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DOC - Whitewash The Office of the Judge Advocate Generals

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DOC - Whitewash The Office of the Judge Advocate Generals

     B’Tselem

     ).ר.ע( םיחטשב םדאה תויוכזל ילארשיה עדימה זכרמ

     The Israeli Information Center for Human Rights in the Occupied Territories

    Whitewash

    The Office of the Judge Advocate General’s Examination of the

    Death of Khalil al-Mughrabi, 11, on 7 July 2001

Written by Yael Stein

    Fieldwork by Nabil Mukhairez

    Data coordination by Ronen Shnayderman

    Translation by Maya Johnston, Zvi Shulman

     ,(,,666 סקפ ,)42( ,(933,, ןופלט ,,9,24 םילשורי ,תויפלת ,) המוק( 8 היישעתה בוחרth 8 Hata’asiya St. (4 Floor), Talpiot, Jerusalem 93420, Tel. (02) 6735599, Fax (02) 6749111

     mail@btselem.org www.btselem.org

    Introduction

    On Saturday, 7 July 2001, Khalil al-Mughrabi, 11, was killed in Rafah. Two other children,

    Ibrahim Abu Susin, 10, and Suleiman Abu Rijal, 12, were wounded.

In his response to the incident, the IDF Spokesperson stated that “dozens of Palestinians

    rioted near Rafah and endangered soldiers’ lives… The soldiers acted with restraint and control and dispersed the rioters by using means for dispersing demonstrations and by live 1gunfire into an open area distant from the rioters. The testimonies given to B’Tselem and

    the findings from the army’s de-briefings contradict this version of the events.

    B’Tselem contacted the Chief Military Prosecutor, Col. Einat Ron, to determine which measures were taken against those involved in the incident. In the event that the army took no such measures, B’Tselem requested that the Military Police investigations unit open an investigation. On 8 November 2001, B’Tselem received the army’s response, which stated that the soldiers acted according to the regulations and, therefore, it was unnecessary to initiate an investigation. The de-briefings file was attached to the army’s response, apparently in error. The file included the operations de-briefings and the opinions of the Southern Command’s Judge Advocate and of the Chief Military Prosecutor.

    This report analyzes the army’s inquiry into the events, based on the documents provided to B’Tselem. The report points out the primary problems arising from the inquiry and its results. Although the documents raise numerous other questions regarding the actions of IDF soldiers serving along the border, this report focuses on the shooting of the three children. The documents are presented in their entirety as an appendix to the report.

    The incident: one child killed, two children wounded

    According to testimonies given to B’Tselem, on 7 July 2001, some twenty to thirty children

    aged ten to thirteen were playing in the Yubneh Refugee Camp, in Rafah, located near the Egyptian border. Around 5:00 P.M., the children saw a tank travelling west along the border fence, toward the Tel Zu’arub encampment. The encampment has a tower used by the army as

    an observation post. At about 5:30, Khalil al-Mughrabi, 11, came to the site with his friend

    Suleiman al-Akhras, 13. They had a ball with them and started to play soccer.

    Around 6:45 P.M., the children finished playing. Some of them sat down next to mounds of sand near the border fence. Others sat on the top of the mounds. Khalil and Suleiman sat on the mounds. At 7:10 P.M. or so, Khalil was shot in the head. According to the children, the shots came from the observation tower, about one kilometer from where the children were located. The firing continued, striking two other children:

    - Ibrahim Kamel Abu Susin, 10, was hit in the abdomen, the bullet striking his intestines and liver

- Suleiman Turki Abu Rijal, 12, was struck in the left leg.

     1 Ha’aretz, 8 July 2001.

Testimony of Suleiman Muhammad Salameh al-Akhras, 13, elementary school pupil, 2resident of Rafah

    Even before the intifada, I used to play soccer with my friends around Yubneh Refugee Camp, in Rafah, close to the Egyptian border. We used to play there because there aren’t any other soccer fields in the city, and because the ground is flat and made of concrete, so it’s good for

    playing.

    On Saturday [7 July], I was playing there with twenty or thirty other children between the ages of ten and thirteen. They are all friends from the neighborhood and from school. We divided into a few teams of six and played a few games in order to give all the children a chance to play. About fifteen minutes before we finished playing, an Israeli tank drove along the border. It arrived from Salah a-Din gate and drove west toward the Tel Zu’arub post,

    where there is a very tall military tower that overlooks the whole area. After we finished playing, we sat down to rest. Some of us sat alongside the sand piles that are near the border fence. Others sat on the top the piles. While we were resting, the soldiers in the tower suddenly shot a bullet. We didn’t hear it until it entered Khalil Ibrahim Muhammad al-

    Mughrabi’s head. Khalil, who was sitting on top of one of the piles, fell down immediately. His head burst and parts of it flew toward the children who were near him.

