This report examines three aspects of Israeli policy that have contributed to the excessive number of Palestinians killed during the intifada. These policies are reflected in the rules issued to Israeli troops operating in the occupied West Bank and Gaza Strip on when they can open fire, which Middle East Watch finds to be unduly permissive; the procedures followed by the Israel Defense Force (IDF) to investigate and punish troop misconduct against Palestinians, which Middle East Watch finds to be ineffective; and the restrictions imposed by the IDF on independent bodies attempting to monitor its conduct in the occupied territories, which Middle East Watch finds to be unjustified. Middle East Watch urges immediate modification of these policies to reduce the number of Palestinians killed unjustifiably at the hands of Israeli troops and to ensure that Israeli use of lethal force in the occupied territories is made consistent with internationally recognized standards of necessity and proportionality.
During the first 31 months of the intifada, Israeli security forces(1) killed over 670 Palestinians and injured many thousands more.(2) Israeli authorities lay the blame for these casualties on the Palestinians, arguing that their violent resistance to Israeli troops has necessitated a forceful response to restore and maintain order. Officials claim that, with few exceptions, soldiers have responded to constant dangers and provocations with great restraint and with no more force than appropriate.
Our investigation found that, to the contrary, Israeli policies all too often encouraged a lack of restraint by IDF troops. This conclusion was reached after extensive interviews with witnesses to the use of lethal force by Israeli troops; Palestinian and Israeli lawyers who have represented the families of those killed by the IDF; representatives of Palestinian, Israeli and other human rights organizations; five IDF reserve soldiers and officers; and several senior IDF representatives.(3)
The most glaring exceptions to this stated policy of restraint can be seen in aspects of the open-fire orders issued to IDF troops, the so-called rules of engagement. These rules explicitly authorize soldiers to use lethal force in response to certain situations that are not life-threatening to soldiers or bystanders. They include orders authorizing relatively liberal use of lethal force to stop fleeing Palestinians suspected of crimes that do not involve threats to life; orders authorizing the use of lethal force to shoot masked Palestinians who try to escape arrest, without regard to whether they are engaged in violent, let alone life-threatening, activities; and orders authorizing the use of plastic bullets, which are supposedly non-lethal if used according to procedures outlined in the rules of engagement but in fact have resulted in well over 100 deaths during the intifada, in situations far short of threats to life. These permissive rules are the direct cause of many of the IDF killings of Palestinians during the intifada.
A second factor contributing to excessive killings is the system used by the IDF to investigate and punish soldiers who violate the rules of engagement. This report focuses for the most part on investigations into fatal incidents, for two principal reasons. First, the arbitrary deprivation of life is a paramount human rights concern and deserves heightened scrutiny. Second, because the IDF has undertaken as a matter of policy to launch a formal investigation into every Palestinian death in which IDF involvement is suspected -- the IDF investigates nonfatal incidents only under certain circumstances, described in Chapter Two -- an examination of killing cases allows Middle East Watch to evaluate how well the IDF polices itself when it claims to be at its best.
To ensure that standards of conduct are adhered to, soldiers must believe there is a substantial risk that they will be discovered and punished if they violate those standards. For this to be the case, investigators must collect evidence thoroughly and impartially, prosecutors must act on that evidence by filing appropriate charges, a court-martial or disciplinary hearing must weigh the evidence fairly, and a proper sentence must be meted out to those found guilty. This is not the reality for soldiers who operate in the West Bank and the Gaza Strip.
Of the approximately 450 killings by security forces through the end of June 1989 -- a date chosen to allow the IDF over one year to have completed an investigation and brought a case to trial -- there were no more than 16 cases in which soldiers were court-martialed for causing death (never on charges more serious than manslaughter or negligent homicide), and no more than ten cases in which soldiers were convicted, although a few trials are continuing. (In a small number of other death cases, soldiers were indicted for illegal use of a weapon or for violating standing orders, but no proof was introduced that the violation resulted in a casualty.) The punishments handed to those convicted ranged from an official reprimand to, in some six cases, prison sentences of between two months and two years.(4)
In the case of the more than 400 other IDF killings, either no legal decision has been issued despite the passage of at least one year, or the military prosecutor decided against a court-martial, presumably because the official investigation failed to turn up sufficient evidence of soldier misconduct.(5)
These statistics, while not definitive, indicate that no more than one in 20 killings that occurred at least one year ago led to a court-martial, while less than one in 60 resulted in a prison sentence for a soldier. No case resulted in a prison sentence commensurate with what would ordinarily be considered appropriate for the willful commission of a serious crime of violence.
