some good news (of sorts ...) Brian Avery, the ISM activist who was shot in the face by the Israeli military has succeeded in winning compensation from the Israeli state of NIS 600,000. Brian was shot in the face by Israeli Occupation Forces (IOF) in Jenin in April 2003.
His victory is welcome news and a small victory in that for once, the Israeli Occupation Forces and the Israeli state have been forced to be held accountable for their actions, at least in a small way.
However, while this is a small and welcome victory, we also should not forget that thousands of Palestinians have been injured or died at the hand of the IOF or forget the fact that more often then not the IOF and the Israeli state refuse to carry out any investigation of the actions of its soldiers or hold them accountable for illegal and brutal actions which result in the injury and deaths of Palestinian civilians. Instead, their cases have either been ignored, explained away as "accidents" or actively covered up by the Israeli military and the Zionist state, as repeated studies and investigations have revealed.
The reason Brian has been able to win this small victory is because he is a International.
As the 2005, Human Rights Watch's 2005 report: Promoting Impunity - The Israeli military's failure to investigate wrong doing notes "Incidents in which Israeli forces have killed Westerners are investigated more frequently than the deaths of Palestinian civilians" (see report at http://www.hrw.org/en/reports/2005/06/21/promoting-impunity )
While the Israeli military is reluctant to investigate wrong doing against Internationals (as Brian's case clearly reveals, as have the cases relating to the killing of other internationals such as Rachel Corrie, Tom Hurdnell and James Miller), investigation of Palestinians deaths are of the "lowest priority".
As the HRW report notes, rarely if ever, are the deaths of Palestinians civilians investigated by the Israeli military. The only reason that Internationals or their families have been able to force the Israeli state to investigate wrong doings against them is because as the report notes " the Israel Defense Forces (IDF) and Israeli government are highly sensitive to the media impact of such killings" and "because the victims' families have greater access to financial, media, and technical resources".
Unfortunately, Palestinian civilians, particular those in the Occupied West Bank do not have access to the same financial and media resources and their deaths are often ignored.
Below is an article from the Jerusalem Post on Brian's victory, as well as an article from the Palestine Chronicle (www.palestinechronicle.com )by Lasse J Schmidt, another international who was with Brian at the time of the shooting. Schmidt's article which was published on November 19, 2008, and outlines what happened in Jenin and the failure of the Israeli military to investigate and the systematic coverup that the Israeli military attempted to carry out.
in solidarity,
Kim
***
Nov 19, 2008 23:12 | Updated Nov 20, 2008 7:11
http://www.jpost.com/servlet/Satellite?cid=1226404781453&pagename=JPost%2FJPArticle%2FShowFull
State to compensate wounded activist
By DAN IZENBERG
Jerusalem Post
The state will pay human rights activist Brian Avery NIS 600,000 in damages in an out-of-court settlement reached Wednesday with his Israeli lawyer, Shlomo Lecker.
Avery, a member of the pro-Palestinian International Solidarity Movement (ISM), was shot in Jenin on April 5, 2003 and suffered severe facial wounds. He has undergone at least six operations so far and has more to go.
"The sum does not reflect the injuries Avery suffered," Lecker told The Jerusalem Post. "On the other hand, it's one of the very few times the state has awarded damages to anyone hurt by the IDF during the Second Intifada."
According to the description of events given by Avery and ISM volunteers who were with him, Avery and his flatmate, Jan Tobias Karrson, heard shooting near the apartment where they lived. They called other volunteers and went out to see if anyone needed medical help. By that time, it was dark and a curfew was in force.
According to their testimony, an IDF armored personnel carrier and a tank turned into the street and headed towards them. Avery was standing under a street light, wearing a red fluorescent jacket with the word "doctor" in English and Arabic on the front and back. He raised his hands to show the soldiers he was unarmed.
The vehicles continued to approach the group and the APC opened fire at a distance of a few dozen meters. Avery was hit in the face, his cheek was torn and his eye socket and jaw bones were smashed.
The army refused to order a military police investigation of the incident, claiming that a field probe had revealed that no soldiers on patrol in Jenin that night had reported an incident that resembled Avery's description.
Avery petitioned the High Court to order the army to conduct a military police investigation. Before the court handed down a final decision, the army changed its mind and agreed to do so. The investigation began 15 months ago.
