The army must internalize the gravity of the Ni’lin shooting incident

27 January 2011

Today, the special military court sentenced Lt. Col. Omri Borberg and Staff Sergeant Leonardo Corea, who were convicted in the case of the shooting at a Palestinian detainee in the West Bank village of Ni'lin exposed by B'Tselem in 2008. The judges sentenced Borberg, who was convicted of attempted threats and conduct unbecoming an officer, to a suspended jail sentence and determined that he will not be demoted. The court also recommended that he not be promoted for two years, and ruled that he will be forbidden from serving as a commander for one year. Corea was sentenced to demotion from the rank of staff sergeant to the rank of private.

B'Tselem responded to the sentencing by saying it hopes that the military will internalize the court's ruling that the Ni'lin shooting was a grave and disgraceful event. At the same time, B'Tselem noted the gap between the court's condemnation of the act and the lenient sentence it issued. B'Tselem reiterated that far more severe cases of harm to Palestinians by the Israeli security forces have been exposed in recent years, yet the military justice system chose to ignore them. This policy of impunity, employed by the Military Advocate General's office for many years, has created the climate that enabled the Ni'lin shooting, as well as many other cases, to take place. B'Tselem further noted that the court rejected the claim that the video footage of the event had been falsified. The organization emphasized that if Israel's image was harmed, as some have claimed, it is due to the grave acts captured on film, and not to the publication of the film.

Background

Exposure of the incident

On 20 July 2008, B'Tselem published video footage the organization had received of a soldier firing a rubber-coated steel bullet, from extremely short range, at a handcuffed and blindfolded Palestinian detainee. In the footage, the soldier is seen firing the shot while his battalion commander holds the detainee's arm. Several members of the security forces were present at the scene.

The incident took place on 7 July 2008 in the West Bank village of Ni'lin. A Palestinian demonstrator, Ashraf Abu-Rahma, 27, was detained by soldiers, who held him handcuffed and blindfolded for about thirty minutes and beat him, according to Abu Rahma's testimony. Afterwards, a group of soldiers and border policemen led him to an army jeep. At that point, the footage shows a soldier aim his rifle at Abu Rahma's legs from about a meter and a half away and fire a rubber-coated steel bullet. Abu Rahma was injured in his left toe. He stated that he received treatment from an army medic and was then released by the soldiers.

A young girl from the village filmed the incident from a window in her house, and a copy of the tape was transferred to B'Tselem. The organization immediately sent a copy to the Military Police Investigation Unit, demanding that an investigation be opened immediately and that the soldier be brought to justice. B'Tselem also demanded an investigation into the involvement of the battalion commander, who was holding the detainee when the soldier under his command fired. B'Tselem stressed that members of the security forces are obligated to report unlawful acts and that a senior officer's failure to do so is particularly grave.

The Judge Advocate General's Office (JAG)

It was only after the footage was broadcast on a national news channel that the Military Police opened an investigation and arrested Staff Sergeant Leonardo Corea, who fired the shot. Until then, the army chose not to conduct a Military Police investigation and settled for an operational debriefing. The findings of the debriefing were sent to the desk of the Judea and Samaria (West Bank) Division Commander, who failed both to inform the Military Police or the JAG's Office, and to take any measures against the soldier or the battalion commander, Lt. Col. Omri Borberg.

During the investigation, Borberg and Corea presented contradictory versions of the incident. Corea claimed that his commander had ordered him to shoot Abu Rahma, while the latter claimed that his order had been only to “frighten” the detainee.

When the investigation was concluded, the JAG's office decided to charge the two with “unbecoming conduct”.

Petition to Israel's High Court of Justice

On 19 August 2008, Ashraf Abu Rahma, together with the Israeli human rights organizations B'Tselem, the Association for Civil Rights in Israel, the Public Committee Against Torture in Israel, and Yesh Din, appealed to the High Court of Justice against the Judge Advocate General's decision. The petitioners claimed that the charge did not reflect the severity of the offense – ostensibly threats to intentionally harm a person, mental abuse, and use of a weapon against a handcuffed, helpless person who is under the custody of the offenders.

As a result of the petition, the High Court ordered the JAG's office to reconsider the charge pressed against Borberg and Corea, and to notify the court of its decision within forty days.

On 4 November 2008, Judge Advocate General Brig. Gen. Avichai Mandelblit, informed the High Court that he had decided to not to change the indictment.

