HCJ 10167/17 ‘Abd al-Muamen ‘Abdallah v. the Attorney General
Petition submission date: 28.12.2017
Samah ‘Abd al-Muamen ‘Abdallah, an 18-year-old Palestinian from the village of ‘Ammuriya, was shot and killed in November 2015 on her way home from Nablus, where she was training as a cosmetician. As Samah and her family approached Huwwara checkpoint in their car, a bullet fired by a soldier penetrated the window pane and struck Samah, who was sitting in the backseat with her siblings, in the head. She passed away three weeks later at Beilinson Hospital in Israel. The military later explained that the soldier had fired the shot after a Palestinian tried to stab Israeli civilians with a knife at a hitchhiking post near the checkpoint, and that the bullet had apparently struck Samah by mistake.
Official IDF policy requires an investigation of every incident resulting in the death of a Palestinian civilian, with the exception of incidents that are “clearly part of a combat situation”.
The military refused to investigate the circumstances of Samah’s death on the grounds that they constituted a “combat situation”.
After complaints to the Military Advocate General’s (MAG’s) Corps and the Attorney General failed to result in an investigation, Samah’s father, ‘Abd al-Muamen ‘Abdallah, petitioned the High Court with the assistance of Yesh Din. The petition argued that the MAG’s definition of a “combat situation”, which includes a violent action by an individual without a firearm, does not comply with international law, with the Turkel Commission’s recommendations, or even with the MAG’s own definitions. As such, it renders the Attorney General’s commitment to the High Court to investigate the deaths of Palestinian civilians effectively meaningless.
The petition reiterated the distinction made in international law between clear-cut combat situations and civilian incidents, such as disturbances of the peace or individual acts of violence, to which the appropriate response is enforcement through policing. Although this distinction is not always easy to uphold in practice, it stands to reason that incidents which are “clearly part of a combat situation” should involve actual combat, such as armed forces firing at each other. In a reality of military occupation, especially if it is drawn out, the distinction is sharper given the occupying power’s duty to keep the peace in the region.
The petition further argued that when a lone perpetrator attempts to stab or run over civilians, such as in the incident that lead to Samah’s death, the attack does not belong in the category of a combat situation but rather of sporadic violence, disturbances of the peace and riots, to which the forces respond with policing rather than combat activity.
The decision not to investigate this case, in breach of official policy, is not unusual. According to B’Tselem figures, 69 Palestinians were shot and killed by Israeli soldiers in the West Bank in 2015, but only 21 investigations were opened. Many of the incidents took place in the context of the violence that erupted in the West Bank that year. In 2016, 56 Palestinians were shot and killed by Israeli soldiers in the West Bank, yet only 10 MPCID investigations were immediately launched as stipulated in the IDF’s investigation policy.
In the preliminary response to the petition, the Chief Military Prosecutor announced in February 2018 that an MPCID investigation would be launched into the circumstances of Samah’s death. In a letter to Yesh Din, she explained that the decision to launch the investigation was based on the petitioners’ argument that the lethal shooting may have come from a watchtower north of the checkpoint and that the bullet that hit Samah may have penetrated the front windshield – as opposed to the MAG Corps’ assumption that the bullet had been fired by soldiers who were shooting at the assailant from a square behind the car. In light of the decision, the state requested that the petition be withdrawn without discussing the underlying issue of the criteria for launching an investigation into the death of a Palestinian. On behalf of the petitioners, Yesh Din rejected the request.
In its response to the petition, the state argued that given the decision to investigate the circumstances of Samah’s death, which removes the need for private remedy, there is no longer any need to discuss questions regarding the overall investigation policy and its implementation, as these questions are merely theoretical. In the response, the state added that the decisions whether to classify an incident as “clearly part of a combat situation” and whether to launch a criminal investigation depend on the unique circumstances of every case, and cannot be determined a-priori for all cases.
After a hearing in the HCJ , In January 2019, the petition was deleted.
Petition status: deleted.