In the meantime, Avery also decided to sue the state for damages in a civil action in Jerusalem District Court. He and three other ISM volunteers who witnessed the incident came to testify at the first hearing in September 2007.
The out-of-court agreement reached Wednesday between the plaintiff and the state has put an end to the lawsuit. Lecker told the Post his client had agreed to accept the settlement because the military police investigation had already been underway for 15 months with no sign of an end. Furthermore, the courts, including the Supreme Court, routinely ruled in favor of the state in similar lawsuits involving Palestinians or foreigners so that "the chances of an appropriate decision were small."
Lecker said Avery didn't have full medical insurance coverage in the US and that the money the state was willing to pay would help defray some of the costs of the operations he must still undergo.
*********
The Shooting of Brian Avery, and the Israeli Cover Up
By Lasse J. Schmidt
Palestine Chronicle
http://palestinechronicle.com/view_article_details.php?id=14404
Brian Avery in Jenin on April 4, the day before the shooting. In background, Israeli tank. Photo by Lasse Schmidt. From Palestine Chronicle http://www.palestinechronicle.com/view_article_details.php?id=14404
While the Israeli military's investigation into the 2003 shooting of the American human rights worker Brian Avery did little to nothing in actually investigating the near-fatal injury, it was highly effective in covering up Israeli soldiers' involvement, thereby sheltering them from criminal charges. That became clear some time ago when, in a Jerusalem court, none other than the soldier who pulled the trigger and his commander severely incriminated the official account of the shooting on critical points.
However, there appear to be no regrets within the military system. Today, eleven months later, the military has not yet made any official comments on these disclosures and at the policy level things are going from bad to worse.
"These internal, military investigations are designed to whitewash soldiers," says Brian Avery's Israeli lawyer, Michael Sfard, "and the military keeps finding more and more excuses to use them."
Chapter One – The Incident (Dusk on April 5, 2003)
"This is bad, really bad," I yelled.
"Call an ambulance, and tell them to hurry up," I screamed.
My friend was laying belly down on the street; a pool of blood was forming around his head. It was in the city of Jenin, the West Bank; Brian Avery had been hit in the face by a bullet from an Israeli machine gun.
Seconds earlier, we had been calmly waiting for the two military vehicles driving towards us, to come closer and pass us by. Suddenly, the night was shattered by the sound of machine gun fire. Without warning, the front vehicle had opened fire at us, a group of six international human rights workers. We were 25 meters in front of it, when it shot a burst of 20 to 25 bullets over three to four seconds.
For the first time since arriving in Jenin two months earlier, I ran for my life. After a few steps, I looked back and saw that Brian Avery had fallen to the ground where he had been standing with his hands in the air. I ran to him and kneeled down by his side. His hands were in front of his face.
"I am here, Brian," I said.
He did not respond. Not a sound, not a motion. Blood was streaming through his fingers. I put my hands on his back; he was breathing.
"Brian, I need to see your face."
He lifted his upper body, turned his face towards me and removed his hands. The whole left side of his face was an open wound. Flesh and skin were hanging in threads. A big piece of the cheek fluttered freely, only attached to his face by the ear. It was then, I yelled for my friends to call an ambulance.
April 5, 2003 was the second consecutive day of curfew in Jenin. By then, 24-year-old Brian Avery had been in the West Bank for nearly three months, volunteering as a human rights worker for the International Solidarity movement (ISM). The night before, he had stayed awake, co-driving with Palestinian ambulances to help them get through Israeli checkpoints. Leading up to the shooting, in the late afternoon, Brian Avery and his Swedish colleague, Tobias Carlsson, were on the street hoping their presence would ease the strain of the curfew on civilian residents. In the West Bank, when the Israeli army declares curfew, Palestinians can get shot for just walking down the street. Internationals, on the other hand, can move freely around and their presence has been shown to make Israeli soldiers act with less brutality towards the locals.
When Avery and Carlsson heard a deep rumbling, they stopped in a wide main street junction. Shortly after, from down the side street, they saw an armored personnel carrier (APC) and a tank come slowly driving up their way. By then, four other ISM volunteers had joined them - Ewa from England, Jens and Martin from Sweden and myself from Denmark. The street was empty except for the two vehicles and us. We stood still, facing the side street, four of us with our hands in the air. Brian Avery was wearing a bright red safety vest with reflective material across the chest.
