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Shooting and lying: A textbook example of IDF impunity

Changing stories, contradictory testimonies and video evidence were not enough to convince Israel’s military prosecutor that an IDF officer should be prosecuted for shooting and killing an unarmed Palestinian teen.

By John Brown* and Noam Rotem

In July 2015 an Israeli army officer, Col. Yisrael Shomer, shot dead Mohammad al-Kasbeh, a 17-year-old Palestinian, near Qalandiya crossing in the West Bank. Shomer lied repeatedly as he was investigated over the incident, but the chief military prosecutor nonetheless decided not to press charges, and closed the file.

Mourners carry the body of Palestinian youth Mohammed al-Kasbeh, 17, during his funeral in Qalandiya refugee camp, near the West Bank city of Ramallah July 3, 2015. (Flash90)

Mourners carry the body of Palestinian youth Mohammed al-Kasbeh, 17, during his funeral in Qalandiya refugee camp, near the West Bank city of Ramallah July 3, 2015. (Flash90)

Shomer, who was a brigade commander at the time of the incident, shot Kasbeh after the teen had thrown a rock at his Jeep. Shomer initially claimed that his life had been in danger, but his investigation file — examined here — shows that he changed his story several times.

The testimony of the soldier who had been with Shomer when the incident occurred also contradicted the colonel’s claims that: a) he was in danger, b) he had seen an object in Kasbeh’s hand, and c) that he had followed the IDF’s arrest procedure.

According to the investigation, the Military Advocate General (MAG) accepted Shomer’s version of events because the incident involved a “professional error” — i.e. that Shomer had fired inaccurately, hitting Kasbeh in the back instead of the legs.

But the closing of the investigation does not resolve Shomer’s shifting testimonies, nor the decision not to prosecute, and leaves numerous questions about how an unarmed teenager was shot from behind and killed. Some of those open questions are explored below.

Why did the MAG ignore the other soldier’s testimony?

An often-heard claim in incidents such as this is that “things move very quickly” on the ground. The same refrain was heard during the trial of Elor Azaria. Snap decisions need to be made, and soldiers don’t have the privilege of weighing things up “from the comfort of their sofa.”

But in the case of Shomer, the MAG had the testimony of the other soldier, D., to go on. D. had been next to Shomer throughout the entire incident, and chose to conduct himself completely differently from his commander.

Col. Israel Shomer (IDF Spokesperson)

Col. Israel Shomer (IDF Spokesperson)

D.’s testimony, part of which is backed up by video footage of the incident, contradicts certain details in Shomer’s account. Yet the MAG elected not to address these inconsistencies. Thus, for example, the MAG accepted Shomer’s claim that he had initially tried to arrest Kasbeh, despite D.’s assertion that no such procedure had been carried out — a version confirmed by the video footage.

How many ‘professional errors’ can one commander make?

Questions are also raised by the MAG’s decision that Shomer’s lethal shooting of Kasbeh was the result of a professional error: This ‘error’ was made at least twice in a row; the commander was the head of a regional brigade who is likely to be well aware of what procedures to follow; and even if the shooting was a mistake, it easily falls under the definition of criminal negligence. Shomer didn’t fire warning shots into the air and he didn’t aim through the crosshairs, missing once and then immediately repeating the error.

How can an investigation be carried out after all those involved in the incident have already been debriefed?

The investigation file shows that Shomer and the three soldiers who were with him in the jeep told similar stories during their initial interrogation. They all claimed that they had been ambushed, that a group of at least three Palestinian youths attacked them with rocks, and that their lives were in danger.

This consolidated version of events collapsed after video footage from the scene came to light. How is it that these four soldiers, who sat through the same confidential debrief, all told the exact same story — which, it transpired, was incorrect? This is one of the reasons that Israeli rights NGO B’Tselem announced that it would no longer cooperate with military investigations, because such debriefs present an opportunity for soldiers to coordinate their testimonies.

Why did Shomer let Kasbeh to bleed to death after shooting him?

Initially, Shomer claimed that he left the scene so as “not to cause any further harm to either side.” Later, he claimed that he didn’t know where he’d shot Kasbeh. But the other soldiers’ testimonies completely contradicted this assertion, as did the testimony of a senior IDF officer who met with Shomer after the shooting. Shomer, the senior officer said, told him: “I hit someone in the head.”

Shomer shot a teenager, let him bleed to death, and then recounted a completely different version of events. IDF policy sets out that medical care must be extended to anyone who is wounded — so is this really how a senior army officer is expected to behave?

