Middle East Report – 23 November 2005
As Israeli Prime Minister Ariel Sharon strode up to the podium at the UN General Assembly on September 15, 2005 to deliver a speech recognizing the Palestinians’ right to statehood, government officials back in Jerusalem were preparing to draw a firm line under unfinished business from the start of the Palestinian uprising, five years earlier.
The Justice Ministry held a muted press conference three days after Sharon’s speech to publish the findings of its investigation into the deaths of 13 unarmed demonstrators – 12 Palestinian citizens of Israel and one Palestinian laborer from Gaza – at the hands of the northern police force in the first week of October 2000. In the warm afterglow of the prime minister’s New York appearance, hardly anyone noticed the publication of the Justice Ministry report on September 18.
The director of the ministry’s Police Investigations Department — better known by its Hebrew acronym, Mahash — announced that his team had been unable to identify a single policeman responsible for any of the 13 deaths or for the injuries, some of them horrific, to hundreds of other demonstrators shot in Palestinian towns and villages across northern Israel during clashes with the security forces. The protests had been in solidarity with the suffering of the Palestinians in the Occupied Territories.
The news from Mahash was greeted with outrage from Palestinian members of the Knesset and members of the Higher Follow-Up Committee for Arab Citizens in Israel, many of whom began a hunger strike outside the Prime Minister’s Office in Jerusalem. They pointed out that an earlier report, from a state-appointed commission of inquiry, noted that the police used the same lethal armory – rubber bullets and live ammunition – as the army in the Occupied Territories, even though the protesters in Israel were all civilians and, in most cases, had not left the confines of their own communities. The commission concluded that the police regarded Palestinian citizens “as an enemy.”
In ignoring these findings, argued the Palestinian representatives, Mahash was proving that the police force enjoy the same lack of accountability as the army, which has killed thousands of Palestinians, many of them civilians, in the Occupied Territories. Police and soldiers were being allowed to kill Palestinians on both sides of the Green Line with impunity. “We understand the significance of this report and the danger it represents to us as citizens, as well as to democracy itself, and we will not let it pass quietly,” said Abed Anabtawi, spokesman for the Supreme Follow-Up Committee, the Arab minority’s highest political body. Palestinian MK Abd al-Malik Dehamsheh added that the report “signals to security forces that it is permissible to spill the blood of Arabs without fear of punishment or trial.”
Another commentator, Nazir Majali, wondered aloud in the liberal daily Ha’aretz whether “someone is looking out for the Israel Police. After all, the police had to be rewarded for their decisive role in the successful disengagement and evacuation of the settlements.” In stark contrast to the violent repression of the Palestinian citizens’ demonstrations in October 2000, throughout the summer of 2005 the police had handled violent protests by Jewish right-wingers opposed to the Gaza disengagement with kid gloves.
The timing of the report’s publication – exactly a fortnight before the fifth anniversary of the 13 deaths – also caused consternation. One lawyer close to the events explained: “My impression was that the government didn’t even notice that the fifth anniversary was approaching. They were far more concerned that the report be delayed long enough not to upset Sharon’s reception by world leaders at the UN.”
The long, tortuous path that led to the Mahash report began much earlier, in the weeks following the outbreak of the intifada, in the dying days of Ehud Barak’s premiership. On November 8, 2000, Barak appointed a commission of inquiry into the 13 deaths in the vain hope that he might prevent the victory of his political rival, Ariel Sharon, in the impending general election. He needed to win back the support of the country’s Palestinian minority if he was to stand any chance of beating Sharon’s right-wing coalition.
Nonetheless, Barak made sure that the mandate of the three-man commission of inquiry, headed by Supreme Court judge Theodor Or, was limited to investigating events occurring after September 29, 2000, effectively excluding much of the necessary background for understanding the October protests. In particular, Or was not allowed to examine Barak’s decision to authorize Sharon’s incendiary visit to the site in Jerusalem’s Old City known to Jews as the Temple Mount and to Muslims as the Noble Sanctuary (Haram al-Sharif). Nor was the judge to revisit Barak’s order deploying police snipers against Palestinian worshippers who protested the visit.