Tobias Carlsson, who stood shoulder to shoulder with Brian Avery, described how bullets flew close by his head, and how his body was showered with shrapnel and dirt. Standing some three meters to the side of them, I saw sparks coming off the pavement about seven meters in front of them. It was bullets ricocheting off the asphalt.
I looked at Brian Avery's bloody face.
"I don't know what to do," I yelled and looked up for help.
"Use your T-shirt to hold on his wound," said Ewa.
I then saw the APC and the tank drive by, only a few meters away. Slowly, they made their way across the main street and up a smaller street on the other side. I took off my white t-shirt. It felt good to do something. A minute or two later, when the ambulance got there, it was colored deep red. The APC and the tank were long gone by then.
Brian Avery arrives home. Photo by Brooks de Wetter-Smith. From Electronic Intifada photo story by Brooks de Wetter-Smith and Michael Brown, 16 June 2003
http://electronicintifada.net/v2/article1607.shtml
Chapter Two – "A Direct Shot," Said the Surgeon
"No, it was a direct shot," said the surgeon.
After eight hours of life-saving surgery on Brian Avery's face, he was updating Ewa and me on our friend's condition. It was outside the Rambam Hospital in Haifa, Israel, and we felt the cool night breeze coming in from the Mediterranean Sea. We were relieved to learn that he was going to survive.
"However, it is impossible to predict how well he will recover," said the surgeon.
I told him about the sparks coming off the pavement some seven meters in front of Brian Avery. Had he been hit by a ricochet bullet? Or by shrapnel?
"No," the surgeon said.
"Shrapnel does not make this kind of damage and a ricochet bullet would have caused much greater damage than what your friend suffered. It is much worse being hit by a ricochet bullet, which per definition is deformed by its first meeting with whatever material, than by a direct shot."
The doctors at Rambam Hospital are among the finest experts in bullet-wounds in the world as the hospital due to its location close to the border to Lebanon. Most Israeli soldiers injured during fighting with their neighbors to the north are brought here for medical treatment.
"It was a direct shot. I saw a clear, rotating pattern from a spinning bullet making its way through his face. Only an intact bullet would do that."
He described how a heavy caliber bullet had entered just below the right eye and exited through the lower part of the left cheek. On its way, it splintered the nose bone, the upper pallet of the mouth, most teeth in the left side and the jawbone. Had he held his head a tiny bit differently, he would have died instantly.
Mary-Lou Leiser Smith, Coordinator of the Coalition for Peace with Justice, and Phil Jones, Coordinator for Peace 1st, welcome home Brian Avery. Photo by Brooks de Wetter-Smith. From Electronic Intifada photo story by Brooks de Wetter-Smith and Michael Brown, 16 June 2003 http://electronicintifada.net/v2/article1607.shtml
Chapter Three – Truth Revealed
Nearly five years later, in the early days of 2008, two of the soldiers from the APC testified in a court in Jerusalem. Here, both the machine gun operator, who pulled the trigger, and the APC commander, who gave the order to shot, contradicted the military's official account of the shooting on several critical points. In fact, by revealing several lies by the military investigator, they completely undermined the credibility of the very investigation that has successfully protected them from criminal charges all these years.
"Once again it is proven that these internal, military inquires are bogus," says Avery's Israeli lawyer, Michael Sfard.
"It is corruption," says Brian Avery.
According to the internal military investigation, which was finalized about two months after the shooting, "No findings indicate that Mr. Avery was injured by IDF [Israel Defense Forces] fire." Therefore the military closed the case - in spite of Brian Avery and five international eyewitnesses all insisting that the soldiers in the APC shot directly at them. Brian Avery later filed civil suit against the State of Israel, and it was at the latest of these hearings, the gunner and the commander testified.
The first contradiction is on what the machine gun was aimed at. The official military account is that it was aimed to the side of three unidentified individuals standing in front of the APC. Like that, the military claims, a blast of ten bullets was fired to warn the three individuals to leave the area.
However, in court the two soldiers explained that the machine gun was aimed straight forward, in the direction of the men in front of the APC. The commander said, he ordered the gunner to fire "at the road, between the Armored Personnel Carrier and the figures," purposely aiming short. The gunner said, "the shooting was directed towards three suspect figures."
