ISRAEL ABOVE INTERNATIONAL LAW?

Killing Palestinians with Impunity

Atrocities are whitewashed. Soldiers involved are absolved of murder, and get a green light to keep killing.

With peace talks underway in Washington; Sharm el-Sheikh, Egypt; Jerusalem; then New York, Israel, almost daily, commits crimes of war and against humanity. Some of the latest include:

• air strikes against Gaza, killing two Palestinian civilians in another one;
• peaceful protesters attacked in Gaza and the West Bank;
• live rounds and shells fired against farmers and workers in the Strip's border areas, killing an old man, his grandchild, another boy, and 30 sheep;
• over 100 live rounds fired at an Erez Crossing peaceful demonstration near Beit Hanoun;
• its medieval siege maintained, suffocating 1.5 million people and preventing 40,000 students from attending UN schools;
• violations against Palestinian prisoners and detainees in Israeli prisons escalated; most are political prisoners;
• 16 new Jordan Valley demolition orders for Palestinian barns and greenhouses issued plus others to bulldoze their homes;
• 87 incursions into West Bank communities and three in Gaza in the first half of September, arresting 43 civilians, including nine children; and
• unabated illegal settlement construction.

Israeli does what it pleases, defiling the rule of law, including letting its security forces kill with impunity, a new B'Tselem report confirming it. Titled "Void of Responsibility: Israeli Military Policy not to investigate Killings of Palestinians by Soldiers," it provides plenty of evidence.

Protests throughout the Territories occur regularly, in Bil'in village every Friday against the Separation Wall. April 17 was typical. Soldiers attacked demonstrators with tear gas, rubber bullets, at times live fire, and extended-range gas canisters. Used against Bassem Abu Rahmeh, it killed him from massive internal injuries, a case of cold-blooded murder.

B'Tselem and the family's attorney, Michael Sfard, wrote the Judge Advocate General's Office, demanding an investigation. After nearly a year's wait, the reply said:

"No support has been found for your claim that firing was executed directly at Abu Rahmeh" or that soldiers violated instructions.

This case is one of hundreds in which nonviolent Palestinian civilians were killed by IDF gunfire.

Soldiers indeed follow "instructions." They're told to open fire freely and kill with impunity.

Since September 29, 2000, the start of the second Intifada, 2,016 Palestinian civilians were killed, besides over 1,400 others during Cast Lead. "The vast majority of these cases have never been investigated." Most that are end up whitewashed, absolving guilty soldiers of culpability.

In October 2000, the Judge Advocate General's Office (JAGO) called the Intifada "armed conflict short of war," saying investigations wouldn't automatically be conducted when security forces killed Palestinians.

JAGO bogusly argued that under international law, "the fact that a civilian is killed during hostilities does not constitute even prima facie proof that a war crime has been committed or that the soldiers who were involved acted in a criminal manner."

In fact, Military Police Investigation Unit (MPIU) inquiries should follow all civilian killings, holding those responsible culpable, and learning ways to avoid future incidents.

Currently, investigations open only in exceptional cases, decisions taking months or years, "thus preventing effective handling of suspected criminal acts within a reasonable time from the day" they occurred. Establishing the Office of the Judge Advocate for Operational Matters to improve complaint handling brought no significant change.

From 2006 - 2009, B'Tselem demanded 148 cases be investigated. Only 22 were ordered, and 36.3% of them took a year or more to begin. Two resulted in no prosecution. The others still await resolution. Delay or inaction for the vast majority of them "makes it impossible to determine the considerations the Judge Advocate General's Office takes into account in deciding whether to order an MPIU investigation or to close the file."

B'Teslem examined cases not investigated and others involving a "serious suspicion of clear breach of international humanitarian law." Further, MPIU inquiries undertaken relied solely on soldier testimonies, not eyewitnesses providing conflicting accounts. As a result, IDF officials let soldiers and officers violate the law with impunity. They also encourage "a trigger-happy attitude, and show gross disregard for human life."

On June 2, 2007, Nablus resident Rami Samir Na'if Shana'ah was killed, his case like hundreds of others. Eyewitnesses said civilian clothed Israelis opened fire into a shop hitting him and another man. Local residents took them to the hospital where Shana'ah was pronounced dead. On August 1, 2007, B'Tselem demanded an investigation. Reminders sent to the Judge Advocate General's Office followed. As of February 4, 2010 (the latest information received), the case was still being processed.

Official MPIU investigations don't distinguish between Palestinians killed by live fire; others causing injury, not death; or if no one was harmed. What's needed are hard Israeli statistics on attacks resulting in death exclusive of others. They're the most serious, but all instances of soldiers attacking civilians warrant concern. Israel offers Palestinians nothing but violence, more of it, and no accountability for culpable soldiers.

According to B'Tselem figures, deaths numbered 1,510 from 2006 - 2009, exclusive of Cast Lead ones. Of these, at least 617 were confirmed noncombatants, mostly in Gaza, but they occur regularly throughout Palestine. Most are witnessed by bystanders whose testimonies are crucial to achieve justice. Yet Israel won't use them, clearly hiding the truth and obstructing justice.

Further, since September 2000, B'Tselem received no response from the Judge Advocate General's Office for "the vast majority" of cases warranting investigation, civilians killed in cold blood, responsible soldiers unpunished.

