Challenging the Israeli army in court

In 2009, the Israeli military shot US citizen Tristan Anderson in the head with a teargas canister, paralysing him.

IDF shoots
Villagers and international activists protest nonviolently every Friday in Nilin against the construction of the Separation Wall – which takes about 30 per cent of the village’s land [GALLO/GETTY]

This month, hearings in Tristan Anderson’s civil case against the Israeli army will begin in Jerusalem. Like the families of Rachel Corrie, Brian Avery and countless Palestinians, Tristan and his family are seeking to hold the otherwise indemnified Israeli military responsible in Israeli courts. 

Tristan, a 39-year-old American, was shot in the head with an “extended range tear gas” canister on March 13, 2009 in the West Bank village of Nilin. The canister directly hit the right side of his forehead, breaking his skull, penetrating his right eye and devastating his frontal lobe. Today he remains almost entirely paralysed on his left side and blind in his right eye. Although he continues to slowly recover far beyond what was initially believed possible by his physicians – retrieving lost memories and gaining intellectual strength – he will be forever altered.

“The Tristan that I knew – that was my partner – that we all knew – he doesn’t exist anymore,” Gabrielle Silverman says.

Silverman, who is Jewish, had travelled to Israel and Palestine hoping to gain a clearer picture of the conflict between Israel and Palestine.

“I’ve been told my whole life that what is happening with Israel is relevant to me personally, so I came to get a better understanding of what was happening,” Silverman explains.

Tristan – a world traveller, photographer and a longtime human, social and environmental rights activist – followed Silverman, his girlfriend of 10 months, to the region.

The two travelled to both sides of the “Green Line”, and after seeing the situation for themselves, decided to join up with the International Solidarity Movement.

I watched him get shot, watched him fall.

– Silverman, Tristan’s girlfriend

Tristan was shot at the end of his sixth attendance at the regularly scheduled Friday protests in Nilin. Since January 2008, the residents of Nilin have protested the construction of the Separation Wall that steals around 30 per cent of its land. He and Silverman had wandered away from what remained of a dwindling demonstration and found a patch of grass to get a respite from the lingering tear gas.

“And out of nowhere they opened fire on us. The first shot they fired, they got Tristan.”

“I watched him get shot, watched him fall,” Silverman remembers.

‘Like firing a small missile’

At that time, the type of tear gas that hit Tristan had not been in use longer than six months and was advertised by its United States-makers, Combined Systems Inc, as a “barrier penetrator”.

This type of tear gas is particularly dangerous because it has an internal mechanism that propels it forward, significantly increasing its impact. “It’s like firing a small missile,” explains Sarit Michaeli, spokesperson for B’tselem, an Israeli human rights organisation.

The same weapon would kill Bassem Abu Rahma in the nearby village of Bilin, one month later.

For Silverman, Tristan and his family, taking the army to court represents a challenge to a system that has seen 260 Palestinians killed in unarmed demonstrations since 2000. The Israeli security forces responsible for these deaths have been held to no real accountability.

After two requests were filed by human rights organisation, B’tselem and Michael Sfard Law office, the “Judea and Samaria District Police” conducted an investigation into the incident, resulting in no criminal charges filed by Israel’s district attorney’s office.

However, B’tselem, Silverman and the Andersons’ representing lawyers argue that the investigation was outrageously flawed.

“It was a sloppy, unprofessional and negligent investigation. It cannot be described as thorough or complete,” said Emily Schaeffer, one of the lawyers representing Tristan in his criminal suit.

“The investigation clearly did not include a visit to the scene of the crime,” Schaeffer continued.     

Schaeffer explained that the investigation revealed that there were three separate groups of border police positioned throughout Nilin for the duration of that Friday’s protest, one of which was positioned on a hill approximately 60 meters away from Anderson and Silverman, and was the only group that would have had access to Anderson. That group of border police was never interviewed.

Instead, an entirely different group of border police was investigated for another shooting that had occurred on the same day, that of an unarmed Palestinian protester in the head. While five out of the seven witnesses to Tristan’s injury were interviewed, their testimonies were apparently disregarded as evidenced by the wrong group of border police being investigated.

