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المواضيع

Void of Responsibility Sample Case: On 13 Jan. ’09, soldiers took Yasser a-Tmeizi, father of two, from his field and led him handcuffed to Tarqumya checkpoint, where they shot him to death. For over a year, the investigation file has awaited a decision

On Thursday, 4 January 2007, around 3:00 P.M., the streets of Ramallah were crowded with people shopping for the weekend. An undercover unit entered a place adjacent to the vegetable market, in the city center, to arrest a wanted person. They opened fire at the man, wounding him seriously, but he managed to flee. With the gunfire, the identity of the undercover unit was exposed and people began to throw stones, sticks, iron bars, and empty bottles at them. A few people also fired bullets at them.

Testimonies given to B'Tselem indicate that, following exposure of the undercover unit, a few army jeeps arrived at the scene along with bulldozers and two combat helicopters to rescue them. The witnesses told B'Tselem that the bulldozers crushed dozens of vehicles, market stands, and peddlers' wagons. Security forces - both on the ground and in the combat helicopters - fired at the Palestinians, killing four of them. According to B'Tselem's investigation, none of the four were armed and three of them did not take part in the clashes. The four fatalities were:

  • Khalil al-Beirouti, 36, a tea and coffee vendor, was killed next to the vegetable market by a bullet that struck him in the chest.
  • Yusuf ‘Adur, 24, a vendor in the market, was killed by helicopter fire.
  • Jamal Jawalis, 29, a resident of East Jerusalem who was shopping in the market, was shot and killed when he tried to remove his vehicle from where the bulldozers had advanced.
  • ‘Alaa Hamran, 16, was struck while in the vegetable market by a bullet that hit him in the head, and died at hospital in Ramallah. He took part in the disturbances that broke out but was unarmed.

More than forty Palestinians were injured, ten of them seriously.

The the Ramallah vegetable market after the operation. Photo: Reuters, 4 Jan. 2007.
The the Ramallah vegetable market after the operation. Photo: Reuters, 4 Jan. 2007./>

On 21 January 2007, B'Tselem wrote to the Judge Advocate General, demanding that he order an investigation into the events. In its letter, B'Tselem noted that the extensive injury to residents and the great damage to property raised a grave suspicion that the army had breached the principles of discrimination and proportionality in international humanitarian law. It was doubtful that the military advantage from the arrest of one person exceeded the anticipated harm to civilians, as occurred in this case. B'Tselem also pointed out that actions by undercover units inside a civilian population, carried out in the afternoon in the city center, endangers bystanders who are completely unaware that they are in danger. The fact that, shortly after the undercover unit was exposed, a rescue force arrived indicated that the planners anticipated such a possibility, and they should also have anticipated the serious risk that civilians would be injured.

B'Tselem also demanded that the army cease using undercover units. Such use contravenes binding rules applying to the sides to an armed conflict as well as rules applying to law- enforcement operations. The laws of armed conflict prohibit “perfidy,” in this case dressing up as civilians. The prohibition is aimed at protecting civilians, in that it requires the combat forces to distinguish themselves from the civilian population in a way that allows them to be identified. Regarding law-enforcement actions, the rules on opening fire differ from those applying in combat actions, and are much more restrictive. The actions of undercover units do not comport with these rules.

On 7 April 2008, 15 months after B'Tselem's first letter, Major Yehoshua Gortler, legal assistant to the Judge Advocate General, responded to B'Tselem as follows:

  1. Having examined the inquiry of the incident and its findings, along with other relevant material (including material from B'Tselem and other human rights organizations), the Judge Advocate General concluded that it was not proper to order an MPIU investigation in the matter.
  2. The findings of the inquiry reveal that the use of force by IDF forces during the incident was in response to massive gunfire at them, and in response to the hurling of heavy, dangerous objects at them from various sources and by various people, which posed a real and present danger to the soldiers' lives. The findings of the inquiry (including the aspects relating to the scope of the involvement of “undercover” forces in the incident), did not raise a suspicion of commission of criminal offenses by IDF soldiers who took actions in the framework of the incident (in this context, it should be made clear that the findings of the inquiry do not indicate a connection between the involvement of the “undercover” forces in the action and the harm that was caused during its course to uninvolved persons, as described in your letter).
  3. he Judge Advocate General also does not believe that the use of “undercover” forces in the incident is contrary to Israel's obligations under the laws of war of international law, or that these laws require that an order be given, as you request, to end completely the use of forces in disguise.

Major Gortler's response is unconvincing and does not justify the refusal to open an MPIU investigation. Firstly, the letter does not relate to the decision to engage in the action in the given circumstances or to the considerations taken into account by the decision makers. It is unclear whether the decision makers considered in advance the anticipated harm to civilians and whether this consideration was weighed against the military advantage anticipated from the arrest of the person they sought.

Secondly, Major Gortler ignores the fact that three of the Palestinians who were killed did not take part in the clashes with the soldiers and were not killed in the specific area where they took place. They did not throw any objects at soldiers, so it cannot be argue that they threatened them in any way. ‘Alaa Hamran, who took part in the clashes, was not armed, and it is doubtful that it could be argued he endangered the soldiers' lives in this case.

Thirdly, Major Gortler's response regarding the participation of undercover forces in an “armed conflict” is unsatisfactory, as it provides no explanation for the Judge Advocate General's determination on this point. The response does not explain why the Judge Advocate General believes that the use of undercover personnel is lawful, and whether he classifies the incident as a combat action or a law-enforcement action, each of which is subject to different laws. One way or the other, the use of undercover soldiers in this incident was not lawful: if it was a combat action, the use of undercover forces was unlawful in that it breached the prohibition on perfidy. After the forces found themselves in trouble, the principle of discrimination and the obligation to take precautionary means were breached. On the other hand, if the action was carried out within the law-enforcement framework, although the use of undercover forces was proper, in this case, the soldiers grievously violated the Open-Fire Regulations applying in law-enforcement actions.