Why did Shomer go back on his agreement to undergo a polygraph test?

In his initial interrogation, Shomer signed an agreement that he would undergo a polygraph test, according to the investigation file. Later, however, when his original story started to crumble, Shomer went back on his agreement. While he was within his rights to do so, one may ask why a senior IDF officer chose to behave in such a manner.

How do you deal with the deaths of three children?

Mohammad Kasbeh was the third child in his family to be killed by IDF fire. His brother, Yaser, was killed by a gunshot to the head in December 2011, when he was 11-years-old. It was claimed that he had been throwing stones near Qalandiya checkpoint. One month and 10 days later, Samer, another brother, was also shot in the head and killed. He was 14, and was also said to have been throwing stones. Three brothers, three bullets to the head.

***

Last month, the Association for Civil Rights in Israel (ACRI) filed a petition in the High Court of Justice demanding that the state put Shomer on trial for homicide, or at the very least negligent manslaughter.

*John Brown is the pseudonym of an Israeli academic and blogger. Noam Rotem is an Israeli activist and high-tech executive. This article was first published in Hebrew on Local Call. Read it here.

[Editor’s note: In accordance with our legal obligation, this article was sent to the IDF Censor for review prior to publication. We are not allowed to tell you if (and if, then where) it was indeed censored.]

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    COMMENTS

    1. JeffB

      You have a choice in investigations, especially criminal:

      a) You can investigate to prosecute and punish in which case your best witnesses are usually incentivized to lie.
      b) You can have an open fact finding mission where the goal is to fix the problem not the blame and often get active cooperation.

      Given that this was conducted in the context of (a) of course they lied. That should be expected. It is unreasonable to expect soldiers (or anyone) to cut their own throats in a punitive investigation. Obviously the article makes a good point there is good reason to believe that a crime occurred given the amount of lying.

      Mostly the problem here is simple. Armies are designed to be experts at killing people and breaking things. Armies lack the skills to handle violent trouble makers who are not life threatening effectively. Law enforcement: respond to emergencies helpfully, assist in collecting paperwork for courts, coordinate with prosecutors, investigating and solving crimes, gathering evidence, conduct interviews with persons of interest and witnesses and oversee operations. Obviously what is needed in the West Bank is law enforcement not military.

      The real push should not be for a more humane IDF but rather dealing with day to day disturbances via. law enforcement not military.

      Reply to Comment
      • Ben

        An absolutely classic job of obfuscating pedantry.

        We are told that prosecution and punishment is beyond the capacities of military justice. And “of course they lied” is a kind of unwitting summary statement of the ethics of the IDF and the entire occupation.

        And we are told that “an open fact finding mission where the goal is to fix the problem not the blame” should be the goal. And the assumption here is that the IDF of course would have said “sure, lets openly find facts and we’ll fix the problem and we won’t cover up and excuse senior officers.” Right. Sure. Sure, the IDF does that. Sure.

        We are told, in absolutely classic Jeffbian fashion, that “mostly the problem here is simple.” Yes, difficult problems are always “simple” in JeffB-World.

        And protest is reduced, in true Orwellian fashion, to “violent trouble makers” and “day to day disturbances.”

        Then we get a patronizing lecture on law enforcement and what it entails.

        Then we are told that “a more humane IDF” isn’t the issue, even though the occupying IDF rules the day to day life of Palestinians, but “law enforcement” is needed (and remember, the military justice system is not equipped to do this, JeffB tells us) so we need “law enforcement.” As if it never occurred to JeffB that (1) the situation in the West Bank is a combined occupation-apartheid arrangement in which military law is applied to Arabs and civilian law to Jews; and (2) as if JeffB had never read even one of +972’s “License to Kill” Series, in which the impunity of the Israeli military and civilian police are documented over and over and over, and the extensive collusion of military and civilian structures is not documented over and over. And as if, touchingly, a “push” for law enforcement is the ticket to liberty and justice for all. Yes, all that the IDF/Police/Yesha Council regime needs is a push, because Ze’ev Hever and Eli Ben Dahan and Naftali Bennet are so open to reform. Just give them a little push. They are just waiting to come out of their shells and blossom as seekers of blind justice. Because, you see, “the problem here is simple.”

