The Killing of Ten-Year-Old Abir Aramin in the Village of ‘Anata: HCJ 5817/08 Aramin v. Attorney General (Judgment of July 10, 2011)

One day in January of 2007, Abir Aramin from ‘Anata, left school during recess to buy a sweet. She was killed, most likely by a rubber-coated metal bullet shot by a Border Police officer. She was only ten years old. Unfortunately, the stress in the previous sentence is on the phrase “most likely”, which we are forced to add for the sake of caution, and because the incident never made it to court. Abir was the daughter of Bassam Aramin, one of the founders of Combatants for Peace, an organization of former Israeli and Palestinian fighters, where he continues to be active even after his daughter’s death.[1]

The investigation of the Border Police officers who shot rubber bullets in ‘Anata on the morning of the incident was closed by the State Attorney’s Office citing lack of sufficient evidence to take the case to trial. Four years after Abir’s death, the High Court of Justice (HCJ) rejected a petition[2] asking it to instruct the Attorney General to file an indictment. The court ruled:

It stands to reason that the death of the child was caused by a shooting incident that took place in the street where she went, but the way the affair was handled and the many initial flaws in the investigation make it impossible to grant the requested remedy today.[3]

Abir was wounded on January 17, 2007, near her school, and succumbed to her wounds in the hospital two days later. The autopsy indicated that she was likely killed by a rubber bullet, though the finding was inconclusive, leaving open the possibility that the fatal blow came from a rock thrown by village residents at the Border Police jeep. The Border Police officers themselves did not deny having used rubber bullets that morning, but said they had done so in a location from which they could not have hit Abir. From this point on there is a battle between the different accounts, which is echoed in the judgment, involving ballistic angles, hospital admission times and contradictions between what the officers said and what the few people in the village who were asked said.

The Jerusalem District Attorney’s Office closed the file citing insufficient evidence for criminal prosecution, which would require proof beyond reasonable doubt. The family filed an appeal with the State Attorney’s Office, which upheld the decision made by District Attorney’s Office. The family then petitioned the HCJ, which, in an unusual decision, ordered the State Attorney to examine the possibility of completing the investigation. The State Attorney’s Office took some steps in an attempt to supplement the investigation, and finally told the HCJ that it had been unable to obtain better evidence, and that there was no choice but to close the file.

In the meantime, another court ruled in a civil suit filed by Abir’s parents against the State of Israel. Having found the state negligently responsible for her death, the court awarded the parents damages.[4] In her judgment, Hon. Judge Orit Efaal-Gabay (Jerusalem District Court) unequivocally denied the possibility posited by the state, that Abir had been killed by a rock thrown during a rock throwing incident that took place in the village that morning:

The harm was not caused by shots fired at a rioting, stone-throwing crowd, which happened to include or be near a young child. Abir and her friends were walking on a street where no stones were being thrown at a Border Police unit. Therefore, there was no apparent reason to shoot in that direction.[5]

The discrepancy between the results of the civil and criminal proceedings seems to boil down to a simple legal difference. In civil law, the level of proof rests on the balance of probability. In other words, plaintiffs have to prove that their version is more probable (ordinarily quantified as 51%), whereas in criminal cases, the prosecution has to prove the defendants’ guilt beyond reasonable doubt, which is a much higher level of certainty.

However, in our case, there is no need for an in-depth study of the HCJ’s judgment to see that the formalistic-legal explanation hides the sad truth: the real discrepancy in this affair is not between the levels of proof required in one legal proceeding or another, but between the investigation that was and the investigation that would have been if Abir had not been a Palestinian child from ‘Anata.

The judgment indicates that no police investigation was opened at all, even though Border Police officers on duty in the village that morning were aware of the incident. It was only a communication from the family – two whole days after the incident – that prompted the Samaria and Judea District Police to open a file. Namely, if the family had not contacted the police, Abir’s death would never have been investigated, never brought to the public’s attention and never covered by the media. It would have been just another unknown incident, out of sight and out of mind, which, at least according to the results of the civil action, was in fact, an act of criminal negligence by armed police officers, near a school, during recess.

The judgment states that “some of the police officers reported that they underwent verbal questioning by their company commander, but findings of this, or any other inquiry conducted by company personnel were not transferred to the police and are not found in the investigation file”.[6] It is difficult to imagine a police operation (which does not take place in a Palestinian village) that ends with the death of a child being investigated internally only and without any written record.

The judgment also indicates that the reconstruction took place seven days after the incident and that it took six entire months for the officer who did the reconstruction to report to the investigators that blood stains were no longer visible at the scene. A reading of the petition[7] reveals that after Abir died, heavy rains fell on ‘Anata and washed away both the tire marks left by the Border Police jeep and Abir’s blood.

