Two journalists shot dead in the space of two weeks
On 3 May 2003, World Press Freedom Day, the news agencies reported the death of a British journalist in Rafah, in the south of the Gaza Strip. An acclaimed documentary filmmaker who had received several awards, James Miller, 34, was killed by a shot in the neck.
Two weeks earlier, another cameraman had died in the Palestinian territories. These territories have been reoccupied since spring 2001 by the Israel Defence Forces (IDF). He was Nazeh Darwazi, 44, who had been working for two years for the American TV news agency, Associated Press Television News (APTN). He was hit by a shot in the head as he was filming clashes between Palestinians and the IDF in the centre of Nablus in the northern part of the West Bank.
Darwazi was a Palestinian. He was used to covering the clashes between Israelis and Palestinians in the occupied territories. Wearing a yellow fluorescent vest, he was identifiable as a journalist when he was killed. He was also accompanied by four other Palestinian photographers and cameramen working for local and international news media.
Miller, who was British, was an independent observer of this long-lasting conflict in which more than 3,300 people have been killed since September 2000. He was making a documentary on the conflict's impact on children for the American TV channel Home Box Office (HBO). He had worked for Channel 4 News, the BBC and CNN in such dangerous countries as Afghanistan, Bosnia, Sierra Leone, Sudan and Uganda. He and his crew had arrived in the Gaza Strip on 16 April. On their last day of shooting, they went into a Palestinian home to film the reactions of a girl to the demolition of homes in Rafah. Aware of the dangers of filming in this area, Miller and all his crew were wearing helmets and flak jackets marked "TV." It was nighttime when he was killed, and at the moment he was shot, he was trying to identify his crew by shining a flashlight on a white flag held by one of his colleagues.
An earlier study by Reporters Without Borders looked at the cases of the 45 journalists who were wounded by gunfire in the Occupied Territories between September 2000 and August 2001. This major investigation focused on the repeated acts of violence against journalists and deplored the lack of enquiries and punishment following these incidents. Twelve concrete measures aimed at increasing journalists' security were submitted at that time to the Israeli army. Reporters Without Borders warned the IDF that if it did not adopt these preventive measures, the problem could get worse and journalists could be killed. Since then, five journalists have been killed . In each case, witnesses said the army opened fire in circumstances that could not be described as legitimate self-defence. As far as Reporters Without Borders knows, none of the three deaths of journalists in 2002 was the subject of a serious investigation. The IDF has not acknowledged any responsibility in these incidents or reported that anyone was punished for them.
The issue of the security of journalists working in the Occupied Territories cloaks another major political issue, that of the restrictions which the Israeli army imposes in the name of security on journalists working in the West Bank and Gaza Strip, especially Palestinians. Israeli officials are unstinting in their criticism of the way the foreign press covers the conflict . The foreign press rejects the criticism and accuses the Israeli authorities of trying to restrict access to information and to influence the way it is treated. Some go so far as to accuse the Israeli army of deliberately targeting journalists. It is therefore important to look at these latest deaths with view to establishing not only the circumstances in which the two journalists were killed but also the positions taken by the Israeli army as a result.
The procedure established by the Israeli army for civilian deaths in disputed circumstances includes the deaths of journalists. There is no special procedure for them. A preliminary enquiry, for which there is no deadline, is carried out by the most senior field officer in charge of the unit involved. A report is then sent to a superior officer and to a military prosecutor. On the basis of the report or other information, this person may decide to take "disciplinary or non-judicial measures," the IDF explained in a letter to Reporters Without Borders dated 30 May. In cases in which "criminal behaviour is suspected to have taken place (...) the procedure is to decide on a military police investigation, which may lead to court martial." In general, "the determining factor deciding whether to initiate an investigation is grounds to believe that the soldier seriously deviated from normative behaviour."
After the deaths of these two journalists, the IDF said thorough investigations would be carried out. In May, Reporters Without Borders sent an independent journalist to Israel for 10 days to carry out "an investigation into the investigation." The main goal was to find out how the army conducted the investigations and to establish their present status.
