Rufaydah Abu Laban lived in a-Duheisheh Refugee Camp, not far from Bethlehem. She was 13 years old when an Israeli soldier shot her. The bullet went in through the back of her neck. The exit wound was between her eyes. Rufaydah died within minutes. She was on her way home from the funeral of another young Palestinian – 16-year-old Naser al-Qassas, who had been killed by soldiers the day before – when the soldier fired at her. A year went by. Then a few more days. And then the IDF Spokesperson wrote to B’Tselem that “there was no connection between the death of the girl and IDF activity in the area.”
Thirty years have passed since Rufaydah died. Her mother ‘Aishah is already 70 years old. She will never forget the day that her eldest daughter was killed. Nor will she forget the sight of her child’s dead body lying on a hospital bed. For the past thirty years she has been tormenting herself, agonizing over why the soldier had even shot Rufaydah. Thirty years and one realization. As the bereaved mother put it: When the judge is your enemy, who can you complain to?
For thirty years, ever since it was founded in 1989, B’Tselem has been watching in horror and crying out in protest; documenting and calling for action; carrying out investigations and archiving records. Yet another incident, yet another victim. Thousands of incidents, thousands of victims. Thousands of files on people who were killed or wounded, on beatings and abuse. All these files are neatly whitewashed by the dutifully obedient mechanisms of the state trained for that very purpose. Files upon files, boxes upon boxes, containing all that we have managed to record, while knowing full well that these records are just the tip of the iceberg. What archive could possibly be big enough to record the full extent of the oppression exercised over millions of people for so many decades?
The pages below are an exhumation, digging up the past. For each year since 1989, we brought an account of a single instance in which soldiers killed, injured or beat a Palestinian. The account of each incident presents the testimony we collected at the time and then describes how one or another of the state’s legal branches whitewashed the actual event. Lastly, we bring a testimony we recorded this year from a relative or from the victims themselves. Their personal stories tell of lives unalterably changed in an instant. They were never the same again. The violence and its whitewashing are the double helix that make up the occupation’s DNA. The two are closely intertwined: without state violence, as carried out by its security forces, a people cannot be oppressed and its life regimented and controlled. But without whitewashing, the security forces would refuse to employ violence. This, then, is the awful pact between government control and “security,” a deal without which there could be no occupation or control.
As with any dirty dealings, there are always some shady figures involved. You can’t do without someone to act as go-between, to water things down, to stall and stonewall, to pour out torrents of verbiage to ensure that cases are closed. In the journey you are about to embark upon, this role is reserved for the professional defenders of violence: the investigators of the Military Police Investigation Unit (MPIU) and the Department for the Investigation of Police (DIP); the military prosecutors and legal advisers; the military judges and Supreme Court justices. When you think of Rufaydah Abu Laban being laid to rest in the ground, when you contemplate each case closed, paving the way for closing the next one, do not neglect to recall them too.
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In the review above, we just barely scratched the surface of the abomination that is the occupation. We showed just the very tip of the iceberg of the physical and emotional scars that each and every family will bear for years and generations to come. Now that the occupation has been around over fifty years, is there even a single Palestinian family that remains completely unscathed? Is there a family in which not a single member underwent humiliation, or was arrested, beaten, injured or killed? Is there but one such family among the five million people who are trodden under our boots every day?
It is just the tip of the iceberg because what we described were just cases of death, injury or beating, and their systematic whitewash and cover-up. But these are just some of the violent manifestations of the occupation. These pages do not tell of home demolitions, restrictions on movement, administrative detention and torture, the permit regime, the arrest of children, of being displaced and driven from home, of state-backed settler violence, military training carried out on farmland, the courteous soldiers who storm into bedrooms in the dead of night, of the military courts, including the special ones meant to try children, of settlements, land grab and water resources seized, of the arbitrariness, of the domineering attitude and arrogance of all the apparatuses of the Israeli regime – from the Supreme Court justices down to the most junior Civil Administration official – that combine to oppress and to whitewash, to trample rights, to keep moving ever further ahead with the great Israeli enterprise of shattering the Palestinian people into more manageable fragments, the easier to oppress, dispossess and displace.
Just the tip of the iceberg.
B’Tselem, from its 1989 foundation, was the Israeli Information Center for Human Rights in the Occupied Territories. It is a name that reflected the way we believed we could transform reality, thinking that clear and reliable information from the field would force Israelis to look the abomination of the occupation in the face, would make it impossible to avert one’s eyes or sidestep the issues with flimsy excuses, and that then change would come.
It has been thirty years, but the mechanisms of denial and propaganda have merely grown more sophisticated. The reliable information is watered down and denounced. The facts be damned. The imbalance of power between a regional superpower that sends its superbly armed military and shrewd lawyers to oppress and plunder a defenseless people, bereft of rights, makes it easy to look away.
