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Did soldiers fire contrary to regulations? 2 Palestinians killed near ‘Anabta/Einav checkpoint

Update: On 5 January 2014 the MAG Corps informed B’Tselem that the additional investigation had been completed and that it had received the case for review. On 1 May 2014 the MAG Corps informed B’Tselem that the case had been closed, citing insufficient evidence for criminal proceedings against any military entity or personnel involved in the incident.

On 3 April 2013, at around 10:00 PM, soldiers standing near the guard tower at the ‘Anabta/Einav checkpoint shot and killed two Palestinians – ‘Amer Nassar, 18, and Naji al-Balbisi, 19 – both of ‘Anabta. Press reports indicate that the soldiers had advance warning of the Palestinians’ approach to the checkpoint and were waiting for them outside the military guard tower.

According to an inquiry conducted by B’Tselem field researchers 'Abd al-Karim Sa'adi and ‘Atef Abu a-Rub, four Palestinians approached the checkpoint and threw stones at it. One of them, ‘Amer Nassar, also lobbed a Molotov cocktail at the guard tower. The soldiers fired a massive barrage at the four Palestinians who then began to flee the scene.

Click to enlargeNassar and al-Balbisi were killed in the barrage, but B’Tselem does not have enough information to determine at what exact stage of the incident each of them was shot and killed. Nassar’s body was found on the road, approximately 120 meters north of the checkpoint. Al-Balbisi’s body was not found until around 4:00 AM, about 200 meters from the checkpoint, behind a factory, at a spot hidden by a residential home. Photos of their bodies and medical reports in B’Tselem possession indicate that Nassar was hit in the chest by a live bullet and al-Balbisi by a live bullet in his back.

The other two Palestinians involved in the incident were arrested – one at the scene and the other, who sustained a bullet wound to his hand, was arrested about a week later. Both are still in detention.

Open-fire regulations permit soldiers to fire live ammunition in two circumstances. First, if they or others are in mortal danger and there is no other alternative to eliminating the danger. The regulations permit soldiers to fire not only during the attack, but also prior to one, as when a Molotov cocktail is being ignited. The second situation involves the “procedure for arresting a suspect,” which requires calling on the suspect to stop. If the suspect does not halt, the procedure allows soldiers to fire in the air and, if then, it the suspect still has not stopped, to fire at the suspect’s legs. This procedure does not permit firing at the suspect’s upper body.

Further to this incident and in accordance with current MAG Corps investigation policy, a criminal investigation of the incident was initiated. Although B’Tselem’s investigation– which is based on one eyewitness account, on photos of the scene, medical reports and related press reports–provides only a partial picture of events, the information collected thus far raises grave concerns that the soldiers acted in contravention of open-fire regulations. The investigation of the incident should address various issues, including the instructions given to the soldiers before they set out on the ambush. Particular attention should be given to the instructions given by the commander of the force who reportedly decided to leave the guard tower , thereby, at least in theory, exposing the soldiers to greater danger. The investigation should also examine why the soldiers, who were aware of the Palestinians’ plans, did not detain them before the incident even began.

The ‘Anabta/Einav checkpoint and adjacent guard tower. Photo: 'Abd al-Karim Sa'adi, 4 April 2013.
The ‘Anabta/Einav checkpoint and adjacent guard tower. Photo: 'Abd al-Karim Sa'adi, 4 April 2013.

The key question is why the soldiers fired at the upper body of the Palestinians. Firing at the upper body is permissible only in cases of mortal danger. Yet the soldiers fired after the Molotov cocktail had already been lobbed; and al-Balbisi was shot in the back so he apparently posed no danger. Furthermore, if the soldiers were firing in accordance with the “procedure for arresting suspects,” they should only have shot at the suspects’ legs.

B’Tselem stresses that launching a criminal investigation is not enough in itself. If the investigation is to be more than a mere bureaucratic exercise, it must be timely and efficient. Since the new investigation policy was announced in April 2011, 15 investigations into the deaths of Palestinian civilians in the West Bank have been opened. (Two of the case files include two fatalities each). Thus far, only two case files have been fully handled. One case file was closed without adopting any legal measures, and in another, a soldier was indicted. In the 13 other case files, no decision has yet been made, and in 8 of these cases, the investigation has not yet been completed.