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."
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.
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.
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."