Contrary to facts and regulations: MAG Corps finds that soldier who killed Mustafa Tamimi acted lawfully
On 15 February 2016, Chief Military Prosecutor Col. Sharon Zagagi-Pinhas informed B’Tselem that its appeal against the closing of the investigation into the killing of Mustafa Tamimi had been denied. B’Tselem had filed the appeal almost a year earlier, on 26 February 2015.
Tamimi was hit by a tear-gas canister that a soldier fired at him from very close range on 9 December 2011, while he was throwing stones at a military jeep during a demonstration in the village of a-Nabi Saleh. Tamimi was critically wounded and rushed to Beilinson Hospital in Israel, where he died the following day. The Military Police Investigation Unit (MPIU) immediately launched an investigation into the incident, but the investigation would not be concluded for a long time: only two years later, on 5 December 2013, did the Military Advocate for Operational Affairs inform B’Tselem of his decision to close the case. In his letter, Lieut. Col. Ronen Hirsch wrote that the Military Advocacy for Operational Affairs accepted Sgt. A.’s claim that he did not see Tamimi when he fired from inside the jeep, adding that the claim was reinforced by an expert opinion stating that the soldier would have been unable to see Tamimi when he fired. Therefore, Lieut. Col. Ronen Hirsch determined that the canister that killed Tamimi was fired “in accordance with the relevant rules and regulations and did not involve any offense”.
The chief military prosecutor denied B’Tselem appeal, similarly finding that the material gathered in the investigation did not provide sufficient evidence to establish that the lethal shooting was unlawful. She also rejected other arguments that B’Tselem made in the appeal, including the assertion that the soldier who fired the canister could see Tamimi, or should have been aware of the presence of stone-throwers nearby when he fired; and that if he was not aware of this fact, he must have fired blindly, thereby breaching open-fire regulations. The prosecutor also rejected B’Tselem’s arguments as to suspected obstruction of the investigation by other soldiers who served as witnesses, and determined that there was no need to examine the commanders’ responsibility for Tamimi’s death.
In her reply, the chief military prosecutor grasped at any scenario, however implausible, to offer an alternative explanation for events, even when it contradicted evidence or other scenarios she herself had presented earlier, so as to absolve the soldier who fired the canister and his commanders from criminal liability.
In the appeal, B’Tselem argued that the decision of the Military Advocate for Operational Affairs not to serve any indictments in the case was unreasonable, as the investigation material conveyed to B’Tselem showed that the file contained evidence proving beyond a reasonable doubt that the shooter and his commanders are criminally liable for Tamimi’s death. The major arguments made in the appeal were that - based on objective evidence and on two expert MPIU opinions - there is no doubt that the lethal shot was fired in a direct trajectory, in breach of open-fire regulations: the shooter was aware, or, at the very least, should have been aware, of the presence of protestors in the immediate vicinity of the jeep and, therefore, should have refrained from the potentially fatal act of firing a tear-gas canister in a direct trajectory. Even according to the Military Advocate for Operational Affairs’s reasoning, whereby A. did not see Tamimi – nor could he have seen him – when he fired the fatal shot, the shooting was carried out dangerously and negligently, essentially “blind”, and in utter contradiction of open-fire regulations for tear-gas launchers.
In her letter explaining the denial of the appeal, the chief military prosecutor accepted the soldier’s version of events, stating that he “scanned the area and looked out of the window and the opening in the door to ensure that no one was in his line of fire or nearby. Even before pulling the trigger, while he was aiming the weapon, he checked to make sure that there were no people in his line of fire and opened his other eye, as required in the open-fire regulations concerning use of tear-gas launchers”. Military experts who submitted opinions as part of the investigation suggested that Tamimi might have been hit even withstanding these alleged precautions because he was running swiftly towards the jeep. In other words, in the space of time between A.’s pulling the trigger and Tamimi being hit, Tamimi entered A.’s line of fire. The prosecutor noted that “while this is, indeed, an uncommon occurrence, the expert opinion proves that it is possible and, at the very least, creates reasonable doubt on this matter”.
In her response, the prosecutor noted that firing tear-gas canisters in a direct trajectory is not unlawful in itself and that, as A. checked that no one stood to be injured before he fired, he acted according to regulations. Given that he acted lawfully, there is no need to examine what part his commanders had in an unlawful shooting.
Flaws in the chief military prosecutor’s response
The prosecutor’s response is based on a distorted interpretation of the facts and of the open-fire regulations, with the aim of ensuring that no soldier or officer is held criminally liable for Tamimi’s death. For example:
- Did Sgt. A. see Tamimi before he fired? The prosecutor’s description of the circumstances surrounding the lethal shooting runs counter to evidence the MPIU itself found in its investigation. Contrary to the military expert’s opinion that at the time A. pulled the trigger his line of fire as seen through the narrow opening of the jeep’s door was clear and that Tamimi only entered it afterwards, A.’s visual field was not restricted to that narrow opening. A person with functioning vision could not have missed seeing, through the window of the jeep, a person running towards him from some ten meters away, on a clear day and with no obstructions along the way. The prosecutor chose to ignore these facts, favoring instead the peculiar version offered by the military expert, despite her acknowledgement that it is “an uncommon occurrence”.