The second contradiction is on whether or not the soldiers realized that someone was hit. This is relevant for two reasons. First, is it not true that one would be more likely to assist someone hit by mistake than someone hit on purpose? If so, the fact that the soldiers did not offer Brian Avery any assistance might tell us something about the intention behind the shooting. Second, if the military knew someone had been hit, their complete silence about the incident - up until the story developed in the media – might tell us about a deliberate intention to cover up the shooting.
The official military account maintains that all the three individuals - seemingly unharmed - ducked and ran away. However, in court the gunner explained, "I saw that one of the figures had fallen. I told this to A.S. [the APC commander]. Afterwards, I saw that the two other figures were leaning over the one that had fallen and assumed that someone may have been hit."
We also learned that there is a detailed report of the incident in the official military records of the Menashe Brigade, to which the soldiers belonged. The first note, written only an hour after the shooting, says, "an American was severely wounded in the face by a bullet. Brian Avery is in a hospital in Jenin. They want to evacuate him to Israel."
The third contradiction is on the quality of the military investigation that completely acquitted Israeli soldiers. For years, Brian Avery and Michael Sfard have argued that it was unprofessional and inadequate. Consistently, the military has responded with complete confidence in the investigation. When addressing the Israeli High Court of justice on this question, the Judge Advocate-General - who is the highest-ranking attorney in the military system - said, "a comprehensive and in-depth Operational Inquiry was carried out," and it, "was based on an interrogation of the combat soldiers."
However, in court the two soldiers said, they had never been questioned for any of the two military investigations. The first time they were questioned, were three and a half years after the shooting when the Military Police conducted a criminal investigation.
Having heard the soldiers' testimonies, Brian Avery's lawyers, Michael Sfard and Shlomo Lecker, wrote a letter to the Israeli Justice Ministry.
The contradictions that were uncovered in the civil proceedings are astonishing and raise questions that should be thoroughly looked into by the State Attorney General's office, it said.
Today, more than eleven months later, they still have not received an answer and the military has not yet publicly commented on the disclosures of two soldiers.
"This is Israel," says Brian Avery.
"I have learned that the Israeli justice system is highly discriminatory and that I, as someone critical of Israel's oppressive treatment of Palestinians, will not receive fair treatment. The military has been dragging its feet all along and they been lying over and over. Yet nothing has been done to stop it."
Chapter Four –Debriefings, Not Investigations
Up until eight years ago, regulations demanded that the Military Police open a criminal investigation whenever a civilian was killed or injured inside the Palestinian territories in an incident involving Israeli soldiers. However, the Judge Advocate-General (JAG) changed this practice in September 2000, shortly after the outbreak of the Second Intifada. The JAG, who is the military equivalent to the Attorney General, thought the Military Police overburdened by the many deaths and injuries during those days. During the first three weeks of the Intifada alone, Israeli soldiers killed 120 Palestinians and injured 4800.
The JAG then decided that civilian casualties would no longer routinely be subject to criminal investigations. That would happen only in "exceptional cases". Instead, the JAG instated a system of internal inquiries, conducted by a soldier of the same unit or brigade as the soldier(s) being investigated. In other words, when an Israeli soldier causes death or injury to a civilian, one of his closer colleagues investigates the incident.
"Clearly, this conflict of interest will affect the conduct, as well as the results, of the investigation," says B'Tselem, an Israeli human rights organization.
In official language, these internal investigations are called Operational Debriefings. However, they are also known as internal inquiry, internal investigation, operational inquiry, command inquiry, field investigations, etc. Typically, the investigating soldier, who has no training in the conduct of criminal investigations and no handbook or written down rules to guide him, will question only a few soldiers from the same brigade or unit the soldier(s) being investigated. The findings of the Operational Debriefing are forwarded to the JAG's office, where it is then decided whether or not to open police investigation.
"Soldiers' testimonies to B'Tselem indicate that the investigations conducted by the units in which they served were carried out negligently, and that in many cases no investigation was conducted at all," writes the Israeli organization.
"In reality, the investigating soldier is not looking for blame or crime. He is simply trying to find out if the military procedure could be more effective in the future. Therefore, it is not a criminal investigation and therefore, only in rare cases does he take testimony from anyone who is not a soldier such as civilian eyewitnesses," says Brian Avery's lawyer, Michael Sfard.