On 1 July 2009, the High Court ruled that “the military prosecution's decision to charge the battalion commander and the soldier with unbecoming conduct will be cancelled, as it is extremely unreasonable.” The court order the JAG to change the charges “so that the offenses each of them is charged with will adequately reflect the facts and the nature of the acts described in the indictment.”
Following the ruling, the indictment was changed: Lt. Col. Borberg was charged with threats and conduct unbecoming an officer, and Staff Sergeant Corea was charged with unlawful use of a weapon and unbecoming conduct.

The trial

On 15 July 2010, the special military court convicted Lt. Col. Borberg, former commander of armored battalion 71, of attempted threats and Staff Sergeant Corea of unlawful use of firearms. Both were also convicted of conduct unbecoming. These offenses carry a maximum sentence of three years' imprisonment and a criminal record.

In the judgment, the panel of three judges wrote that Borberg intended to make Ashraf Abu Rahma, the bound detainee, think that a soldier was going to shoot him. ”The accused even led his subordinate astray by causing him to shoot towards the blindfolded, bound detainee.” The judges emphasized that combat is not an excuse that can justify criminal acts. “The battalion commander's actions did not take place during a demonstration but rather in an area under complete Israeli control, and the threat of shooting was not made in the course of combat or police action. […] It constitutes a serious deviation from fundamental values and a significant erosion of the image of the IDF, of its commanders and of its soldiers."

During the arguments in court on the penalty to be imposed, Lt. Col. Borberg's counsel contended that the video tape documenting the incident had been tampered with. Following this claim, B'Tselem helped to mediate between the military prosecution and the family, and the family provided the original tape to the Military Police Investigation Unit. It was then handed over to the Forensics Department of the Israel Police.

The examination by the Forensics Department determined that all the segments of the tape were genuine. The department did not find any sign of editing, photo processing, or intervention of any kind. These findings were presented in the opinion of Superintendent Alan Tchaikovsky, head of the digital evidence division in the Forensics Department, submitted to the military court on 6 January 2011.

As stated above, on 27 Jan. 2011, the special military court sentenced Lt. Col. Borberg to a suspended jail sentence and determined that he will not be demoted. The court also recommended that he not be promoted for two years, and ruled that he will be forbidden from serving as a commander for one year. Corea was sentenced to demotion from the rank of staff sergeant to the rank of private.

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Open-Fire Policy

Soldiers unjustifiably shoot “Two-Two” bullets at Palestinian and injure him at Bil’in protest