Reporters Without Borders sent a letter to Israeli defence minister Shaul Mofaz on
29 April requesting specific information about the investigation into Darwazi's death. A second letter followed with an identical request about the circumstances of Miller's death. The Reporters Without Borders investigator also submitted these requests to the office of relations with non-governmental organisations on 15 May. A first IDF spokesperson, and then a second one, displayed much warmth but little readiness to accede to the requests. It was only on 30 May that the Israeli army provided a response.
Long and formal, it contained nothing new. Behind the standard formulae (such as references to the "ongoing investigation"), the IDF sidestepped all the specific questions about the cases of Darwazi and Miller. Reporters Without Borders' specific request to meet the persons in charge of the two cases was ignored. There was no information as to what had been accomplished in the procedures already under way. There was also no response to questions about what follow-up there would be after the investigations were completed.
Reporters Without Borders tried to establish what enquiries had been conducted by the IDF. To that end, it questioned witnesses in the two cases and Israeli army specialists (such as lawyers and journalists). A soldier assigned to Nablus spoke on condition of anonymity on the circumstances of Darwazi's death. Reporters Without Borders was able to keep up with developments in Miller's case thanks to regular contacts with his family.
1. The death of Nazeh Darwazi1.1. A botched enquiry
Nazeh Darwazi, an APTN cameraman, was killed at around 9 a.m. on 19 April in the centre of Nablus. He was killed outright by a shot that struck him in the head. He was with four other Palestinian journalists : Billal Banna, Hassan Titi (a Reuters cameraman), Sami Al-Assi (a cameraman with Nablus TV) and Abed Qusini, a Reuters photographer. There are three videotape recordings of the incident.
The witnesses said the shot that killed Darwazi was fired by an Israeli soldier behind an tank - stuck against a wall - at a moment when there was no gunfire aside from the stones being thrown at the Israeli unit.
The army said a preliminary enquiry indicated that an armoured vehicle found itself trapped near the kasbah after troops had carried out raids to arrest suspected terrorists. Capt. Feingold, the IDF spokesperson, said on 19 April, that "troops trying to rescue the tank came under massive stone throwing and there were explosive devices and shots fired from the crowd." Feingold said she did not know exactly where the shots being fired at the Israeli soldiers came from, but she stressed that: "media people knowingly place themselves in dangerous combat situations, putting our soldiers and putting themselves in danger." The same day, the Israeli army announced that a "thorough investigation" had been launched.
Since then, the IDF has made no statement about the circumstances of Darwazi's death. At the end of May, the army was unable to provide Reporters Without Borders with any information about the case. It said in its letter of 30 May: "Pending the conclusion of these examinations, I cannot comment on these cases." Reporters Without Borders has been able to establish that, while the Israeli army did not ignore Darwazi's death, it limited itself to just a debriefing of the soldiers involved. No autopsy was carried on Darwazi's body. In accordance with Islamic tradition, he was buried the same afternoon in the city cemetery. It appears that the Israeli army did not ask if it could carry out an autopsy. It is also unlikely that Darwazi's family requested it, given the mistrust of the Palestinian population towards the IDF in this kind of incident.
The Israeli army did not carry out any reconstruction, which would anyway have been difficult to do. But it would have been easy for the army to take the official statements of the witnesses, of whom there were at least four and who were ready to tell their version of events.
One of the four Palestinian journalists who was with Darwazi at the time of his death, Reuters photographer Abed Qusini, said he was approached by the Israeli army about three weeks later, not because they wanted to take his testimony but "out of a desire to calm things down." He was called for an interview with a senior officer assigned to Nablus who, it seemed, wanted to maintain the cordial or even friendly relations that had been established in Nablus between the Israeli army the Palestinian press. Qusini said the Israeli officer told him and the other journalists who were there: "If I learn that one of my soldiers is guilty (of Darwazi's death), I will put him in prison."
The officer also reportedly claimed to have a videotape that showed there was a Palestinian gunman in the house where the journalists took refuge. Qusini became agitated at this point and demanded to see the video. The Palestinian journalists then detailed their grievances concerning the military. "The officer told us to be careful and to wear our yellow vests marked "Press," he asked us why we always came so near to the tanks, and he assured us he would give his men orders to facilitate our work," Qusini said. The officer took notes throughout the meeting, he said.
