When an IDF unit raided the Al-Far’ah Refugee Camp in July 2011 killing Ibrahim Sarhan, a man who turned out to be – not the terrorist being sought but – a noncombatant, there was an outcry for investigations by human rights groups and portions of the media.

But that distinction in the continuously unstable Israeli- Palestinian situation would not make the event unique.

What was unique was what happened next.

Sarhan’s killing was the first case in which the military police immediately criminally investigated the soldier who killed Sarhan as a result of a petition to the High Court of Justice and as part of a new post-Operation Cast Lead IDF policy to crack down on such incidents.

The Magistrate Advocate General’s policy from 2000- 2011, following the onset of the second intifada, was not to criminally investigate (as opposed to operational investigations into mere misconduct) such deaths unless sufficient reasons were later brought to the legal division’s attention in a specific case.

This was because the second intifada turned the West Bank into an area of regular armed conflict.

A recent report by the human rights group B’Tselem complimented the IDF on following through with its new policy, but slammed the investigation itself and its result: the closing of the case without filing charges, as problematic.

The Jerusalem Post obtained the full case file, including interrogations of the soldier who shot Sarhan and all the way up to an interrogation of the operation’s commanding officer, a lieutenant colonel, which tells a tragic and complex story.

The soldier who shot and killed Sarhan and the IDF decision not to prosecute seem to have a strong argument.

The operation was not a routine patrol, but a late-night operation to arrest various terrorists.

Sarhan was not a stoic bystander, but fled, which changed his legal status – according to the soldier who shot him.

According to the soldier, he encountered Sarhan very close to an established closed military area and called for the Palestinian to halt and raise his hands.

Sarhan briefly complied, but then turned and bolted away.

The soldier testified that he called for him to halt in Arabic, fired a warning shot in the air and then aimed and shot Sarhan in a non-lethal part of the body, his leg.

The soldier, who was not a rookie but a lower level commander with some experience in such operations, and his overall commander, both testified that he followed the rules of engagement flawlessly.

The fact that Sarhan unexpectedly died from the leg wound, which hit an artery and caused him to bleed to death was, in their eyes, a tragedy, but not a rules violation, let alone a crime.

But B’Tselem, and the soldier’s IDF interrogator, to different degrees, said otherwise.

They noted that sections 8 and 10 of the rules of engagement applicable in the West Bank require a danger to human life, which Sarhan could not possibly have posed being that he was fleeing.

The soldier responded that Sarhan’s conduct in fleeing the way he did, added to what the soldier thought was a resemblance to one of the terrorists being pursued, were in and of themselves enough to qualify him as being under suspicion of being dangerous.

At a key moment in the interrogation, when asked if he had any doubt about what he did, now knowing that Sarhan was totally innocent, the soldier doubled-down and said that from his experience in the field, innocent Palestinians stay in place with their hands up or at least stop with a warning shot out of fear, and only dangerous Palestinians are ready to keep running after a warning shot.

The difficulty with the soldier’s justification and his commander’s approval is that the soldier admittedly did not see a picture of the terrorist being sought and was only given a general description.

So the soldier’s defense would essentially come down to that Sarhan ran, which despite the soldier’s experience and interpretation of the rules, is not, on its face, a basis to open fire under the rules of engagement presented by the military interrogator.

Really the soldier’s best defense is unlikely to be that he acted correctly, but rather that he made a good-faith mistake in interpreting the rules, which, at trial, is often grounds to acquit under the beyond reasonable doubt standard.

In that case he could face a charge of negligent use of a weapon.

The soldier could not have been convicted of murder and probably not even manslaughter, as at most his clear intent was to wound Sarhan and slow him down.

But B’Tselem’s argument that at least an indictment could have been filed to let a court decide the issue of beyond a reasonable doubt and that the killing of a noncombatant like Sarhan demands more than a mere disciplinary measure is difficult to ignore.

In light of this case – and on the day when human rights group Yesh Din produced a report that of 5,000 Palestinians killed by the IDF between 2000 and 2013, that there have been only 179 criminal investigations, with only 16 indictments and only seven convictions – whether the IDF Military Advocate General’s reforms to its investigations post-Operation Cast Lead are sufficiently addressing the issue of noncombatant deaths is still a burning question.

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