Behind the scenes at the Justice Ministry, officials took an equally damaging decision. Despite its legal duty to investigate the incidents in October 2000, Mahash collected no evidence from the scene and interviewed no witnesses. It was many days after the October events that the wheels of Mahash finally started to turn, and then only two incidents were examined: the shooting of two Palestinian youths in the town of Sakhnin by Guy Reif, the local police commander, and the serious wounding of a woman, Marlene Ramadan, in Nazareth by a sniper who opened fire repeatedly on her car. Another 11 deaths and hundreds of injuries went entirely uninvestigated. Even the two limited inquiries were halted by Eran Shendar, then head of Mahash, the moment Barak announced the creation of the Or Commission. It is not clear why.
Shendar’s controversial closure of open investigations, however, was effectively sanctioned later by the state prosecutor of the time, Edna Arbel, now a Supreme Court judge. In May 2001, after the Or Commission hearings had begun, she ordered that Mahash freeze all its investigations into the deaths, arguing that witnesses might be reluctant to testify if they were also under criminal investigation. (Arbel’s demand was both without legal basis and superfluous, as Mahash had already stopped its inquiries.)
For the next three years, neither Mahash nor the Or Commission carried out any forensic investigations. Instead, Justice Or was forced to rely on the bits of evidence that had already been collected and on the conflicting testimonies presented by witnesses at the hearings. Many police officers refused to cooperate with the inquiry.
Damping down expectations
When the Or Commission report was published in September 2003, it contained two shocking revelations. First, the testimonies showed that the police command – and possibly the government – had authorized for the first time the use of a special anti-terror sniper unit against unarmed demonstrators inside Israel. Second, the police, again possibly with sanction from the government, had labored assiduously for many months to conceal the fact that live fire had been used against the protesters.
But while Justice Or severely criticized the culture of racism against Palestinian citizens among the police, even at the highest ranks, he threw almost no light upon the question of which policemen were responsible for the 13 deaths. Instead, he recommended that Mahash restart its investigations, noting that the commission had already accumulated enough evidence to warrant indictments against two policemen: Guy Reif and a low-ranking Druze officer, Murshad Rashad, who had shot a rubber bullet at close range into the face of Rami Jara, 21.
The government lost no time in damping down expectations. The justice minister, Yosef Lapid, told reporters the day after the Or Commission report’s publication: “It is extremely complicated to begin three years later to investigate events in which hundreds of people were involved. The bodies have long since been buried. There are no bullets, no scraps of evidence and no witnesses.”
It was a convenient excuse, but hardly true. There were hundreds of witnesses who had never been called to give evidence by Or, including most of the injured Palestinian demonstrators; there was evidence, including bullet rounds collected from the scene by the families and their lawyers, which was hidden away in forensic laboratories; and there were the testimonies of the police snipers who admitted that their commanders, including Alik Ron, had approved firing at stone throwers, almost certainly in violation of the law.
But Mahash did not need much prompting to read the government’s signals with regard to police actions. Despite a series of letters from Adalah, a non-governmental organization offering legal services to the Arab minority in Israel and representing the families of the demonstrators who were killed, demanding that an investigation be launched, no action was taken. Finally, a year after his report’s publication, Justice Or took the unprecedented step of castigating the government and Mahash for their “apathy.”
After Or’s public rebukes, the Justice Ministry changed tack. On the fourth anniversary of the deaths, on October 1, 2004, the ministry announced unexpectedly that its investigations were “almost complete.” But as Marwan Dalal, a senior lawyer with Adalah, later observed, the bereaved families were simply entering a new phase of their struggle.
A family’s ordeal
Hassan Asleh, whose son Aseel, 17, had been shot dead at point-blank range, almost certainly as he lay on the ground after being hit with the butt of a police rifle, received a letter from Mahash a short time later demanding that Aseel’s body be exhumed for an autopsy. The Mahash investigators said they needed to analyze the round that killed him so that they could identify the officer who shot him.
Aseel Asleh and three other young men killed by the police on October 2, 2000 had been hurriedly buried without any post-mortem examinations being performed. Mahash had approved the release of the four bodies, in violation of the law, knowing that no autopsies had been carried out. (In total, nine of the 13 bodies were never examined.)
