A child is dead, but there's no need to investigate

 Writer:

 Akiva Eldar

 Source:

 Ha'aretz

 Date:

 15 November 2001

 

DIFFERENT PERSPECTIVE
An army post seen from a house in Rafah, where homes were shelled
.
 

     Since the start of the intifada, it's become a matter of routine: a Palestinian child is killed by gunfire coming from the Israel Defense Forces; the IDF announces that the soldiers fired at rioters because their own lives were at risk; B'tselem conducts an investigation and sends the IDF's Judge Advocate-General (JAG) evidence that seemingly contradicts the IDF version; the JAG's office announces that investigations conducted by commanders in the field indicate the soldiers acted in accordance with standing orders, and there is therefore no need to order any further investigation of the incident; the case is closed without anyone being asked to pay the price. And so it goes. 

The case of the child Halil al-Moghrabi, of the Yibneh refugee camp in Rafah - who was killed four months ago - has disrupted the routine. In addition to the routine official response of the army's JAG, B'tselem (the Israeli Information Center for Human Rights in the Occupied Territories) has received copies of internal IDF documents, including reports of investigations and legal opinions. The documents cast doubt on the credibility of the army's press announcements, and especially frame the army's judge advocate-general in a suspicious light. 

The incident 

Halil al-Moghrabi, age 11, was killed on Saturday, July 7. Injured in the same incident were Ibrahim Abu Sussin, 10, and Suleiman Ibn Rijal, 21. The IDF Spokesman's Office reported: "Dozens of Palestinians rioted near Rafah and endangered the lives of soldiers." 

Furthermore, it was announced: "The soldiers acted with restraint and dispersed the rioters with riot-control devices, as well as by firing at an open area some distance from the rioters." The response did not make any specific reference to the casualties sustained by the children. 

Nabil Mahoraz, a B'tselem investigator, went to Rafah on the day after the incident and spoke with two of the youths who had been playing with the three children when they were hit by gunfire. The following testimony was given by one of the youngsters, Muhammad Sallah Hussein al-Ahras, age 14, a Rafah resident: "I was playing with about 30 other children in the field next to the border, in the Yibneh refugee camp. The game began after afternoon prayers, meaning at around 5 P.M. After a while, a tank passed along the border, coming from the east and turning westward, toward Tel Zuareb and the army tower there. The tank passed by quietly without shooting at us. 

"When the game was over, we laid down on the ground to rest. Some of us sat on the piles of sand near the border. At around 7:10 P.M., I stood up and called out to the other children to leave. I was standing about two meters from Halil al-Moghrabi. Suddenly I heard a weak, faint sound. Halil was hit in the head and fell down from where he was on the pile of sand. We started running away, and while we were running, they opened fire on us from the tower, very heavy fire. 

"As a result of the shooting, another two children were shot. One of them is my neighbor, Ibrahim, who was hit in the stomach. The other one, Suleiman, was hit in his left knee. People who were there sent the body and the wounded boys to the hospital." 

The operational investigations 

The IDF carried out three investigations of the incident: an investigation was conducted by the battalion commander two days after the incident, on July 9; the brigade commander carried out an investigation the following day; and another investigation was conducted by the divisional commander on July 12. The investigations centered on the operational aspects of the incident and how the soldiers handled the incidents that took place on the day in question in the border area. 

Based on the various investigation reports, which were signed off by an operations officer named Major Moshe, it develops that on July 7, beginning at about noon, children were throwing stones, and a few fragmentation grenades were thrown at the soldiers. Several times that day, the soldiers fired warning shots, including "rubber bullets" and a shock grenade. Around 7:00 P.M., when the three children were hit by gunfire, dozens of children and adults were observed placing objects and barbed-wire fencing along the "Deker road." The soldiers observed Palestinians handing over bags from the Egyptian side of the border. At this stage, the company commander ordered a tank to fire warning shots. The machine gun on the tank fired 12 armor-piercing 0.5" shells to its west. The operational investigations state that, "The tank should not have been used in the daytime for warning shots. The company commander should have had the armored vehicles pulled back instead of firing warning shots from the tank." 