Reliable information from the field continues to be the mainstay of B’Tselem’s work. However, it is now clear that although it is a vital component, it is not enough on its own. Therefore, along with our commitment to go on exposing the horrors, on insisting that eyes are not averted – and this publication is part of that endeavor – it is now clear that only decisive international action can change the balance of power, change reality, and bring about an end to the occupation.
The fourth decade of B’Tselem’s work, which is the sixth decade of the occupation, is now starting. The above pages describing the past are just the tip of the iceberg. The future holds more days of beatings and fatalities, of bureaucratic oppression and physical violence. There will be days that will feature headline news of the occupied territories, while others will go by without a single word in the media. But regardless of whether or not we hear about it, the occupation is ever present. It is there, day after day, in the lives of millions of people who lead lives that are subject to military orders, live ammunition and uncertainty, and of those who impose all this on them.
The pages you have read are just the tip of the iceberg. Ahead lies a future that can bring a different reality. We must choose to make it different and bring about a reality in which all of us – all 14 million people living on the bit of land between the Jordan River and the Mediterranean Sea – live in equality, enjoy the full benefit of human rights, and take part in determining our future. A reality in which the law will no longer be used for the advantage of the rulers to undermine subjects, but will genuinely serve to safeguard human rights. Everyone’s human rights.
This day will come.
What lies ahead?
Accountability for human rights violations is a crucial element of the rule of law. It is critical both for the individuals who have been harmed – in that they see those who have harmed them brought to justice – and for the public, since an effective system effects deterrence and may prevent (or at least significantly minimize) the recurrence of future violations. Therefore, international law and domestic legal systems require countries to investigate suspected breaches of human rights, prosecute those responsible, and compensate individuals for the unjustified harm they suffered. Israel’s policy on accountability for harm to Palestinians in the areas it occupied is altogether different. It is designed to ensure that neither the state, nor anyone acting on its behalf, will have to pay any price whatsoever for the violence they used. That said, Israel does not admit to this mode of operation, instead adamantly insisting that it is operating in accordance with the regulations of international law. To that end, it invests immense effort to create the semblance of a functioning law enforcement system, with a view to preserving the military’s moral image and to secure legitimacy – in Israel and around the world – for the occupation to continue.
The mountains of paper, the number of jobs and positions, meetings and hearings, legal documents and budgets that have been invested in creating and maintaining this illusion is mindboggling. However, none of these can conceal the truth from anyone who wants to see it for what it is: Israel whitewashes, conceals and lies. Those responsible go unpunished and victims are denied compensation, apart from rare exceptions that are merely meant to grant legitimacy to the whitewashing routine and create a fleeting illusion of justice.
Accountability is no theoretical matter: punishing those responsible for violating human rights and compensating the victims can lead to changes in policy and to fewer casualties. Yet in the absence of any price to pay, there is no incentive to stop the violations. Therefore, the immunity Israel grants itself and those operating on its behalf indicates how little importance it attaches to the lives, safety and property of Palestinians in the occupied territories.
Immunity from standing trial
The role of the military law enforcement system has been narrowly defined to begin with. It is tasked only with investigating specific, individual incidents, low-ranking personnel and cases of suspected “breach of orders.” As a result, the system does not examine the lawfulness of the orders given; it does not investigate the individuals who formulated the orders or those who approved them; nor does it examine the responsibility of the policy makers. In the absence of any other system to investigate these higher-ups, they are all absolved a priori of any responsibility.
An examination of the way the military law enforcement system operates demonstrates it is hard put to fill even the limited task required of it. The Military Advocate General (MAG) Corps often elects not to launch a criminal investigation at all, sometimes justifying its decision on the grounds of “absence of guilt,” mostly relying on soldiers’ accounts of events. At other times, in cases of Palestinian fatalities, it cites as justification that the deaths occurred in “combat situations,” a broad exclusion established by the MAG Corps that grants soldiers sweeping immunity from criminal investigations, far beyond that granted by international humanitarian law.
Even in cases when an MPIU investigation is actually launched, it is superficial and evinces no real attempt to uncover the truth. Investigations rely almost exclusively on statements by soldiers, only occasionally also on statements by Palestinians, and make no real attempt to obtain external evidence. Nevertheless, despite statements being the key part of the investigation, investigators often behave like stenographers taking dictation, even when there are contradictions in soldiers’ statements or between their accounts and those of the complainants. Once complete, the investigation file is transferred to the MAG Corps, which is tasked with deciding on further action. Many cases are then closed, either for “absence of guilt” – with the MAG Corps taking the version of events given by the soldiers suspected of wrongdoing at face value – or for “lack of evidence,” seeing as no effort to obtain evidence was ever made.