    Then the soldiers opened intense fire from the tower. This time, the shooting was very loud. It sounded different from the bullet that hit Khalil. When we ran north, toward the houses in the

    refugee camp, two more of my schoolmates were hit. Ibrahim Abu Susin was hit in the

    stomach and his intestines came out. Suleiman Abu Rijal was hit in the thigh. A number of civilians rushed to the place immediately and evacuated the deceased in a Mercedes public-

    transport vehicle. An ambulance, which arrived immediately after, evacuated the two

    wounded to the hospital.

    The terrible sight that I saw in this incident shocked me so much that I couldn’t speak for six hours.

Testimony of Muhammad Salah Hussein al-Akhras, 14, elementary school pupil, 3resident of Rafah

    On the evening of Saturday [7 July], I was playing with about thirty more children at a soccer field near the border, in Yubneh Refugee Camp. The game started after the afternoon prayer, i.e. around 5:00 P.M. After a while, a tank drove along the border. It came from the east and drove west, toward Tel Zu’arub and the military tower there. The tank passed by quietly without shooting at us. After we finished playing, we lay on the ground to rest. Some of us sat on the piles of sand near the border. Around 7:10 P.M., I stood up and told the children to leave the place. I was two meters away from Khalil al-Mughrabi. Then I heard a faint sound and saw Khalil’s brain flying out of his head and splattering all over my face and clothes. We started running away from the place. While we were running, intensive fire from the tower began. That gunfire resulted in two more children being hit. One of them was my neighbor, Ibrahim Abu Susin. He was hit in the stomach and his intestines came out. The other, Suleiman Abu Zeidan, was hit in the left thigh. Civilians who were there evacuated the deceased and the wounded to the hospital.

     2 The testimony was given to Nabil Mukhairez on 8 July 2001. 3 The testimony was given to Nabil Mukhairez on 8 July 2001

    I spent the entire night after that dreaming about the incident, and about Khalil’s brain flying in the air and splattering on my body. The morning after, I went to the sheik in al-Hoda mosque and told him the story. He started reading from the Koran and told me I had to pray and read the Koran all the time.

    The operations de-briefings: the soldiers violated the regulations, no measures to be taken

    Two days after the incident, on 9 July 2001, the battalion commander conducted a de-briefing of the incident. One day later, the brigade commander conducted his de-briefing, and on 12 July, the division commander also conducted a de-briefing. The documents indicate that the de-briefings dealt primarily with operational aspects and with the soldiers involvement in coping with the events that took place along the border on 7 July. The injuries sustained by the three children receive marginal attention.

    The de-briefings indicate that, on 7 July, starting around noon, children threw stones and fragmentation grenades at the soldiers. Several times during the day, the soldiers fired 4warning shots. The soldiers also fired “rubber” bullets and percussion grenades.

    Around 7:00 P.M., when the three children were hit, dozens of children and adults placed objects and barbed wire on the “Dakar Route”, and the soldiers saw Palestinians moving sacks from the Egyptian side of the border. At this stage, the company commander ordered a 5tank to fire a warning shot. The tank fired twelve 0.5 inch shells towards the west. Regarding

    these shots, the investigations determined that, “The tank should not have been used to fire warning shots during the day. The company commander should have considered that the tank 6was exposed to the Egyptians during the shooting.” The investigations also found that, “It

    was possible to return the armored vehicles to 18 instead of firing warning shots from the 78tank.” The division commander determined that “the tank fire is a flaw.”