Middle East Watch believes that the few courts-martial to date represent only a small portion of fatal incidents in which there is prima facie evidence -- credible eyewitness testimony in particular, but also medical evidence in some cases -- that soldiers exceeded their open-fire orders. Part of the reason, we found, is that investigations into killings by IDF troops lack the vigor and resourcefulness needed to bring to justice those responsible for unjustified killings. IDF investigators regularly fail to seek the testimony of Palestinian witnesses, neglect to obtain medical records that will shed light on the circumstances of killings, and ignore offers of intermediaries to provide pertinent evidence. In addition, investigations into likely violations routinely drag on for months at a time, reducing the likelihood of a successful prosecution and reinforcing a lack of faith in the Israeli military justice system.
This failure to vigorously investigate and prosecute sends a signal to soldiers that they have leeway to exceed their open-fire orders. Although in interviews soldiers indicated that the few courts-martial which have taken place have impressed upon them that there is some risk of being interrogated and punished for deviating from their orders, this sense of accountability must be reinforced by more systematic investigations and prosecutions if unjustified killings are to be curtailed.
One potential source of outside pressure for more thorough and expeditious investigations are the independent observers -- human rights workers, lawyers, journalists and certain members of the Knesset -- who monitor IDF conduct in the occupied territories. One vivid example of this external pressure occurred in February 1988, when a CBS News crew outside Nablus used a telephoto lens to film four soldiers holding down two Palestinians and systematically pounding their arms with rocks. This film caused an uproar when it aired abroad and, in a censored version, in Israel. It prompted Gen. Amram Mitzna, commander of the Central Command, to investigate the incident personally and to order the arrest of the four soldiers and the suspension of an officer.(6)
This case is illustrative of a pattern found by Middle East Watch: many of the incidents of excessive force that have led to prosecution were those that were noticed by monitors outside the IDF. Often, these monitors produced relevant witnesses or crucial evidence. In other cases, their inquiries and pressure appear to have prodded the military's legal system to pursue a case more vigorously. If allowed to operate more freely, these independent monitors could increase the pressure for more aggressive official investigations.
Although as a rule Israel permits independent observers to function, it frequently prevents their access to areas of confrontation between Palestinians and Israeli troops, at the very moment when their presence would be most powerful as a restraining force. This practice also impedes quick, independent access to those who have witnessed a confrontation and might provide useful testimony. The obstacles are greatest for Palestinian journalists and human rights monitors, many of whom have been placed under broad travel restrictions or detained without charge or trial.
In the view of Middle East Watch, these policies -- the permissive rules of engagement, the deficiencies in the investigative process, and the obstacles placed in the way of independent monitors -- reflect a lack of political will on the part of Israeli authorities to establish a meaningful system of accountability for unjustified killings of Palestinians. We are convinced that most of the failures and deficiencies described in this report could be readily overcome if senior military and civilian officials were determined to stop unjustified killings. For example, Israeli authorities could quickly reduce the number of killings by dismissing senior military officials who fail to curb such killings by troops under their command. The failure to establish lawful rules of engagement and an effective system of accountability thus must be taken to reflect a policy decision that the high number of Palestinians killed is an acceptable cost for asserting Israeli control in the occupied territories.
This lack of will to end unjustified killing of Palestinians reflects a basic contradiction in Israeli policy. On the one hand, the IDF deploys troops in the occupied territories as if they are engaged in combat. They use rifles and bullets instead of equipment more appropriate to crowd control, such as plastic shields, tear gas and water hoses. On the other hand, the IDF maintains that it has established rules of engagement and a system of accountability that would be appropriate for law enforcement in the context of civil strife. This legal regime has broken down because the senior officials whose direction is needed to make it work persist in giving their troops the leeway that would be appropriate in time of war. That is, these officials speak the language of law enforcement, but their actions, taken cumulatively, more closely resemble what one would expect if they were facing enemy combatants.
In confronting the intifada, the Israeli government is clearly concerned with public opinion, particularly international opinion but also opinion within Israel. For a variety of reasons, it is important to the government that these audiences perceive the conduct of Israeli troops as lawful. But it is incumbent on Israeli authorities to show that the rules of engagement and the system of accountability said to enforce those rules serve more than a public relations purpose, that they genuinely apply and enforce international standards on the use of lethal force. Israel will fail in this effort so long as its system of accountability continues in all but the rarest cases to deliver impunity.