On Friday, 1 April 2022, at around 1:30 P.M., a procession left the village of Bil'in, west of Ramallah, to mark Land Day, which took place two days earlier. The 150 or so participants, Palestinians and Israeli and international activists, marched about a kilometer and stopped around 100 meters from the Separation Barrier. The protesters waved flags and chanted slogans against the occupation. At least three soldiers were standing on the other side of the barrier, on an elevated, armored military post up against the fence. About 10 minutes later, some 10 young Palestinians, including ‘Ahed Tamimi (21) and her cousin Ousamah Tamimi (26), went towards the barrier and stopped about two meters away. The Palestinians swore at the soldiers, and some of them threw stones at them and at the barrier. The soldiers in the post fired tear gas canisters and hurled stun grenades at them. A military jeep drove out through a gate in the barrier, and soldiers sitting in it fired dozens of tear gas canisters. To escape the clouds of gas, ‘Ahed Tamimi entered the patrol road that runs parallel to the barrier, which was about 10 meters away from the barrier. After the soldiers fired a 0.22-inch caliber bullet (“Two-Two”), her cousin Ousamah ran towards her. At that point, one of the soldiers in the post fired two more “Two-Two” bullets, hitting Ousamah in the foot and arm. Paramedics who were waiting nearby gave him first aid, and he was driven in a private car to a Red Crescent ambulance that took him to the Palestine Medical Complex in Ramallah. The doctors found that both bullets had entered and exited his body. He was treated and discharged after a few hours. The shooting reflects Israel's open-fire policy in the Occupied Territories of using live ammunition – including 0.22-inch bullets – not only as a last resort, and not only for lack of choice and when soldiers are in mortal danger. Instead, security forces shoot protesters even when they are not endangering anyone's life. This unlawful policy, which is based on blatant disregard for Palestinians' lives, bodies and wellbeing, is fully backed by the government and by senior military officials. It follows that in this case, too, no one will be held accountable. In a testimony she gave B'Tselem field researcher Iyad Hadad on 1 April 2022, ‘Ahed Tamimi (21), a resident of a-Nabi Saleh, described the shooting during the protest: We got to the area of the Separation Barrier at 2:00 P.M. and saw the soldiers already waiting for us behind the barrier. I saw three soldiers standing in the armored post by the fence. Two had tear-gas and “rubber-bullet” launchers, and between them stood a sniper with a “Two-Two” rifle (Ruger). About 10 minutes after we got there, I went with a group of about 10 protesters up to two meters from the barrier, to provoke the soldiers. Some of the guys threw stones. I heard one of the soldiers call my name. I don't know how he recognized me. He said, "Tamimi, go away." The guys shouted and swore at the soldiers, and the soldiers threw some stun grenades to scare them and drive them away. Then they fired some more stun grenades, which landed far from us. We moved away because of the smell of the gas. Just then, a military jeep drove in through a gate in the barrier, and the soldiers in it fired a massive burst of tear gas canisters, dozens all at once. The gas spread over a large area and reached the crowd of protesters, who were more than 100 meters away from the barrier. I tried to get away from the gas and went along the dirt road the runs along the barrier. I was about 10 meters away from the soldiers when suddenly, the sniper fired a “Two-Two” bullet. I panicked and didn't know what to do. The guys and the journalists shouted at me, "Run away, run away, he's shooting at you." My cousin, Ousamah Tamimi, ran over to me and tried to get me out of the line of fire. While we were both trying to get away, the shooting of the “Two-Twos” resumed. I heard several shots. It's hard to tell exactly how many because “Two-Two” shots are muffled. One of the bullets hit Ousamah in the foot and he fell down. Then another bullet hit him in the right arm. He got up quickly and we both tried to run away. We ran for about 30 meters, and then Ousamah fell and couldn't get up. Some paramedics came over and gave him first aid, and then he was driven in a civilian car to hospital in Ramallah. After the shooting, the demonstration ended and everyone left. Later on, we went to see Ousamah in hospital. It turned his injuries didn't require hospitalization. The bullets that hit him went in and out. He was treated and discharged. God spared him, and he was saved by a miracle. I'm still in shock over what happened. In a testimony he gave B'Tselem field researcher Iyad Hadad on 3 April 2022, Ousamah Tamimi (26), a resident of a-Nabi Saleh, described being shot: The march reached its destination at around 2:00 P.M., and all the protesters stopped about 100 meters away from the barrier. Some officials made speeches against the occupation and the settlements. Three soldiers were standing in an armored post on the other side of the barrier, aiming rifles at the protesters. About 10 minutes after the speeches began, I was in a group of about 10 young guys who went towards the barrier. Some of us swore and shouted at the soldiers to provoke them. The soldiers fired tear gas canisters and threw stun grenades to disperse us. Some of the guys threw stones at the soldiers, who were in the armored post, and then they fired some tear gas canisters at us, so we moved away a bit. When the tear gas cleared again, we went towards the barrier, and then the soldiers threw a lot of tear gas canisters. Some of the guys backed off and ran away because of the gas. I ran with four other guys towards the barrier, because the wind was blowing the gas away from it. We were right up against the barrier because we thought the soldiers couldn't shoot at us at that angle. I saw my cousin ‘Ahed standing on the dirt road that runs along the fence. I heard one “Two-Two” shot and then I saw ‘Ahed running away. I ran over to her because I thought she'd been hit. She was about five meters away from me. When I got to her, she said she wasn't hurt. We tried to get out of the soldiers' firing range and the dirt road together, because we thought they were aiming at us. The soldiers were 20 meters away from us, at most. Suddenly, I felt a “Two-Two” fired by one of the soldiers hit me in the left heel. I tripped and fell. Meanwhile, the soldiers fired another “Two-Two” bullet that entered my right arm from behind and came out of the front. I got up and tried to run a few dozen meters, but fell again. A crew of paramedics ran over to me and gave me first aid. They bandaged my wounds, and someone took me to a private car that was waiting nearby and drove me towards Ramallah. On the way, near Bitunya, I was transferred to an ambulance that took me to the Palestine Medical Complex in Ramallah. I was put in the ER, examined and X-rayed. I was also given an IV and painkillers. The X-rays showed that the two bullets didn't cause any fractures and had gone in and out and didn't stay in my body. I was released two hours later for further rest at home.

