Israel’s military prosecution presents: How to whittle away an investigation

A member of Israel’s security forces shot a bullet at Ashraf Muhammad Jamal Tufiq’s foot in 2009. The IDF’s investigatory bodies did their best to make sure they will never find the shooter.

By Yesh Din, written by Yossi Gurvitz

On Friday, January 16, 2009, someone – a member of the Israeli security forces – fired a bullet into the foot of Ashraf Muhammad Jamal Tufiq, from the West Bank village Bil’in. According to Tufiq, the shooting occurred without any provocation and came after the weekly demonstration ended. As a result of his injury, Tufiq had to undergo an operation and had to give up on being a professional a soccer player. On November 4, 2013, the prosecution of the Office of the Military Advocate for Operational Affairs closed the case, reaching the conclusion that it contains no evidence whatsoever.

Hold on, you say, you’ve made an error. You’re saying the shooting took place on January 2009, but the case closed in November 2013. That’s more than four years between one event and another. You must have made a mistake.

Israeli security forces arrive at a tree-planting demonstration marking Land Day in the West Bank village of Bil’in, March 27, 2014. (Photo by Yotam Ronen/
Israeli security forces arrive at a tree-planting demonstration marking Land Day in the West Bank village of Bil’in, March 27, 2014. (Photo by Yotam Ronen/

No mistake. This is the heart of the issue. I’ll present the chronology of events based on the work of Adv. Emily Schaeffer Omer-Man. But before we start, we should note that Tufiq’s testimony is not bereft of problems, and that at certain points he even contradicts himself. The fact, however, is that he was shot and became a cripple. A quick investigation might have found out what actually took place. But, as we can see from the flow of events below, that did not exactly happen.

January 16, 2009 – A Friday demonstration in Bil’in, and it’s more violent than usual. The soldier in question will later remember the events because, unusually, another soldier was wounded. After the demonstration, a member of the security forces shoots Tufiq. He is taken to a hospital and, with our aid, submits a notice (the equivalent of a complaint to the police) to the Military Police Criminal Investigation Division (MPCID).

May 24, 2009 – More than four months after the incident, the Jerusalem branch of the MPCID confirm they have received the notice.

July 7, 2009 – The Operational Affairs’ prosecution informs us that it is dealing with the case.

August 4, 2009 – The Operational Affairs’ prosecution informs us that it has frozen the investigation in order to “clarify the issue with military officials.” This, in effect, means the investigation is delayed while the case is referred to an operation debriefing.

February 14, 2010 – Thirteen months after the incident: the Operational Affairs’ prosecution says the case is under consideration.

October 14, 2010 – Twenty-one months after the incident: the Operational Affairs’ prosecution says the case is under consideration.

April 14, 2011 – Two years and three months (!) after the incident: the Operational Affairs’ prosecution says the case is under consideration.

November 29, 2011 – Two years and 10 months after the incident: reports that Atlantis has risen from the sea, fish are climbing trees, cats and dogs have foresworn their ancient enmity, and MPCID has re-opened its investigation.

Before a weekly demonstration against the wall, Sabiha Abu Rahmah weeps at the memorial garden planted on the spot where her son, Bassem, in a 2009 protest, was shot and killed with a high-velocity tear gas grenade fired by Israeli soldiers, Bil'in, West Bank, October 4, 2013.
Before a weekly demonstration against the wall, Sabiha Abu Rahmah weeps at the memorial garden planted on the spot where her son Bassem was shot and killed with a high-velocity tear gas grenade fired by Israeli soldiers, Bil’in, West Bank, October 4, 2013.

Which is nice, but there are two main problems with opening an investigation so late in the game:

1. The chances of finding evidence is nil. There is no crime scene to speak of, particularly since the incident took place before the IDF has deigned to obey the ruling of the High Court of Justice and moved the separation fence in Bil’in. Also, human memory blurs rapidly.

2. Even if there was evidence, once a soldier has been discharged from the army for six months (or a year, in extreme cases) he or she is no longer under the jurisdiction of military law. Given that mandatory military service in the IDF lasts for three years for men, even if the MPCID had found the culprit on the day in which it began its investigation (which, naturally, did not happen) chances are that they would not have been able to bring him to trial. Only the Attorney General can decide to do so – which hardly ever happens in practice.

And after this methodical break, back to our chronicle:

December 8, 2011 – MPCID Jerusalem contacts us and wants to set up an interview with the victim. After a series of delays – including one case in which Tufiq comes to a meeting set up by MPCID and finds no one who can take his statement – MPCID finally takes a statement from him on December 30, 2012, i.e. two months after the resurrection of the investigation.

February 9, 2012 – The MPCID interviews the operations officer of the battalion involved in the incident. He says he doesn’t remember anything, which sounds perfectly plausible. After all, this was a negligent incident from a military point of view, not to mention the fact that more than three years have passed since it happened.

