Haaretz
Adar1 16, 5765
It may be assumed that the new chief of staff,
Dan Halutz, will be extra careful in anything he says now about harm being
caused to the civilian population. That includes on the ground and at sea
too. According to Israel Defense Forces figures, at least 29 Palestinians
not involved in any fighting have been killed in the last year. According
to the B'tselem human rights organization, that number may be as high as
111, of whom 33 were minors.
In his new office, Halutz may find
the recent Supreme Court decision that "a state of war" does not release
commanders from responsibility for caution regarding the lives and welfare
of civilians. The decision is related to an appeal submitted by Azam Daher
of Jenin, represented by his attorney, Hussein Abu Hussein of Umm al-Fahm.
The young Palestinian demanded that the state compensate him for serious
physical damage resulting from a bullet in the head during the first
intifada, in 1991.
His claim was debated in the courts until two
weeks ago, when the High Court of Justice rejected his petition, but
determined in principle that "during the execution of actions carried out
among a civilian population, both inside and beyond the Green Line, IDF
soldiers must exercise caution when using their weapons in regard to
civilians who could be injured."
Different
version
While this intifada is far more violent and deadly than
the previous one, the outgoing chief of staff, Moshe Ya'alon, maintained
that this should not justify the killing of a woman in the yard of her
home. He was referring to Shadin Abu Hijla, a 60-year-old peace activist
from the Rafidiya neighborhood of Nablus, who was hit by a volley of fire
that came in her direction on October 11, 2002, during an army operation
to impose a curfew. Her doctor husband and her son, a university lecturer,
were injured.
At first, it was unofficially claimed that Abu Hijla
unfortunately found herself in the path of a stray bullet, despite the
fact that the walls of her house were scarred by over a dozen bullets. Her
son, who lives in Chicago, and her daughter, a United Nations employee in
Jerusalem, established an Internet site on which they have reported all
the developments in the case. The affair went as far as the White House,
and from there, via the Prime Minister's Office in Jerusalem, reached
Ya'alon.
Last week, two and a half years after the event, the
Military Advocate General, Brigadier General Avihai Mandelblitt, decided
to bring Colonel Harel Knafo, who at the time was in command of the
Samaria Brigade, and the commander of the company that had been operating
in the area at the time before a disciplinary tribunal. The officers are
being charged with overstepping their authority to the point of
endangerment of life and welfare, "in light of the orders regarding the
rules of engagement that were given by them and which overstepped the
rules of engagement that applied in that area at the time."
Nevertheless, the two officers will not face criminal charges. A
senior army source explained that no evidence was found to definitively
tie the shooting carried out by the army force operating in the area to
the death of the woman, and it is not possible to connect the shell
casings collected on the site to the soldiers. The writ of defense
submitted by the State Prosecution last week to the court goes even
further: The state denies the claim regarding "shooting in the direction
of homes and/or the members of the family in violation of the rules of
engagement and/or with extreme lack of caution," and rejects any "causal
relationship" between the actions of the IDF soldiers and the shooting in
the direction of the Abu Hijla family.
This version is different
from the one the army presented to Haaretz in June 2003. At that time, it
was stated that Abu Hijla was hit by fire from IDF soldiers on patrol in
Nablus for the purpose of imposing a curfew. But the chief of staff had
forbidden shooting for the sole purpose of enforcing a curfew. Ya'alon
also instructed that the wall of a residence would no longer be viewed as
a "natural barrier against harm," that is, a barrier that seemingly
ensures the safety of passersby that happen to find themselves in the line
of fire.
Nevertheless, stated the report, "the soldiers acted in
accordance with the rules that were in force at that time," and
consequently, "it is our obligation, as commanders, to give the force our
full backing." As noted, in the new statement, which relates to the
decision made by the military advocate general to try the officers, it was
underscored that there is no evidence to show that those soldiers were the
ones that fired at Abu Hijla. The senior source explains the contradiction
with the new findings that emerged from the investigation by the Military
Police. The outgoing chief of staff stated at the time that he views the
conducting of an investigation into the affair "a serious slip-up" and he
ordered "that exhaustive and in-depth investigations be carried in the
context of which the army's desire and ability to reach the truth will be
proved." The news of the two officers being placed on disciplinary trial
for overstepping the rules of engagement and the shirking of
responsibility for the killing of her mother did not convince Lena, Shadin
Abu Hijla's daughter, that Ya'alon is leaving his successor an army whose
soldiers will think twice before shooting live fire at residential
neighborhoods.
Cease-fire orders
The Abu Hijla case
is indicative of the ambiguity and inconsistency that prevail regarding
the rules of engagement. Two months ago, MK Zahava Gal-On of Yahad asked
the defense minister to instruct the chief of staff to distribute a
booklet with the rules of engagement among IDF soldiers, as was the
practice during the first intifada. In response, the office of the chief
of staff revealed to Gal-On that the rules of engagement are not identical
in all the sectors in which the IDF is active on the West Bank and in the
Gaza Strip, and that they are changed from time to time.
Hundreds
of homes were destroyed and thousands of Palestinians left without a roof
over their heads before a special investigation team appointed by the
chief of staff examined the system of demolitions and concluded that the
system causes more damage than benefit.
If conditions of "a state
of war" do not stand the test of the High Court of Justice when unarmed
civilians are hurt, it will be all the more difficult to justify opening
fire on civilians during a cease-fire.
Olive
compensation
Another challenge waiting for Halutz involves the
protection of the life and property of the Palestinian population in the
territories from their Jewish neighbors. During Ya'alon's term, "hilltop
youth" and other hooligans cut down and burned hundreds of acres of olive
trees. In most cases, the story ends with an announcement by the police
that it has launched an investigation. The story of Fauzi Hussein of the
village of Inabus has a somewhat happier ending. In November 2003, MK
Efraim Sneh of the Labor Party visited Hussein's olive grove on slopes
near the settlement of Yitzhar, which had been destroyed. "The sight was
shocking," he recalls. "Hundreds of olive trees dozens and hundreds of
years old had been brutally cut down and mutilated. The Palestinian
farmer, who had lost his source of livelihood, stood helplessly staring at
his destroyed grove."
The police reported that the settlement had
refused to cooperate with the investigators and no one was charged. After
a year an a half, it was reported that the director-general of the defense
ministry, Amos Yaron, adopted the recommendation of the special committee
on damages in his ministry to compensate the owner of the grove to the
tune of NIS 150,000 (in according with an actuary's estimate). The
committee was careful to note in its decision that the compensation was
being given indulgently, not in strict accordance with the law, because
"the defense system was not responsible for the damage that was caused."
The decision stated that the committee recommended that the
director-general hold a discussion to prevent similar incidents in the
future. Sneh said that the problem would not be resolved until the illegal
outpost from which the hooligans had set out was dismantled.
Fauzi
Hussein received the news of the compensation with surprise and joy
mingled with disappointment and sorrow. Meanwhile, the settlers have
burned what remains of his grove and the young trees he planted. Besides,
he says, the damage adds up to more than NIS 1.5 million. However, he
said, "NIS 150,000 is better than nothing."