A. Legal Standards
Middle East Watch begins with the premise that Israeli actions during the intifada should be analyzed as a problem of crowd or riot control, rather than as one of war-like conflict between combatants. As noted, this is a premise shared at least officially by Israeli authorities. For example, IDF spokesman Nachman Shai has stated, "For Israel to eliminate the uprising by involving the kind of massive brute force that the army exercises on the battlefield in a full-scale war would fly in the face of the country's essence as a Jewish state and as a democracy abiding by the rule of law."(7) Israel says that it regards participants in non-life-threatening violence not as combatants who can be targeted for attack, but as law-breakers who should be apprehended and punished instead of shot.(8) According to the rules of engagement, soldiers are permitted to open fire only in a discrete set of circumstances and only when certain conditions are met. When soldiers are suspected of killing an intifada participant, they are investigated rather than decorated, as they might be if they had killed a combatant in war; and, it is claimed, "wherever it appears that an actual offense has been committed, steps are taken against the soldier in question."(9)
The imbalance in weaponry underscores the propriety of treating the intifada as a civil revolt rather than a war. While each soldier carries a loaded M-16 or Galil assault rifle, Palestinians involved in the intifada have, with few exceptions, shunned the use of guns against soldiers. According to IDF figures, only five percent of violent activity by Palestinians during the intifada involves the use of clearly lethal weapons: guns, knives and gasoline bombs. Eighty-five percent is stone-throwing, 60 percent of which is carried out by children 13 years of age or younger.(10) (Stone-throwing ranges in severity from the tossing of pebbles at far-away soldiers to the hurling of small boulders from rooftops or at the windshields of moving cars.) The remaining ten percent, while not specified, presumably includes such weapons as slingshots and iron bars, which in their potential for inflicting injury lie between most stone-throwing and weaponry that is clearly lethal.
The casualties that flow from the conflict are as lopsided as the arsenals used. While security forces have killed over 670 Palestinians -- the vast majority of them unarmed -- Palestinians have killed a total of 11 soldiers: five by gunfire, two by stones or blocks being dropped on their heads, two by gasoline bombs, and two by stabbing.
In confronting a civil conflict short of war, Israel must abide by internationally recognized standards governing situations of occupation. Israel as the occupying power has the duty under such standards to take appropriate steps to "restore, and ensure, as far as possible, public order and safety."(11) But that duty coexists with an obligation to treat the population under occupation humanely. Article 27 of the Fourth Geneva Convention of 1949, which sets forth the duties of an occupying power, requires that "protected persons...shall at all times be humanely treated, and shall be protected especially against all acts of violence...."(12)
In addition, the Fourth Geneva Convention establishes a mechanism to enforce the duty of humane treatment by requiring that an occupying power investigate and punish those responsible for serious violations of this duty. Article 146 of the Convention requires the occupying power to investigate and prosecute "grave breaches" of the Convention. It obliges an occupying power to "search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and...[to] bring such persons, regardless of their nationality, before its own courts." Article 147 provides that "willful killing" and "willfully causing great suffering or serious injury to body or health [of protected persons]" constitute "grave breaches" of the Convention.
While the Fourth Geneva Convention's requirement of humane treatment and protection against violence establishes an important safeguard for a population under occupation, it provides only the broadest standard for assessing the conduct of soldiers who encounter the demonstrations and rock-throwing that have come to characterize the intifada. Middle East Watch thus has looked to other sources of law to clarify the meaning of the duty of humane treatment in the context of the occupied territories. The most directly pertinent sources of codified law are the international standards governing the behavior of law enforcement agents in situations of riot or crowd control. That Israel relies primarily on its army to police the occupied territories does not make law enforcement standards any less relevant, since the task of maintaining order in the occupied territories is essentially one of police work.
The leading codification of international standards on such police practices is the 1979 United Nations Code of Conduct for Law Enforcement Officials. Article 3 provides: "Law enforcement officials may use force only when strictly necessary to the extent required for the performance of their duty." The official commentary to the Code elaborates: "The use of firearms is considered an extreme measure....In general, firearms should not be used except when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient to restrain or apprehend the suspected offender." In applying these standards to the situation of the intifada, Middle East Watch has drawn on two outstanding principles: first, that the use of lethal force be proportional to the harm faced, i.e., that it be reserved for situations in which lives are endangered; and, second, that it be necessary to meet that threat to life, i.e., that no lesser means is adequate. When in this report we refer to unjustified killings, we mean killings in violation of either or both of these principles.