        Reply to Comment
      • Bruce Gould

        @JeffB: Take a close look at this page and tell us what you think “the problem” is:

        http://www.btselem.org/

        Reply to Comment
        • JeffB

          @Bruce Gould

          That page is going to change every time we look, it’s a main page. What I see are:

          1) Soldiers doing a job that should be left to law enforcement (as I said above). Rules of engagement for soldiers and rules of engagement for law enforcement are entirely different. Soldiers should be arresting civilians at all under most circumstances, they should be disabling enemy forces so as to allow a military objective to be accomplished. Searches of civilian property for non military stuff, should be law enforcement not soldiers.

          2) B’Tselem making overly broad and false claims, example:
          Example: http://www.btselem.org/firearms/20170404_killing_of_siham_nimer
          B’Tselem has already repeatedly stated that shooting to kill is permissible only when the target puts others’ lives at risk. This is yet another case in which security forces acted completely at variance with this. ” That is not and should not be the standard. The standard is and should be a suspect who in resisting or attacking would be believed by a reasonable person to pose a risk of serious bodily injury. Now that might not have been met in this case because of the barrier but that bar is simply too high. Officers don’t need to lose an eye rather than kill a suspect.

          3) Genuinely abusive practices. Things like using Palestinians as human shields are inappropriate under any circumstances.

          4) Acts of resistance which are pretty serious not be understood as such by the Palestinians. Example: http://www.btselem.org/beating_and_abuse/20170315_bp_assault_women_and_girls_in_sair
          Here you have a woman trying to free a suspect from custody. That’s a felony and one that does justify considerable force to prevent (which wasn’t used). Its not being understood as a serious crime by anyone involved, including the soldiers oddly.

          I could keep going but I’ll see where you go with this.

          Reply to Comment
          • Ben

            ​With regard to 2) and 4):

            There really is something wrong, something abnormal, with this point of view of yours, JeffB. That you would characterize these incidents as you have. Or that someone would have to explain to you how cold, inhuman, and obtuse is sounds. It comes across as racism. As taking for granted overlord and untermensch statuses and how people accordingly should be treated.

            With regards to 1):

            You really don’t get it JeffB? It’s a military occupation. It’s not civilian police enforcement. Arbitrary military law and military suppression procedures and arbitrary detention procedure are applied to the Palestinians in that territory day in day out as a grinding routine. And any law enforcement incompetence is either deliberate or out of a lack of concern for human beings that the same law enforcers woud never ever show towards Jews. Ever. You come across as utterly clueless. And heartless. And applying standards to Arabs you would never want applied to Jews. And you just don’t seem to get that the IDF can’t touch settlers. They have to stand by and call civilian police. But the army marches right in and brutalizes Palestinians at will. You don’t seem to get even the basics. This is an OCCUPATION. With one set of laws and codes of treatment for Arab inhabitants and another set for Jews. In gross violation of the Geneva Conventions. Conventions that, even as Israel has claimed do not technically apply, nevertheless agreed would apply. It is a form of apartheid. You want to call it an annexation but the most basic facts don’t accord with that. Israel in fact relies on military occupation laws promulgated 50 years ago. And deliberately not on civilian law–for Arabs that is. But only against Arabs. For you, therefore, to have tried to argue that the occupation stopped existing is sheer nonsense. And nonsense only a person utterly insensitive to what it is like to be under occupation could engage in. You demonstrated that utter insensitivity in your respone in parts 2) and 4) above.

            Reply to Comment
          • JeffB

            @Ben

            I don’t know why I’m bothering to respond. (2) and (4) are not only laws I want applied to Jews. They are the laws where I live, the laws I’m subjected to and laws that I fully support.

            You go after a police officer with a weapon you get shot. You refuse to drop a weapon when ordered to by a police officer you quite often get shot. You pull a weapon at a control point (airport, court house, federal building…) and you are likely to get shot. The way we as a country deal with those sorts of things is people don’t do them unless they aim to commit suicide by cop.

            As for #4 you try and unarrest someone in police custody you are guilty of a felony. You will do time. You use force and you’ll be lucky if all that happens to you is you get beat by the police.

            No I don’t think it is some horrific injustice to expect Palestinians to live under the laws I’ve happily obeyed for many decades.

            As for the occupation I fully support law enforcement in the territories. Your claim that Israel would never apply civilian law to Palestinians is disproven by the fact they do apply it to Palestinians in the areas which they have annexed.

            Reply to Comment
          • JeffB

            And let me just add to my comment. American police officers never aim to shoot to wound. They are all trained to aim for the center of mass (the torso). They are also trained to asses while continuing to shoot, so a suspect once shot is often hit multiple times. Again these are the laws and policies I’m subject to. I have no problem with them being applied to Jews.