If this were not enough, the communications records from the incident were deleted without the police, or the prosecution, using them; a rubber bullet found where Abir was killed was handed to the police by the petitioners’ lawyer, but since it was not found at the scene near the time of the incident, the police investigation did not consider it to have evidentiary value. The HCJ, which is considered rather reserved in its criticism of decisions not to prosecute due to lack of evidence, noted:

[T]he main original flaw in this affair stemmed from negligence in the initial inquiry which commenced following Abir's injury and subsequent death. It is a fundamental, and critical, rule that when a violent incident takes place in which a civilian is seriously injured, and all the more so when a minor is concerned – and most certainly when the incident culminates in death – an immediate inquiry must be conducted at the scene. Had the scene been examined shortly after the incident, statements could have possibly been taken from witnesses and their cooperation could have been secured; the deadly bullet and other findings might have been collected at the scene; and notes could have even been taken of what required examination according to objective criteria. It is an elementary duty to conduct an immediate investigation and not to rely on the statements of the officers or other parties involved whose natural inclination is to take a defensive position.[8]

The HCJ continues its criticism of the investigation which adopted the accounts given by the officers wholesale, failed to properly question the pathologists and failed to inquire what Abir’s friends, who had witnessed the incident, had to say.

Reading through the judgment, it is difficult to avoid the impression that emerges between the lines, that a systemic, moral, failure on the part of the executive was at play, one that did not stop at the field level, but spread through the investigative, perhaps even the prosecutorial, level. The HCJ had this to say about the order it itself issued for supplementary investigation (following the petition):

For some reason those acting on behalf of the Respondent saw no urgency in advancing the supplementary investigation and as indicated by the notices of Respondent's counsel, they delayed for a period of six months from the date on which the order was issued by this Court before taking action toward reopening the investigation file and completing it.[9]

It is also difficult to discuss Abir Aramin’s tragic death without addressing the wider context, which is Israel’s abdication of its responsibility as well as its legal and moral obligation to fill the shoes of the sovereign in the occupied land beyond the separation wall. International law does not allow Israel to disavow its responsibility to see to the interests of residents in Jerusalem villages and neighborhoods located on the other side of the wall, such as Shu’fat and New ‘Anata.

In 2011, former head of Israel’s internal security agency, the ISA, Yuval Diskin, who can in no way be viewed as a radical leftist, spoke about how areas in northern Jerusalem are turning into municipal no man’s lands. Border Police jeeps do make appearances, but other than that, there is no sign of governmental involvement. This is evident across the board from the level of sanitation services all the way to much more vital governmental functions.[10] Israel is excluding some of its residents, some of the residents of its capital, from its territory, and shirks all responsibility toward them. They are “there”, together with everyone else beyond the wall, and in fact, they were never part of the “we” who are entitled to health, education, welfare, and, of course, life.

Abir Aramin’s killing is an extreme case, both in terms of circumstances and in terms of the result. It is safe to assume that if this is how a serious case is treated by the system, things are much worse in cases that do not end in the death of a child. One can only imagine the world of crimes that take place and then fade without a trace, never being brought to the investigation room, or the courtroom, but have a lasting impact on our lives and how we see (or fail to see) the conflict.

Could the court have ruled differently? Toward the end of the judgment, under the title “Conclusion”, the justices presiding choose to quote the District Court judge who ruled against the state in the civil claim:

In the comprehensive judgment of the District Court, Madam Judge Efaal-Gabay ruled that "the scenario proposed by the Defendant that Abir was not injured by a rubber bullet but rather by a stone, seems under the circumstances of the matter, as a remote and unreasonable possibility" […] Madam Justice goes on to state that "it seems that there can be no dispute that the conclusion that Abir was injured by a rubber bullet fired by a Border Police unit, automatically entails another conclusion, which is that the shot that injured Abir had been either negligent or a breach of the open fire regulations" […]. And indeed, prima facie, it does appear to that this is the case. In view of the aforesaid, the conclusions of the civil case do not lay sufficient evidentiary grounds to support criminal proceedings to the extent requiring intervention in the discretion exercised by the prosecution in its decision not to indict.[11]

In conclusion, the justices of the HCJ drew a similar impression to that drawn by the District Court judge, but did not find enough evidence in the flawed investigation file to warrant intervention – which is a rare occurrence in matters of criminal prosecution. In other words, an indictment might have been possible, but since no indictment was filed, and since the investigation file was riddled with issues, the HCJ would not intervene, and settled for reprimanding the errant authorities and stating its hope that its remarks are taken into consideration henceforward.

The court dismissed the Petitioners’ contention that the state could be ordered to prosecute the officers for a lesser offense than manslaughter, such as negligent homicide or failure to obey the open fire regulations, without really discussing it.

In her book, Administrative Discretion in Law Enforcement, Prof. Ruth Gavison notes:

There are cases where a prosecutor would be almost compelled to prosecute even if the evidence in his possession does not guarantee a conviction. This is the case when, for instance, the quality of the proceedings that came before the decision on prosecution is such that gives a sense no justice will have been done without a court ruling following an open proceeding.[12]