Although the IDF contacted the journalists who witnessed the incident, they never contacted Darwazi's wife Naela. A soldier assigned to Nablus who agreed to talk on condition on anonymity said the army had viewed one or two video recordings. The members of the unit involved were very probably questioned but no report had been published three months later. The IDF's official position is, as it was on 19 April, one of regret and that the soldiers acted in legitimate self-defence.
1.2. The facts established by Reporters Without Borders
Darwazi was not the first APTN journalist to be hit by gunfire in the Palestinian territories. APTN director of content Nigel Baker on 19 April called for a "full and speedy inquiry by the Israel Defence Forces to ensure that the cause of this needless death is established." Associated Press president Louis D. Boccardi said, "the AP family feels the deepest sorrow over the loss of this skilled and brave colleague." The AP decided to carry out its own investigation, also being aware of the slowness and shortcomings of Israeli enquiries,. A military expert was dispatched to Nablus to find out the facts on site and talk to witnesses. According to Qusini, who talked to the AP's investigator, the shot that killed Darwazi was fired from about 17 metres away. In other words, he was shot at very close range.
This assessment matches those of the witnesses. They all maintain, moreover, that there were no Palestinian gunmen or anyone throwing Molotov cocktails at the time that Darwazi was shot. And according to them, only an Israeli soldier could have been standing behind the immobilised tank from where the shot came.
Reporters Without Borders recorded the complete testimony of Qusini, the Reuters photographer:
"At 8:20 a.m., two Palestinian gunmen were firing from a street and the army was shooting back. It was in an alley off this street that Nazeh was later shot. We were about 100 metres from the army. Nazeh decided to go further up the alley. There was no tank at that moment. (…)
At around 8:30 a.m., we were standing in a narrow street that is covered by a flight of stairs and at the top of the stairs, a tank appeared. I heard shots being fired in the air to scare people away. The tank advanced (…), towing a second tank behind it with a cable, one that had become immobilised against the wall of a house. Over a dozen youths were throwing stones at the second tank. A kid approached and began to fiddle with the toolbox on the outside of the tank. He failed to open it and was injured as he ran away. Red Crescent workers carried him to an ambulance waiting at the foot of the stairs. (…)
The shooting became heavier so we ducked in an entrance of a door on the left side of the alley. (…) Nazeh was a bit higher up than me. I was behind him.
At around 9 a.m., the shooting is heavy. Some kids are carried off with shrapnel wounds and ricochet bullets, from the bullets that bounced off the walls. We saw a Hummer jeep pull up behind the tank, probably to guard the soldiers in the tank. I was taking photographs of a boy with a shrapnel wound in the leg. Nazeh was doing the same, and he turned his camera towards the foot of the steps.
Then I saw a man in dark-coloured attire - it must have been a soldier - lurching down next to the tank stuck against the wall. (…) He had got out of the jeep and had been moving between the first and second tank. I think there was just the one soldier. I could see his legs. He must have seen us too.
A shot rang out and a seconds later I saw Nazeh lying on the ground. He had been hit in the back of the head. It was a gaping wound and there was a lot of blood. I realised at once he was dead. (…)"
Qusini's testimony mentions the presence of Palestinian gunmen in the area about half an hour before the shooting of Darwazi. But it refers only to stone-throwing by Palestinians at 9 a.m., when he was shot.
The Israeli soldier based in Nablus who spoke to Reporters Without Borders on condition of anonymity was not a direct witness and was not with the unit involved in the incident. "From what I heard, when the tank got jammed, one of the soldiers wanted to fire warning shots and Nazeh was very unlucky," he said. He repeatedly said he was "sorry" about what happened and described it as "unfortunate." He said, "the soldier fired from the hip and there was poor visibility." He also said that he heard that gunfire hit the jeep, which could explain the shot. He added : "I saw the film. You can see that one of the kids took a telephone cable from the tank. He even climbed on the tank. According to regulations, that is ground for firing, in the legs or in the stomach. As it was, he escaped without injury."
