Use of firearms

19 Aug. 2008: High Court suspends proceedings in Ni'lin shooting case

19 Aug 2008

Following the petition by Ashraf Abu Rahma, who was shot by IDF soldiers in Ni'lin while handcuffed and blindfolded, together with the Israeli human rights organizations B'Tselem, the Association for Civil Rights in Israel (ACRI), the Public Committee Against Torture in Israel, and Yesh Din, against the Judge Advocate General's decision to prosecute the battalion commander, Lt. Col. Omri Borberg, and the soldier who fired the shot, Staff Sgt. L, for "unbecoming conduct," the High Court issued a Decree nisi, forcing the Judge Advocate General to justify his decision. The course also issued an interim order suspending military court proceedings until the petition is decided.

Video footage from the incident.

In their petition, written by attorneys Limor Yehuda and Dan Yakir of ACRI, the petitioners demand that the indictment be altered to reflect the severity of the offense - threats made by means of a weapon and firing at a handcuffed detainee - which ostensibly constitute abuse of a detainee in aggravated circumstances, punishment for these acts is imprisonment for seven years. The petition was filed with urgency out of concern that the judicial proceeding against the defendants will be completed within a few days.

The petitioners strongly condemn the handling of the matter by the Judge Advocate General (JAG), arguing that the light offense chosen indicates a weak response by the JAG's Office: "It transmits to officers and other soldiers an extremely grave message of contempt for human life, and paves the way for future cases. . . It is hard to avoid the conclusion that a systemic defect is involved, one that has spread not only among IDF officers but also among those responsible for enforcing law and order in the army."

The petitioners contend that the decision to file a light indictment is unreasonable in the extreme, this also in light of Borberg's senior rank. The petitioners note that the main reason for the JAG's decision to file such a light indictment is that, "the transfer of the battalion commander from his position is a serious command measure." However, this command measure was transfer to another role in the corps, also at the rank of lieutenant colonel, without any hindrance to future promotion. The lenient treatment is also apparent from the public statement made by the army's chief of staff, Lt. Gen. Gabi Ashkenazi, who said he saw nothing preventing the battalion commander from being appointed to senior positions in the future, and that he will return to a command position in the army.

The petition also notes the extreme unreasonableness of the JAG's decision, given the suspicions of other cases of abuse during the period in which Borberg was in command of the Ni'lin area. In one of the cases, he was allegedly personally involved in the physical abuse of a detainee. The many complaints that reached the petitioner organizations, which are attached to the petition, raise the suspicion that, under Borberg's command, a general atmosphere prevailed in which soldiers were allowed to abuse detainees and the civilian population.

With regard to the soldier L, one of the JAG's main points was that the soldier understood he had been given an order to fire at the detainee, although the order was patently illegal. The JAG's reasoning ignores the soldier's obligation to use judgment, and thus undermines the basic ethical concept of a patently illegal command.