As a formal matter, Israeli authorities state that the Code is not legally binding, and that it is not intended to apply in situations of military occupation. While the Code in fact is not a treaty binding on Israel, its standards, as noted, are the most pertinent for understanding, in the context of the intifada, the requirements of the duty of humane treatment contained in the Fourth Geneva Convention, which do apply to the occupied territories and by which Israel is bound. Moreover, Middle East Watch is of the view that the principles of necessity and proportionality reflected in the Code have assumed the character of customary international law. Customary international law is binding on all nations regardless of formal treaty commitments. As Amnesty International has pointed out:
the Code embodies the internationally recognized principles of necessity and proportionality in the use of force, which are intended to safeguard international legal rights, foremost among which is the right to life and the prohibition of torture or other cruel, inhuman or degrading treatment or punishment. Such rights must be protected under all circumstances.(13)
Despite their formal protestations, Israeli authorities as a practical matter have repeatedly affirmed that the behavior of IDF troops in the occupied territories is governed by the standards of necessity and proportionality. Responding to U.S. criticism that soldiers frequently opened fire in non-life-threatening situations, "causing many avoidable deaths and injuries,"(14) the Foreign Ministry stated:
The principles of restraint and gradual response are applied....Live bullets are fired only as a last resort, in life-threatening situations; according to the exigencies, rubber or plastic bullets may be used first....
A soldier who is suspected of improper or excessive use of force is subject to military trial and punishment. While some excesses have occurred, these have been unacceptable departures from policy, and have been dealt with accordingly.(15)
In another explanation of IDF conduct in the territories, the Foreign Ministry said in January 1990:
[S]pecial efforts have been undertaken to make clear to Israeli security personnel that, however great the provocation, their behavior must conform to strict regulations and standards, and that restraint must be exercised.
According to regulations, force may be used to stop violent activity and to overcome resistance to arrest. Force is prohibited as a form of punishment or to deliberately inflict injuries; similarly, the use of force is forbidden against a person who, after having been arrested, shows no resistance or makes no attempt to escape.(16)
It is worth noting, moreover, that within Israel, the law on when a killing is justified corresponds with the international standards of necessity and proportionality. Under the Israeli Penal Code, a court may absolve a person of criminal responsibility "if he can show that [he acted] in order to avoid consequences which could not otherwise be avoided and which would have inflicted grievous harm or injury on his person...or on the person...of others whom he was bound to protect...and that the harm caused by him was not disproportionate to the harm avoided."
In assessing IDF conduct with respect to the killing of Palestinians, Middle East Watch thus has applied standards that are broadly recognized as applicable to situations of internal strife like the intifada. In so doing, Middle East Watch seeks to hold Israel to the same internationally recognized standards that it and its sister Watch Committees of Human Rights Watch have applied to countries worldwide.
In undertaking this examination, Middle East Watch takes no position on Palestinian self-determination or the legality of Israel's occupation of the West Bank and Gaza Strip. These issues lie beyond our mandate.
B. Other Factors Contributing to the Killings
Middle East Watch notes that the three issues examined at length in this report -- the permissiveness of the rules of engagement, the inadequacy of IDF investigations, and the unjustified restrictions on independent monitoring -- are not the only factors contributing to the high number of Palestinians killed by the IDF during the intifada. Although this report does not explore these other factors in depth, we feel compelled to note three further IDF policies that contribute to the level of excessive killings: IDF tactics in aggressively suppressing Palestinian demonstrations and other acts of defiance; IDF policies on troop deployment and equipment; and the lack of sufficient training of IDF troops in how to handle intifada confrontations without resort to lethal force. We explore these other factors briefly here before turning to the three aspects of IDF policy that are the principal subject of this report.
Perhaps the most important factor behind the high level of killings by IDF troops is what some observers have termed the IDF's "offensive" posture. In general, the IDF has sought to project an image of undisputed control over the territories by suppressing demonstrations and other "illegal" activities, such as the flying of Palestinian flags and the writing of political graffiti -- whether or not these acts pose an imminent security threat. According to the emergency regulations that have been in effect since the occupation began in 1967, political assemblies and demonstrations are forbidden unless authorized by the military government. Permission is rarely sought and, when sought, rarely granted. Consequently, most demonstrations are deemed illegal. While Israeli authorities may offer security reasons for blocking and suppressing demonstrations, this policy has contributed to the types of confrontations in which Palestinians are killed.