    The investigations concluded that, “it is impossible to unequivocally determine that the child was killed by our forces' gunfire,” although the investigations dealt minimally with this matter. 9 The conclusion is based on the following points:

    1. Throughout the day, no ambulances were seen at the site of the incident.

    2. No injured person was seen.

    3. There was no escalation and commotion that would occur if a person had been killed.

One of the testimonies given to B’Tselem indicates that the children were evacuated to the 10hospital by a civilian vehicle, so no ambulances were seen in the area. The fact that soldiers

    did not see any injured persons actually reinforces the testimony given to B’Tselem that the children were far from the site where the incidents took place and that they did not take part in

     4 See Appendix A, sec. 2(a) 2(p). 5 See Appendix A, sec. 2(q) 2(r). 0.5 inch shells are fired from a machine gun positioned on a tank and are lethal at a range of 1,000 meters. 6 See Appendix A, sec. 3(c). 7 See Appendix A, sec. 3(e). 8 See Appendix B, sec. 2(b)(2). 9 See Appendix A, sect. 6. 10 See testimony of Muhammad al-Akhras.

them. For the same reason, there was no “escalation and commotion” after they were 11 Although the army officers who conducted the de-briefings do not deny that the injured.

    children were injured and do not mention that other firing took place in the area, they do not offer any other explanation as to how the children were injured.

     11 It is interesting to note that the army is well aware that the soldiers’ response to events directly

    affects the development of these events. This however, does not affect the soldiers’ response. On this subject, see Illusions of Restraint - Human Rights Violations During the Events in the Occupied Territories 29 September - 2 December 2000, p. 8.

    Firing of rubber-coated metal bullets

Earlier on the day Khalil al-Mughrabi was killed and two children, Ibrahim Abu Susin and

    Suleiman Abu Rijal, were wounded, the soldiers fired rubber-coated metal bullets ("rubber"

    bullets) at the children on several occasions. In at least one case in which the platoon commander shot a "rubber" bullet at a group of children, it struck a child in the head. He was

    slightly hurt and returned to the demonstration.

    The operations de-briefings held by the battalion and brigade commanders indicate that the "rubber" bullets were fired in gross violation of the Open-Fire Regulations and directives. The

    de-briefings determine, among other things, that:

     "The platoon commander did not transmit the open fire regulations dealing

    specifically with firing rubber. (The platoon commander received training for firing

    rubber and knows how to use it. The platoon commander is aware of the seventy-12meter minimum range.)" It is later determined that "the rubber fired by the platoon

    commander does not deviate from the open-fire directives and regulations. However,

    one should realize that shooting is at least from forty meters range and is aimed at 13the legs."

     14 "Rubber shots were fired using blanks and not rifle attachments." It is later 15determined that "improvised firing by officers is a flaw"

     "The use of rubber was not right. The risk resulting from these shots was not 16considered."

Between January 1988 and the end of August 2000, before the al-Aqsa intifada began, at least

    sixty-one Palestinians were killed by "rubber" bullets. Twenty-nine of them were minors

    under the age of seventeen. Because “rubber” bullets are lethal, B'Tselem has demanded for 17years that they cease to be used as a legitimate means for dispersing demonstrations. The

    office of the Judge Advocate General has flatly rejected this demand, and soldiers continue to routinely use "rubber” bullets.

    The de-briefings indicate that the soldiers acted as they saw fit, while disregarding regulations

    that are meant to save lives. The soldiers breached regulations and the platoon commander

    was not briefed in firing "rubber" bullets and fired deadly ammunition in violation of the

    regulations.

     12 See Appendix A, sec. 4(b). 13 See Appendix A, sec. 5(j). 14 See Appendix A, sec. 4(c) 15 See Appendix A, sec. 5(j). 16 See Appendix A, sec. 3(d). 17 See B'Tselem, Death Foretold - Firing of "Rubber" Bullets to Disperse Demonstrations in the Occupied Territories, December 1998; B'Tselem Illusions of Restraint pp. 12-14.

    Southern Command Judge Advocate: disciplinary measures should be taken

    After B’Tselem requested the Chief Military Prosecutor to initiate a Military Police investigation into the circumstances of the injuries to the children, the operations de-briefings were forwarded to the Southern Command Judge Advocate, Lt. Col. Baruch Mani. He gave his opinion on 29 August 2001.

     18Lt. Col. Mani describes the incident as follows:

    … during that day there were severe disturbances and rioting at the place.

    According to the de-briefings, “warning shots” and rubber bullets were fired

    in the direction of groups of rioters composed of dozens of children who were

    attempting to approach an IDF force at the place and threw stones and several

    fragmentation grenades at the force.

    This description is inconsistent with the findings of the operations de-briefings. Lt. Col. Mani disregards the fact that, in the evening, when the children were injured, there were not “severe disturbances and rioting.” Even if his description is precise regarding the events that took place earlier in the day, they are irrelevant to the time that the children were injured. Lt. Col. Mani also totally ignores the children’s testimonies given to B’Tselem. These testimonies,

    which were among the documents received by the Judge Advocate, indicate that the children who were injured had been playing soccer with a group of kids.

