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Violent settlers cleared despite smoking gun (literally)

When the prosecution closes a case for lack of evidence, despite the abundance thereof, we realize how seriously it takes its role.

By Yesh Din, written by Yossi Gurvitz

Settlers attack Palestinians in Qusra as IDF soldiers stand by (photo Sa'ad Al-Wadi)

Settlers attack Palestinians in Qusra as IDF soldiers stand by (photo Sa’ad Al-Wadi)

The location was Qusra, a village in the Shiloh Valley; the date, September 16, 2011. Fathallah Mahmoud Muhammad Abu Rhoda went out with his three sons to pick figs. A short while after reaching their land, they noticed about 10 Israeli civilians standing around their water hole. The Palestinians demanded the Israelis leave the place; the interlopers refused. The residents of Qusra — a village that has already proven it can defend itself against marauders — began heading to the area. An argument ensued, and according to Abu Rhoda’s testimony to the police, three of the settlers (who were armed) opened fire on the Palestinians. One bullet hit Abu Rhoda in the thigh.
Of the three, two were armed with rifles and the other with a handgun. From the police testimony, we see that the handgun’s owner also sicced a dog on the Palestinians. The complainants managed to photograph some of their attackers, among them the handgun owner.

Four days after the incident, Abu Rhoda filed a complaint with the police. Almost three years later, on August 6, 2014, the prosecution informed Yesh Din that it closed the case for lack of evidence. After a series of 14 phone calls, we managed to photocopy the case file on December 15 2014 — more than four months after the case was closed. However, it was immediately apparent some of the material was missing. We continued requesting it until February 2015.

From the evidence we finally received, it turns out that there is more than enough evidence to indict the handgun owner, E. As previously mentioned, E. was identified by the Palestinian victims, and they even supplied the police with photos of him at the scene, which clearly show him holding a handgun in one hand and the dog in the other. The police picked up cartridges from the scene, and a ballistic fingerprinting – which took place on September 27, 2011 – found that one of the cartridges came from a 9mm Glock pistol (the others were fired from rifles.) E. was summoned for questioning, invoked his right to remain silent, but admitted he owned a Glock. The gun was duly turned over to the police, which sent it to a ballistic fingerprinting. In February 2012 the forensic expert reached the conclusion that there is a match between the cartridges fired from E.’s handgun and the those that were examined on September 27.

In total, the following evidence was marshalled against E.

A. He was identified and photographed by the complainants.

B. His handgun was identified as a the one fired during the incident.

Despite the evidence, the police recommended that the case against E. be closed due to — get this — lack of evidence. The recommendation was accepted by the prosecution. Embarrassingly, the prosecution admitted this to us only in January 2015 — 10 months after it closed the case for lack of evidence. Only as a result of our request for more case files did the prosecution learn about the September 2011 memorandum, which identified the type of handgun owned by E. That is, when the prosecution decided to close the case for lack of evidence, it was lacking a major piece of evidence.

What about the two other shooters? I’m glad you asked. The police chased one of the suspects into the Esh Kodesh outpost, even so much as detaining him after he fled. However, despite the fact that the suspect fled arrest and refused to identify himself, there is no indication in the material we received from the police that any investigative action was taken against him. There is, for instance, no sign that he was even interrogated or gave testimony; he was detained, and immediately released.

The third suspect managed to flee in a vehicle and reach Esh Kodesh. The police identified the owner the vehicle as well as another person who was with him in the car during the chase. But, lo and behold, the police neither bothered to interrogate them nor attempt to identify the third shooter.

This is how the police and the prosecution treat a violent incident, in which three Israeli civilians open fire on Palestinians who are on their own land. In a case that contains such clear forensic evidence, they managed, with extraordinary negligence, not to notice it. And in the other cases? They simply do not investigate.

In the beginning of March, our attorney Anu Deuel Lusky (briskly aided by Moriyah Shlomot) appealed the decision, asking the prosecution to bring E. to trial and conduct further investigations that would lead to the capture of the other two suspects. To quote the appeal:

“This appeal, in both its parts, raises a harsh and heavy feeling that both the police and the prosecution betrayed their duties as bodies entrusted with maintaining law and order. The current situation – in which the lives, bodies and property of Palestinians, considered protected persons by international law, can be harmed with impunity, both as a result of settler violence and as a result of law enforcement entities standing aside, not making the minimal effort to bring lawbreakers to justice – is intolerable, and undermines the rule of law.”

“>One wonders what is left of the rule of law after it has been so brazenly undermined.

Written by Yossi Gurvitz in his capacity as a blogger for Yesh Din, Volunteers for Human Rights. A version of this post was first published on Yesh Din’s blog.