Marwan Dalal said he immediately suspected a trap. “It was very strange. We were reading in the media that Mahash was preparing to finish its investigations, and then suddenly they request permission to do an autopsy on Aseel’s body. From their point of view, Hassan Asleh was the obvious target for such a request both because he had become a spokesman for the families and because he had made it clear during the Or Commission hearings that he would not allow his son’s body to be exhumed. So Mahash knew beforehand what his response would be.”
In fact, there were no forensic grounds for exhuming the bodies of Aseel or any of the other victims all these years later, as Meir Gilboa, a leading criminologist and former chief of Israel’s Serious Crimes Investigations Unit, pointed out. He argued that Mahash’s request demonstrated either an astonishing degree of incompetence on its part or a desire to stymie the investigation.
“All the [fatal] injuries were either from rubber-coated bullets, which cannot be traced to a specific gun, or from live rounds fired from M-16 rifles that shatter in the body and so cannot be matched with a weapon.” In any case, metal bullets would almost certainly have deteriorated over five years, making their forensic value nil, wrote Gilboa. He further noted that the point of an autopsy was to determine how someone died and not who killed them. As the cause of death — lethal police fire — was already known in all 13 deaths, an autopsy was redundant.
But, as would become clear, Mahash was creating the excuse it needed to slip suspected police officers off the hook for any of the deaths. When Mahash published the findings of its investigations in September 2005, its director, Herzl Shviro, blamed lack of cooperation from the bereaved families for the lack of progress in the inquiry.
At the press conference of September 18, as Shviro sat next to Shendar, his predecessor and now the state prosecutor, and Menachem Mazuz, the attorney general, he declared that even in the cases where the responsible policemen had been identified they had acted in situations where their lives were in danger.
‘Unworthy of being raised’
Many mainstream Israeli Jewish commentators were dumbfounded by the press conference. The historian Tom Segev observed that Mahash “comes across as defense counsel for the policemen.” He added that the report’s language evoked the mindset of the 1950s and 1960s, when the country’s Palestinian minority lived under martial law. “Arab public figures are described as ‘notables’; the people from the ‘sector’ are not ‘residents’ or ‘citizens,’ but ‘locals.’ Most of them are identified over and over by their first names: ‘the deceased Ahmad,’ ‘the deceased Muhammad.’ Of two of the Ahmads and Muhammads, the report says that ‘they found their death.’ The police were supposedly not there at the time of the ‘finding.’”
Segev was not alone in his assessment. Shimon Shamir, another distinguished academic – and more damagingly also one of the three members of the Or Commission – lambasted the Mahash report, calling it “hard to accept.” He said the team’s conclusions “stretched our patience to the very limits, and sometimes beyond those limits, regarding the claim that the police faced an immediate and substantial threat to their lives as justification for firing live bullets and using snipers.”
Shamir also denounced as “unworthy of being raised” an excuse used by Mahash for its initial failure to launch any investigations. Shviro claimed that it had been too dangerous for Mahash investigators to enter Palestinian communities to collect evidence. Shamir objected: “All the journalists, security people and ordinary people who were milling about [in Palestinian communities] in masses will certainly regard this claim as very strange.”
Finally, Shamir noted that Mahash’s argument that there was insufficient evidence to indict a single policeman contradicted the opinion of his two colleagues on the Or panel – one a Supreme Court judge and the other a district court judge. “The panel found serious suspicions with regards to at least two policemen [Guy Reif and Murshad Rashad].… If two important and respected judges are of this opinion, is there not a way to bring at least these two cases to trial?”
Adalah, in its analysis of the report’s conclusions, agreed with Segev’s view that the Mahash team was acting as defense lawyers for the suspected policemen rather than as investigators. Most of Mahash’s verdicts, even though they were based on the same evidence examined by Justice Or, contradicted his findings.
For example, Justice Or determined that Guy Reif could have prevented clashes with the demonstrators in Sakhnin and that he fired at them without justification, killing two youths. Mahash, in contrast, concluded that Reif had exhausted all his other options and faced “a clear and present danger” that justified his actions.
