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When an Israeli assaults a Palestinian, justice is hard to come by

A story of assault in Hebron perfectly exemplifies how police investigations fail when the victim is Palestinian.

By Yesh Din, written by Yossi Gurvitz

Israeli border police check the ID of a Palestinian man (File photo by Ryan Rodrick Beiler/Activestills.org)

An Israeli Border Police officer checks the ID of a Palestinian man (File photo by Ryan Rodrick Beiler/Activestills.org)

More than five years ago, on July 16, 2010, a young Hebronite by the name of Muhammad Abd Al-Raouf Abdrazeq was attacked by two Israeli civilians without any reason. In his police statement, which was backed by the testimony of a Border Police officer as well as by security cameras, Abdrazeq described how a group of Israeli civilians came from the direction of the Cave of the Patriarchs, when suddenly two men split off from the group. One of them grabbed him by his shoulders and prevented him from escaping, while the other one beat him severely.

An Israeli soldier standing idly by decided it was none of his business. A Border Policeman who noticed the attack came running, and according to his testimony called out to the soldier, yet the latter refused to budge. The assaulters escaped, saying “Good Shabbos” to the soldier, and vanished without him trying to stop them.

The incident led to two parallel investigative paths: Abdrazeq lodged a complaint with local Hebron Police, and, aided by Yesh Din, with the Military Police Criminal Investigations Division (MPCID). This post will track the two paths.

The police track is relatively simple. The police undertook a rather effective investigation: they took a statement from the victim, who immediately identified his attacker as Y.H. They then took a statement from the victim’s father who came running to the scene, from the apathetic soldier, and from the police officers who arrived on the scene. It examined the local security cameras and reached the conclusion that the incident happened as Abdrazrq and the policeman described it.

The police then interrogated Y.H. several times. The suspect obstinately denied any involvement, even when he was presented with the security camera footage. In his first statement, Y.H. claimed he wasn’t even in the area of the Cave of the Patriarchs at the time of the attack. Instead, he claimed that he was innocently walking down the street with a friend, accompanied by a group of boys he did not know personally. In his second statement, he managed to remember the full name of the man who was supposed to supply an alibi; however, when the police summoned the friend for testimony, he declined to confirm Y. H.’s alibi.

So, let’s summarize what we have here:

A. A victim who identifies one of his assailants.

B. A policeman who confirms the details of the incident, as described by the victim.

C. Security footage that shows the assault (albeit only capturing the back of the attackers).

D. An alibi witness who refuses to support the suspect’s version.

So what did the police do? Closed the case for lack of evidence, naturally.

This was a ludicrous decision even by the standards of the Samaria and Judea Police Division (SJPD), and thus in January 2011 Yesh Din appealed the decision. Less than a month later, the case was reopened and a first draft of an indictment against Y.H. was prepared. He was charged with aggravated assault.

A draft is one thing and a final indictment is quite another. On July 2nd 2013, the prosecution presented an amended indictment as part of a plea bargain with Y.H. The charge of aggravated assault, as well as acting in concert with another – whose identity Y.H. refrained from providing to the police – were dropped.

Instead, we were left with “ordinary assault.” What is this good for? Well, it allows Judge Hanna Miryam Lump of the Jerusalem Magistrates’ Court to decide that Y.H. will not be convicted, and that given the circumstances of the crime (as dropped from the indictment), and the fact that three years had passed, sentencing him — without convicting — to 100 hours of community service would suffice.

As shown by Yesh Din’s recent data sheet, the practice of punishing without conviction is relatively rare in Israeli courts: in the magistrate courts, such a decision is reached in only 5.3 percent of cases, while in the district courts, it happens in 1.2 percent of cases. When the victims are Palestinians, however, the rate jumps to 24.6 percent.

This case is in itself a rarity for one reason alone: it made it to court in the first place. In most cases, when the police close a case for some excuse, it stays closed.

[…]

But this case has another side: the military side. On the face of it, there are two issues here. For starters, Y.H. served as an IDF soldier at the time of the assault. Secondly, there is the issue of standing idly by: an IDF soldier was present during the assault, but decided not to get involved. He heard “a blow,” but decided that “an altercation between Jews and an Arab” is none of his business.

photo?

Except it most certainly is. The military commander is the acting sovereign in the West Bank. The duty of IDF soldiers is to prevent harm from coming to protected persons. The soldier in question was both unaware of his duty and of the fact that he is charged with enforcing the law, which includes preventing quarrels between Jews and Palestinians. When the victim and his father demanded from the soldier from stopping the retreating settlers – as both of them testified (the testimony was supported by the policeman who arrived on the scene) – he did nothing.

None of this should surprise anyone who has read Yesh Din’s “Standing Idly By” report. Looking away is the standard behavior of IDF soldiers whenever they notice Israeli civilians assaulting Palestinians. The IDF does not recognize standing idly by as a crime and, accordingly, does not punish soldiers who practice it. Again, what is surprising is the very fact that the soldier was even questioned by the police.

The MPCID case file focused on the question of whether Y.H. should be indicted for assaulting a Palestinian as an off-duty soldier. Following the investigation is important, as it shows us the value of an MPCID investigation and the value of the prosecution overseeing that investigation.

In the beginning of November 2010, after a coordination process of two months, we managed to get Abdrazeq to the MPCID base in Be’er Sheva to give a statement. Why Be’er Sheva? Because the MPCID does not have bases in the West Bank.

The investigation lasted five months, and at the end of March 2012, the MPCID informed us that it had transferred the case to the Operational Affairs Prosecution. The latter needed four months to inform us that it has not the foggiest clue of what we are talking about and that it is not in possession of such a file. In July 2012 – a year and four months after MPCID claimed to have sent the file – the prosecution informed us that it did not yet have the file.

Only in January 2013, some two years after “the end of the investigation,” we were told that the file reached the prosecution at last – only to be sent promptly for re-investigation. A year later, in January 2014, the prosecution informed us that the investigation was ongoing. In February 2015, after we sent them a sharply-worded letter, the prosecution said that the case was closed a month earlier due to lack of evidence.

Aside from the astounding fact that a file can go missing between the MPCID and the military prosecution for 16 whole months, when we asked for the case file so we could file an appeal, we found out the following:

1. A significant part of the investigation allegedly carried out by MPCID was actually carried out by the Hebron police. Logical, yes – the Hebron police did most of the work. But then we must ask: what did MPCID do with all this time?

2. Even though we referred to this incident, time and again, as one in which soldiers stood idly by, the MPCID refrained from opening an investigation against the soldier who saw the incident and did nothing. Had we the time, we would have appealed – but since more than four years have passed, this was not practical. Why? Because military law applies to soldiers for only six months (12 months in unusually severe cases) after they are discharged. When an investigation lasts four years, there is simply nothing to talk about.

3. The case file contained a memo by an MPCID investigator from May 2, 2012, in which he notes that the case against Y.H. was closed on January 16, 2011, since he was investigated by the Hebron police for the same crime.

And this decision, admittedly, makes sense. Hebron police investigated the case, gathered the evidence, and Y.H. was prosecuted. There is no point in a second indictment, this time by the military prosecution.

What doesn’t make sense is the fact that after the MPCID effectively closes the case, it disappears for years. What doesn’t make sense is a four-year-old investigation, in which most of the investigation is actually carried out by an external unit that ended its work back in 2011. What doesn’t make sense is the fact that the MPCID and the prosecution have no clue about what the other doing. What doesn’t make sense is that one can only indict a soldier up to six months after his discharge from the army, yet the investigation is drawn out for nearly almost four-and-a-half years.

This isn’t news — it is how the system works.

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