This action might not be possible to undo. Are you sure you want to continue?
1. Faisal Qawariq, ID 995620318 2. Muhammad Qawariq, ID 995616034 3. Yesh Din – Volunteers for Human Rights, Registered Association 5804422 The Petitioners Represented by Attorney Michael Sfard and/or Shlomi Zachary and/or Avisar Lev and/or Emily Schaeffer and/or Ido Tamari of 45 Yehuda Halevy St., Tel Aviv 65157; Tel: 03-6206947/8/9; Fax: 03-6206950
--- Versus --1. Military Advocate General 2. Advocate for Operational Affairs (formal respondent) The Respondent Represented by Counsel from State Advocacy, Ministry of Justice, Salah A-Din Street, Jerusalem
Petition requesting order nisi
This is a Petition for an order nisi according to which the Honorable Court is requested to order the Respondent to come and show cause why it should not order the Military Police Criminal Investigation Division (henceforth: MPCID) to launch a criminal investigation into the circumstances of the killing of the late Muhammad Faisal Mahmud Qawariq and Salah Muhammad Kamal Qawariq, who were shot to death by an IDF soldier on March 21, 2010 when they were on their family's land east of the village of Awarta.
1. The subject of this petition is the Respondent's failure to make a decision, which amounts to a negative decision, about the Petitioners' demand to order the launch of an MPCID investigation into the killing of the late Muhammad Faisal Mahmud
Qawariq and Salah Muhammad Kamal Qawariq (henceforth: "the deceased"), five months after the incident. The incident that is the subject of this petition occurred when the deceased, youths who lived in the village of Awarta and worked for their living as farmers, were cultivating their family's land a short distance from their village in the West Bank. The two boys were killed from an IDF soldier's shooting in circumstances that raise serious suspicion of a grave criminal offense. The circumstances of the incident are not clear but there is a real risk that they will not be clarified in the future either, so long as the Respondent continues to refrain from making a decision to investigate the incident. In this petition it will be argued that refraining from launching an investigation is unreasonable in the extreme. At the time of the writing of this petition, the families of the deceased received no explanation of the circumstances that led to the killing of their dear ones, who were working on the family’s land and died in circumstances that even the Respondent admits (in letters to the undersigned) have not been completely clarified. It will be argued in this petition that refraining from launching an investigation is unreasonable in the extreme considering the abysmal gaps in versions of the incident as shall be detailed below. In these circumstances the obligation to launch a criminal investigation is redoubled. In this petition it will be argued that it is a puzzling decision because the Petitioners learned from various reports in the media, as shall be detailed henceforth, that inquiries conducted by the IDF after the incident found that the tragic outcome of the incident, in which two young men lost their lives, could have been avoided. It will be argued in this petition that refraining from launching a criminal investigation five months after the incident is scandalous and undermines any possibility of conducting an effective and exhaustive investigation. It will be argued in this petition that it is a dangerous decision that conveys a message of contempt for the lives of Palestinian civilians. It broadcasts loud and clear to all IDF soldiers engaged in active duty in the West Bank that when an incident ends with the death of a Palestinian there is no cause to launch a criminal investigation. That message -- even if that is not its intention -- will be received and translated into more injured, more crippled and more bereaved families. And if that were not enough, the failure of the Respondents to make a decision also harms the interests of IDF soldiers because refraining from investigation exposes the suspects to investigation and prosecution for war crimes in various places in the world. The danger of prosecution of IDF soldiers and officers abroad lays at the doorstep of the military advocacy, which with its own decisions and policy exempting soldiers from responsibility without investigation grants universal jurisdiction to foreign nations. To the regret of the Petitioners, the Respondents, along with the IDF, have become addicted to the policy of "no investigations." Once there were investigations in every case of an injured or killed civilian. Upon the outbreak of the second intifada, this legal and moral principle was replaced by operational investigations into incidents of armed conflict. And now, even an event whose
circumstances have not yet been clarified, which led to the deaths of two young men, is ending without investigation. 10. The Court will be requested in this Petition to help the Respondents and the Israel Defense Forces to recover from their addiction, to return a measure of reason to its investigation policy and a measure of justice to the deceased's families.
b. Factual background
I. The incident 11. The late Muhammad Faisal Mahmud Qawariq (henceforth: Muhammad) and Salah Muhammad Kamal Qawariq (henceforth: Salah) were 19-year-old cousins who used to go out together to cultivate their family's land in two plots located about 2 km east of the village of Awarta and on the southern side of the old Awarta-Aqraba road. Access to that area does not require advance coordination with the army. 12. Muhammad and Salah went out on the morning of March 21, 2010 at around 7 a.m. as they usually did on weekdays during the plowing season, to their family's land to work in it. At noon that day news came to the village that two young men had been killed, without mentioning their names. No member of the family or their neighbors was witness to the incident. This was conveyed to the representatives of Petitioner no. 3. 13. The bodies of the two dead were transferred to the Rafidhiya Hospital in Nablus after being withheld for two hours by Israeli officials, according to the Red Crescent. At Rafidhiya hospital it was discovered that Muhammad had been hit by seven bullets in the top part of his body and that Salah had been hit by three bullets. Both had apparently been shot from very close range. 14. On the day of the incident it was reported in the media that a pitchfork attack had been averted near the village of Awarta. The report said that the two dead had disguised themselves as farmers, and carrying in their hands a pitchfork and a broken bottle tried to attack a force of IDF soldiers from the Kfir brigade. According to the report that appeared on the Ynet website, "the IDF says the two had the intention and means to attack the soldiers, who acted well in the face of the threat." 15. But the day after the incident and in the following month conflicting reports began to emerge about the circumstances of the incident. As early as March 22, 2010, Ynet published a report under the title: "Pitchfork attack? Inquiry found it stayed on the ground." The report said that the army admitted "the nature of the incident was not as unambiguous as initially described by the soldiers." Military officials even told the reporter that "ultimately, when you look at all of the characteristics of the incident, it could have possibly been ended differently." 16. On April 6, 2010 a report ran on the Haaretz website saying the commander of IDF forces in the West Bank, Maj. Gen. Avi Mizrahi, admitted that the outcome of the Awarta incident was "grave" and the findings of the inquiry found that "the soldiers could have acted more professionally and thereby avoided shooting." The
report said that the chief of staff and Gen. Mizrahi were going to decide whether and what operative measures to take against those involved in the incident. 17. Until the time of this writing the Petitioners know of no operative measures taken against those involved in the incident, not to speak of a decision to launch an MPCID investigation to clarify its circumstances. 18. The uncompromising position of the Petitioners is that in any case of death of civilians by soldiers' gunfire it is mandatory to conduct a professional, immediate, independent and effective investigation. This was not done in this case.
19. The Petitioners feel very aggrieved about the small amount of protection the military advocacy grants completely innocent civilians hurt by the illegal use of arms in the course of a clearly civilian situation. The slowness of the decisionmaking process by the Respondents, their stubborn refusal to check what happened within a reasonable time using real investigative measures, the dangerous message that derives from that refusal, the wrong caused to the family of the deceased, their friends and their dear ones -- leave the Petitioners no choice but to ask the Honorable Court for relief. ___________________ Adv. Michael Sfard ________________ Adv. Emily Schaeffer Representatives of the petitioners _________________ Adv. Ido Tamari
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue reading from where you left off, or restart the preview.