Despite this, Lt. Col. Mani determined that:

    In light of the circumstances of the violent disturbance and the combat nature

    of the events, as described in the de-briefings, I do not think that there is cause 19to open a Military Police investigation.

    The Southern Command Judge Advocate later relates to the warning shots fired by the tank, which the operations de-briefings determined had been fired in breach of the regulations. Lt. Col. Mani holds that disciplinary action for violating the Open-Fire Regulations should be 20taken against those responsible for the tank fire. The Judge Advocate’s opinion does not

    indicate that the children were injured at the same time that the soldiers fired from the tank, nor does he examine the causal connection between the tank fire and the injuries to the children.

    Chief Military Prosecutor: consider presenting a false version of the events

    The Chief Military Prosecutor, Col. Einat Ron, rejects the conclusions of the Southern Command Judge Advocate. The initial part of her opinion is the first serious analysis given to the incident in which the children were injured. Col. Ron relates to two points: one, the legality of the tank fire, and two, the causal connection between the tank fire and the death of Khalil al-Mughrabi and the injury of the other two children.

     18 Appendix C, sec. 2. 19 Appendix C, sec. 3. 20 Appendix C, sec. 5.

    Col. Ron rejects the determination made by the Southern Command Judge Advocate that the incident was of a “combat nature.” Relying on the operations de-briefings, she holds that the

    tank fire was not in response to the grenades that were thrown and that it was doubtful that the soldiers lives were in danger. The latter was clear because they only fired warning shots and did not fire with the intent of striking. Col. Ron adds that, according to the regulations, only light weapons may be used for firing warning shots and, in any event, firing at children in such circumstances is prohibited. Therefore, she found that “a doubt exists whether the tank

    fire could be justified by the grenade throwing (which does not correspond in terms of timing), 21or by the force’s feeling that it was in a life-threatening situation.”

    Regarding the causal relationship between the tank fire and the injuries to the children, Col. Ron holds that “it is likely that the shots did not hit the children who were identified as rioters but rather children who were some distance from the place of the event.” She emphasizes that 22no other shooting took place in the area that could have struck the children.

    In her interim summary, Col. Ron states that it is likely that the children were struck by the tank fire and that the firing either violated the regulations (if intended as warning fire) or was unjustified (if intended to injure). Despite this, she offers three conflicting options, two of 23which are lies, for the treatment of the file:

    1. There is suspicion of firing in violation of the regulations + suspicion that

    the gunfire killed and wounded innocent children. A thorough Military

    Police investigation should be ordered (among the matters to be

    examined are which open-fire directives were given to the force and

    whether it could be positively determined that it was that gunfire which

    struck the children).

    2. The shooting was justified - the incident as a whole had a combat nature,

    grenades were thrown earlier in the day, the whole area is dangerous, the

    gunfire was justified, and if innocent people were harmed, one can only

    regret it. See the proposal for a reply letter to B'Tselem, derived from

    choosing this alternative.

    3. Despite the combat nature - the shots were warning shots - which were

    not fired according to regulations: they were fired from a heavy machine

    gun and not light weapons and toward children. However, in light of the

    confrontation, the grenades, the danger, etc. it is not a “gross deviation”

    from regulations and disciplinary action against whoever fired warning

    shots from the tank should suffice.

Regarding the last option, Col. Ron mentions several difficulties, which are even more 24applicable to the second option, which is even more forgiving of the soldiers. In her words:

    1. The "gravity of the deviation" and the "results of the event" are two

    corresponding criteria. The results here are very serious - an eleven-year-old

    child. who was innocently playing soccer, was killed. His two friends, 10

     21 Appendix D, sec. 1 (emphasis in original). 22 Appendix D, sec. 2. 23 Appendix D, “Options for Action.” 24 Appendix D, “Difficulties in Selecting the Middle Way.”

    and 12, were injured (the ten-year-old apparently "severely"). Even if it is a

    "slight" deviation, the result should dictate a Military Police investigation.

    2. The limitation allowing only light-weapons fire is to ensure that warning

    shots will pose as little danger as possible. The use of a heavy machine gun

    greatly increased the risk that someone 1,000 meters away would get hurt.