Also, the Or Commission found that commanders Alik Ron and Moshe Waldman had taken the unprecedented decision to bring snipers into the Palestinian towns of Umm al-Fahm and Nazareth and directed the snipers’ fire, and that their purpose in using snipers was “deterrence.” This policy was found by Justice Or to have had disastrous consequences. Mahash, however, argued that the snipers had fired only when facing life-threatening situations and that therefore it was impossible to determine whether Ron and Waldman’s decision was illegal. Waldman, according to the Or Commission, directly interfered in the investigation into the fatal shootings of two inhabitants of Nazareth and, despite a clear conflict of interest, assigned a subordinate to investigate his actions that night. Mahash completely ignored these grave charges.
Finally, Justice Or urged a criminal investigation into the extensive use of rubber bullets against demonstrators. Mahash, in contrast, dismissed this recommendation, stating simply that “it was allowed to use this measure under some conditions.”
Having found that it could not identify any of the policemen who killed demonstrators, or hold accountable any of their commanders who ordered the use of live fire, Mahash then ignored all other potential charges that could be laid against individual officers. Lesser charges — or even disciplinary proceedings — were not leveled against officers known to have committed perjury, fabricated evidence or refused to cooperate with the Mahash investigation. For example, Yitzhak Shimoni, one of the chief suspects in the shooting of Aseel Asleh, refused to take a polygraph test to explain inconsistencies in his testimony. “Why is he still with the police?” demanded Hassan Jabareen, Adalah’s director. “A policeman has to cooperate in the investigation of a fatality, so in this case, he should at least have been convicted in a disciplinary court…. They didn’t even take the minimal step of suspending him.” The reverse, in fact, occurred: a short time later the news broke that Shimoni had been promoted to a local chief inspector.
As criticism was heaped on Mahash, the attorney general Mazuz stepped in on September 21 to express his “full confidence” in the investigators, adding that he was persuaded that there was no evidence for filing charges against officers. “None of us wants to live in a country in which indictments are filed just to mollify one sector of the public or another,” he said. “There shall be none of this in the state of Israel.” The bereaved families responded by threatening to bypass the Justice Ministry and take their case directly to the Israeli Supreme Court, and possibly beyond it to the International Court of Justice at The Hague. “We do not rule out any possibility that would bring these criminals to justice,” said Hassan Asleh.
But as Adalah began preparing a petition for the Supreme Court, the Justice Ministry again acted to forestall the threat of legal action against the police. In a dramatic about-face less than a week after his press conference, Mazuz announced that he was now approving a reexamination of Mahash’s findings.
The reexamination is to be performed by Shai Nitzan, a Justice Ministry official answerable to the state prosecutor, Eran Shendar — the head of Mahash in October 2000 and the man who was responsible for its original failures to investigate the 13 deaths. As a Jerusalem Post editorial observed: “[Shendar] is personally suspected of improperly handling the [Mahash] investigation during the critical first month after the riots ended, and he should not be in charge of an examination.” (Nitzan, incidentally, was the lawyer representing the state when Adalah recently filed and won its petition against the army’s use of human shields in the Occupied Territories.)
Mazuz justified his change of heart on the legal grounds that an appeal had been submitted against the Mahash report, although he did not specify who had made the request. Only later did it emerge that no one had appealed. The head of Mahash, Shviro, later clarified Mazuz’s decision on Israeli television: “Since the representatives of the families have already announced that they might appeal, we have decided to examine our conclusions as though an appeal had been made.”
Hassan Asleh called Mazuz’s decision a “dirty trick.” “This is an attempt by the justice minister and the attorney general to sabotage our just struggle to bring about the trial of the criminal police officers,” he said. By reexamining the files, the Justice Ministry was blocking the families’ path to the Supreme Court, a tactic Marwan Dalal of Adalah characterized as “illegal.”
Meanwhile, Mazuz has explained that one of the avenues his officials may explore in trying to find new evidence against police officers is to demand again that the victims’ bodies be exhumed. “I would be happy if the families that refused throughout to agree to an autopsy will change their minds in instances in which there is a reasonable chance that an autopsy will advance the investigation.” But if they continued to refuse, he added: “We will need to consider whether to ask the court, in opposition to the family’s position.”