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    COMMENTS

    1. Ben

      So this is the vaunted Israeli “rule of law” some posters here are always gushing and nattering on about. [Snort, chortle]

      Reply to Comment
      • Pedro X

        The report does not state that the bullet in the thigh of the complainant was matched to the glock of E. The Palestinians claimed that three Israelis fired on them. The police matched a cartridge of one of the fired shots to the glock, not to the bullet that wounded the complainant. Further, AP and Maan News both reported that the complainant was shot after he had stabbed one of the Israelis.

        So there is no evidence that E shot the complainant or that it was not self defence.

        Reply to Comment
      • New Relic

        Brian, great sound effects! Are those the noises you make when you filch your boyfriends?

        Reply to Comment
    2. Michael Kaye

      Just think they jail Palestinian minors for throwing stones. The living Holocaust continues for the Palestinians.

      Reply to Comment
    3. Pedro X

      The Missing Context

      On reading the 972mag story, I knew something was missing, like a Palestinian attack and stabbing of a member of a Jewish community in Judea and Samaria. Here is a news report at the time from AP:

      “Palestinian youths throw stones at Israeli security in the village of Qusra, south of Nablus, in the West Bank, Friday Sept. 16, 2011. Clashes broke out [when] a Palestinian man stabbed an Israeli settler near the Palestinian village of Qusra and another settler opened fire, shooting the Palestinian in the leg, Israeli police spokesman said.”

      This sounds like self defence.

      Maan News repeated that the Palestinian had pulled a knife, stabbed a Jewish man and then was shot.

      “Israel police say settler wounded in knifing.

      Israeli police spokesman Micky Rosenfeld told Ma’an a settler was injured after an argument broke out between two settlers and a 50-year-old Palestinian in an open area near Qusra.

      “The Palestinian pulled out a knife and the settler reacted by shooting the Palestinian in the leg,” he said.

      The injured settler and Palestinian were taken to hospitals”.

      These and other reports mention nothing about fig picking going on. Some reports say that the Palestinians were mad that Israelis were swimming in the nude in a water hole they claimed was on their land. The Palestinian took the law into his own hands and stabbed one of the Israelis following which a different Israeli nicely shot him in the leg instead of the head.

      Did the Palestinian authorities arrest and charge the Palestinian man for stabbing the Israeli. No.

      Reply to Comment
      • Ben

        Pedro X none of what you quote is substantiated. (You guys are funny. Breaking The Silence provides documentary evidence and you find all sorts of evidentiary problems oh my it’s not credible blah blah blah but some settler’s cockamamie version of something that might or might not be true or even related hey that’s just fine and dandy for you.) Why did the Palestinians cooperate with the police fully but “E” and his buddies totally refused to cooperate and fled arrest? And please note: the prosecutors did NOT drop the case due to a finding of self defense, they dropped it without considering any such thing and by deliberately ignoring hard evidence that was right before them and simply refusing to pursue anything seriously. So the main point made by Yossi Gurvitz who actually examined the evidence and the case file that he had to drag out of the authorities piece by piece, Gurvitz’s main point stands untouched by your effort at diversion.

        What’s kind of galling is that you know the Palestinians are constantly attacked by the settlers but you tirelessly excuse that or look the other way. Let me ask you, do you think flooding a farmer’s land with raw sewage–as one example among thousands–is excusable? I guess to Rabbi Ben-Dahan it is and Netanyahu thinks it’s just fine that this man is now chief of the “civil administration” of the occupied territories!:

        http://www.imemc.org/newswire/israelisettlement?results_offset=182

        Reply to Comment
        • Pedro X

          The AP picture and caption and the Maan News article (both dated Sept. 16, 2011) predated the complaint by the Palestinian who said he was shot. Both AP and Maan News report that the Palestinian stabbed an Israeli before he was shot. Maan indicates that both the Palestinian and the man stabbed were taken to hospitals.

          According to Yesh Din, the shooters fled. E. invoked his right not to make a statement and the other two shooters were not found and questioned. So who told the police and the news agencies there had been a stabbing followed by a shooting. It could have been only other witnesses on the ground who saw what happened.

          The problem is that Yesh Din does not even address the issue of the stabbing being the precipitating event to shots being fired. Yesh Din does not question the fact that four days after the shooting the complaint was made. At that time Israeli police had already initiated an investigation which pointed to shots being fired in self defence after an Israeli was stabbed.

          Even though E surrendered his glock and one cartridge of several found on the ground was matched to the glock, there was no matching of the bullet in the thigh of the Palestinian to the glock. There is no medical evidence reported that the wound matched that which would be expected from a Glock. Glock wounds can leave fist sized wounds. A rifle bullet would leave a different entry wound.