The policy change eight years ago led to a drastic fall in the number of Military Police investigations. During the first six and a half years after the outbreak of the Second Intifada, Israeli soldiers killed 4000 Palestinians and injured between 20,000 and 35,000. According to B'Tselem, between half and two-thirds of these, "did not take part in hostilities." According to the Palestinian Center for Human Rights (PCHR), three-quarters of them were "civilians". In that same period, the Israeli Military Police investigated 239 cases involving shooting by soldiers and filled indictment in 30 cases.
Even when accepting only the most conservative of these estimates, the figures show a clear - and troubling - picture. If half of the Palestinian casualties in that period were civilians, Israeli soldiers would have killed 2,000 and injured 10,000 innocent Palestinians. Of these, the military police would have investigated only one-in-fifty and would have filed criminal charges in only one-in-400. In other words, an Israeli soldier who had just caused injury or death to a civilian Palestinian, in that time period, would look at a 98 percent chance that the incident would not be investigated by the police and a 99.75 percent chance that no criminal charges would ever be made.
"Many investigations were opened only after human rights organizations, diplomats, or journalists had put pressure on the JAG's office to do so," claims B'Tselem.
The military has revealed only little about the investigation into the shooting of Brian Avery. However, we know that it was conducted by one man alone, Colonel Hefetz of the Menashe Brigade (the same brigade as the soldiers in the APC belonged to). We also know that he did not take testimony from any of the following key witnesses: the machine gun operator, the APC commander, the Rambam surgeon and the five international eyewitnesses.
It appears that the Colonel questioned only two people: Brian Avery and a section commander in the Menashe Brigade. However, Brian Avery's testimony was completely disregarded and the section commander questioned for the investigation was not present when Brian Avery was shot.
Another unknown is whether the Colonel had access to the official chronicles of his own brigade or not. It was here the soldiers themselves had made their own report in the hours after the shooting. Unfortunately, that is not public knowledge. What we do know, though, is that Colonel Hefetz's report on some quite significant points tells a very different story than this internal report. Points such as where the machine gun was pointed and that the soldiers knew one person had fallen to the ground.
"How legitimate is it to investigate your own acts of violence?" asks Brian Avery.
The more we learn about Colonel Hefetz's investigation, the more one question must come to mind: what were the findings of the Operational Debriefing based on?
"Avery's case highlights the problems when an untrained soldier conducts a field investigation," said Human Right Watch in its 2006 report entitled Promoting Impunity: The Israeli Military's Failure to Investigate Wrongdoing.
"This inquiry was so inadequate that I actually can't tell whether it was a deliberate cover up or a very unprofessional job," says Brian Avery's lawyer, Michael Sfard.
Chapter Five - Changing Position
The official account of what happened when Brian Avery was shot has changed several times over the five years gone by. First, the military tried to silence the incident. Then, as the story was receiving increased attention in the media, the military released a press release stating that Avery had been caught in crossfire between Israeli soldiers and Palestinian militants. Also, the military stated, it was most likely a Palestinian bullet that hit him.
Two months later, when Colonel Dan Hefetz finalized the Operational Debriefing, the military decided it had no knowledge of the incident whatsoever. In his report, the Colonel explained that the patrol in question [the APC and the tank] had been involved in four shooting incidents in Jenin that day and that …
… None of the events match that of Mr. Avery's injury ... No findings indicate that Mr. Avery was injured by IDF [Israel Defense Forces] … Medical assistance was not given because IDF force did not identify casualties at any stage … Despite in-depth inquiry, IDF did not reveal any conclusive findings regarding the circumstances of Mr. Avery's injury."
A third version was introduced before the High Court of Justice in late February 2005. Avery and Sfard petitioned the High Court to order a criminal investigation opened; their strongest argument being that Colonel Hefetz had not questioned any of the five international eyewitnesses.
By then the military had realized that on the day of the shooting, daylight savings time (also called summer time) had been introduced in Israel but not yet in the West Bank.
With that adjustment, the third incident involving the patrol suddenly matched quite well with what was reported by Brian Avery and the five witnesses. Now, the military admitted, it was no longer entirely impossible that Brian Avery had been hit by an Israeli bullet. However, the JAG still opposed any further investigation.