February 20, 2012 – The MPCID receives the translation of the medical reports regarding Tufiq’s wound, which the Operational Affairs’ prosecution could easily have obtained some three years earlier. But let’s not be petty.

March 11, 2012 – Three weeks later, the MPCID interviews the operations officer once again. He says he doesn’t even remember which forces were involved in the incident. Since, well, three years have passed, and it wasn’t exactly the Battle of the Bulge.

8.3.12 – The MPCID interviews the battalion commander. He claims there was no shooting during the incident, much less live shooting. He adds that it is inconceivable his patrol troops would lie on this issue.

March 11, 2012 – The MPCID interviews the battalion commander again, who says that given the time that has gone by, his outfit no longer has any documents relating to the incident.

March 13, 2012 – The MPCID tries, without success, to gain access to the operational logs. Given the passage of time, they were not kept.

July 25, 2012 – More than four months after the last investigative action took place, the MPCID interviews another officer – this time a major. He does not think there was live fire.

July 31, 2012 – The MPCID investigators interview another officer, a Lt. Colonel. He does not even remember over whom he presided at the time. After all, this was more than three years since the incident.

August 1, 2012 – After a delay of three years and seven months, the MPCID decides to interrogate the platoon commander under legal warning. He remembers the soldier who was wounded, thinks there may have been a Ruger bullet fired but is not certain and remembers that there was a report about a wounded Palestinian when he got back to base. The officers interviewed earlier did not remember this detail. One should note that his testimony, where he says a live bullet may have been fired, contradicts the testimony of his battalion commander. And since he was closer to the incident, we should give more weight to his testimony.

October 28, 2012 – Nearly three months after the latest investigation, the MPCID interrogates the wounded soldier. He us convinced there was no live fire, not by him at any rate. He claims that he kept asking for permission to use live fire. His request was denied and he used rubber bullets instead.

November 11, 2012 – The MPCID interrogates another soldier in the section under warning. The soldier also remembers that they fired rubber bullets – not live ones.

November 16, 2012 – The MPCID interrogates the sergeant major of the force under warning. He denies any sort of shooting, saying the forces used only tear gas grenades. This testimony is contradicted by all the other testimonies.

December 18, 2012 – The MPCID interrogates yet another soldier, who says they fired rubber bullets and believes there was no live fire.

December 18, 2012 – The MPCID interviews a medical officer, a Lt. Colonel, who says there is no point in interviewing Border Policemen, since their outfit carries out such actions on a weekly basis, and thus they won’t remember a thing. He seems to be right; there is no evidence of MPCID trying to interview Border Policemen.

November 4, 2013 – We’ve come to the end of this comedy of errors: nearly a year after the last investigation, and four years and 10 months after Tufiq was shot, the Operational Affairs’ prosecution closes case, citing lack of evidence.

So what had we here? A failure from beginning to end. The investigation began almost three years after the incident, and from the start it was doubtful whether it ever stood a chance. Too much time had passed.

But there is an even more important point to make here. Almost all the witnesses contradict each other. The battalion commander says only rubber bullets were fired – but the platoon commander thinks there may have been a Ruger bullet fired. The sergeant major thinks only gas was used, while all other witnesses report the use of rubber bullets. The medical documents speak clearly of a live bullet. Did someone pull the Beitunia trick by firing a live bullet and masquerading as if it were a rubber bullet? We’ll never know.

The IDF keeps telling us it needs to hold an operational debriefing – that it needs its soldiers to tell the truth during the debriefing. Therefore, it claims, the debriefing must not be turned over to MPCID as evidence. But note what happened: after almost three years wasted by the Operational Affairs’ prosecution, nobody has a clue as to what happened. The officers cannot even remember their order of battle. No one is sure about what kind of ammunition was actually used. There is a vague idea that a Border Police force in the area of operations, but no one knows what it actually did. The operational logs no longer exist.

If this the situation, what is the purpose of the operational debriefing? Ostensibly it is supposed to provide the forces with insight into the events so they can improve their tactics. But if no one remembers what was said in it, what is it really good for? And why can’t the MPCID investigation run parallel to it, rather than months after?

The Turkel Commission, which dealt with the behavior of the military investigative bodies, recommended that an investigation ought to be swift. Two years before Turkel’s recommendations, the Judge Advocate General decided to hold MPCID investigations (after an appeal by B’Tselem and ICRI) – in cases of death only – in parallel to the operational debriefing. We have some indications that MPCID is beginning to internalize and implement the Turkel Commission recommendations, with an emphasis on speedier investigations. But in the meantime, the investigation of the shooting of Ashraf Muhammad Jamal Tufiq stands as Exhibit A that the IDF doesn’t know how and perhaps doesn’t want to investigate itself.

Written by Yossi Gurvitz in his capacity as a blogger for Yesh Din, Volunteers for Human Rights. A version of this post was first published on Yesh Din’s blog.

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