The Association for Civil Rights in Israel petitioned the High Court of Justice on Sunday to order the IDF to indict Col. Yisrael Shomer for killing a Palestinian who was running away from him in 2015.
The High Court’s ruling could have broader implications for the rules of engagement in the ongoing Gaza border crisis.
The ACRI petition filed in behalf of the parents of 17-year-old Muhammad al-Casba asked the court to order an indictment for either manslaughter or negligent homicide, and to freeze Shomer’s designated appointment to take command of the IDF’s Nahal Brigade.
The petition against Shomer, the Binyamin Brigade commander, came after Attorney-General Avichai Mandelblit in December endorsed the IDF legal division’s earlier decision to close the case (though Mandelblit voiced some implied criticism.)
However, due to some criticism of Shomer by Mandelblit, his promotion has been held up until now. He is not expected to rise to the rank of Brigadier-General, even if he assumes command of the Nahal Brigade, though purely by seniority rules he would have already risen in rank.
Shomer shot Casba after he had thrown a large rock at Shomer’s vehicle. But by the time of the shooting, Casba was already fleeing. Even Military Advocate General Maj. Gen. Sharon Afek did not think that Casba presented a concrete danger.
A video of the shooting distributed at the time by B’Tselem-The Israel Information Center for Human Rights in the Occupied Territories went viral, and brought about calls for Shomer’s prosecution and led to an unusual full criminal investigation.
The video did not show the shooting, though it showed some events before and after.
At the time, Shomer had been the highest ranking IDF officer under criminal investigation for an alleged offense relating to a conflict with the Palestinians.
The incident involving Shomer took place near A-Ram, adjacent to Ramallah, at a time of a heightened security in the West Bank that followed a spate of terrorist attacks.
The commander was on his way to the Kalandiya checkpoint between Jerusalem and Ramallah when the rock hit his windshield.
ACRI said its review of the case file – including multiple interrogations of Shomer, “Soldier D” and “Maj. G,” showed that Shomer’s narrative was rife with contradictions which collectively proved he should be indicted for manslaughter or negligent homicide.
FOR EXAMPLE, ACRI said Shomer originally claimed he shot Casba when he saw the youth facing him and holding an unidentified object that might have presented a danger.
However, after being confronted with video of Casba fleeing, Shomer admitted he fired on Casba while he was running away with his back to him, while Shomer was also running, and without properly aiming through his gun’s scope.
Shomer maintained he had been carrying out a procedure for arresting a dangerous suspect; that his misfiring which killed Casba was only meant to wound him in the knees; and the the shot was a professional error, not negligent homicide. However, ACRI said Shomer fired three shots without pausing, which went beyond arrest procedure, and that the Military Advocate General’s standard for judging the issue went against the recognized legal standard.
Afek ruled in April 2016 that Shomer had properly followed the rules of engagement for apprehending a suspect by firing two warning shots and then aiming and firing at Casba’s legs.
Afek said Shomer missed by mistake due to firing while moving, as opposed to firing from a static standing position. However, he said that despite this unintentional error, the procedure of firing at Casba’s legs had been correct.
Further, Afek stated that despite the gravity of Shomer’s mistake, it occurred in “unambiguously operational circumstances” and did not rise to the level of a criminal offense.
According to the petition, Mandelblit disagreed with Afek on aspects of the decision and analysis. Due to its contradictions, the attorney-general did not view Shomer’s story as credible. Mandelblit said that even accepting Soldier D’s view of events, which was less favorable to Shomer, there was still no criminal basis to prosecute.
This was because Shomer had felt had felt danger from Casba only moments before, and sensed danger from the large number of Palestinians surrounding them. Intent, Mandelblit said, should be interpreted to the benefit of defendants in operational circumstances.
ACRI said such a grave mistake warranted a charge of negligent homicide, if not manslaughter or murder. The organization noted that following the incident, the IDF clarified that its rules at the time of the incident were to avoid firing on fleeing Palestinians who were no longer dangerous, even if they had presented a limited danger earlier.
The court gave the state until the end of March to respond.
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