Plea bargain gives IDF soldier 45 days in jail for Gaza war shooting deaths of two women waving white flags [in January 2009]
In what has been described as the case with the most serious charges to arise out of Israel’s Operation Cast Lead three-week war [from 27 December 2008 to 18 January 2009] on Hamas in Gaza — a case of shooting and killing two adult women, mother and daughter, who were waving white flags who were trying to move out of a building at the start of the ground phase in the IDF’s military onslaught — an IDF soldier in the Givati Brigade has been sentenced to a plea-bargain punishment of 45 days in jail.
The shootings took place on 4 January 2009 – the first full day of the ground operation phase during the Israeli war in Gaza.
The charges against the soldier in the deaths of the two women [identified as a grandmother and her adult daughter, Raya and Majda Abu Hajaj] were reduced from unlawful killing and manslaughter to the more minor charge “unlawful use of a firearm”.
The Jerusalem Post is reporting here that “Evidence produced during the trial indicated that S. [the IDF soldier] ignored orders and fired on the group“.
The defense arguments included: 1.) a security warning was allegedly given saying that Hamas/”terrorists” would try to mount an attack while hiding among a group of Palestinian women, or, as the JPost reported, “The Givati soldiers stationed nearby received a warning that terrorists may attempt to blend in to groups of fleeing civilians and launch attacks”.
Other defense arguments were that 2.) the Israel investigators maintain that there is a suspicion there was a discrepancy between the reported time of shooting and the reported time of deaths of the two women — although, as the JPost also reported, “the prosecution said no bodies had been presented to the court to determine the women’s cause of death, and said that there many soldiers shooting in the area at the time”.
B’Tselem, an Israeli human rights organization, is reportedly calling for a reopening of the investigation, according to the JPost.
Haaretz reported here on Sunday that “The agreement will be submitted today to the Jaffa military court, after negotiations between MAG and the soldier’s attorneys. The soldier, Staff Sgt. S’, from Givati Brigade will be convicted of a relatively light offense – illegal use of weapons”.
The Haaretz report added that “According to the evidence in the case, Staff Sgt. S’ deliberately shot at a figure among the group of civilians, in contradiction to orders. ‘S’ has long since completed his army service. His attorneys claimed that there was no proven connection between his shooting and the death of the two women, and that the two events occurred in different times. They further argued that indicting a soldier for the killing of an anonymous victim, when no body was found, is questionable, and that many other soldiers also opened fire in the said event. An IDF spokesperson verified the details this morning, and added that, following an arbitration process in the case and ‘after examining all the evidence and circumstances, and following the military court’s recommendation, both sides reached a plea bargain that would see the indictment corrected to illegal use of weapons’.”
B’Tselem said in a statement posted on its website here that:
“B’Tselem demands that the Military Police Investigation Unit (MPIU) reopen the file into the killing of Majedah and Rayah Abu Hajaj. B’Tselem says that if the military prosecution accepted the claim brought by the soldier’s lawyers, that there is no connection between the shooting he admitted to and the killing of the Palestinian mother and daughter, this means that the investigation into this incident was never completed. The MPIU must therefore solve the case and pursuant to the finding, hold accountable those responsible.
It must be stressed that in contrast to media reports, the charges against the soldiers did not relate to the killing of the two women, but rather to the killing of an unidentified individual. The IDF spokesperson’s office, which reported the indictment in July 2010, explained this discrepancy based on contradictions found between the versions of soldiers and those of the Palestinian witnesses. The statement explained that as it was not possible to connect the two versions of events to the degree necessary for a criminal prosecution, it was decided that the soldier will be indicted for the manslaughter of a unknown individual, not the two women. Specifically, the Palestinian eye witness testimonies place the killing on the 4.1.2009, while the soldier testimonies referred to an event on the 5.1.2001.
B’Tselem warned the Military Advocate General (MAG) office about the problematic nature of this decision in the past. Following the IDF spokesperson’s announcement, in July 2010, the organization wrote to the previous MAG, Maj. Gen. Avichay Mandelblit, asking for clarifications. In its letter, B’Tselem stressed that the contradictions between the testimonies must be investigated, that the discrepancies are checked with the Palestinian and Israeli witnesses. This must be done in order to ascertain whether the testimonies refer to one event, with circumstances clear enough for a prosecution. However, if there is doubt that the witnesses are referring to the same event and there is a possibility that there were two separate incidents, the killing of Majedah and Rayah Abu Hajaj must be investigated separately from the 5.1.2009 incident. The Palestinian witnesses informed B’Tselem that they were not contacted or summonsed to an additional questioning.
The MPIU investigation into the killing of Majedah and Rayah Abu Hajaj, shot while walking with a group of Palestinians holding white flags after their home was bombed, was opened following a complaint filed by B’Tselem. As of October 2009, B’Tselem was in contact with the investigators, to assist the conduct of the investigation, helped coordinate the arrival of witnesses to testify at the Erez Crossing and provided materials such as medical documents, GPS measurements and death certificates”.