Maureen Clare Murphy
The Electronic Intifada / November 26, 2020
Only one Israeli soldier has been indicted over the use of live fire against unarmed protesters during the Great March of Return demonstrations held along Gaza’s eastern boundary.
Israeli forces killed more than 215 Palestinians during those protests, which began in late March 2018 and were suspended last December.
The vast majority of those fatalities are still under preliminary review by the Israeli military’s self-investigation apparatus, according to a new report by the Israeli human rights group Yesh Din.
Israel’s failure to earnestly investigate alleged violations committed by its forces may leave it liable to prosecution by the International Criminal Court.
In addition to those killed by Israeli snipers during the protests, nearly 10,000 Palestinians were wounded by live ammunition and survived. Some of the injured are permanently paralyzed or have had limbs amputated as a result.
After filing freedom of information requests, Yesh Din learned that not a single incident of live fire that didn’t result in death has been reviewed by the military’s self-investigation apparatus.
Some 20,000 more Palestinians were injured during the protests by means other than live fire, such as rubber-coated metal bullets and tear gas.
Bending the law
The Israeli military permitted the use of potentially lethal force against Gaza protesters who soldiers deemed as “primary instigators.”
Meanwhile, Israel invented a baseless new paradigm of international law in which it treats the Great March of Return as governed by the laws of warfare, claiming that the civilian mass protests were orchestrated by Hamas, the political and resistance organization governing Gaza’s interior.
“As a rule, the [Israeli] military’s own directives set out that in any case of a Palestinian death outside of combat activity, a criminal investigation of the incident must be opened immediately,” Yesh Din explains in its report.
By categorizing the Great March of Return as part of its armed conflict with Hamas, even though demonstrators were unarmed, Israel created a separate legal framework for handling complaints related to the protests.
These complaints have not come under the review of Israel’s military advocate general, as is the typical process concerning Palestinian fatalities and injuries. Instead, they are brought under a separate “fact-finding” mechanism.
According to Yesh Din, that mechanism “appears to be another step the military has taken to counter criticism against it and bring Israel’s internal inquiry and investigation systems in line with the rules of international law.”
But in practice, the “fact-finding” mechanism only serves to prevent justice for Great March of Return victims.
“There is currently no publicly available information about the [fact-finding] mechanism’s inquiries or what guidelines it follows,” Yesh Din states.
The human rights group deduced from figures provided by the military that the fact-finding mechanism was limited to gathering information on fatalities.
The failure to consider non-fatal injuries, Yesh Din states, “points to a deep flaw in law enforcement – where inquiries and investigations are conducted according to the outcome of the incident rather than its circumstances.”
The end result – death or survival – “has no bearing on the legality of the offending soldiers’ conduct,” the rights group adds.
Yesh Din also faults the “sluggishness” of the fact-finding mechanism, noting that many of the soldiers responsible for killing and injuring Palestinians during the Great March of Return are likely no longer in active service.
It would be difficult for authorities to gather evidence “to support a serious investigation” so long after the incidents occurred, the group adds.
“If Israel’s interest is to impede genuine, effective investigations into the killing and injury of hundreds of protesters, it appears that the clock is working in its favor,” Yesh Din states.
Only 14 of the Great March of Return fatalities reviewed by the fact-finding mechanism were referred on to the Israeli military advocate general for investigation (three additional cases were investigated independently by the latter).
Only one of those investigations, concerning the killing of 14-year-old Uthman Rami Hillis, led to an indictment.
The indicted soldier was accused of firing at the boy “without clearance from his commander and in defiance of the rules of engagement and the directives given to the soldiers,” Yesh Din explains.
As part of a plea bargain, the soldier was charged with a disciplinary offense – the military’s equivalent of community service and a demotion. Reference to Hillis’ killing was removed from the indictment.
The Israeli military advocate general claimed that its investigation “did not uncover evidence meeting the required threshold in criminal proceedings to establish a causal relation between the soldier’s fire and the harm to the rioter.”
In other words, the Israeli military refused to take responsibility for the boy’s killing.
The soldier who fired at Hillis, Yesh Din states, “was sentenced to 30 days of military work, a suspended prison sentence and a demotion to the rank of private.”
As a whole, Israel’s self-investigation apparatuses may appear to go through the motions of justice but their true purpose is to shield soldiers and their commanders from accountability.
Yesh Din acknowledges that “criminal investigations against soldiers suspected of harming Palestinians are opened only in the most severe cases.”
Rarely are soldiers ever prosecuted for harming Palestinians. The handful who are convicted receive extremely lenient sentences.
The human rights group B’Tselem stopped cooperating with the Israeli military’s self-investigation mechanisms in 2016, saying that the system “serves as a fig leaf for the occupation.”
Despite the inefficacy of Israel’s self-investigation apparatuses, they may make war crimes difficult to prosecute.
Fatou Bensouda, the ICC chief prosecutor, warned Israeli leaders that they were liable to prosecution for ordering sniper fire against protesters in Gaza soon after the Great March of Return demonstrations began.
Last December, after a preliminary examination into the situation in Palestine that began in 2015, Bensouda recommended that the court open war crimes investigations in the West Bank and Gaza Strip.
She cited the Israeli military’s use of live fire against Gaza protesters as an example of an investigation within her scope.
That body’s preliminary procedures also inch along at a snail’s pace.
While recommending that war crimes investigations move forward, Bensouda asked a panel of judges for a ruling on the scope of court jurisdiction in the West Bank and Gaza Strip.
Nearly a year later, no such ruling has been made.
Maureen Clare Murphy is an associate editor of The Electronic Intifada and lives in Chicago