To top it off, the system is inaccessible to Palestinian complainants. They cannot file complaints with the MPIU directly and must rely on human rights organizations or attorneys to file the complaints on their behalf. The processing of each complaint lasts months or even years, so that often enough the soldiers who are the subject of the complaint are no longer in active service and therefore no longer under military jurisdiction. And lastly, the system operates without transparency.
The system’s mode of operation is clearly corroborated by the figures. From 2000 to 2015, B’Tselem applied to the MAG Corps regarding 739 cases, all examined by B’Tselem, in which soldiers caused harm to Palestinian residents of the Occupied Territories. In a quarter of the cases no investigation was ever launched; in nearly half, the investigation was closed with no further action taken; only in 25 cases were charges brought against soldiers implicated in minor offenses.
This analysis leads to only one possible conclusion. Not only does continuing to apply to the MAG Corps – demanding that it investigate harm to Palestinians by Israeli security personnel – do nothing to promote accountability, it is actually detrimental. It means cooperating with a mechanism that merely creates an illusion of a functioning law enforcement system and thereby grants legitimacy not only to the system but to the occupation itself. Therefore, after 25 years of applying to the MAG Corps with demands that it investigate, B’Tselem stopped doing so in 2016.
Immunity from paying damages
Through legislation, Israel also secured for itself a nearly blanket exemption from paying compensatory damages for harm caused by its security personnel to Palestinians, instead of offering them a geuine opportunity to sue for damages in Israeli courts, once again offering them no more than the illusion of being able to do so.
Under Israel’s Torts Law of 1952, the state is liable for damages resulting from its negligence, with the exception of damages caused during “warfare activity.” This exemption is based on the assumption – justified in itself – that warfare conditions involve pressure and uncertainty. Therefore, tort law is not suited to address incidents that take place during warfare.
In the 1990s, both during and after the first intifada, residents of the occupied territories filed thousands of civil claims with Israeli courts, seeking compensation for damages caused them by Israeli security forces in circumstances that were not “warfare activity”. The lawsuits addressed damage resulting from a variety of sources, such as soldiers’ unlawful gunfire (including instances of fatalities or injuries), destruction of property, extreme violence, torture under interrogation by the Israel Security Agency (ISA), and incidents in which ammunition or duds left behind in the field by the military later exploded. Suing for damages was a costly process for Palestinians. The proceedings dragged on for years and imposed a series of bureaucratic hurdles on the claimants. As a result, Palestinians often chose to settle for lower sums that failed to accurately reflect the extent of harm they had sustained.
In the mid-1990s, in a bid to avoid paying even these paltry sums of money, Israel began employing various measures to broaden the exemption from liability stipulated in the law. Over the years, the Knesset amended legislation several times. In 2002, for example, the legal definition of “warfare activity” was broadened so as to include virtually any activity by Israeli security forces in the occupied territories. In addition, the law introduced procedures that would apply exclusively to claims by Palestinian residents of the occupied territories, with a view to making it more difficult for them to file the suits.
The courts readily adopted the new definition of what constitutes "warfare activity". Then Chief Supreme Court Justice Aharon Barak did state that the new definition “greatly broadened the interpretation given to this term in case law and, thereby, significantly narrowed the liability of the security forces operating in the conflict with the Palestinians.” Nonetheless, he went on to say that “the amendment is proportionate and does not give rise to any constitutional problem.”
The Knesset was not content with this amendment, as even the new definition still meant the courts must make an individual determination on each suit filed. Therefore, the Knesset persisted in its efforts to pass legislation that would grant the state sweeping immunity for all damages in the occupied territories caused by Israeli security forces. This exemption was enacted in 2005, but the High Court of Justice (HCJ) accepted a petition contesting the amendment. Justice Barak determined that the Knesset had gone too far. He declared the amendment null and void, having determined that it “seeks to realize an improper purpose of exempting the state from all liability for torts in conflict zones.” Another bill to circumvent the HCJ was brought before the Knesset in 2008. This amendment, which became law four years later, states that Israel will not have to pay compensation for any damage sustained in an area the state had declared “enemy territory.”
The amendments achieved their objective. The number of claims filed by Palestinians dropped drastically, going down from an average of 300 new lawsuits a year from 2002 to 2016 to an annual average of 18 claims in 2012-2016. The total sum of damages Israel was required to pay likewise went down. From 1997 to 2001, the state paid out an annual average of 21.6 million shekels a year (approx. USD 5.7 million), whereas from 2012 to 2016, it paid about 3.8 million shekels (approx. USD 1 million) on average, a decline of more than 80%.