On April 7, 2008, B'Tselem got this reply (like other similar ones) from Major Yehoshua Gortler, the Judge Advocate General's legal assistant:

"Having examined the inquiry of the incident (in question) and its findings, along with other relevant material (including from B'Tselem and other human rights groups), the Judge Advocate General concluded that it was not proper to order an MPIU investigation in the matter."

The incident in question involved cold-blooded murder as well as breaches of discrimination and proportionality principles in international law. More about them below.

IDF undercover units were dressed as civilians, violating the laws of armed conflict against "perfidy." As a result, four civilians were killed, those responsible unpunished.

Nearly all these atrocities are whitewashed. Soldiers involved are absolved of murder, and get a green light to keep killing. Accountability is so rare, even for the most egregious incidents, that soldiers are almost entirely unrestrained. As a result, they show flagrant disregard for human life in violation of fundamental international law.

According to Jessica Montell, B'Tselem's Executive Director:

"Since the beginning of the Intifada, we have opposed the sweeping decision not to investigate the killing of Palestinians. This is even truer now, when it is impossible to view the situation in the West Bank as armed conflict. The legal status must reflect the reality in the field, as well as express the value given to human life and the obligation to protect civilians."

All cases involving noncombatant killings warrant investigations. Soldiers claiming they acted in self-defense or to save lives is contemptuously false. Saying unarmed civilians attacked or otherwise threatened them makes a mockery of truth. It's why legitimate investigations are crucial to prove it.

B'Tselem stresses that "Armed conflict does not exist in the Occupied Territories," as Israel contends. Yet each case involves "combat incidents....in which Palestinian bystanders are (killed) or injured by soldiers' gunfire....exchanges of gunfire while making arrests in the middle of the night, and (claiming they shot) Palestinians in good faith," saying they posed a threat.

Israel's High Court distinguishes between "operational" and "criminal" actions, ruling that:

"the point of departure regarding an operational incident is that it does not involve a criminal incident....The cases in which an investigation will be carried out by an investigative body regarding an operational incident are the exception. Operational activity has a unique character and objectives that clearly distinguish it from criminal actions."

"An attitude that views the actions of security forces as being close to criminal actions strikes at the ethical basis of actions of the security forces and is liable to impair their motivation in carrying out their functions faithfully. The readiness of soldiers, commanders, and defense personnel in carrying out their functions, in taking risks and in acting on behalf of national interests, at times endangering their lives, when they are acting under pressure and uncertainty, is liable to be significantly impaired if they know that the actions are liable to result in their being prosecuted as criminal suspects."

As a result, the Judge Advocate General relies on the "operational actions" defense to justify clear criminal acts, and by failing to investigate incidents and whitewashing ones undertaken grants culpable soldiers impunity.

"The argument that prosecuting soldiers on criminal charges will impair their functioning is....insufficient to negate the need for a criminal investigation." Ignoring accountability when someone dies can never be justified, a position taken by Tel Aviv District Court Judge Oded Mudrik, saying:

"I do not accept the basic assumption behind the military's argument that certain kinds of conduct by commanders should be made nonjusticiable." It disagrees with the definition of "negligence" in Penal Law....There is no legal system anywhere in the enlightened world that grants immunity to the command echelon of its army and places them above the law."

Under international law, the principles of distinction and proportionality are binding:

• distinction between combatants and military targets v. civilians and non-military ones; attacking the latter ones are war crimes except when civilians take direct part in hostilities; and
• proportionality prohibitions against disproportionate, indiscriminate force likely to cause damage to or loss of lives and objects.

In addition, parties to a conflict must take all precautions to avoid and minimize incidental loss of civilian life, injury to civilians, and damage to non-military sites.

Fourth Geneva also prohibits collective punishment "for an offence he or she has not personally committed." Measures must be taken to assure civilians are kept out of harm's way. Willfully attacking them is a crime of war or against humanity. Impunity is never justified.

Fourth Geneva's Article 146 prescribes that states must investigate grave breaches and prosecute persons who committed or ordered them. It further requires that measures be taken to assure "the suppression of all acts contrary to the provisions of the present Convention," even when they don't rise to the level of war crimes.

In addition, domestic legislation must prohibit all acts violating international law, and require offenders be punished. Investigations are thus vital to assure it. A Judge Advocate General's "operational inquiry" is no way to determine truth. Yet it's used to decide if investigations are necessary. At all times, they're essential when incidents cause civilian deaths.

B'Tselem's report shows that the Judge Advocate General's Office hasn't processed the vast majority of lawless civilian killings. Isolated cases only were opened. Most still await resolution, suggesting whitewash when, or if it comes.

Unless independent investigations are undertaken, "it is impossible to know whether soldiers violated orders or acted improperly." That's why they're vital.

"The killing of civilians who did not take part in hostilities requires an effective, unbiased investigation, carried out within a reasonable time after the incident." Not doing so "grants soldiers and commanders de facto immunity: a soldier who kills a Palestinian not taking part in hostilities is almost never brought to justice for his act. At the most, they are required to explain their actions in the framework of the operational inquiry," conducted to absolve, not implicate them.

Justice denied grants legitimacy to lawless killings, making a mockery of fundamental international law, an Israeli specialty.

Stephen Lendman lives in Chicago and can be reached at lendmanstephen@sbcglobal.net. His blog is sjlendman.blogspot.com.

Listen to Lendman's cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening.

Mr. Lendman's stories are republished in the Baltimore Chronicle with permission of the author.