          Further although Palestinians claim to have photographs of E, with glock and dog in hand, they have no pictures of him shooting the Palestinian. Thus what police had was a lack of evidence to indicate that E had shot the Palestinian.

          As far as BTS goes, anonymous testimonies are worthless. Having read some of the testimonies it is clear that BTS seeks to find and mould negative narratives which do not reflect the reality of the fighting and war in Gaza. The testimonies often fail to give context or the ability of army grunts to know the full picture of the fighting taken place around them. For instance, in the testimonies there was a complaint that Israeli soldiers shot two female civilians dead in the street. However, what the testimonies do not state is that Hamas dressed as civilians, used civilians as suicide bombers, used civilians as lookouts and spotters and as test subjects to see how close Israeli soldiers would allow them to approach. Israeli soldiers indicated that female spotters had been speaking on phones and pointing to their positions shortly after which their positions came under fire. In the case of the two women killed Israelis held their fire until drone footage determined that they were involved in military activities and they were killed as is permitted under the laws of combat.

          Reply to Comment
          • Ben

            Again, Pedro X, Gurvitz’s main point is untouched. The police and prosecutor never made a serious effort and you and I both know that if you replayed that incident but reversed things, reversed the roles, and put the knife in the Jew’s hand and gun in the Arab’s (if indeed this is what happened and is not some settler’s fabrication) the police and prosecutor would have aggressively and expertly pursued it to a definitive conclusion.

            As far as Breaking the Silence goes, BtS reports many incidents taking place in war. Anyone can seize on one or two particular incidents described among many and hypothesize and conjecture mitigating circumstances–indeed BtS aims to stimulate such discussion–but one can’t thereby nullify the meaning and implications of the great majority of the reports. So your point is quite limited. And no, anonymous reports by a credible organization like BtS are NOT worthless, they protect the Israeli soldier providing the account from the sure persecution he would receive if his name were published. Of course there are those that want the names of those soldiers exposed so they can be hounded and discriminated against by a vengeful public so that no one dares break the silence.

            Reply to Comment
          • Pedro X

            Yesh Din’s main report was:

            “[I]t turns out that there is more than enough evidence to indict the handgun owner, E.”

            No there is not. There is no evidence, medical or forensic linking the bullet which caused the wound to the thigh of the Palestinian and the glock of E. None. In order to get an indictment a prosecutor has to be of the opinion that there is sufficient evidence to prove beyond a reasonable doubt that one has committed the crime with which he is to be charged.

            It is easy four years later to suggest the Israeli police were not diligent. Yet the police diligently collected the forensic evidence of the gun cartridges and the glock. They sent them for forensic comparison. The evidence was not sufficient for an indictment. E had had taken his right to silence. Do you think that the other shooters would implicate themselves? There is only so much time police can invest in a case that is probably never going to result in an indictment much less a conviction.

            Yesh Din watches too much American crime shows where complex murders are solved in a hour. Many files go cold while police pursue other cases.

            As far as BTS goes, anonymous testimonies protect the makers from scrutiny not persecution. The maker and the context of the testimony are hidden making a reply difficult. However, in some cases soldiers recognize the incident and contradict the testimony of the maker. For instance there was a testimony that one commander liked to knock down buildings and put shells into buildings with no valid reason. An Israel soldier responded that in that operation the Israeli commander had been killed and the Israeli forces before knocking down buildings or shelling them identified each building before it was attacked. Much of this information is supplied by drone surveillance and intelligence units on the ground, intelligence which the grunt would not know as the fighting was in progress. Commanders on the ground would receive information and direct officers who would direct their troops to attack enemy positions without the officers or grunts understanding the bigger picture.

            Reply to Comment
          • No, Pedro, the issue is not whether there was enough evidence to indict, but the failure of the police to turn over the identification of E’s gun as one that had been fired. The prosecution would decide based on that.

            This incident is Sept 2011, not 1990 or 1911. Failure to supply evidence is a bit harder to swallow now. The case was not “cold” because the police had other things to do, and the excuse would not arise if a settler had been shot. In fact, on the matter of a settler stabbing, I would expect the police to take someone into custody. If you want to play detective, find the stabber’s name; it is not in the quotes you provided.

            Framing this as an ambiguous case is subterfuge for the real issue, which is police failure to supply all evidence to the prosecution. Typing a bullet to a gun owned by one present at the multiple firings is nontrivial. Allowing failures like this to pass invites, I’d say insures, eventually evidence will be suppressed with intent. Obstruction of justice is interference with process; it does not matter whether or not decisions would have gone differently if the obstruction did not occur, especially if the obstruction is intended to shift the prosecution.

            Reply to Comment