoing and was promoted in rank and position. Mazuz says that the additional examination of the evidentiary material by the State Prosecutor's Office led to conclusions similar to those of the military prosecution: "There remains a reasonable doubt as to the causal connection between the shooting carried out by First Lieutenant H. and the death of the deceased. This doubt does not remove the suspicion regarding the responsibility of First Lieutenant H. for the shooting that took the life of the deceased. However, suspicion alone is not sufficient for a criminal trial. 'The evidence for an acquittal' is of significant power and weight."

According to the testimony of other members of his unit and his relatives (he himself refused to be interviewed for the article), H. is not trigger-happy. They insists that the guilty parties should be sought several ranks above him in the chain of command.

Captain S., who was in a nearby outpost on the night of May 2, 2003, says H. joined the Bedouin patrol battalion after a squad commanders' course in the Golani Brigade and adds: "H. is a very ethical soldier and one of the best officers in the battalion." S. himself served in that battalion for almost five years. "Do you know what five years of constant fighting is like? Other battalions switch sectors every six months, they go up north or to the center. There are soldiers who have been here since the battalion was first established in 1994, and then people are surprised that there is a drastic decline in the enlistment of young Bedouin for the battalion."

S. says that in the most recent induction group only 11 Bedouin soldiers enlisted in the battalion, instead of the 120 who used to emerge from the August draft. Most of the new recruits prefer the Border Police, transport units or the scouts battalion. He recalls that on the night Miller was killed, rocket-propelled grenades (RPGs) were fired at his outpost, and concludes: "Only someone who was there can understand."

H.'s cousin is Hassan Heib, the head of the Zarzir local council, a lieutenant colonel in the reserves, and head of the Forum of Bedouin Councils in the North. He says that for years he spoke to defense ministers and chiefs of staff and asked them to transfer the unit to quieter sectors, like the Jordan Valley or the Golan Heights.

"Without any connection to the incident," he says, "the unit is doing sacred work and even received a Medal of Courage for it. It is unconscionable for a unit like that to be serving in a combat zone since its establishment. I'm certain that Jewish soldiers would not be treated like that. Everyone told me they would take care of the matter, but they didn't do a thing."

The IDF spokesman said in response: "The IDF has designated battalions, which were established and organized for specific sectors and tasks, and therefore their sector of operations cannot be changed."

Fadi Eyadat contributed to the preparation of this article.