    3. If all the alleged suspicions are verified - firing warning shots against

    regulations + causal connection to death - an indictment won’t be filed?

Col. Ron’s comments clearly call for an immediate investigation by Military Police.

    Therefore, it is surprising, to say the least, that the Chief Military Prosecutor proposed other options. The fact that she drafted a proposed letter to B’Tselem based on the second option indicates that, when writing the opinion, she had already decided to present a false version of the events and to refrain from ordering a Military Police investigation.

    The final result: the soldiers acted properly

     25In her letter of 31 October 2001 to B’Tselem, Col. Ron wrote as follows:

    1. An examination of the circumstances surrounding the incident indicates

    that on 7 July 2001, children and, at some stages, adults gathered near an

    IDF force that was moving along the Egyptian border.

    2. At certain points during this gathering, there was massive stone throwing

    and throwing of fragmentation grenades at the IDF force.

    3. The force tried to disperse the disturbance using rubber bullets and

    warning shots, which were aimed at a protective wall, so as not to hurt

    the rioters.

    4. Live gunfire was not aimed at the rioters, and no injuries were detected as

    a result of this gunfire.

    5. Under the circumstances, we have not found any suspicion of criminal

    behavior on the part of the IDF soldiers, or that there is just cause to open

    an investigation.

    According to Col. Ron’s letter, the incident occurred in a different manner than the one described in the operations de-briefings. It also differed from the first part of her own opinion. She selected this version even though all the officials handling the matter, from the battalion commander to the Chief Military Prosecutor, knew that her version was false. It was clear to all that the soldiers had fired in violation of the regulations, possibly killing an eleven-year-old child and injuring two other children.

    B’Tselem does not know the considerations that the Chief Military Prosecutor took into account in choosing the second option. A handwritten comment on the opinion of the Southern Command Judge Advocate indicates that, on 30 October, a discussion was held at

     25 Appendix E.

    the office of the Chief Military Prosecutor. The comment states that, “The Chief Military Prosecutor is not ordering a Military Police investigation. The Southern Command Judge Advocate will handle it as a disciplinary matter.” When the army decided to take disciplinary

    action against soldiers in the past following a B’Tselem request for an investigation, the army notified B’Tselem. This time, however, the Chief Military Prosecutor did not mention the disciplinary actions.

    Conclusions

    The documents presented in this report raise grave questions about the manner in which the army investigates itself. An eleven-year-old child was killed and two children were injured for no reason. However, the army failed to open any investigation against the soldiers responsible, even though all the army officials involved in the review of the incident clearly knew that the soldiers had used lethal weapons when their lives were not in jeopardy and had violated army regulations.

    The army conducted a shallow and superficial inquiry, at all stages of the process, and made no effort to understand how the children were injured, to determine who was responsible, and to ensure that such incidents would not recur. All levels of the army hierarchy failed. The soldiers who violated the Open-Fire Regulations shot to death a child and injured two other children; the IDF Spokesperson provided an imprecise version of the incident (the Southern 26Command Judge Advocate even noted this in his opinion); the Southern Command Judge

    Advocate submitted an opinion that offered a version different from that stated in the operations de-briefings.

    The Chief Military Prosecutor, Col. Einat Ron, went even further. In her legal opinion, she proposed an obviously false version of events as a reasonable course of action. The fact that she did not hesitate to propose, in writing, possible courses of action that clash with the truth raises a serious concern that lying is considered legitimate practice in the office of the Judge Advocate General.

    Since the beginning of the al-Aqsa intifada, the IDF has rarely initiated Military Police investigations, contending that an “armed conflict” exists. Therefore, “there is no reason to initiate Military Police investigations into the very existence of casualties on the other side as a result of the fighting, in the absence of suspicion of serious deviation from obligatory norms 27 of behavior."

    The attached documents clearly indicate that a “serious deviation from obligatory norms of behavior” took place. Despite this, the army did not initiate a Military Police investigation. It

    is clear, therefore, that the decision not to initiate Military Police investigations during the al-Aqsa intifada is completely unrelated to the definition given to the situation and to the nature of the events. Rather, the failure to investigate results from the conscious decision of the Judge Advocate General’s office to ignore harm to the Palestinian civilian population and not to prosecute soldiers who violate the regulations. Among the reasons for this failure is the desire to present a favorable image of the army.

     26 See paragraph 4(c) of Appendix 3. 27 Response of the IDF Spokesperson to B’Tselem’s report, Illusions of Restraint.

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