Avery's petition was rejected, but the High Court did order the military to reopen the Operational Debriefing in order to include the testimonies of the five international eyewitnesses and then reconsider the need for a criminal investigation.
"As a nation, the least we can do for a man who is sitting here with very serious wounds is to clarify what happened to him," said Justice Edmund Levy.
Nine months later, in November 2005, the military informed High Court that the five testimonies changed nothing. Despite all of them - four Scandinavians and one Briton - testifying that the machine gun on the Israeli APC fired at and injured Brian Avery, the military still found no clear indication that he had been hit by an Israeli bullet. Avery and Sfard appealed and a year later - in September 2006 - the case was once again on the agenda of the High Court.
"The army field investigation …was very thorough and independent. A criminal investigation would not add anything …The army thinks it's the way to investigate events that occur in war time," the military lawyer told the court on that occasion.
This argument did not satisfy the High Court Justices, who gave the military 45 days to reconsider its position. In November 2006, the military finally gave in:
"The Military Advocate-General [a.k.a. the JAG] believes there is no reason to change his predecessor's decision not to order a criminal investigation. Despite this … the Military Advocate-General has decided, above and beyond the call of duty, to order the Military Police to launch an investigation," said an official comment.
Chapter Six - Other Examples
Brian Avery's case is far from the only one where the Operational Debriefing has been proven highly deceitful. Two relatively recent examples are the killings of the two Britons Tom Hurndall and James Miller, who were both shot by Israeli soldiers in Rafah on the Gaza Strip, respectively five days and four weeks after Brian Avery.
Tom Hurndall worked in Gaza as a volunteer human rights worker with the International Solidarity Movement (ISM) and as a photojournalist. He was shot through the brain by a sniper and died after nine months in a coma. The Operational Debriefing found that Tom Hurndall was a legitimate target. He was dressed in camouflage clothing and shooting at an Israeli watchtower, said the report. Apparently, it meant little to the military investigator that this conclusion was contradicted by every eyewitness to the shooting - but the two soldiers in the tower - and by substantial photo material. The case was officially closed.
Tom Hurndall, Human Rights Activist, Age 22, Killed in 2004 by an Israeli military sniper in Rafah refugee camp, Occupied Gaza
However, Tom Hurndall's family wanted it differently. His father, who is a British lawyer, conducted his own, private investigation and came to quite different conclusions. First, Hurndall was wearing a bright orange safety jacket. Second, the young Briton was shot while helping little children out of the line of fire from the watchtower.
That put pressure on the Military Police, who then did their own investigation. Questioned by skilled police investigators, the sniper, Taysir Hayb, admitted making up the story about Tom Hurndall being dressed in camouflage clothing and shooting at the tower. He also admitted that Tom Hurndall had been assisting children out of the line of fire when hit. He claimed having aimed four inches from the Briton's head, but "he moved."
When sentenced to serve eight years in prison, Taysir Hayb said he had just followed orders. The military "fires freely in Rafah," he said. Also, he claimed having reported the incident to his commander.
"I told him that I did what I'm supposed to: The commander always says anyone who enters a firing zone must be taken out," Hayb said.
After the trial, Tom Hurndall's father said that Taysir Hayb was a scapegoat and that he was "simply doing what he had been told." Quoted in BBC News, Amnesty International said it was "almost entirely due to tireless campaigning by his family" that anyone had been brought to justice.
James Miller, Age 34, Film maker and Human Rights Activist, Killed in 2003 by an Israeli military sniper in Rafah refugee camp, Occupied Gaza
The award winning British cameraman, James Miller, was shot in the neck while walking with his film crew towards an Israeli APC at night. At first, the military claimed, he had been caught in crossfire between Israeli soldiers and Palestinian militants. This is clearly contradicted by video footage of the crew approaching the APC. Here, it is evident that the night was still besides from three shots fired from the APC. One member of the crew was carrying a white flag illuminated by a flashlight while others were shouting, "we are British journalists," when suddenly, without warning, a shot was fired. The film crew stopped, still shouting and waving the illuminated flag. After 10-15 seconds, a second shot was fired and James Miller fell to the ground. A few seconds later, a third shot hit the nearby porch from where the incident was being filmed. This bullet missed the cameraman's head with just a few centimeters.
