The High Court on Wednesday unanimously accepted the petition against a lieutenant-colonel and a sergeant charged with being responsible for the shooting of a bound and blindfolded Palestinian during a protest in Ni'lin last July, ruling to cancel the misconduct charges on which the army indicted them due to them being "unreasonable to an extreme degree," and ordered that the military prosecution retry the defendants on more severe charges.
The petition was filed by the shooting victim, Ashraf Abu Rahma, and four human rights organizations.
Justice Ayala Procaccia wrote in her decision that harming an arrested person whose arms are bound, who is blindfolded and helpless is a cruel and harsh felony, necessitating a fitting penal response.
Justice Elyakim Rubinstein wrote that the military prosecution's decision was not reasonable, especially when scrutinized in light of Israel's values as a Jewish and democratic state. He also quoted David Ben Gurion, who on more than one occasion wrote that the IDF's force lies in its morality and high value system.
The shooting of Ashraf Abu Rahma took place on July 7, 2008 during one of a series of protests by Ni'lin villagers, other Palestinians and international supporters against earthwork being conducted by the Defense Ministry for a section of the West Bank separation barrier on farmland belonging to the village.
Abu Rahma was arrested during the protest. His hands were bound behind his back with plastic handcuffs and his eyes were covered with a piece of cloth. Battalion commander Lt.-Col. Omri Borberg, accompanied by St.-Sgt. L., walked the protester toward a jeep.
While Borberg held Abu Rahma by the arm, L. fired a rubber-coated steel bullet at Abu Rahma's foot from a distance of two meters, striking him in his big toe.
L. said his officer had ordered him to fire the bullet. Borberg said he had only intended to frighten Abu Rahma and did not order the soldier to shoot.
For two weeks, nothing was done about the incident. Then, on July 20, B'Tselem, one of the petitioners in the current action, disseminated a video clip of the incident filmed by 17-year-old Salaam Amira from her house in Ni'lin. As soon as the film was shown on television, the military advocate-general, Brig.-Gen. Avihai Mandelblitt, ordered the military police to investigate the matter.
On August 7, Mandelblitt and Liron Liebman, the army's chief prosecutor, filed an indictment charging the two soldiers with conduct unbecoming a soldier, a charge carrying a light punishment.
Abu Rahma and the NGOs, B'Tselem-The Israeli Information Center for Human Rights in the Occupied Territories, the Association for Civil Rights in Israel, Yesh Din-Volunteers for Human Rights and the Public Committee against Torture in Israel, wrote to Mandelblitt protesting the charge and asking him to postpone the legal action and investigate the arguments of the rights groups.
Mandelblitt refused to do so. In a letter to the organizations, he wrote that "the evidence more or less fits the factual basis for several charges that could be filed in court." While taking into consideration the "ethical, normative and command gravity of the incident," Mandelblitt said he had also taken into account that Borberg had not ordered the shooting, that L. had misunderstood Borberg, that the outcome of the shooting was not serious and other factors, including the fact that Borberg had subsequently been removed from his post as battalion commander.
The petitioners said Mandelblitt's decision was unreasonable to an extreme degree and that therefore the court should intervene.
"Even if the battalion commander's order was meant 'just' to frighten a bound and helpless detainee by threatening to shoot him from point-blank range (not to mention that he did nothing to prevent the shooting), we are still dealing with actions that are much more serious than the charge chosen by the MAG ," they wrote in a petition filed by ACRI attorney Limor Yehuda. "Choosing such a light offense is instructive of the weak response of the Military Advocate-General's Office regarding the gravity of the offense. It conveys a harsh message to other officers and soldiers of disdain for human life and paves the way for the next such actions."The petition contains a long list of incidents that allegedly took place in Ni'lin in which soldiers wantonly beat Palestinians or damaged their property. The petitioners said Borberg was responsible for creating the atmosphere that allowed soldiers to believe they could get away with such behavior.
The petitioners also questioned Mandelblitt's acceptance of Borberg's claim that he had not intended that the soldier shoot Abu Rahma. For one thing, why would the commander have thought he could frighten the Palestinian by having a rifle aimed at him while he was blindfolded? they asked.
Furthermore, Borberg appeared to turn Abu Rahma in the direction of L. while he, himself, distanced himself a bit from the Palestinian, presumably so that he would not be hit by mistake, they said.
