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Photos:
1. Malek Issa with his mother at Hadassah Hospital at Ein Karem in Jerusalem following his injury. Credit: Ohad Zwigenberg Published by Haaretz

2. Security camera footage of Malek Issa (in blue frame) after getting off his school bus. Published by Haaretz

3.Security camera footage purportedly showing the moment when the shot was fired (top yellow frame). Published by Haaretz

4. A demonstration in Jerusalem last year over the incident involving Malek Issa. Credit: Ohad Zwigenberg Published by Haaretz
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The investigation into the incident in which 9-year-old Malek Issa lost an eye has revealed contradictory versions from officers, and the Justice Ministry seems to have skipped key parts of the probe. The case was closed anyway

by Joseph Breiner for Haaretz
March 16, 2021

The Justice Ministry’s police misconduct unit failed to question key witnesses in the case of a 9-year-old Palestinian boy who had been allegedly shot in the face by border police officer in East Jerusalem last year, Haaretz has learned.

The case was closed in December due insufficient evidence against two police officers who were involved in the incident.

One of the two policemen testified that his colleague had fired from close range in violation of regulations. In addition, witnesses raised doubts that stones were being thrown in the vicinity at the time, as claimed by the policemen.

The incident occurred in Jerusalem’s Issawiyah neighborhood in February 2020 just after Malek Issa had gotten off a school bus and was on his way to a nearby kiosk. Police said at the time that, due to disturbances in the Palestinian neighborhood, the two policemen were calibrating a rifle equipped with sponge-tipped bullets. The procedure requires one of them to fire the rifle while the second officer directs his aim.

The Issa family’s lawyers recently filed an appeal of the decision to close the misconduct case.

The policeman who shot the bullet claimed that he fired up at a wall that was about 50 meters (164 feet) away, that no one else was in the area at the time, and that he did not see the boy. “I saw with my own eyes that the bullet hit the wall,” he said.

Two of the witnesses questioned by the unit linked the boy's injury to the sponge-tipped bullet the police officer fired.

The misconduct unit said it could not rule out the possibility that the boy was hit by a rock rather than a sponge-tipped bullet fired by the police, basing their claims on forensic evidence. The unit said the case was closed following “a meticulous and thorough investigation."

Haaretz has learned, however, that the second policeman, who in an incident report stated that he had not seen the bullet hit the wall, claimed that his colleague had acted in violation of regulations in that he fired without permission and from a distance of 30 meters while other people were present. That account of events is supported by security camera footage that shows people walking in the area and then suddenly fleeing, presumably after the shot was fired.

Dr. Ariel Livneh, a criminologist who investigated the incident on behalf of the Issa family, concluded on the basis of an eyewitness account from someone whom the Justice Ministry did not question that the shot was fired from 27 meters away.

Disturbances were indeed taking place in Issawiyah at the time, but no stone-throwing is visible on the security camera footage. Witnesses had also told Haaretz on the day of the incident that they had not seen stones being thrown at the time.

Haaretz has obtained information indicating a number of missteps in the misconduct unit’s investigation. The investigators never reenacted the incident or confronted the two policemen with one another’s testimony, despite their contradictory accounts. In addition, a memo written by a policeman who accompanied Malek Issa to the hospital made note of three eyewitnesses who said they had seen a sponge-tipped bullet hit the boy’s eye. Yet none of them were fully questioned by investigators into the incident.

The investigators did speak with one of them, who promised to come to provide his account of the incident, but he never did so. The unit tried unsuccessfully to reach the other two by phone, but made no further efforts beyond that. The investigators also failed to obtain photos of Issa after he was injured, which might have helped forensic experts determine the cause of his injuries.

Sources involved in the investigation said that three weeks after the incident, Malek Issa’s family provided the police with a bloodstained bullet and that testing confirmed that the blood on it was the boy’s. Due to the passage of time, however, it was not accepted as evidence that it had inflicted the injury.

The decision to close the case was based on a legal opinion that it was not possible to determine that the firing of the sponge-tipped bullet caused the boy’s injuries. Nevertheless, there were two witnesses who provided some support for such a finding.

The school bus driver who had just dropped off Malek Issa said that after the boy was injured, he went up to the police officer who fired the shot and said: “Do you know what you did? You hurt a child. His eye is gone.”

The driver also challenged the officer’s claim that he had been standing up when he fired the shot. The driver said he had been kneeling. Another witness said Malek Issa was injured immediately after the shot was heard, and that rocks were not being thrown at the scene at the time.

Other findings from the investigation cast doubt on the need to have fired the sponge-tipped bullet to calibrate the officer’s rifle. Other policemen at the scene refrained from doing so, and the officer who fired the sponge-tipped bullet left the scene following the incident and took up a position on a nearby hill. Law enforcement sources said why he did so, despite his claim that rocks were being thrown at the time, was never resolved and raised questions regarding the decision to close the investigation.

Officials in the Justice Ministry police misconduct unit said that in light of the forensic report, it was impossible to charge the officers, but another law enforcement official claims that there was sufficient evidence to charge the officer who fired the shot with negligent use of a weapon.

The two police officers involved in the incident are also suspected of coordinating their account of events in reports that they filed when it comes to their assertion that rocks were being thrown at them. That would constitute obstruction of an investigation, but when the Justice Ministry closed the investigation, they were cleared of the suspicions.

In its response for this article, the Justice Ministry police misconduct unit said that it had conducted “an in-depth and meticulous investigation” into the case. “At the end of the investigation – which among other things included the questioning of the suspects [the policemen] under caution [as criminal suspects], a visit to the scene, identifying [security] cameras and obtaining professional opinions – and after examining the entirety of the evidence, the Justice Ministry police misconduct unit reached the conclusion that there was insufficient evidence on which criminal proceedings could be based.”

“This was a serious and regrettable incident,” the Justice Ministry said. “The evidence showed that the police forces arrived at the scene to carry out an arrest and encountered resistance that included among other things rock-throwing at the force. In the course of the operation, a sponge-tipped bullet was fired at a wall, which was not adjacent to where the boy was standing. The video that was released shows a portion of what happened on the ground and of the findings of the investigation.”

“In addition, as part of the comprehensive investigation, an opinion was received from the Institute of Forensic Medicine that did not rule out the possibility that the injury was caused by a rock and not a sponge-tipped bullet,” the statement said, adding that the police misconduct unit has also asked the police to examine the conduct of the officers during the operation, including whether rules regarding the use of sponge-tipped bullets near a civilian population were complied with.

In addition, the unit said, the Issa family’s appeal of the decision to close the investigation is also being considered.

Dov Gilad Cohen, a lawyer representing the police officer who fired the sponge-tipped bullet, said the case was closed for a lack of any evidence whatsoever linking the boy’s injuries to the police officer’s actions. “This does not in any way ease or reduce the pain and suffering that he and his family have experienced – whatever the cause may be. We can only wish him a full recovery.”