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 

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 gunfire 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.

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

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

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-meter 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 the legs."

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

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

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 years 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.

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.

Lt. 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 to 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 taken 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.

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), or 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 no 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 which 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 applicable 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 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

In 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 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 Command 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 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. 

The commander of the Military Police investigations unit, Col. Miki Barel, stated in an interview on March 2001 that, “theoretically, there could be a case that gets buried somewhere in the chain of command, but since we are not alone in the field – there’s the media, the Red Cross, and others – and there are several channels for reporting in the field, like via the Operations Command Branch to which I belong, you can’t hide anything.” These optimistic comments are inconsistent with reality.

Since the beginning of the al-Aqsa intifada, IDF soldiers have killed hundreds of Palestinian civilians. Testimonies given to B’Tselem and information from other human rights organizations, the media, and residents of the Occupied Territories indicate that, in many cases, soldiers violated the Open-Fire Regulations and injured civilians who were not involved in the events. Despite this, the Military Police only opened some twenty investigation files relating to the illegal use of weapons. In none of the cases were indictments filed.

Criticism of IDF de-briefings was recently heard in the Knesset’s Foreign Affairs and Defense Committee. In its hearing on 29 October 2001, MK Ran Cohen, of the Meretz  party, sharply criticized the reliability of these de-briefings. He presented de-briefings on five incidents, in which five Palestinian soldiers and three Palestinian women were killed. In none of these instances was any action taken against those responsible, and no conclusions were reached. According to MK Cohen, “all the de-briefings were shallow and attempted cover ups, although they were conducted by senior officers.” These comments also apply to the material presented in this report.

Over the years, B’Tselem has received hundreds of letters from the Judge Advocate General’s office regarding events in which Palestinians were killed, injured, or beaten by soldiers. In some of the cases, Military Police investigations were opened, and in some, the Judge Advocate General’s office only conducted an internal investigation. Most of the replies that B’Tselem received state that the soldiers acted properly and that no action was taken against the soldiers involved. The documents presented in the report call into question the reliability of these replies and raise the specter that this case is only the tip of the iceberg.

The message that the Judge Advocate General’s office transmits to soldiers is clear: soldiers who violate the Open-Fire Regulations, even if their breach results in death, will not be investigated and will not be prosecuted. This policy grants prior immunity to security forces and allows them to violate the law. Furthermore, it shows utter disregard for human life.

In light of the above, B’Tselem urges that:

 •	the Military Police investigate the circumstances of the death of Khalil al-Mughrabi and the injuries to Ibrahim Abu Susin and Suleiman Abu Rijal;

 •	if the findings of the Military Police investigation warrants, legal action be taken against all those responsible for the injuries to the children;

 •	investigations be conducted against all the officials who were involved in the documents discussed in this report and action be taken against those who intentionally presented a false version of the events. 

 •	because the investigation file clearly proves that the army is unable to investigate itself, the responsibility for such investigations be transferred from the army to an independent and objective body.