            Reply to Comment
          • Ben

            “I don’t know why I’m bothering to respond.”

            Yes you do. You are responding to try to counter what I am saying. Even in your first sentence you are not honest.

            JeffB I think you still just don’t get it. You say you support law enforcement in the territories yet every single day Israel violates the law with respect to protected persons under belligerent military occupation. Laws it said it would honor the spirit of, even as it tried to claim these laws did not technically apply (technical special pleading no authority outside Israel has accepted and that even its own authority Theodore Meron did not accept in 1968, 2000 or 2013). And nothing would prevent the Israeli army from protecting these indigenous inhabitants from marauding settlers if the army simply chose to behave with honor and honor its role as occupier and do it.

            For you to smugly equate your privileged position as a US citizen inside the US enjoying all the rights and protections you “happily” enjoy with the position of occupied Palestinians under the brutal thumb of the Israeli army and the settlers says all we need to know. It reveals just how much you don’t get it and how much of a smug overlord habit of mind it is that forms your mental operating system. No doubt the French Catholics who savagely persecuted the Huguenots felt similarly.

            Finally, your insinuation that Jews and Arabs in “annexed” East Jerusalem have the laws and the civil codes applied to them in anything like an equal way is deeply mendacious.

            Reply to Comment
          • JeffB

            @Ben

            — You say you support law enforcement in the territories yet every single day Israel violates the law with respect to protected persons under belligerent military occupation.

            There is no contradiction. I support them being under civilian law not British & Jordanian law.

            — And nothing would prevent the Israeli army from protecting these indigenous inhabitants from marauding settlers if the army simply chose to behave with honor and honor its role as occupier and do it.

            What prevents it is that armies don’t have the skills to handle crimes. They aren’t police forces anymore than the water department is. Using the wrong tool for the job results in poor effects. They don’t have detective agencies. They don’t have community relations staff to work with the settlers. They don’t have easy access to the courts to the resolve individual property disputes. They don’t have large numbers of people skilled in keeping the peace.

            — For you to smugly equate your privileged position as a US citizen inside the US enjoying all the rights and protections you “happily” enjoy with the position of occupied Palestinians

            You made a specific claim that I wouldn’t allow this law to be applied to Jews. I refuted that. The very policies I was proposing are applied to millions of Jews in the USA with their full support. That refutes your claim. “brutal”, “smugly”… is just you trying to weasel out of being contradicted by the facts.

            –Finally, your insinuation that Jews and Arabs in “annexed” East Jerusalem have the laws and the civil codes applied to them in anything like an equal way is deeply mendacious.

            Then disprove it.

            Reply to Comment
          • Ben

            Every one of your replies here is mendacious side-stepping. Slipperiness. I know you by now, JeffB. They “don’t have the skills.” LoL.
            I have to prove the obvious? Israel’s blatant discrimination regime in Jerusalem is a fact. That’s where the discussion starts from. Put another way, I have to prove the Loch Ness monster (fair treatment) does not exist? No, JeffB, you have to prove it does.
            In any case, enjoy:

            Sarah Kaminker, a city planner in Jerusalem for more than thirty years, describes a decades-long regime of the rankest discrimination in land use, planning, development, draconian bureaucratic measures, and what amounts to a whole bag of dirty tricks:

            http://faculty.history.umd.edu/BCooperman/NewCity/Arabsonly.html
            “…There are literally a hundred other discriminatory practices that ruthlessly prevent Palestinians from building homes in Jerusalem. There are unjustiably huge charges for building licenses that are imposed only on Arabs…
…The Israeli government claims that it has no choice but to punish the “scofflaws” in East Jerusalem who build illegally. If only they would ask for a license, the municipality would issue one. The government says it gets about 150 requests from Arabs each year and dutifully supplies them with building licenses. What the municipality does not tell us is that over one thousand Arabs each year ask a special team of Arab civil servants in the city engineer’s office for information about the planning regulations that apply to their land. About 150 of them have land where housing construction is permitted. These lucky few apply for and gain building licenses. The others, having been told informally that their land is not zoned for housing, never get into the data bank, allowing the municipality to continue to claim that it issues licenses to all applicants….”
            B’Tselem likewise documents an indisputably distantly second class status for Arabs versus Jews under Israeli administration of Jerusalem. For decades and with no end in sight.

            Reply to Comment
          • JeffB

            @Ben

            What does housing discrimination in Jerusalem have to do with law enforcement outside Jerusalem. FWIW though I consider this non-responsive I do believe that Israel practices housing discrimination. I also think the Palestinian society does as well. The situation is bad all around and FWIW I don’t approve and would like to see those laws changed, and the social policies underlying those laws changed.