According to the Daily Mail, "the soldier who shot Mr. Miller, Lieutenant Hib al-Heib, was cleared by an army inquiry and then promoted to the rank of Captain." However, due to pressure from the Miller family and the British Government, the Military Police opened an investigation into the shooting. Here it was found that Captain Hib al-Heib had violated the rules of engagement by opening fire at the film crew. Still, the military stated, it could not be established for certain that the lethal shot was fired by al-Heib.
In April 2006, an official British inquest jury in London held legal hearings on both the Miller and the Hurndall shooting. After listening to eyewitnesses and military experts and seeing photo and video evidence, the verdicts were clear: Tom Hurndall was "intentionally killed" and James Miller was "murdered".
In the spring of 2008, the State of Israel offered the Miller family a compensation of £ 1.75 million (US$ 3.5 million). Even though way less than the £ 3 million the family had asked for in the civil lawsuit filed in 2005, they took time to consider the offer. Therefore, the first court hearing, which was scheduled to take place in Israel few weeks later, was postponed. The offer also called for the British government to retreat from their request of having Israeli soldiers extradited for legal prosecution. In the end, however, the Israeli government never followed through on their offer. The legal proceedings are expected to begin the winter.
Rachel Corrie, Human Rights Activist, Age 23, Killed in 2003 when run over by an Israeli armoured bulldozer in Rafah refugee camp, Occupied Gaza
In its Promoting Impunity report, Human Rights Watch is very direct in its criticism of the quality of the Operational Debriefings into civilian casualties.
The frequent discrepancies between IDF accounts of civilian deaths and injuries, on the one hand, and video, medical, and eyewitness evidence on the other hand, is the result in part of the IDF's practice of asking soldiers to "investigate" other soldiers from the same unit or command, without seeking and weighing testimony of external witnesses.
So-called "operational investigations" … do not constitute proper investigations: they are wholly inadequate to determine whether there is evidence of a violation of human rights or humanitarian law, and they serve as a pretext for maintaining, incorrectly, that an investigation has taken place.
In the report, HRW divides incidents in two categories depending on the nationality of the victim. One category is called "lowest priority". This is when the victim is Palestinian. The other category is called "special treatment". This is when the victim is an international. If the investigations into the shootings of Brian Avery, Tom Hurndall and James Miller are first class treatment, just imagine what second-class is like.
In a more recent incident, an Israeli tank killed Reuters' cameraman, Fadel Shana'a, on April 16, 2008. The 24-year-old Palestinian and soundman Wafa abu Mayzed were documenting an Israeli incursion into a village in the eastern Gaza strip. The film crew was shelled by one of the two tanks they were filming. They were positioned on a hilltop about a mile away and had clear view of the two reporters, who both wore bulletproof vests with "PRESS" written in bold letters on the front. Their car - with "TV" and "Press" written on it in big letters - was parked behind them and a crowd of children and youth had gathering around it.
According to Human Rights Watch, evidence suggests that the two reporters were deliberately targeted. Also, there was no fighting in the area, HRW reports.
The first shell, which killed Fadel Shana'a and injured Wafa abu Mayzed, was a so-called flechette missile, which is both extremely lethal and very imprecise. It explodes in mid-air, releasing thousands of large, dart-like metal projectiles over a radius of 300 meters. Its use is widely condemned by human rights organizations, and the Israeli High Court of Justice has said, its use "is restricted to areas in which danger of innocent civilians are not actual." A later shell hit their car, which burst into flames and burnt out. At least three bystanders were killed and a dozen injured. According to Reuters, none of them militants.
From the very beginning, a long list of organizations such as Human Rights Watch, Amnesty International, Reuters, Reporters Without Borders, the Foreign Press Association and the Committee to Project Journalists were calling for an independent, impartial investigation. These calls only got stronger when the Operational Debriefing found that the "implicated soldiers did no wrong". In a letter to Reuters, Avihai Mandelblit, who is currently serving as Judge Advocate General, explained, "the conclusion of the tank crew and its superiors … was sound … The available evidence does not suggest misconduct or criminal misbehavior …I have therefore decided … that no further legal measures will be taken."
