14 Aug. '08: The JAG's decision to close the case against the soldiers who killed the Reuters photographer in Gaza is highly unreasonable

Reuters photographer Fadel Shana'a was killed on 16 April 2008 in the Gaza Strip, after Israeli soldiers fired two tank shells in his direction. On 12 August, the Judge Advocate General informed Reuters that the firing of the shells had been reasonable and that he had decided to close the case. This decision is gravely problematic for several reasons:

The decision is highly unreasonable

The JAG's decision to absolve the soldiers who fired the shells, and those who gave the command to fire, of responsibility is highly unreasonable. Soldiers operating in the context of an armed conflict are still obliged to uphold the distinction between those participating in hostilities and bystanders. Aiming attacks at civilians is prohibited, and if the identity of the target cannot be established, it must be treated as civilian. The facts of the case raise the grave suspicion that the soldiers in the tank, and those who gave them the order to open fire, failed to adhere to the duty to take every possible precaution to avoid the harming of civilians and civilian objectives.

Lack of accountability

The decision perpetuates the army's policy since the beginning of the second intifada, not to investigate cases in which Israeli security forces kill Palestinians not participating in the hostilities, other than in extreme cases. An investigation must be independent, effective, timely and open to review. The JAG based his decision, amongst others, on a military debriefing, which does not meet these criteria.

General data on lack of investigations

From the beginning of the current intifada (29 September 2000) to the end of 2007, more than 2,000 Palestinians were killed who were not taking part in the hostilities at the time they were killed. However, a Military Police investigation was opened into only 270 cases of suspected illegal shooting by soldiers. This number includes investigations into cases in which civilians were wounded. Only 30 of these investigations resulted in the filing of indictments.

Complaints filed by B'Tselem

In 2007, Israeli security forces killed 127 Palestinians not participating in the hostilities, 91 in the Gaza Strip and 36 in the West Bank. B'Tselem wrote to the JAG demanding an investigation into 53 cases, in which 102 people were killed. B'Tselem was informed of the launching of 3 Military Police investigations, all in the West Bank

In the first half of 2008, Israeli security forces killed 169 Palestinians not participating in the hostilities, 159 in the Gaza Strip and 10 in the West Bank. B'Tselem wrote to the JAG demanding an investigation into 46 cases, in which 87 people were killed. B'Tselem was informed of the launching of one Military Police investigation, into the death of a Palestinian from an unexploded shell in the Jordan Valley.

Flechette darts

The attack that killed Shana'a also killed five other Palestinians not participating in the hostilities. Three died on the spot and two died later of their wounds. Circumstances in the Gaza Strip render the use of Flechette shells illegal. The wide dispersal range of the darts shot out of the shell render its use in populated areas a type of indiscriminate firing that endangers innocent civilians, in violation of international humanitarian law.