I knew Shireen Abu Akleh as a person and a journalist. She was killed on Wednesday in Jenin in an operation undertaken by the Israel Defense Forces while she was doing her job, covering the very same operation. Feelings of anger and sadness, combined with the shock and a refusal lto accept the fact that she is gone, filled my heart, just as they filled to the hearts of so many others.
The first thing that must happen in this case, as in others like it, is an independent, professional and effective criminal investigation to determine the circumstances that led to her killing. This is not just an obligation for Israel based on international law. It’s was also a recommendation made by in a report published by a government commission in 2013 on Israel’s handling of allegations of violations of international laws on warfare.
But Israel has never conducted an independent, professional and effective investigation when a Palestinian is killed by the military or police. The departure point for the investigations that have been undertaken is the military’s explanation, and decisions to close cases are always approved by the military advocate general, which is backed by the State Prosecutor’s Office and the attorney general.
We know in advance what the result of these investigations will be: The person responsible can’t be identified, or there is insufficient evidence, or the army acted according to the rules and, if not, the killing was accidental, and actually, it’s the Palestinians who are to blame. Israel’s High Court of Justice almost always rejects lawsuits appealing these conclusions on the grounds that it won’t interfere with the professional considerations and independence of decision-makers. It never accepts arguments that those decision-makers may have a conflict of interest.
As recently as April 24, the court issued a decision concerning the killing of four children from the Bakr family who were playing on a Gaza beach during the 2014 war. Supreme Court President Esther Hayut ruled that the justices would not intervene in the case because “the incident had been examined thoroughly and comprehensively” and in cases that took place during wartime ,“the court must be careful about engaging in the ‘wisdom of hindsight’ in regard to actions taken under ‘working conditions.’”
The pictures and other evidence that emerged after the killing of the Bakr children shocked everyone just as much as those that have begun to emerge in the wake of Shireen’s. The court reached its conclusions about the Bakr children based, of course, on classified evidence available to only one side of the lawsuit.
This repeated itself when a lawsuit was filed against the decision to close the investigation into the January 2017 death of Yakub Abu al-Kiyan while his home village of Umm al-Hiran was being razed by the Israeli police. In a ruling issued last October, the court refused to intervene in the decision of the State Prosecutor Office’s not to investigate the death. Then, too, the court explained that the decision “and the preliminary examination procedure conducted by the [police] internal affairs unit indicate that they made their decisions following an in-depth examination and extensive collection of the evidence.”
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Even in a rare instance in which the court chose to reverse a decision to close a case, in the 2014 case of the death of Kheir Hamdan of Kafr Kana, the attorney general filed a motion seeking an additional hearing, effectively an attempt to avoid implementing the ruling. He did so out of fear that an indictment against those responsible for Hamdan’s death might deter the police from using force.
Many other instances of cases being shut never reach the court at all, because the plaintiffs know full well how it will end. That’s what happened with the recommendations of the Or Commission, whose investigation into the deaths of 13 Israeli Arabs in October 2000 uncovered evidence against the police officers involved. To this day, no indictment has been filed against anyone.
After Shireen’s Abu Akleh’s death, the military was quick to claim that the Palestinian Authority had refused Israel’s offer to conduct a joint investigation and said that she appeared to have been killed by Palestinian gunfire. When the conclusions of Israeli justice can be known in advance, it’s no wonder that even Prime Minister Naftali Bennett rushed to back the soldiers involved and point a finger at the Palestinians.
The conclusions were also known in advance regarding the killing of Yakub Abu al-Kiyan: Less than an hour after the killing, the police commissioner at the time, Roni Alsheikh, called him a “despicable terrorist,” associated with ISIS, which was absolutely false.
The questions surrounding the he role of the Supreme Court and its direct involvement in giving a stamp of approval to war crimes leaves no other option but intervention by the International Criminal Court in The Hague. Investigating these war crimes is imperative, whether we are talking about of refusal to intervene when cases are shut, thereby countenancing killings and granting the military immunity, or about the countenancing of other war crimes, such as the expulsion and removal of thousands of Masafer Yatta residents, which the court approved a few days ago.
This means not just investigating the investigators, but also judging the judges – just as South Africa had to investigate its own apartheid-era justice system.
Sawsan Zaher is a human rights lawyer and a former deputy director of Adalah, the Legal Center for Arab Minority Rights.