According to this soldier, the shot that killed Darwazi was an Israeli one that was fired from the hip in poor visibility. But officially, there was no statement saying mistake was made.
Reporters Without Borders also met Darwazi's widow Naela in Nablus. The family did not intend filing any lawsuit, she said, because they were convinced it would achieve nothing. Anyway, they did not know how to go about it or how they would pay the legal fees, which are very high in Israel. She said her husband used to say: "The Israeli soldiers want to scare us, but they don't want to kill us." Darwazi knew the Israeli soldiers and their habits well, as he did the Palestinian fighters, and he knew his way around Nablus, having grown up there, she said.
The Israeli daily Haaretz ran a long report on the case on 22 April. Its author, Amira Hass, said Darwazi was familiar with the unwritten rules of working in the special conditions of the Palestinian territories: "Stay away from armed Palestinians, even from children throwing rocks. Grab a distant corner, be enough in the open not to be mistaken by the soldiers for an armed man and stay put in one place, that's better for documentation (and safer) than running like the gunmen who are constantly on the move from cover to cover in the alleyways and on the roofs." The report pointed out that because of repeated incidents with the army (harassment at checkpoints, beatings, obstruction and gunshot injuries), the Palestinian journalists were in the habit of working in groups, which gives them more visibility and a sense of security.
Finally, Reporters Without Borders examined the video sequences shot by Hasan Titi of Reuters, Sami Al-Assi of the local station, Nablus TV, and by Darwazi himself. They provide a great deal of information and seem to rule out the hypothesis of a shot coming from any other direction than the immobilised Israeli tank.
The footage shows some 15 young Palestinians, including girls, in an alley with steps. An Israeli tank arrives in a street at right-angles to the alley. The youths throw stones. Shots ring out and the street empties. One youth remains, throwing stones. The first tank is towing a second tank that is stuck against a wall. A young Palestinian climbs on it and tries to remove a telephone cable. Shots are heard. A ricochet hits the corner of a house, high up. Shortly afterwards, a vehicle pulls up behind the second tank. A man walks from the car to the first tank on the right hand side. The soldier walks to the left, to the car and back to the right and the second tank again. Another youth is wounded, and then is taken away by first-aid workers and a man in a check shirt.
The sequences shot by Darwazi show the tank immobilised against the wall and the legs of a man walking behind the tank. Then the camera tracks the injured youth being carried by the man in a check shirt. They go down the steps. No shot is fired from the foot of the steps. Then a shot rings out and the sequence ends.
The Reuters camera followed the action between the stone-throwers and the soldiers in the tanks. Here again, you see a man walking behind the second tank, from the vehicle to the first tank. You see him squat behind the immobilised tank, between the front of the tank and the wall of the house. A cloud of dust is seen at the moment the shot rings out. The next frame shows Darwazi lying in a pool of blood. You cannot tell how much time passed between the two sequences.
First observation: from the Nablus TV footage it appears that only stones were thrown at the Israeli troops during a period of at least seven minutes prior to the shot that killed Darwazi. There is absolutely no indication of the presence of Palestinian gunmen at the foot of the alley, in the direction in which the shot was fired.
Second observation: if the person who shot Darwazi really is the one who fired from the immobilised Israeli tank, he could not have clearly seen what he was firing at. The footage shows he fired from the hip without taking the time to aim, which confirms the testimony provided anonymously by the Nablus-based soldier.
1.3. A criminal mistake concealed and unpunished
The soldiers involved in the incident were reportedly debriefed afterwards by the Israeli army. Three weeks after the incident, Darwazi's colleagues, those who witnessed his death, were questioned informally. The army viewed one or more videotapes of the incident. Yet no conclusion was communicated to this day to his family or to the news media.
Despite the strong suspicion of negligence by a soldier and the lack of "shots coming from the crowd," contrary to what the IDF said on 19 April, the official army position continues to be that the unit acted in legitimate self-defence. There is no sign that a criminal investigation will be initiated by the military prosecutor.
An Israeli soldier very probably committed a serious breach of regulations resulting in the death of a civilian. There is no evidence of criminal or murderous intent. Nonetheless, according to the IDF procedure, a serious breach of regulations is a sufficient condition for ordering a military police investigation.