Not the exception

A symbolic grave built on the spot where Bassem Abu Rahma was  killed while nonviolently protesting the theft of his land [EPA]

Following two appeals filed by Sfard’s firm, now the State Attorney’s office will determine whether to reopen the investigation and include what seems obviously necessary: A visit to the site and an investigation of the border police who did have access to Tristan from their position.

“Unfortunately the authorities’ treatment of Tristan’s case is not the exception – in my office alone we have seen literally hundreds of cases of Palestinians injured by the security forces whose investigations have also been negligent and have therefore failed to hold anyone accountable,” Schaeffer wrote in an email.

Meanwhile, the Ministry of Defence had already determined the legitimacy of the shooting.

Parallel to the criminal investigation, Israel human rights attorney, Lea Tsemel pursued a civil case against the Israeli military for damages. Her suit elicited a letter from the Ministry of Defence on July 12, 2009 claiming the incident was an “act of war”, and therefore legitimate, i.e., they had no responsibility to Tristan.

Lea Tsemel argues that Tristan – and all Palestinians and internationals – were engaging in a legal action, not one of war.

Under international humanitarian law and Human Rights Law, Israel (as the occupying power) may be impelled to conduct both law enforcement and combat operations in the occupied Palestinian territories. The law enforcement component is particularly relevant in Area C of the West Bank – which constitutes 60 per cent of the land. It is under full civil and security control of Israel.

Nil’in falls into this category. Israel’s presence there during nonviolent Friday protests is a function of their capacity as law enforcement – not combat.

Indeed, suggesting that all military operations in the West Bank are not intended to result in death or critical injury, the Israeli military does have a set of open-fire regulations that apply to law enforcement scenarios, such as demonstrations in the West Bank. While these rules are classified, the military has publically confirmed that they prohibit their soldiers from shooting directly at people when trying to disperse crowds or protests.

Yet these procedures are hardly evident in reports from activists and human rights organisations such as B’tselem.

“It’s not about the rules, it’s about the lack of enforcement,” says Michaeli.

‘Acts of war’

However, of the 57 deaths that have occurred at demonstrations since the end of the Second Intifada, only four of them were caused by so-called “less lethal weapons”. The other 53 people were killed by live ammunition.

It appears that the army has made no effort to properly train its soldiers to enforce law rather than conduct combat. In a 2005 report on settler violence and expansion, former head of Israel’s State Prosecution Criminal Department, Talia Sasson, wrote, “In practice… IDF soldiers do not enforce the law, are not aware of the law enforcement procedure and are not at all interested in functioning like police officers.”

“In practice… IDF soldiers do not enforce the law.

– Talia Sasson, former head of Israel’s State Prosecution Criminal Department

This non-compliance with Israel’s alleged open-fire regulations and its obligations under international humanitarian law and Human Rights Law is validated at the highest levels: Israel provides its soldiers with devices like the extended range tear gas canister – that decimated Tristan’s brain and killed Bassem Abu Rahahma from Bilin – and the Military of Defence is readily prepared to cast these incidents as “acts of war”.

This is nothing new. We know what to expect from the Ministry of Defence in the Jerusalem courtroom – they will dredge through a series of decontextualised facts to defame and belittle Tristan (and Silverman) as thrill-seeking activists, or argue that they were fully aware of the risks involved.

It’s the same justification they used in Rachel Corrie’s case. It was as irrelevant and baseless then as it is for Tristan and all the hundreds of Palestinians who have been maimed and killed while participating in unarmed resistance against a military occupation that has lasted for 44 years.  

During a year of social upheaval, the world has forged new bonds of solidarity as well as new classes of resistance. Whether from Egypt or the United States, people have seen how easily law enforcement can be supplanted by lethal combat for the sake of repressing the revolt and maintaining the status quo.

On October 25, Marine veteran Scott Olson was shot in the head by a tear gas canister at an occupy Oakland demonstration. He is currently in an Oakland hospital, and the extent of the damage to his brain is still uncertain.

Many people have been all too willing to serve as an ally to the state, supporting its repressive tactics by marginalising and dismissing political activism. Israel has acted savagely and with impunity, but the world’s climate is changing. Perhaps, we can expect that increasing numbers will begin to scrutinise the actions of Israel and demand accountability.

Charlotte Silver is a journalist based in the West Bank, Palestine.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.