A year-and-a-half after the IDF's Gaza incursion, Operation Cast Lead, Military Advocate General Brig. Gen. Avichai Mendelblit is to decide what indictment to serve against a former Givati combat soldier who caused the death of two Palestinians by firing in their direction contrary to protocols.
According to various testimonies, including some that appeared in the Goldstone Report, the victims were part of a group of people waving a white flag.
The military prosecution has already submitted two milder indictments against soldiers who participated in the Gaza operation – one for theft and illegal use of a credit card, the other for overstepping authority in a case where soldiers ordered a Palestinian child to open suspicious bags for them. Now a decision is expected on the most sensitive case.
The events under discussion took place on January 4, 2009, near Gaza City. Staff Sergeant S. and a group of soldiers from the Givati Brigade under the command of a senior officer were in a site that afforded them protection. At some point they saw a group of civilians and prepared themselves for the possibility that the group included combatants.
According to local testimonies, there were 31 Palestinians including 21 children who had prepared white flags using torn sheets. They were in the area after receiving orders to leave their homes.
At this stage the soldiers began firing at them and two were wounded: Majda Abu Hajaj (35) who died on the spot and her mother Raya Salameh Abu Hajaj (64), who died a short time later.
Signs of shooting in the family home (Photo: Mahmoud Sabah, B'Tselem)
Investigations suggested that S. had fired at them without receiving any order to do so. At the time an officer was at his side, and at no point was an order to fire given. The IDF called the case "problematic" and later, partly because of this incident, the soldier was removed from his post in the brigade. He completed the remainder of his service in an administrative position until his recent discharge.
In addition to the IDF probe, the human rights group B'Tselem also investigated the case and summarized their findings in a letter to the military advocate general in May 2009. The organization collected testimonies from a number of witnesses.
White flags from torn sheets (Photo: AFP)
"The soldier who was on the ground shot at us with his rifle…" one of the family members said. Another witness who had been next to the mother said the daughter had held a white flag, and the mother's son said "the soldier sprayed us with bullets." The case was mentioned in the Goldstone Report, which determined that the deaths were caused needlessly.
After these testimonies were received, dozens of IDF officers and soldiers were questioned about other serious cases. S. was questioned by the military police only in 2010, and appeared to explain the incident as a threatening situation endangering the lives of the soldiers, though he said he fired at the victims' lower body. The shots were fired from an M-16 rifle. There were also tanks in the area, so it was not clear initially whether the shots were from a tank or from soldiers.
Hajaj family home (Photo: Mahmoud Sabah, B'Tselem)
About two months ago the military advocate told the soldier that before the case was decided he would be entitled to a hearing. However, the case was described as a "killing", indicating the advocate's intention to indict the soldier for a serious offence, though it is possible that a milder indictment may be submitted in the end.
Because of the sensitivity of the case, the military police will be present during the hearing. Military sources said to Ynet that it is a complex case that requires thorough investigation. They noted that the case had been handled with no regard for the allegations in the Goldstone Report.
"The case was investigated by the IDF long before the report was released, and was handled according to the usual procedures," they said. "This is an exceptional case during fighting involving thousands of different operations which were carried out according to the normal procedures, officers' briefs and international law."
The IDF responds: "The findings of the military police investigation have been passed on to the military advocate. When the findings have been studied, a decision will be made regarding legal procedures. In keeping with protocols, the soldier has been informed that suspicions have been raised that he acted illegally, and that he is entitled to request a hearing before a decision is made. Because no decision has yet been made, it is not possible at this time to give further details."