The division commander determined that "the firing from the tank was a mistake." The final conclusion of the investigations is: "There is no way to determine unequivocally that the child was killed by our troops' fire." 

The conclusion is based on the following points: 1. No ambulances were sighted arriving in the area of the incidents throughout the entire day. 2. No casualties were observed. 3. There was no fanning of emotions or escalation that would have been generated by a death in the incidents. Although the officers who carried out the investigations do not deny that the children were hit, and do not claim that there was another shooting incident in the region, they do not offer any other possibility that might explain how the children were harmed. 

Following B'tselem's request to the JAG that her office initiate an investigation by the Department of Military Police Investigations (MPI), the operational investigations were submitted to the JAG officer of the IDF's Southern Command, Lieutenant Colonel Baruch Mani. 

On August 29, Lieutenant Colonel Mani wrote his opinion of the circumstances of the death of Halil al-Moghrabi on July 7: "Throughout that day, there was serious rioting and disruptions of the public order on the site. According to the investigations, `warning shots' and rubber bullets were fired toward groups of rioters, which comprised dozens of children, who tried to get close to the IDF detachment at the site, and threw rocks and a few fragmentation grenades at it." This description does not dovetail with the findings of the operational investigations, according to which the rioting took place earlier that day. Nor does it make any linkage to the specific time at which the children were hit. 

The opinion of the Southern Command JAG officer disregards the evidence submitted by B'tselem to the JAG's office, according to which the children were playing soccer and did not take part in any rioting. Nevertheless, Lieutenant-General Mani states, "In the light of the circumstances of the violent rioting and the belligerent character of the incidents, as they are described in the investigations, I do not feel there is any need to initiate an MPI investigation that might ascertain what happened in the incident." 

The Southern Command JAG also refers to the warning shots fired from the machine gun on the tank, saying that the operational investigations determined that this warning fire was carried out in violation of the standing orders. He determined that disciplinary measures should be taken against the individual responsible for this shooting, due to the irregularity in adherence to the instruction for opening fire. The fact that the children were harmed at the same time as the soldiers were firing from the tank does not appear in the written opinion submitted by Lieutenant-Colonel Mani, and he avoids any reference to the causal relationship between the two things. 

And how does the Southern Command JAG contend with the announcement by the IDF Spokesman, who denied that any use was made of heavy armaments? 

He states: "It seems that the response submitted to the press by the spokesman, to the effect that no use was made of heavy armaments, was incorrect." 

Decision of the judge advocate-general 

In the legal opinion she formulated for internal use - which was also obtained by B'tselem and was submitted to Ha'aretz - the IDF's Judge Advocate-General, Colonel Einat Ron, rejected the conclusions reached by her Southern Command JAG officer. Ron relates to two points: one, the legality of firing from the tank, and two, an examination of the causal relationship between this shooting and the death of Halil al-Moghrabi and the wounding of two other children. 

The JAG rejects the determination of the Southern Command JAG that the incident in question had a "belligerent character." Based upon the operational investigations, Ron states that the shooting from the tank was not carried out in response to the throwing of grenades and that there exists doubt as to whether the soldiers' lives were in danger. This is based on the statement that they only carried out warning shots, and did not shoot with intent to cause harm. 

Colonel Ron adds that according to standing orders, warning shots may only be fired from light weapons, and in any case it is forbidden to carry out such shooting in the direction of children. Based on the above, the JAG determined that "there exists doubt whether the firing of a tank can be justified when grenades are thrown, or when the detachment feels that its lives are in danger. 