2. The death of James Miller2.1. The Israeli army drags out the enquiry
James Miller, a British cameraman and documentary filmmaker working for the production company Frostbite, was killed at around midnight on 2 May 2003 in Rafah, in the south of the Gaza Strip. He was with journalist and producer Saira Shah and an assistant, Daniel Edge, both of whom work for Frostbite. Two Palestinian interpreters, Abdulrahman Adbullah and Mwafaq Al-Khateeb, were also with him. Miller was killed by a shot that hit him in the neck as he was leaving a Palestinian house where the crew had been filming for anout three hours. A cameraman with the American TV news agency APTN had also joined the Frostbite crew in the course of the evening.
According to witnesses, the Israeli army fired from a tank. There was no exchange of shots at that moment. The journalists were identifiable. They were shouting towards the tanks and waving a white flag.
The circumstances were very different, according to the army. Col. Avi Levy, the Israeli deputy commander in the Gaza strip on 3 May 2003 said: "Troops in an armoured vehicle were searching for weapons-smuggling tunnels along the Egyptian border when the soldiers came under fire from rocket-propelled grenades. The troops returned fire." IDF spokesperson Jacob Dalal said Miller was apparently hit during an exchange of fire. He added: "The army expresses sorrow over the death of a civilian who entered a combat zone (...) especially at night."
The IDF at first denied the presence of Israeli tanks in the area. Then Col. Levy, in an interview for Israeli public radio on 4 May, said that, since Miller had been hit "from behind," he could have been shot by a Palestinian gunman. "It has been established that the journalist was hit in the right shoulder blade from behind, when he was facing an Israeli tank," Levy said. He said two rocket-propelled grenades were fired at the Israelis, then fire with automatic weapons came from several locations, including the place were the journalists were located. He added that the army would "pursue the investigation."
This information later proved to be incorrect, as an autopsy carried out on 6 May at the national forensic medicine centre in Tel Aviv established that Miller was killed by a shot in the neck, and that the point of entry was at the front of his neck. The autopsy also established that the type of bullet that killed him was Israeli. The IDF on 8 May said it had not seen a copy of the autopsy report and had no comment.
It seems highly unlikely that the army was not given the autopsy results. Meanwhile, at the end of May, Reporters Without Borders was told of an internal IDF report written one or two weeks after Miller's death which reportedly mentioned the fact that he was shot head on.
A journalist with Israeli TV's Channel 10 who specialises in military issues, Alon Ben David, saw the report. It was based on interviews with soldiers involved in the incident, radio communications and videotapes of the incident provided by the family. These were its key points:
"Activity in the Rafah area began about 12 hours before the incident. On finding a house where a tunnel began, the troops demolished it with explosives. During fighting, the soldiers noted the arrival of a TV crew at a house which from then onwards they called 'the house of the journalists.' A bulldozer was operating there, surrounded by several APCs (armoured personnel carriers). (…) At 22:00, an anti-armour missile was fired from the east of where the troops were. The army responded with heavy fire. The missile was fired from the East to the troops, when the house of the journalists was to the north-east, about a difference of 45 degrees. (…) At 22:35, a officer fired rounds in the direction of a rubbish pile. He suspected an individual was hidden behind it. The rubbish was not in the direction of the house of the journalists. (…) From 22:35 to 22:50, no shots were fired in the area. (…) At 22:50, the soldiers heard two shots. They did not know where they came from. Immediately afterwards, they heard shouting. One of the officers in the APC went towards the group. (…) The troops say they never saw the journalists leaving the building and advancing towards them. At 23:03, the soldiers found the injured cameraman and took him to an army post where he was treated by doctors. As they were transporting the cameraman, the APC was hit by another anti-armour missile. (…) Result of the post-mortem: killed by a 5.56 calibre bullet, that entered at the level of the neck and exited through the right shoulder. Hit from the front. Impossible to say who fired the shot. Calibre can be IDF ammunition or anyone else. If the bullet had been a 7.62 calibre, one could have said with certainty it was a Palestinian bullet as the IDF only uses 5.56 mm."