Was the fatal shooting carried out according to regulations? Even if one accepts the unlikely scenario whereby A. could not have seen Tamimi when he pulled the trigger, that does not render the shooting lawful. According to the prosecutor’s logic, firing a tear-gas launcher in a direct trajectory is not illegal, albeit the shooter must ensure that no one will be hit by it. As Sgt. A. claims that he did ensure this, and as there is not sufficient evidence to contradict his claim, the prosecutor concluded that there was nothing unlawful about the shooting. Yet this interpretation of open-fire regulations renders them meaningless. According to the regulations, firing in a direct trajectory is an exception to the rule and therefore requires a series of steps to ensure that no one will be injured. Certainly, soldiers are forbidden to shoot “blind”, with a limited visual field. In the case at hand, not only did Sgt. A. not present any proof of taking the necessary precautions, he actually stated that his visual field was limited when he fired. The prosecutor accepted this claim at face value and required no further explanation, despite the fatal outcome. Therefore, it is not clear what precautions the MAG Corps thinks should be taken before firing in a direct trajectory, and what circumstances would disallow firing.
Was the shooting even warranted? In the appeal, B’Tselem explained why there is cause to believe that the soldiers who were in the jeep at the time of the shooting coordinated their accounts so as to provide justification for firing the tear-gas canister. All four soldiers recounted a detail that is refuted by photographs taken during the incident. According to the identical version given in all four statements, Sgt. A. opened the back door of the jeep so that the driver, who could not make a U-turn at that point, could drive in reverse without injuring anyone. One soldier explained the door was opened as the jeep’s rear camera was not working. They added that when A. opened the back door, the jeep came under a barrage of stones, and A. was hit by two in the chest. He therefore asked the driver to stop so he could fire tear-gas canisters to get the stone-throwers to move away. However, the entire portion of the jeep driving in reverse is well documented in photos, and they clearly show that the jeep doors were not opened while the jeep was reversing. While the chief military prosecutor did not rely on this version to deny the appeal, she did reject clear evidence on this matter on the grounds that it was impossible to unequivocally determine what had happened.
The prosecutor rejected several other points made in the appeal arguing that the shooting was unwarranted. The canister was fired from the last jeep in a convoy that had already turned back after completing its mission of clearing rocks placed as an obstacle on the road. According to the prosecutor, “even if it can be said that Sgt. A.’s shooting was unnecessary under the circumstances, it cannot be determined that it was unreasonable in light of the stones thrown at the jeep”. Yet this statement contradicts another she made in the letter, whereby A. intended to fire towards a group of demonstrators standing on terraces about 100 meters away from the jeep. Apparently, the chief military prosecutor’s choice of scenario is based on its cover-up potential: when the question was whether the soldier who fired intended to hit stone-throwers nearby, she chose the scenario whereby he was aiming further away; but when the question was whether the shooting was justified, she favored the scenario of stone-throwing very nearby. The prosecutor also ignored that fact that, inasmuch as the stone-throwers posed a threat supposedly justifying firing a tear-gas canister, this threat could have been completely overcome had the soldiers used a less injurious mode of action and simply closed the back door of their reinforced jeep.
Commander responsibility In the appeal, B’Tselem argued that the commanders were negligent in conveying the open-fire regulations concerning the use of tear-gas canister launchers and even encouraged unlawful, dangerous shooting. Therefore, they also bear criminal liability for killing Tamimi. The chief military prosecutor rejected this claim, stating that as the shooting was not unlawful, the commanders could not possibly be held criminally liable for it. However, commanders bear a greater responsibility than their subordinates. Even if the rank and file soldier out in the field is not criminally liable for a certain action, his commanders may be – on a variety of levels, including such matters as preparation for the mission, the orders given and managing the incident.
The way in which the MAG Corps and the MPIU handled this case demonstrates yet again the limitations of the law enforcement system: it is always geared toward isolated incidents rather than examining overarching systemic issues and policy, and centers on the rank and file soldiers rather than on the senior commanders. However, the military prosecution’s conduct in this case has far-reaching ramifications. First, the chief military prosecutor’s flexible interpretation of the facts when it comes to open-fire regulations and reasonable personal discretion in opening fire essentially voids these regulations of any meaning, thereby enabling future such instances of harm. Second, the decision to close the case without taking any action against any of the persons involved sends a clear message to other soldiers that they may act with nearly universal impunity in the Occupied Territories. Indeed, the killing of Mustafa Tamimi was far from the first incident in which the shooting of a tear-gas canister resulted in death or severe injury. By refraining, time and time again, from enforcing the military’s regulations on firing tear gas, the MAG Corps has contributed to the recurrence of such incidents.