            The USA has a long tradition of success in breaking up ethnic neighborhoods before they become too entrenched and might provide a useful model for Israelis who want to tackle this.

            Reply to Comment
          • Ben

            Your first paragraph is a misrepresentation leading us off the point. Go back and read the thread.

            “The USA has a long tradition of success in breaking up ethnic neighborhoods before they become too entrenched and might provide a useful model for Israelis who want to tackle this.”

            This is the kind of statement from an American that makes me realize he has no real idea what the Israelis are up to.

            Regarding your similar statement that the real problem is that the army “doesn’t have the skills,” what is sick about this kind of statement is the way Israel’s army and the civil administration behind it has perfected its skills to do the exact opposite of behave with honor in terms of protecting the inhabitants of the West Bank. Read the License to Kill series of +972 or anything by Yossi Gurvitz, or anything by Yehuda Shaul, and then tell me with a straight face that “the problem, you see, is that they regrettably ‘don’t have the skills.'” You say things about which you know nothing, about which you think you know more than you do, and with the clear sense to me that you don’t really care about the victims. It is your cavalierness, your blitheness, that annoys me as much as anything.

            You annoyed Tom Pessah with a similar kind of thing to the point that he had to tell you: “I really want to recommend that you don’t share speculations if you’re not sure of what happened, it’s misleading and time-consuming.” (Brandolini’s Law.) And your response to that was to not really listen and to dump a string of lawyerly speculations as if Pessah were the defense attorney and you an ambitious prosecutor demanding discovery and trying to tie him up with hours of tedious legal busywork.

            Reply to Comment
          • JeffB

            @Ben

            That situation of my discussion with Tom Pessah and the way you remember it is a perfect example of how much you confirmation bias goes into your thinking. Tom made a claim that an American was racist as demonstrated by how he charged 2 Palestinian AMPers much more harshly than 4 Jewish INNers arrested for the same crime. It turns out there weren’t even 4 Jewish INNers. “His facts” weren’t even consistent with the published information, there weren’t 4 Jewish INNers arrested, there were 3 and one of them was charged differently.

            Sure he said I shouldn’t speculate. While he was ignoring 1/2 dozen other obvious reasons (like the fact that the AMPer had serious priors) that there could have been discrepancy in the charges.

            One of the problems with your strings of insults behind the fact that it makes you rude is that it causes you to not realize how many fallacies you commit in your arguments.

            Reply to Comment
          • Ben

            Wowee. 3 not 4. That changes everything. This is 9/10ths obfuscation and distraction, and Pessah is talking about bias in a whole system not trying to “make a claim that an American was racist.” You characteristically narrow things down to speciously framed “claims” and then pedantically slide away from the main point. Don’t lecture me on confirmation bias. Most of what you write involves selective attention, distortions and outrageous alternative facts and fairy tales. You correctly perceive that you annoy me unlike any other commenter, hence my tone with you.

            Now let’s get down to specifics. In your back and forth with Tom Pessah you confidently and categorically declared that “there is no ethnic discrimination here” and “we now know why” only the two Arab Americans were criminally charged, but in fact you don’t know exactly why any more than anyone else does and so that is over-assuredness and a kind of confirmation bias on your part. And then you went on to declare that “of course there is some interesting sociology there as to why all the Jews reacted one way and all the Arabs reacted another way,” basing these racist “sociological” pontifications regarding “all the Jews” and “all the Arabs” on a grand total of two Arabs and three or four Jews. Revealing your own casual racism while at the same time, nowhere did Tom Pessah state the oversimplifying and contentious words that you put in his mouth that he said that “this was pure racism (your contention).”

            His original article actually simply said this:
            “On February 16, Jewish American activists from IfNotNow disrupted the confirmation hearing of David Friedman, Trump’s ambassador to Israel. They were joined by two Arab American activists, who called on Friedman to remember Palestinians. Only the two Arab Americans were criminally charged, and they now face jail and a $500 fine.
            When Beinart presents IfNotNow’s actions as peak radicalism, he also makes this power differential invisible.”

            In none of this is it possible to conclude as you do that “the implication of institutional discrimination which has been floating around has been falsified.”
            You falsified nothing. That’s a pseudo-scientific pose.

            You tied Pessah up in what is essentially pettifoggery. Somebody less charitable than me might call it ankle biting.

            Reply to Comment