Copies of the IDF's internal report were apparently sent promptly to military prosecutor Menahem Finkelstein and defence minister Shaul Mofaz and remain with them awaiting a decision. In the meantime, the content of the original report seems to have evolved. It took no account of the testimonies of the civilians present at the time of the incident and Saira Shah was questioned on 7 July, two months afterwards. It is not absolutely clear whether this was an official or "off the record" interview. Moreover, none of the other civilian witnesses has yet been asked to make a statement. Shah said that the soldiers tried insistently at the time of the incident to get her to say there were exchanges of shots and Palestinian rocket fire and that they became more and more intimidating when she refused to corroborate their version.
No reconstruction was carried out by the IDF and today one would not be possible, as the area has since been flattened by the army. Interpreter Abdullrahman Abdullah, who was one of the witnesses, said the Israeli army covered the area with rubble a week after the incident. The Al-Sha'er family, who live in the house where Miller was filming, said soldiers told them: "We are doing this because you say it was the IDF who killed the journalist."
In early July, the Israeli army agreed to produce the firearms of the unit involved. A ballistics examination carried out at the request of Frostbite and Miller's family had concluded that it would be possible to identify the weapon used to kill him from the relatively-well preserved bullet found embedded in his flak jacket. However, the IDF produced only nine firearms instead of the 15 expected. After it gave orders for the guns to be secured, an unnecessarily long time - two weeks - went by before it took custody of them. Furthermore, the weapons produced had almost consecutive serial numbers and it seems very unlikely that all the soldiers in this unit joined the army at the same time and were issued with guns with such close numbers. Thereafter, the IDF made no provision for the weapons to be tested, and this has not yet been done.
2.2. The facts established two months after Miller's death
Additional information about the circumstances of Miller's death came from the independent enquiry commissioned by his family and Frostbite. An independent investigator, Chris Cobb-Smith, was sent to Israel two days after Miller's death. From 4 to 9 May, he gathered a great deal of evidence.
- Detailed statements form at least three witnesses (producer Saira Shah, production assistant Daniel Edge and interpreter Adbullrahaman Adbullah).
- A plan and photographs of the scene of the killing.
- A test carried out in identical light and visibility conditions.
- The video footage taped by Frostbite and Tamer Ziara of APTN.
He concluded that the Frostbite crew was targeted by the Israeli army although this was not justified by the circumstances. According to the witnesses, there were seven shots. It was very probably the second of the seven that killed Miller. The videotapes show that for long periods during the hour preceding the shooting, there was not threat to the Israeli soldiers. The journalists had moreover chosen a period of calm to leave the lighted veranda on which they had been filming for some three hours. According to Cobb-Smith's reconstruction of events, the three journalists were still lit up by the lights of the house at the moment of the shooting.
In early June a ballistics expert, P.J.F. Mead, examined the bullet that was extracted from Miller's flack jacket. He ruled out any possibility that it had ricocheted and said bullets of this type were routinely used in M-16 type weapons including the two types of Galil manufactured by Israel. The bullet was photographed, weighed and measured. Although bent out of shape, Mead found it to be in good enough condition and with sufficiently large and distinct grooves to allow conclusive identification of the weapon used to fire it, if it were tested.
2.3. An incomplete enquiry with an uncertain outcome
In conclusion it would seem that soldiers and witnesses have once again given conflicting accounts. The incorrect statements by the army, the transformation of the scene of the killing a week later, and the changing content of the IDF report raise serious doubts about the desire of the Israeli authorities to shed light on this tragedy.
Reporters Without Borders believes that part of the truth has been established thanks to the autopsy, the ballistics report and the videotapes. But the army's statements have just confused matters. The army is now using the confidentiality of the enquiry as a pretext for saying nothing and is turning a deaf ear to pressure from Miller's family, the British government and organisations that are calling for a criminal investigation.
Many facts should and could still be established. A military police investigation is all the more justified as there are good reasons for suspecting an offence was committed. The claim that the soldiers acted in legitimate self-defence is not very convincing as there was no exchange of shots or Palestinian attack at the time of the incident. The journalists had been identified as such by the soldiers. The soldiers had noticed them a long time before. The shot that killed Miller was very probably a direct Israeli shot.