"As for the causal relationship between the shooting from the tank and the casualties among the children, the JAG determines that "there is a reasonable possibility that the shooting did not harm the children who were identified as rioters, but rather children who were at a certain distance from the site of the incident." She emphasizes that there was not, at the time, any other shooting in the area that might have harmed the children. In the interim conclusion reached by the JAG, there is a reasonable possibility that the children were harmed by the gunfire fired from the tank and that this gunfire contravened standing orders (if it was intended as warning fire) or that it was unjustified (if it was done with intent to cause harm). Nevertheless, she presents three contradictory possibilities for further handling of the case.The first possibility, according to Ron: "There is a suspicion of shooting that contravened the standing orders, plus the suspicion that the shooting killed and injured innocent children - we must order a fundamental MPI investigation (among other things, it would investigate if opening-fire regulations were given to the force, and whether it can be determined for certain whether it was the shooting that harmed the children)." The second possibility: "The shooting was justified - the incident had a belligerent character, grenades had been thrown earlier in the day, the entire region is dangerous, the shooting was justified, if innocents were harmed, there is nothing to do about it but be sorry." At this point, the JAG refers to the letter of response she sent to B'tselem, "which was derived from the choice of this alternative." The third possibility: "In spite of the belligerent character - the shooting was warning fire, which was not executed in accordance with regulations: it was fired from a heavy machine gun and not from a light weapon, and was directed toward children. Nevertheless, in light of the confrontation, the grenades, the danger, etc. - this is not a case of "serious infraction" of the standing orders, and therefore we can suffice with disciplinary measures against whoever decided on the warning fire from the tank." As regards the latter possibility, Colonel Ron cites a few difficulties which presumably apply to the second possibility, which goes even easier on the soldiers. She states: "The `severity of the irregularity' and the `outcome of the incident' are two interrelated criteria. The results here are especially serious - an 11-year-old child, innocently playing soccer, was killed, his two friends, age 10 and 12, were wounded." She states, "If all the seeming suspicions are verified: warning shots fired in violation of the standing orders plus a causal relationship to death, should not an indictment be handed down?" 

In a letter dated October 31, 2001, sent to B'tselem by the JAG, Colonel Ron states: 1. "After an inquiry into the circumstances of the incident was held, it developed that on July 7, 2001, there was a gathering of children, and at certain stages adults as well, close to an IDF detachment that was moving along the border with Egypt. 2. The gathering was intermittently accompanied by massive stone-throwing as well as throwing of fragmentary grenades at the IDF force. 3. The force tried to disperse the rioting by means of firing rubber bullets and by firing warning shots, directed toward the obstruction wall, in a way that would not harm the disturbers of the peace. 4. The live fire was not directed at the rioters, and no casualties were observed as a result of this shooting. 5. In the circumstances of the affair, we did not find any indications of criminal action by IDF soldiers, or any justification for opening a criminal investigation." 

The description of the incident in the JAG's letter clearly differs from the description that appears in the operational investigations, and even differs from the first part of the internal legal opinion that she herself wrote. This version was given preference over the other versions. 

Conclusions 

About two weeks ago, Ha'aretz reported on a series of internal inquiries conducted by the IDF as a result of irregular events. None of them, including the inquiry into the killing of three Bedouin women who were hit by an armor-piercing shell fired by a tank toward their tent encampment, led to any criminal investigation, and no one was given a a disciplinary trial. In the October 29th session of the Knesset's Foreign Affairs and Defense Committee, MK Ran Cohen of the Meretz party said that, "All of the inquiries were characterized by shallowness and an attempt to whitewash the facts, despite the fact that they were carried out by senior officers." 

The failures were found at all ranks: from the soldiers who violated the opening-fire orders to the IDF Spokesman who offered an imprecise version of the incident. 

In light of the facts disclosed in the internal documents, B'tselem is demanding that the investigation be reopened into the circumstances of the death of Halil al-Moghrabi and the wounding of his two friends, to order an MPI investigation, and should it be required, that measures be taken against all those responsible for harming the children. They also seek to investigate all the parties that were involved in the investigation file. 

A senior officer in JAG commented: From the material that mistakenly found its way into outside hands, it arises that the IDF conducts serious investigations of these sort of events, and does not hesitate to take the blame. If the JAG's office had reached the conclusion that a criminal investigation would turn up new facts that might lead to an indictment, it would not have hesitated to do so. However, the Palestinian Authority does not cooperate in these sort of incidents. Moreover, B'tselem investigators are not claiming that the children were shot intentionally. The dune, on which it later developed the children were laying, was supposed to serve as a protective barrier from the shooting. The JAG also reported that in the meantime the Southern Command JAG had ordered a disciplinary trial of those responsible for the shots fired from the tank in contravention of standing orders, but this is unrelated to the investigation of the shooting in which the children were harmed.

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