Bernard Mills, the former director of UNRWA operations in Gaza, has made a similar point about the IDF response to funerals for those killed by Israeli troops: "Funerals are emotive events and the presence of Israeli soldiers near the processional route or at the grave side will always lead to further demonstrations and often, loss of life."(17)
The human rights organization B'Tselem made much the same point after ten Gazans were killed and many hundreds were wounded in the three days following the massacre by an Israeli civilian of eight Palestinians in Rishon LeZion in May 1990. B'Tselem observed that "security forces did not show enough prudence to give residents sufficient opportunity to in any way express their pain and anger, acting instead to nip all signs of protest in the bud."(18)
Moshe Arens, who assumed the post of minister of defense in mid-June 1990, seems to understand this point quite well. According to press reports, Arens has encouraged soldiers to avoid confrontations with Palestinians inside towns and villages and to focus instead on securing the major roadways. June 1990 saw the lowest number of Palestinians killed -- eight -- of any month since the start of the intifada. The New York Times described how a new policy of restraint affected the outcome of a memorial procession in Gaza on the Muslim holiday of Eid al-Adha:
[S]everal thousand Palestinians marched from refugee districts to the graves of people killed in the uprising....They raised hundreds of Palestinian flags, chanted nationalist slogans and pelted military posts with stones. In a departure from their actions in previous years, Israeli soldiers sat back and watched, inflicting no casualties.
Last year Israeli troops shot and killed three Palestinian mourners during the holiday observance. Nearly 200 other Palestinians were wounded, and a few of them died later. The deaths and injuries had become a ritual almost as familiar to Gaza residents as the holiday observance.(19)
Since long before the recent change of defense ministers, the role that IDF tactics can play in reducing IDF killings was illustrated in Israeli-annexed Arab Jerusalem, which includes the city and some surrounding villages and refugee camps and is home to a population of 150,000 Palestinians, roughly one-tenth of the Palestinian population of the West Bank and Gaza Strip. Although Arab Jerusalem has seen its share of demonstrations, road-blocks, rock-throwing and even gasoline bombs, no more than ten Palestinians have been killed during the intifada by security forces in the city. This lower rate of killing can be attributed in significant part to a policy decision to employ a less aggressive strategy in confronting Palestinian demonstrators. As Israeli journalists Zeev Schiff and Ehud Yaari noted early in the uprising:
[s]trict orders forbidding the police [in Jerusalem] to open fire were reinforced. Commanders warned that if any man did use his weapon, he had better be prepared to prove that his life had been in real and present danger, and "not to his superior officer but to a judge." Even the use of .22-caliber bullets (designed to wound but not kill) was absolutely ruled out. Thus the contest in Jerusalem followed lines very different from the one in the territories. For months not a single person was killed in the capital despite severe rioting and even assaults on Jewish neighborhoods that sometimes caused extensive damage.(20)
The role of IDF tactics in heightening the number of killings can also be seen by comparing the behavior of different battalions. Several reserve officers told Middle East Watch that some units are known to complete their tours of duty in the territories while resorting only rarely to firearms, a record that the reservists attribute less to variations in the sort of resistance encountered than to such factors as a commander's tactics in responding to common intifada situations such as roadblocks and the tasks he assigns to soldiers who are known to behave problematically.
For example, one reserve sergeant (whom we have designated reserve sergeant #2) told Middle East Watch, "Most rock-throwing is just a cat-and-mouse game, and I choose to ignore it. My job is to keep the main roads open and that's what I do. In units whose soldiers chase after every rock-thrower, you're going to get more injuries, killings, and tension."(21)
According to another reserve sergeant (reserve sergeant #3), his commander instructed the unit not to fire live ammunition at stone-throwers or persons who were fleeing. While soldiers, of course, had leeway to violate this command when exceptional hazards arose, the presumption was clear: stone-throwers rarely present a life-threatening hazard.(22) These more restrained tactics contrast with the more aggressive approach that has led to many IDF killings of Palestinians.
In addition to IDF tactics, IDF policies on troop deployment and equipment contribute to the high level of killings. Although troops find themselves numerically overwhelmed less frequently now than during the first months of the intifada, the IDF continues to send small, heavily armed units to do jobs that larger contingents of soldiers could probably carry out more safely. Similarly, in dealing with the civilian population of the territories, the IDF has preferred battlefield weapons to shields and other riot gear that, while putting soldiers on a more defensive footing, would also make them feel more secure and less likely to perceive the need to resort to lethal force.
By deploying small units, the IDF seeks to preserve as much manpower as possible for external defense, and sends a message that it will contain Palestinian defiance without a costly drain on its resources. In addition, there are logistical difficulties in deploying large forces, given that resistance activities are spread out over a large geographic area and often erupt in unpredictable fashion. But whatever the benefits of using small units, their deployment increases the likelihood that soldiers will resort to lethal force.(23)
Finally, the training of IDF troops to manage intifada confrontations without resort to firearms is plainly an important component of any effort to reduce the level of killing. IDF soldiers regularly find themselves in difficult, frightening and at times dangerous situations. Detached from central control, they patrol the narrow streets of cities, villages and refugee camps, making arrests, compelling Palestinians to remove roadblocks, flags and graffiti, enforcing curfews and tax collection, and suppressing demonstrations. The physical resistance that soldiers encounter ranges from small children tossing stones from a distance to an angry mob hurling large rocks, cinder blocks, sharpened metal objects and sometimes gasoline bombs from close range, or physically trying to prevent soldiers from making an arrest. A soldier trained in crowd or riot control will tend to be better equipped to handle such situations without firing his weapon.