29 May 2022

No Accountability

2021 was the deadliest year since 2014, Israel killed 319 Palestinians in oPt; house demolitions: 5-year record, 895 Palestinians lost their homes

Unwilling and Unable Israel’s Whitewashed Investigations of the Great March of Return Protests In a joint report published today, the Palestinian Centre for Human rights (PCHR) and B’Tselem analyze the investigations Israel claims to have conducted following the Great March of Return protests, which were held for about a year and a half in the Gaza Strip as of March 2018. The report shows how Israel worked to whitewash the truth and protect the political and military officials responsible – instead of taking action against the individuals who devised and implemented the unlawful open-fire policy, which resulted in the killing of more than 200 Palestinians and the injury of some 8,000 others. Israel was quick to announce it is investigating the protests, primarily due to the proceedings underway at the International Criminal Court in the Hague. The reason for the announcement lies with one of the ICC’s guiding principles – the principle of complementarity, which means the Court will assert jurisdiction only when the state in question is “unwilling or unable” to carry out its own investigation. Once a state has investigated the incidents, the Court will not intervene. However, declaring an investigation is underway is not enough to stave off intervention by the ICC. The investigation must be effective, be directed at the higher-ranking officials responsible for devising and implementing the policy, and lead to action against them. Israel’s investigations in relation to the Gaza protests do not meet these requirements. They consist entirely of the military investigating itself and have not examined the unlawful open-fire policy regulations handed down to security forces or the policies implemented during the protests. Instead, they focus exclusively on lower-ranking soldiers and on the question of whether they acted contrary to these illegal orders. Moreover, while the protests were taking place, Israel’s Supreme Court heard petitions contesting the legality of the open-fire policy. The justices dismissed the petitions and allowed the military to continue employing this policy. However, it did not uphold the regulations being implemented in the field – as these were never presented to the Court. The Court only approved the regulations that the state claimed the military was following, ignoring the glaring disparity between the state’s claims and reality on the ground. By the time the petitions were heard, dozens of protesters had been killed and almost 2,000 injured. The military law enforcement system has fallen short of fulfilling even the limited role assigned to it – investigating “exceptional incidents” only. The military arbitrarily decided to investigate only cases in which security forces had killed Palestinians, providing no explanation for this decision. The thousands of incidents in which Palestinians were injured – some so gravely they were left paralyzed or had to undergo amputations – were left uninvestigated. The number of people wounded in these protests is almost unfathomable: a total of 13,457 Palestinians, 8,079 of them wounded by live fire, 2,424 by rubber-coated metal bullets, and 2,954 by tear gas canisters that hit them directly. Of the wounded, 155 suffered injuries resulting in amputation. None of these injuries is being investigated. According to figures the IDF Spokesperson supplied B’Tselem, as of 25 April 2021, the General Staff Mechanism for Fact-Finding Assessments had received 234 cases in which Palestinians were killed. This figure includes Palestinians who were killed during the period in which the protests were held, but with no connection to them. The Mechanism completed its review in 143 of these cases and transferred them to the Military Advocate General (MAG) Corps. The MAG ordered the Military Police Investigation Unit (MPIU) to investigate 33 of the cases, as well as three other cases not handled by the Mechanism. In four cases, the investigation was closed with no action taken. The MAG opted not to criminally investigate 95 cases in which the Mechanism had completed its review, and closed the files with no further action. All other cases transferred to the MAG are ongoing. Only one MPIU investigation – into the killing of 14-year-old ‘Othman Hiles – resulted in an indictment being filed against a soldier. He was convicted in a plea bargain of the minor disciplinary offense of “abuse of authority to the point of endangering life or health” and sentenced to one month’s military community service. Government-level officials, the Attorney General, the Supreme Court judges, the MAG and other senior military officials are responsible for devising the unlawful open-fire policy and for its implementation. They are the ones who should be investigated and held accountable for its lethal outcomes. The investigations conducted by Israel are no more than a smokescreen designed – according to Israel – to protect the officials responsible from the ICC. In fact, they prove the opposite: that Israel is unwilling and unable to investigate the human rights abuses carried out by its security forces during the Great March of Return protests in the Gaza Strip. Considering this, the responsibility to ensure accountability for these violations now lies with the ICC.

2 December 2021

No Accountability

Unwilling and Unable

A joint report by the Palestinian Centre for Human rights (PCHR) and B’Tselem which analyzes the investigations Israel claims to have conducted following the Great March of Return protests, which were held for about a year and a half in the Gaza Strip as of March 2018. The report shows how Israel worked to whitewash the truth and protect the political and military officials responsible – instead of taking action against the individuals who devised and implemented the unlawful open-fire policy, which resulted in the killing of more than 200 Palestinians and the injury of some 8,000 others.

2 December 2021