3. The flaws in the Israeli army's enquiry procedure
All the persons interviewed pointed to problems inherent in the existing procedure. The soldiers involved in an incident are initially questioned by their superiors. On the basis of the debriefing, a report is sent to the military prosecutor who may or may not decide to order a military police investigation. This procedure encourages the soldiers to minimise their responsibility as they know that their testimony will in large part determine what, if anything, follows.
Moreover, the military prosecutor seems very reluctant to take matters further, even when there is good reason to suspect a breach of regulations.
3.1. The lack of serious initial investigations
According to Yael Stein, a lawyer who works for the Israeli human rights organisation B'Tselem, an enquiry used to be carried out automatically into every civilian homicide and a report would be sent to the defence minister in person within 72 hours. "The reports weren't very good and there was rarely any follow-up, but at least there was an enquiry," she said. "But when the Palestinian uprising began (in September 2000), the army decreed a state of 'armed conflict short of war.' This strange notion has no equivalent or legal existence in international humanitarian law." On this basis, the investigative procedure became even more opaque and unpredictable. Nowadays, there are no precise deadlines for transmitting information to the military prosecutor.
Michel Strauss, an Israeli lawyer, said the internal investigation conducted by the superior officer consists essentially of just debriefing the soldiers and in most cases civilians are not questioned. "After incidents there will be a command inquiry, or debriefing, in most cases. But civilian witnesses are almost never interviewed. It is not about bringing people to justice, it is an internal army affair about what conclusions can be drawn about the general behaviour of the army in consequent cases".
A B'Tselem staffer shared this view: "The IDF's idea is that to improve, you have to constantly debrief. The internal enquiry is above all meant to fulfil that function." The army is convinced that its troops won't lie to their superiors, and that the field commander knows the circumstances of the problem better than any military police investigator, the staffer said.
An IDF spokesperson also recognised that it was sometimes hard for him to know the truth. The officers get the information from the troops and pass it on to the spokesperson. "The soldiers brief the officers and it is very difficult for us (…) to get insight into what really happened in the field. For that you need solid proof and otherwise you have to rely on statements from the soldiers. We make statements based on the information that is given to us. Sometimes we raise an eyebrow at what we get to hear," this spokesperson said, speaking on condition of anonymity.
The procedure in place today says nothing about keeping evidence and clues (such as autopsies, ballistics evidence and maintaining the scene of incidents intact) in order to be able to establish the facts scientifically.
3.2. The lack of prosecutions, even in cases of a proven breach of regulations
The lawyers, human rights activists and journalists who were questioned deplored the haphazard nature of the proceedings, which seem to display no logic aside from, in the great majority of cases, a desire not to accuse the soldiers.
The initial report - which is often very unreliable, incomplete and unprofessional - is submitted after an undetermined period to a senior officer, often a general, and to the military prosecutor. On the basis of the report, and possibly other inputs, the military prosecutor decides either to close the case or initiate an criminal investigation. In the latter case, the military police takes over and interview everyone involved, both soldiers and civilian witnesses.
In its letter to Reporters Without Borders of 30 May, the IDF said that since the start of the second Intifada, "more than 320 military police investigation have been initiated, including 48 investigations for illegal use of firearms (most of which resulted in injury or death). Pursuant to these investigations, more than 40 indictments have been brought against IDF officers and soldiers."
Only part of these figures match those of the human rights organisation B'Tselem. B'Tselem's figure for investigations carried out since the second Intifada is about 300, of which only 45 concerned the death of Palestinian civilians. The others involved such breaches as theft, beatings and the use of human shields. Its figure for the actual bringing of charges is very different. According to B'Tselem, the number of investigations that led to prosecutions is only six cases. The lawyer, Yael Stein, said: "There were only six cases in which people were taken to court and I don't know why these specific cases were. You get that the army attorney general really doesn't want to investigate."
