On 5 April 2003, in the West Bank city of Jenin, Israeli troops fired at Brian and another International Solidarity Movement (ISM) volunteer from an armored personnel carrier (APC). They were standing still, wearing bright red medic vests with their hands over their heads, when soldiers opened fire without any warning shots.
At the time of the shooting, ISM reported that, “When the first armored personnel carrier was 50 meters from them it fired a burst of machine gun fire (an estimated 15 rounds) at the ground in front of them so that they were sprayed by a shower of broken bullets and stones. Tobias, Brian’s companion, leapt aside. He had fled about three steps when he looked back to see Brian lying face down on the road in a pool of blood.”
Two years later, Brian has returned to Israel to demand a criminal investigation be opened into the shooting, after an internal military inquiry found that the incident in which Brian was shot, ‘never occurred’. Brian suffered serious damage to the entire left side of his face, jaw, mouth, teeth, nose, and eyes. He has undergone more than six reconstructive surgeries totaling over $1,000,000 in medical expenses.
More than 25 journalists and over 30 activists and friends came to the Israeli Supreme Court today for the hearing.
While awaiting Brian’s trial, we sat patiently through a number of hearings. We all got a little worried when the Judge asked one of the attorneys, “Sir, do you think you are in a forum to discuss justice? This is a court.”
Nonetheless Brian’s case was one where justice could not be avoided.
In his opening statements, Brian’s attorney, Michael Sfard explained why Brian was requesting a criminal investigation into the shooting. Sfard stated that the internal inquiry by the Israeli military concluded that the incident in which Brian was shot ‘never occurred’ and therefore the military determined that an investigation was unnecessary.
Attorney Sfard brought up the case of British ISM activist Tom Hurndall, as an example of the incompetence of military inquiries, and noted that only a criminal investigation determined the truth of what happened in Hurndall’s case.
He continued that the State had claimed that Brian was not cooperative in coming forth with information regarding the incident and that he failed to give information and never provided eyewitnesses. Sfard corrected the judge for the record by noting that immediately following the event, the International Solidarity Movement issued media releases and posted testimonies of eyewitnesses to the event on their website.
Palestinian medical personnel who treated Avery also documented the event. The tape of Brian’s interrogation was previously provided as evidence to the State to show that he was never asked to provide names of witnesses, but he had done so on his own accord. None of these testimonies or eyewitnesses were ever consulted, and the military decided not to open an official investigation.
Attorney Sfard expressed to the judges that Brian came to be present at this preliminary hearing to ensure that his injuries were not dismissed. He then went on to discuss exactly what structural, physical, and cosmetic facial damage the shooting had caused, he explained the damage to his nose, cheek, jaw, tongue, tear ducts, etc…
The judge cut Attorney Sfard off in mid-sentence saying, “Okay, okay enough…”
Judge Cheshin then framed the shooting in the context of proper “rules of engagement” or “procedures in times of war.” He said, “If you want to put a commander on trial, you must determine what the guidelines are in the spirit of war.” Did the military act as they should in a time of war? Is this action legally within the determined guidelines? He said, “I am asking myself these questions out loud?”
Attorney Sfard replied that the case was not about taking a side on the issue of whether or not the military’s actions were right or wrong, as their concluson had been that this event never occurred.
At this point, Justice Levy intervened and said, “Your client deserves some kind of result from this case. We must give respect to the victim who came here.”
The questions then moved to the State’s Respondent, and Justice Levy asked why eyewitnesses were never contacted.
“We already have their evidence and their letters.” The state attorney mentioned Tobias, who was with Brian when he was shot. He said that Tobias was someone who was not friendly to the state of Israe, that all of the eyewitnesses were affiliated with ISM, and that ISM was a ‘hostile organization’ that ‘despises Israel’.
There was a reference to a suit which B’Tselem and other human rights organizations are bringing to the Supreme Court, criticizing the Israeli military’s policy of not opening criminal investigations into the killing and injury of civilians.
The judge agreed with the state attorney in his sentiments that ISM was a ‘hostile organization’ (a point unfortunately left unrefuted), but Cheshin said that while he understood the problem, he was sure that nonetheless it is not only possible but also crucial to bring the witnesses here to testify about the incident on Brian’s behalf.
Attorney Sfard pointed out that one of the eyewitnesses was present in the courtroom, and that finding the others would not be difficult.
Then Justice Levy said something to the effect of, “This man is sitting here, obviously very seriously injured. The least we can do is tell him what happened and understand why.”
Judge Cheshin then offered that the military re-open their inquiry and that they take into account eyewitness reports, both the written testimonies from the time and oral statements from the six eyewitnesses which Brian and his attorney have mentioned.
The state attorney again brought up his concerns about the witnesses coming here and again reiterated that these people were ‘hostile’ to the state. He also said that this process may take time.
Judge Cheshin asked that the State take the situation seriously, and both Attorney Sfard and the State Attorney agreed that, within 90 days from today, the people who made the initial inquiry will hear the oral testimonies of the eyewitnesses that gave testimony on Brian’s behalf, in a “calm way.”
After the testimonies of the witnesses have been read and heard, the Respondent will decide for a second time whether or not to open an investigation. They will then present their decision with explanations to the Court, and Brian and his attorney will be given the opportunity to respond. Based on this procedure, discussion regarding the motion for a criminal investigation can continue.
After the hearing, there was a brief press conference. Brian and others felt that this was an important decision today. Although a criminal investigation was not opened, the policy of military inquiries has been successfully challenged in Israel’s Supreme Court and the Israeli military is being held accountable.
I can only hope that Brian’s case will be the first of many to shed light on the daily Palestinian casualties that go unreported and classified as “accidents.” If all other cases that have been dismissed by initial military inquiries were properly investigated — including the eight Palestinians killed since the ceasefire was declared — perhaps the reality of Israel’s brutal military occupation would be exposed.
Lisa Nessan is a Jewish American activist and photographer who has been living in the West Bank since 2002. She supports Palestinian and Israeli efforts to end the Israeli Occupation of Palestine through nonviolent direct action.