In the early weeks of the intifada, Israeli officials conceded that some of the casualties at the hands of the IDF were due to a lack of preparedness in handling the massive and violent demonstrations that were taking place almost daily.(24) Unfortunately, this has remained a serious problem. As the military correspondent for the New York Times wrote in 1989:
Notwithstanding the Israeli view that the troops are now better prepared for what they face in the occupied territories, relatively little training appears to have been done to prepare them for such duty.
What little there is does not address mob psychology and how to deal with it through nonviolent means. Most soldiers receive only a few lectures and briefings before going into the occupied territories. These include instructions on how to deal with the press and on when soldiers may use deadly force.(25)
A reserve sergeant interviewed in August 1989 by Middle East Watch (reserve sergeant #4) expressed support for this view. He said that shootings in the territories often occur because "soldiers do not assess the danger correctly, especially when they're inexperienced."
C. Summary of Conclusions
IDF tactics, deployment and training thus form an important backdrop to the main subjects examined in this report. As for the principal areas of inquiry, Middle East Watch has reached the following conclusions:
Several Israeli policies and practices increase the number of killings of Palestinians by security forces in the West Bank and Gaza Strip. By failing to act decisively to change these policies and practices, Israel's government effectively condones the unjustified killing of Palestinians.
International standards apply the principles of necessity and proportionality to the use of lethal force in situations akin to the intifada. While Israel says that it adheres to these principles in confronting Palestinian unrest, the conduct of the IDF, taken cumulatively, more closely resembles what would be appropriate to a situation of combat, with the result that many Palestinians are killed outside of life-threatening situations.
o A direct cause of unjustified killings are the rules of engagement, which permit the use of lethal force not only in life-threatening situations, but also:
-- To apprehend a suspect who disobeys orders and warning shots to halt, even when that suspect is not suspected of posing an imminent mortal threat to others;
-- To apprehend persons wearing masks, if they ignore orders and warning shots to halt, without regard to whether they are threatening the safety of others;
-- To disperse disturbances by firing plastic bullets which, despite their proclaimed non-lethality, have killed 147 Palestinians, by the IDF's count.
Since scores of Palestinians have been killed while fleeing, the rules on apprehending suspects amount to a "Wanted: Dead or Alive" policy. Both these rules and the rules on plastic bullets effectively allow soldiers to inflict summary capital punishment on suspects who are not posing a threat to life.
o The lack of restraint in opening fire is further encouraged by the failure to investigate vigorously and to mete out appropriate punishments when soldiers exceed their orders. These investigations are marred by:
-- Inadequate efforts to obtain Palestinian testimony;
-- Inadequate cooperation with nongovernmental organizations and other intermediaries who are able to facilitate contact with witnesses;
-- Unreasonable delays before an investigation is completed and a legal decision reached, due in part to a lack of manpower and resources in the investigative division to keep pace with the huge increase in killing cases during the intifada;
-- The failure to respond in a timely and thorough fashion to outside requests for information about investigations.
These deficiencies could be readily corrected if the Israeli government demonstrated the will to hold soldiers fully accountable for misconduct toward the population of the occupied territories.
o The accountability that soldiers feel for their conduct is further undermined by the imposition of restrictions on independent observers in the occupied territories. While allowing monitors in principle to operate freely, the IDF impedes their work by:
-- Routinely declaring closed military zones, preventing human rights field-workers, journalists and others from witnessing and gathering information about alleged abuses.
-- Imposing administrative sanctions on many Palestinian human rights field-workers, lawyers and journalists, including detention, travel restrictions and town arrest. These sanctions, imposed without charge or trial, clearly hamper the ability of these monitors to bring pressure to bear on authorities to investigate and punish abuses.
