Adalah's New Report Exposes Serious Conflicts of Interests in Israel's State Investigatory Bodies regarding the October 2000 Killings of 13 Arab Citizens
Eleven years after the October 2000 events in which 13 Arab citizens of Israel were killed by the Israeli police and security forces Adalah has published a new report entitled The Accused – 2. The report examines the decision of former Israeli Attorney General (AG) Menachem Mazuz to close the investigations into October 2000 killings with no indictments filed against any police or political leader responsible for the deaths. The report supplements Adalah's report The Accused, which was published in 2007, following the decision of the Ministry of Justice's Police Investigations Department (Mahash) to close the investigations
The Accused – 2 concludes that there were major errors and oversights in the AG's decision and thus serious grounds for suspicion that the AG and his legal staff, who were part of the investigatory team, breached the trust that was placed in them when they examined Mahash's report, and operated in a serious conflict of interest to the extent that appears adequate for them to stand trial. Furthermore, senior staff members in Mahash were personally responsible for the failure to conduct investigations and interfere with investigations in a manner consistent the criminal offense of "breach of faith" and obstructing the course of the investigation.
The recommendations call for investigations to be re-opened into the deaths and injuries of individuals killed and wounded in October 2000, and for the investigatory files to be transferred to an independent, professional committee, to operate according to the legal standards for investigations in Israel, and in conformity with international legal standards relating to the method of investigation. This committee should be authorized to file indictments in cases where there is sufficient evidence, and to conduct additional investigations in cases where the evidence does not allow for an indictment. This independent, professional body should also examine the work of the (former) AG, the (former) State Prosecutor, and the investigatory team in the AG's Office that investigated the killings and injuries in October 2000. It should also decide on the appropriate administrative and criminal steps that should be taken in the wake of their actions and failures.
The Accused – 2 was written by Attorney Smadar Ben Natan and Adalah Attorney Orna Kohn.
Adalah's new report reveals that in closing the investigations and all of the files, the AG acted in total contradiction of established legal standards. While the legal standard for a filing an indictment is the existence of evidence suggesting that there is "a reasonable possibility of conviction", in these cases, the AG required the existence of overwhelming, conclusive evidence that leaves no room for doubt as a condition for filing an indictment. The search for this level of evidence was one of the main reasons for the closure of the files. Further, the AG treated intelligence information, without any judicial value, as evidence if it exonerated the police officers. Here, the AG sufficed with evidence of a far lower level that that which is used to acquit police officers of criminal charges.
The Accused – 2 argues that even if the AG found insufficient evidence to prove that police officers had deliberately meant to kill, he was still obliged to investigate whether there was sufficient evidence of manslaughter or death by negligence. The report further argues that the AG's examination of evidence of the police's use of snipers against demonstrators, particularly in an instance in which three snipers opened fire at the same time at the same individual, without prior warning, was flawed. Moreover, in evaluating the evidence, the AG ignored the locations of the wounds on the victims' bodies; this evidence shows that the shootings were contrary to the open fire regulations, which stipulate that fire should be directed at the lower part of the body.
The Accused – 2 concludes that the AG's decision was primarily based on testimonies provided by police officers; that he disregarded contradictions in the officers' testimonies; and that he gave far less weight to the testimonies provided by Arab citizens of Israel. The propensity of the AG and the courts to lend greater credence to the police officers' testimonies, in this instance, is unacceptable as the police officers are themselves the accused. In such cases, the report emphasizes, police testimonies should be treated as the testimonies of suspects who wish to distance themselves from the crime or at least downplay their role in it.
The report reveals that the AG contended that the victims aspired to die as martyrs, thereby laying responsibility for their deaths on the victims themselves and their families. In this regard, the AG relied on rumors (or hearsay) as evidence, which is not considered sound for the purpose of drawing legal conclusions regarding the opening of fire.
The report also details the AG's disregard for most of the failures and shortcomings of Mahash during its investigations, notably, that contrary to established practice preliminary investigations were not carried out immediately after the killings. Such preliminary investigations are obligatory in killing cases, some of which are intended to identify the police officers and units that were present at the scene of the events and opened fire. These investigations should also include the confiscation of weapons to perform ballistic tests, autopsies – or at least initial tests – of the victim's bodies, an examination of the crime scene and gathering testimonies from eye witnesses.
Adalah's report analyzes the errors that were committed by Mahash from the time of the killings, through the Or Commission of Inquiry (2001-2003) to the release of Mahash's report in 2005. It finds that even in the few cases in which Mahash conducted investigations into the conduct of police officers during the Or Commission's term or after the publication of its report, the investigations were extremely flawed and therefore ineffective. However, the AG did not assign any importance to this issue. The report also details how Mahash did not implement the Or Commission's instructions and in many cases did not investigate police officers and other eye witnesses with a link to the events, as well as the support that the AG gave to such conduct in his decision.