Most observers also stress the lack of internal and external communication done by the IDF about the charges against soldiers. As there are very few, the lack of transparency increases the feeling of impunity. Stein said: "If you talk with soldiers, you will hear many of them say: 'We can shoot whenever we want. We are at war, and at war you shoot.' They think nothing will happen to them if they make a mistake and kill a child, or a journalist or anybody. It encourages people to shoot and soldiers in the territories are terrified. They are young kids, they are not protected, they are not trained and they will shoot at anything that comes by especially since nobody tells them otherwise."
Reporters Without Borders is convinced that the soldiers who had been at the scenes of the killings were quickly debriefed. In both cases, the IDF also tried to gather additional information from sources outside the army. In view of the large amount of evidence available, it is clear that new investigations must be carried out to establish who was responsible in what appear to have been serious breaches of regulations in both cases.
The laxity and the dissimulation in the initial enquiries, the incorrect statements by the IDF and the destruction of evidence is compounded by the concern of senior officers not to cast blame on an army engaged in a "armed conflict short of war," to use the term employed since September 2000. The political desire to defend the IDF's image and the individual soldier wins out over the duty to punish those responsible for serious acts of negligence or abuses. The lack of a real investigation, and even more so, the lack of any judicial, administrative or disciplinary follow-up as regards soldiers responsible for homicides, even unintentional homicides, has resulted in a widespread feeling of impunity. This laissez-faire on the part of the most senior officers nonetheless runs entirely counter to the principles and values of the Israeli army, among which are "purity of arms" and "respect for human life."
The ridiculously low number of courts martial and the lack of communication about the punishments that may have been imposed may be viewed by some soldiers as tacit endorsement by their superiors. It is therefore likely that acts of negligence, serious errors, breaches of regulations and undoubtedly, in very exceptional cases, deliberate abuses will continue to be committed in the future.
Furthermore, certain promises have not been followed up. For example, the French journalist Bertrand Aguirre, a correspondent for the TV station TF1, was injured on
15 May 2001 in Ramallah. Three different TV crews videotaped the shooting. You can see an Israeli border guard get out of his vehicle, calmly adjust his firearm and, with a cigarette in his mouth, open fire with real bullets at an angle likely to hit people in the head or upper body. Aguirre, who had just finished filming a stand-up, was hit full in the chest. Fortunately, the bullet was just stopped by his flack jacket. The police internal investigations section, which is responsible for investigating breaches by the frontier police, asked Aguirre to cooperate with them and promised to carry out the most thorough investigation possible.
Contacted two years later by Reporters Without Borders, Aguirre said he was "disappointed by not surprised" by the fact that the case went nowhere. "Four months later, in September 2001, I got a three-line letter saying the case had been closed for lack of evidence." He said he gave the Israeli authorities all they had asked for. "I gave them the armoured plate of my flack jacket. I got all the witnesses to agree to speak. And I didn't file any complaint. I really played the game but I finally realised there was no desire to carry out an investigation to a proper conclusion."
1. As regards the death of Nazeh Darwazi, Reporters Without Borders recommends that the IDF should conduct a full investigation and if necessary punish the soldier who, in the apparent absence of any immediate danger, indiscriminately fired what may have been intended as a warning shot and thereby caused the death of a person identifiable as a cameraman. The internal debriefing carried out by the field commander, with its still undisclosed conclusions, appears completely insufficient.
2. As regards the death of James Miller, Reporters Without Borders is of the view that the military prosecutor should ask the military police to take over the investigation. The weapons of the Israeli soldiers involved in the incident should be tested as soon as possible in order to formally identify the one who fired the shot. All witnesses should be formally asked to make a statement. This investigation should lead to judicial proceedings.
3. An autopsy should be systematically carried out whenever a journalist is killed in the occupied Palestinian territories. The forensic data obtainable from autopsies is essential for determining who is responsible for such deaths.
4. The Israeli supreme court should review the decisions of the military prosecutor, who should be able to justify his refusal to open an investigation.
5. It should be made easier to bring a complaint against the Israeli army and the public should be made aware of the procedure for doing this. Journalists must be told where they should address their complaints or queries.
Investigation by Nadette de Visser and Séverine Cazes