D. Recommendations
o Middle East Watch calls on the Israeli government to revise radically those rules of engagement that in practice have routinely caused death and serious injury in non-life-threatening situations. In particular, the rules on apprehending suspects and on firing plastic bullets should be brought into compliance with the principles of necessity and proportionality.
o The Israeli government must demonstrate the political will to bring to justice those soldiers who violate their orders. One important way to do so would be to transfer the investigation of suspected abuses by soldiers from the IDF to an independent investigative body capable of carrying out professional and impartial probes.
o The IDF must make clear to its personnel that the use of excessive force will not be tolerated, and that officers will be held accountable for abuse by their subordinates. Establishing such accountability for officers would help to overcome the difficulty of determining which soldiers committed particular abuses and would make the officers themselves take responsibility for preventing abuses.
o If the IDF is to conduct credible investigations of its own conduct, authorities should enhance the impartiality, thoroughness and promptness of the investigative process by correcting the major deficiencies of the current system:
-- The investigative division must be given the resources it needs to give each case the attention required and to complete inquiries in a timely manner;
-- Investigators must make greater efforts to seek Palestinian witnesses, welcoming offers of assistance from intermediaries in locating witnesses;
-- Investigators must undertake greater efforts to obtain medical evidence;
-- The IDF must strive to implement in reality its stated policy of openness with regard to investigative files, making their findings open to the scrutiny of interested parties.
o To heighten further the accountability that soldiers feel for their actions, a number of steps should be taken in the field. All troops patrolling in the territories should, like law-enforcement officers in many parts of the world, wear clearly legible badges giving either their names or a unique number, so that they can more easily be identified by eyewitnesses or civilians who wish to file complaints. IDF record-keeping of troop movements and actions should be of a uniformly high standard. Soldiers should be required to report every incident in which a shot is fired, stating the type of ammunition used and the reasons for the incident. Officers should keep careful records of the whereabouts of all personnel on patrol.
o Israel should allow greater freedom for independent human rights monitoring in the occupied territories. In particular, zones should not be closed off to the media and other observers except in the rare cases, approved by a senior commander, when there are compelling security reasons to do so. Military authorities must not interfere with the work of Palestinian human rights monitors, journalists and lawyers unless the authorities file specific charges of offenses that are recognizably criminal, and try the accused in open court.
o Finally, Middle East Watch urges the United States government to increase its monitoring of the use of excessive force in the occupied territories, not only by having its diplomatic staff in Jerusalem and Tel Aviv collect data about possible abuses by the military authorities, but also by following closely how the IDF investigates and disciplines personnel suspected of mistreating the Palestinian population. The State Department, in its report on Human Rights Practices for 1989, found:
[Israeli] soldiers frequently used gunfire in situations that did not present mortal danger to troops, causing many avoidable deaths and injuries....[R]egulations were not rigorously enforced; punishments were usually lenient; and there were many cases of unjustified killing which did not result in disciplinary actions or prosecutions.
In addition to making such a statement once a year in its annual human rights report, the U.S. government should be voicing regular public disapproval of these serious human rights abuses as they continue to occur, and urge Israel to take steps immediately to curtail the unjustifiable killings by its troops in the occupied territories.
1. 1 We use the term "security forces" to include all Israeli state agents: IDF
troops; the Border Police, which is institutionally part of Israel's Police
Ministry but operates in the occupied territories under the direction of the
IDF; and the General Security Service (Shin Bet). Although a statistical
breakdown is not available, the vast majority of killings by security forces in the
territories have been inflicted by the IDF.
2. 2 Unless otherwise noted, the statistics used in this report are those reported
by the human rights organization B'Tselem, the Israeli Information Center for
Human Rights in the Occupied Territories.
With regard to the number of Palestinians killed by the gunfire of
security forces during the intifada, there is not much disparity between official
and independent figures. There are wider discrepancies between official and
independent tallies of casualties due to causes other than bullets, such as
beatings and tear gas. The IDF acknowledges responsibility for very few non-shooting deaths, while B'Tselem counts 34 inflicted by security forces through
June 30, 1990. In addition, B'Tselem has counted more than 80 Palestinians
who died shortly after exposure to tear gas, although it acknowledges that, from
a medical standpoint, it is difficult to determine whether tear gas was the direct
cause of death. (B'Tselem press release, July 1, 1990.) The IDF claims that
no causal link has been demonstrated between the use of tear gas and a single
Palestinian death. (Paul Adams, "Children in the Front Line," Middle East
International, May 25, 1990.)
3. 3 The IDF representatives interviewed by Middle East Watch included the
Chief Military Prosecutor, the Deputy Judge Advocate-General, the
commander of the Criminal Investigation Division (CID), the head of the
IDF's International Law Section, and others.
The IDF requested as a condition of the interview that the name of
the commander of the CID, a colonel, not be published; consequently, he is
referred to in text only by his title. The reserve officers interviewed asked to
be quoted anonymously; they are referred to by number and by the date of
their interview.
