العربية
HE
العربية
HE
Description of the Incident
On 2 October 2003, a 17-month-old infant climbed to the roof of his house in the Al-Amal neighborhood of Khan Yunis. His mother thought that he had followed his father out of the house, but his father did not see him and he feared that the infant had climbed to the roof, which was not fenced off. While he was climbing the stairs, the father heard gunfire, followed by his son's cry. The child was hit. A bullet entered his head under his left ear, and came out of the right. The child's 8 year-old cousin was also on the roof at the time, but she escaped unharmed after the shooting began. The father found his injured son and hurried to remove him from the roof and take him to hospital, even as the shooting continued from the direction of a nearby military outpost. The infant underwent surgery on his head. Two days later, on 4 October 2003, he died.
HaMoked's Appeals to the Authorities and the Submission of the Petition
On 21 November 2003, HaMoked appealed to the Military Advocate of the Southern Command, demanding an investigation into the incident. But since that date and until the day that the petition was filed, despite the gravity of the incident and the many reminders sent by HaMoked, the MAG gave no substantive response. HaMoked emphasized in several of its appeals that "an investigation which is drawn out for over than six months thwarts the possibility of an effective investigation," but the responses repeatedly stated that the complaint is "being examined."
On 27 February 2005, HaMoked submitted its petition in this matter. The petition stated that the severe delay in deciding whether or not to launch an investigation is not unique to this case – at the very least, such a delay is typical of the conduct of the Southern Command Military Advocate in relation to grave incidents which have taken place in the Gaza Strip. Such a delay also occurred in relation to an incident in which a resident of Rafah was killed by gunfire when leaving her home; the same shooting injured her husband and his two brothers who rushed to their aid. This delay occurred yet again in relation to an incident in which a Palestinian working at a construction site in Deir al-Balah was injured by shooting from the direction of an army outpost near the settlement of Kfar Darom.
The petition emphasizes the principle of immediate investigation, according to which a reasonable investigation is an immediate investigation. When the investigating authority receives information about a suspected offence, especially regarding an incident in which a person was killed, the authority is obligated to immediately begin an investigation into the incident. This obligation is incumbent upon the Military Advocate, who is authorized to order the opening of an investigation.
The principle of immediate investigation applies even where the decision to open an investigation is weighed in light of the findings of the military debriefing. In such a case, the investigation must be conducted as quickly as possible, within days, and in a manner that will not subsequently impede the ability of investigators to outline the scene of the incident and gather evidence and findings critical to the success of the investigation. Any delay in conducting the investigation will lead to a delay in opening an MPIU investigation and violate the principle of immediate investigation.
It appears that this is not how the military operates – it launches its debriefings quite some time after the day of the incident. The debriefing may be drawn out for weeks and even months. And so long as it continues, the decision regarding a criminal investigation is delayed. Even after the conclusions of the debriefing are submitted, more time is required for an attorney to review the material and decide whether there is room to prosecute.
The petition cited remarks by Colonel (retired) Ilan Katz, former deputy MAG, who had recently been interviewed by Ma'ariv. He indicated that even when, following a debriefing, the decision is made to order an MPIU investigation, at that stage, a proper investigation would be impossible. In many cases, the manner in which the debriefings are conducted damages the scene of the incident and obscures or eliminates evidence; in practice, these debriefings are used by commanding officers to whitewash the investigation.
The petition stresses the importance of the principle of immediate investigation for curbing such cover-ups, and for preventing an atmosphere of lenience towards violations of the law. The absence of a penalty leads to an attitude of disregard towards the rule of law, and establishes a fertile ground for human rights violations. When this lenient atmosphere and the absence of penalty persist even in cases when civilians who are not taking part in hostilities - including young children, women and the elderly - are killed, the State transmits a message of flagrant disregard for human life and violates the public's faith in the system.
Furthermore, the delay in opening an investigation severely injures the basic right of the victim's family to learn why and how he was killed.
The petition states:
The right to life is the forbear of all other rights. The obligation to prevent unnecessary killing during warfare by all reasonable means is not the only obligation which derives from the right to life. All reasonable measures must also be taken in the case of the violation of the right to life, since, like all other human rights, the right to life has no meaning in the absence a remedy for its violation… The investigation into a killing, in ostensibly criminal circumstances, and the employment of every reasonable measure to bring the guilty parties (if they exist) to justice, is one such remedy for the violation of the right to life. It is the right of the victim, and the right of his relatives, to see the truth revealed and justice done…"
Following the submission of the petition, the State Attorney's Office notified HaMoked on 24 March 2005, that a decision had been made to open an MPIU investigation into the infant's death.
In the hearing held by the HCJ on 4 May 2005, the Justices noted the importance of a prompt decision regarding the opening of an investigation:
"The petition includes a request to order the respondent to provide clear directives, according to which the decision to open an investigation will be made without delay, shortly after the incident which is the subject of the investigation. In the incident which is the subject of this petition, delays occurred which were not caused by the respondent himself, as the State's response indicates. As to the appropriate procedure, the State agrees that it is vitally important for the decision to conduct an investigation to be made as quickly as possible. The State also indicated that it trusts a delay like the one which occurred in this case belongs to the past."