"We are deeply dismayed by these findings," stated the Committee to Protect Journalists. Israeli soldiers are given a "free hand to kill," said Reuters. The findings of the "so-called investigation" were "scandalous", said Amnesty International and continued: "the need for a fully independent and impartial investigation is beyond question."
Chapter Seven – "A Ricochet," Says the Military Police
In September of 2007, the Military Police flew Brian Avery, Ewa, Jens and I to Israel for a week of questioning. Also, along with two soldiers from the APC, we were brought to Jenin in the middle of the night to point out where it had happened. Apparently there was a discrepancy of a few dozen meters between our stories. That week, 10 to15 investigators worked overtime on the case, which caused Avery's lawyer, Michael Sfard, to be somewhat optimistic.
"It is unprecedented that they put this many resources into an investigation, he said.
Two months later, the Military Police reported their findings to the Military Prosecutors' office. This is the office where it is decided whether or not to indict any soldiers. Some months later, with still no news coming from the prosecutors office, "anonymous sources in the Military Advocate-General's office" revealed to Jerusalem Post that investigators had found that Avery's injury was caused by either shrapnel from an Israeli bullet or by a ricocheting Israeli bullet.
The bad news is that once again an official, Israeli investigation was finalized without anyone talking to the surgeon from the Rambam Hospital in Haifa. Remember, he was the bullet-wound-expert who did surgery on Brian Avery's face just two hours after the shooting and who stated that the wound was caused by a direct shot. How can it be that in five years no investigator has found it relevant to have him help answer the question, was Brian Avery the accidental victim of shrapnel or a ricochet bullet or the intentional victim of illegal violence or something in between?
For sure, the various investigators were informed of his testimony. When talking to Colonel Hefetz from a hospital bed in Haifa five years ago, Brian Avery mentioned it; I mentioned it in my written down affidavit, which was delivered to the military years ago; both Brian Avery and I mentioned it when questioned by the Military Police last September; I mentioned it when testifying in the civil proceedings in the Jerusalem court that same month.
Can it be that the surgeon has been avoided because his testimony contradicts what the military wants to prove with their investigations? When Michael Sfard in February 2008 realized that the Rambam surgeon had not been questioned, he contacted the chief military prosecutor and argued the importance of this testimony. Shortly after, Sfard received news that the Military Police had been asked by the prosecutors' office to do some more investigating. He is hopeful that this latest delay is related to finally talking to the surgeon. Today, nine months later, the investigation is - officially - still going on.
Chapter Eight – High Up, Cover Up
It would be convenient to assume that Brian Avery is awaiting justice because of incompetent investigators. Unfortunately, that is not the case. At the core of the problem lies a system within the Israeli military of sheltering its own from the law by covering up the truth. This system of deception, which is orchestrated from the very top, has very tangible consequences for millions of civilians living under the rule of the Israeli military.
"…a message [is transmitted] to the commanding officers and soldiers: Even if you breach the rules and harm innocent people, there is little, if any, chance that measures will be taken against you. This message leads to a trigger-happy attitude and to widespread injury and death among civilians in the Occupied Territories," maintains B'Tselem.
In the eight years since the JAG changed the way to investigate civilian deaths and injuries, Israeli soldiers have killed nearly five thousand and injured between ten and thirty thousand Palestinians. Of these, at least half were innocent civilians not involved in any kind of fighting.
How many times has a military investigator covered up murder, manslaughter or brutal violence? How many soldiers have been assisted in avoiding the law by the military holding up these Operational Debriefings as serious and thorough investigations? Hundreds? Thousands?
"There is a great feeling of impunity among Israeli soldiers," says Michael Sfard.
"No matter how many cases we win at the courts, the military keeps finding more and more excuses for using these Operational Debriefings instead of proper investigations. The military really wants this to be the way to conduct investigations when soldiers are involved in civilian death or injury."
-Lasse Jeppesen Schmidt earned his BA in journalism and MA in Peace and Conflict Studies. He lived and worked a year-and-a-half in the occupied Palestinian territories. He first visited Palestine as a volunteer human rights activist for the International Solidarity Movement (ISM). He visited last in September 2007, when called by the military police investigators to give testimony in the Avery shooting. He is a native of Denmark, but currently residing in the U.S. with his American wife and their son. Mr. Schmidt contributed this article to PalestineChronicle.com.
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