4. 4 There have also been a few border policemen tried in death cases during
the intifada, although the exact number is not available.
5. 5 In an undisclosed number of these cases, however, soldiers were subjected
to a milder disciplinary procedure: a hearing before an officer who is
empowered to impose sanctions such as demotions, reprimands and terms of
detention of no more than 35 days. The IDF Judge Advocate-General, Brig.
Gen. Amnon Strashnow, said on October 18, 1989 that between 500 and 600
soldiers have faced disciplinary hearings since the beginning of the intifada
( 8. 8 When Israeli authorities have referred to the intifada as a war, they have
tended to use the term metaphorically rather than in the sense of two armed
camps that attack one another militarily. They have called the intifada a war
for public opinion, a war to subvert Israeli morale, or the latest phase in the 50-year war between Arab and Jew.
Using an ambiguous phrase that many Israelis would likely accept, Lt.
Arik Gordin of the IDF spokesman's office called the intifada "a war and not-a-war." (Interview in Tel Aviv with Middle East Watch, June 8, 1989.) Even
Prime Minister Shamir's dramatic pronouncements on the subject do not
suggest that the intifada poses a military threat to Israel.
9. 9 Statement issued by the Embassy of Israel, Washington, DC, June 1990.
10. 10 Joel Brinkley, "Israeli Sees Failure to Halt Uprising as It Nears 3d Year,"
11. 11 Article 43 of the Hague Regulations of 1907. The Hague Regulations are
recognized to be customary international law, and Israel accepts their
applicability to the occupied territories. See Adam Roberts, "Prolonged
Military Occupation: The Israeli-Occupied Territories Since 1967," 12. 12 Israel has ratified the Fourth Geneva Convention but maintains that it is
not applicable to the territories it occupied in 1967. It has nevertheless stated
consistently that it will comply on a de facto basis with the "humanitarian
provisions" of the Convention, without ever specifying which provisions it
regards as humanitarian.
Israel's objection to the applicability of the Convention relates to the pre-1967 status of the West Bank and Gaza Strip. Article 2 of the Convention states that the Convention shall apply to "all cases of partial or total occupation of the territory of a High Contracting Party...." Israel contends that the land it seized in 1967 does not meet this criterion, since it views the West Bank as having been administered by Jordan and the Gaza Strip by Egypt as a result of illegal occupations. To recognize the applicability of the Geneva Conventions, Israel contends, might appear to accord Jordan and Egypt the status of an ousted sovereign with reversionary rights.
Virtually the entire international community, including the United States, as
well as the International Committee of the Red Cross, which is regarded as the
guardian of the Geneva Conventions, maintains that the Fourth Geneva
Convention does apply to Israeli rule in the occupied territories. Among the
principal arguments in favor of applicability are the strong precedents for
viewing the laws of war, including the laws on occupation, as embodying
important humanitarian principles that should apply even in cases that differ in
some respects from the situations contemplated in the Hague Regulations and
the Geneva Conventions. See Roberts, 64-66.
13. 13 Amnesty International, "Killings by Israeli Forces," January 1990.
14. 14 U.S. State Department, 15. 15 Statement reprinted in the 16. 16 "Israel's Measures in the Territories and Human Rights," Consulate
General of Israel in New York, January 1990.
18. 18 Press release, June 1, 1990.
20. 20 Zeev Schiff and Ehud Yaari, 21. 21 Interview in Jerusalem with Middle East Watch, June 14, 1989.
22. 22 Interview in New York with Middle East Watch, July 17, 1989.
23. 23 This point was made by Bernard Mills, the former director of operations
for UNRWA in Gaza:
The Israeli army rarely, in my opinion, deploys a sufficient force to
carry out an operation, whether it be to contain a demonstration, to
search a village or to arrest suspects. They rely on the use of firearms
to force entry into a village or to clear a street of demonstrators when
any Western country dealing with stone-throwers would use force of
numbers to achieve their aim. (Bernard Mills, "Minor Scuffles That
End with Fatal Consequences," the Independent (London), April 27,
1989.)
24. 24 Although the eruption of the intifada found IDF troops lacking proper
training and equipment for riot control, there is no reason they should have
been so unprepared. Throughout the 1980s, Palestinians had been staging
large demonstrations, building roadblocks and throwing stones at soldiers,
although with less frequency and intensity than since December 1987. During
these years, the IDF frequently responded with live ammunition rather than
with standard riot-control techniques. From January 1986 until the outbreak of
the intifada 23 months later, soldiers' gunfire killed 17 Palestinians in the West
Bank, according to the Ramallah-based human rights organization al-Haq.