Entrance to IDF base 370.
(photo credit: REUTERS/Eliana Aponte)
An IDF colonel who nominally testified on Wednesday as a prosecution witness against two ex-Israeli soldiers for killing unarmed 16-year-old Palestinian Samir Awad in January 2013 shocked the prosecution and may have broken its case.
The case has monumental import as the Awad family’s camp say the indictment should have been at least for the more serious charge of manslaughter and claim the IDF and the state tried to sweep the case under the rug for years until pushed to indict for negligent homicide by the High Court of Justice in December 2014.
In contrast, defense lawyers Shlomo Rechavi and Idan Pesach have argued that the two ex-soldiers, whose names are under gag order, are being arbitrarily singled out when no other IDF soldiers have been indicted for firing and killing Palestinians in similar operational circumstances in 40 years.
Along with the Hebron shooter trial and one other case, the December 2015 indictments against the soldiers marked a rare recent occurrence of IDF soldiers being charged criminally for killing a Palestinian in what their defense lawyers deemed operational circumstances, and at a time when the International Criminal Court is reviewing the credibility of Israel’s legal system.
The main legal battle has been whether or not the soldiers followed the rules of engagement, made an understandable non-criminal mistake or criminally violated them.
The Colonel’s testimony started off as expected. He gave background to his and his sub-commanders’ decision to authorizing planning ambushes for Palestinians illegally crossing through or over the West Bank barrier from the Palestinian side onto the Israeli side.
He also described the applicable rules of engagement including four potential stages of conflict: A verbal warning to the Palestinian to stop; A warning shot in the air; Shoot at or below the knees; Shoot to kill in the center of the body.
Then, the colonel abruptly surprised prosecutor Dudi Inbar when asked about whether the two soldiers acted appropriately when they shot Awad.
“The actions of the soldiers were within the rules of engagement. There tactical carrying out of the rules were not good because of the result, but…they acted within the boundaries of the rules,” said the colonel.
Taken aback and trying to fix the impact of the statement, Inbar confronted the colonel with his pretrial testimony to police in which he said that once Awad had run back onto the Palestinian side and was running toward his village, “the incident could have concluded with firing in the air.”
Ramle Magistrate’s Court Judge Rivka Galat followed this series of questions asking the colonel why he did not simply order his soldiers, “Don’t shoot! Capture or don’t capture [the Palestinian being chased].”
Without hesitation, the colonel said, “This is not what you say to soldiers: take a weapon and don’t shoot… they go out with a weapon, just as they did and acted within the rules… the result was not good and we are sad someone died. We try to do everything to protect young people… when I send soldiers out, I really hope they will not open fire.”
The NGO B’Tselem has slammed the practice of ambushing Palestinians crossing through the fence as setting up a situation made for accidents and tragic deaths and has said IDF commanders designing the practice should be held accountable.
Given his statement to police, Inbar asked the colonel, why was he now saying that the soldiers had not violated the rules? Responding, the colonel said, “we are dealing with youths and we do not want a problematic situation. The rules allowed it [the soldiers firing at Awad’s knees while mistakenly hitting him fatally]…but I want to catch people… Often these are not attackers in the standard understanding of the term, but youths,” doing things they should not do.
Inbar confronted the colonel with a copy of the relevant rules, reading to him that the rules did not permit firing at the knees once a Palestinian was beyond the area of the wall.
The colonel retorted that the way he and all commanders understood the rules was that if there was a fluid chase starting within Israel and continuing onto the Palestinian side, that the rules permitting firing at the knees while in pursuit still applied on the Palestinian side – providing the fleeing Palestinian was a reasonable distance from the wall.
Given that Awad was at most seven meters from the wall, the fluidity of the chase and that his actions in penetrating the wall made him a suspicious person against whom force could be used to restrain if needed, he said that he thought Awad was shot still within what he defined as “the area of the wall” and was not “beyond.”