On April 17 2009, during the weekly protest against the separation barrier in the village of Bil’in, a member of Israel’s security forces fired a tear gas cannister directly at Bassem Abu Rahmeh’s chest. Thirty-year old Abu Rahmeh died shortly after from his wounds. The case was also documented in the film Five Broken Cameras, which received an academy award nomination.
Although the shooting violated the Israeli military regulations, the Military Advocate General’s Corps (MAG Corps) failed to properly investigate the incident. It should be noted that at the time, the MAG Corps’ policy was that a Military Police Criminal Investigations Division (MPCID) investigation should not be opened in the case of death unless it specifically ordered this. The MAG Corps explained that it refused to investigate because of the possibility that the grenade that hit Abu Rahme ricocheted off a fence.
It was only in July 2010, after the MAG Corps received a report from a simulation expert on behalf of the Abu Rahmeh family, that the MAG announced he had changed his position and now intended to investigate the circumstances of Abu Rahmeh’s death. The report included an analysis of videos that documented the incident from three different angles, reaching the conclusion that Abu Rahmeh had been killed from direct fire.
HCJ 1647/13 Subhiya Musa Abed Abu Rahmeh v. Military Advocate General (first petition)
Petition filed: 3.3.2013
After no decision was made regarding the file for two and a half years, Subhiya Abu Rahmeh, Bassem’s mother, petitioned the High Court of Justice to demand the MAG make a decision in the case and indict the soldier and anyone else with command responsibility for killing her son.
In September 2013, the State Attorney notified the High Court that the Military Advocate General at the time, Major-General Danny Efroni had decided to close the investigation due to insufficient evidence. In its response, the State did not detail the reasons for closing the case, except to briefly state that “there is not enough evidence, not to the extent necessary for criminal proceedings, for taking legal action against those soldiers involved in the incident.” The State Attorney’s Office did not provide any information on the investigation’s findings, the accounts provided by the soldiers who were questioned or any opinions that counter the findings of the simulation expert. Following the MAG’s decision, the High Court ordered the petition deleted.
Petition status: deleted.
HCJ 2295/15 Subhiya Musa Abed Abu Rahmeh v. Military Advocate General (second petition)
Petition filed: 31.3.2015
In July 2014, following the MAG Corps’ long delay in providing Yesh Din with investigative materials, Yesh Din and B’Tselem appealed the decision to close the investigation file, citing a list of investigative failures.
In March 2015, nearly six years after Abu Rahmeh was killed, his mother once again petitioned the High Court, together with Yesh Din and B’Tselem, this time demanding a ruling in the appeal. “Abu Rahmeh was killed by fire that was at least negligent on the part of IDF soldiers, and the investigation into who was responsible for his death was smothered for years due to unforgivable foot dragging on the part of prosecutorial and investigative bodies,” the petition stated.
In its response in January 2016, the State announced the MAG had decided to reject the appeal since the documentation provided made facial recognition impossible, therefore precluding identifying the soldiers involved. In their March 2016 response, Yesh Din and B’Tselem noted that when the investigation began, the MPCID was provided with a set of photographs that could make recognition possible – and that even if facial recognition was not feasible, the petition also demanded the prosecution of the commanders for their command responsibility.
In April 2016, the High Court ordered the petition deleted, given a new directive from the Attorney General (issued after the recommendations of the Turkel and Ciechanover committees). According to this directive, where the MAG rejected an appeal against the closure of an investigation file, the decision must first be taken up with the Attorney General, before a High Court petition can be filed.
Petition status: deleted.
HCJ 9850/16 Subhiya Musa Abed Abu Rahmeh v. Attorney General et al. (third petition)
Petition filed: 19.12.2016
In May 2016, with Yesh Din’s help, Subhiya Abu Rahmeh filed an appeal with the Attorney General with respect to the decision made by the MAG to reject the appeal of the investigation’s closure.
The appeal demanded a supplementary investigation into the identity of the shooter, as to that date, the authorities had failed to ascertain who exactly shot Abu Rahmeh and noted that a simple inquiry into the positions of the suspects during the incident could uncover who the shooter was. The investigators had failed to take this basic action.
When no response to this appeal was received for seven months after its submission to the Attorney General, Abu Rahmeh filed a third High Court petition, this time asking the court to make a decision in the case itself.
The petition argued that the ample evidence contained in the investigation file lead to the conclusion that the shooter should be prosecuted for homicide, or at the very least, negligent homicide. The petition also argued that the investigation file contains clear evidence that the commanders of the implicated soldiers failed to properly instruct their subordinates on the operation of the grenade launchers used in the incident or the necessary precautionary ranges and took no action to ensure the soldiers would not use them illegally, firing directly at civilians from close range. Therefore, the commanders should also be prosecuted for their responsibility for the unlawful firing. As an alternative, the petition demanded disciplinary action or summary disciplinary measures against the soldiers involved and their commanders.
During the proceedings, the State admitted that the original investigation file had been lost, and that the remaining copies of documents are incomplete, meaning the investigative material was deficient.
In September 2018, the justices of the High Court dismiss the petition, holding there was no room for judicial intervention in the decision not to prosecute those responsible for Abu Rahmeh’s death. The justices also found there was no room for intervention in the decision to refrain from disciplinary action or summary disciplinary measures.
In their decision, the justices took note of the negligence shown by the military law enforcement agencies – the MPCID and the MAG Corps – which conducted a negligent and inexhaustive investigation that could not yield a positive identification of the shooter. Justice Groskopf noted: “The judgment cannot be concluded without addressing the difficulties surrounding the conduct of the authorities in this lengthy affair, particularly the amount of time it took to process the case, which, on the human level, has certainly added to the Petitioner’s pain and sorrow, and on the practical level, hurt the investigation of the truth”.
Justice Groskopf also noted that most of the testimonies given by soldiers and commanders were collected a considerable amount of time after the incident, which significantly undermined their quality and reliability. He also took note of the fact the investigation file went missing at a certain point, and that evidence the lost file contained could no longer be reconstructed. The court added: “All this is joined, as stated, by the lengthy processing of the Petitioners’ communications, despite two previous judgments issued by this Court, expressly instructing the Respondents to reach a speedy resolution”.
Justice Kara said: “… [I]t is difficult to unburden oneself of the strong discomfort caused by the way the matter was handled and by our own inability to provide relief in the circumstances, wherein the conduct, or rather, the failure, the State has exhibited, in investigating the incident was, in part, responsible for the cited ‘evidentiary damage’ and the inability to identify the person responsible for the deceased’s death. This is lamentable”.
In the final analysis, nine years after a man who non-violently protested the separation fence built in his village was killed, no one responsible will face justice. Military law enforcement authorities carried out a negligent investigation, dragging its feet and even losing investigative materials. The High Court of Justice also washed its hands of the matter, voicing criticism but providing no relief.
Petition status: dismissed.