Legal proceedings regarding two controversial deaths of Palestinians, allegedly killed by IDF personnel, have found their way into the headlines in recent days.
The two cases expose vulnerabilities for how the IDF’s investigations are liable to be perceived by most jurists (other than in Israel and parts of the US.)
The connection between the cases is not obvious.
From one perspective, the 2015 shooting of Muhammad al-Casba and the December 2017 shooting of Ibrahim Abu Thuraya have no connection nor common lessons.
Al-Casba’s case is currently before the High Court of Justice where the Association for Civil Rights in Israel is asking for an order to compel the IDF to indict Col. Yisrael Shomer for shooting the Palestinian as he was fleeing.
The case of the paraplegic Abu Thuraya against an ambiguous group of IDF sharpshooters on the Gaza border was recently closed by the IDF legal division.
With al-Casba, Shomer admits he fired the kill shot, but the IDF legal division accepted the idea that he was aiming for the legs and that Shomer subjectively felt in danger, even if al-Casba could not present a danger as he fled.
The shooting occurred in the West Bank after al-Casba smashed Shomer’s vehicle’s windshield with a rock.
With Abu Thuraya, IDF records indicate no soldiers fired in the direction where he was said to be when he was shot. Moreover, since the Gazan hospital has refused to turn over the kill-shot bullet, the army can’t carry out an analysis of any individual soldier.
The case occurred on the Gaza border with Abu Thuraya crawling around on the ground in the midst of a low-grade violent protest. No one has alleged the paraplegic presented a danger.
Additional information provided by the Justice Ministry to the High Court in the al-Casba case in a legal filing on Wednesday, as well as information obtained by The Jerusalem Post in the Abu Thuraya case, sheds light on what connects the two cases.
In both cases, the IDF used ambiguity as the basis to close the investigations.
Arguably, this makes sense since the foundational principle of criminal law is that one cannot be convicted without evidence of the crime beyond a reasonable doubt.
How can Shomer be indicted, let alone convicted for killing al-Casba, when there is evidence that he felt in danger – the basis of a self-defense claim that neutralizes criminal culpability?
How can any IDF soldier be indicted, let alone convicted for killing Abu Thuraya, when there is no evidence connecting his death to a specific soldier? Indeed there is counter-evidence that he may not have been shot by the IDF, hence the Gazan hospital not turning over the kill-shot bullet.
Critics of Israel often avoid this significant hump in the criminal law, relying instead on general criticism of the IDF’s rules of engagement.
But with Israel facing an International Criminal Court war crimes review and constant public relations scrutiny, ending the analysis here may leave the IDF in worse shape.
In the al-Casba case, it is now clear that Shomer felt other subjective threats apart from the Palestinian having broken his vehicle’s window. He and his troops felt threatened by two nearby Arabs holding rocks. They were apprehensive that al-Casba’s attack might have been the start of a coordinated ambush.
Besides that, the state revealed that one reason it did not file a criminal negligence claim against Shomer, as opposed to a more serious manslaughter claim, was the concern that such legal action would limit commanders in operational circumstances.
Finally, the state’s brief notes that “only with a miracle” did al-Casba’s rock not kill any IDF personnel.
In the Abu Thuraya case, additional information has come out that the IDF is sure that its soldiers did not shoot him because they knew him well.
Abu Thuraya was a frequent protester and the IDF sharpshooters went out of their way to hold their fire when he was in the vicinity – knowing that hitting him would be a public relations disaster.
But there is a problem with ending the analysis there in each case.
The Hebron shooter Elor Azaria was prosecuted for manslaughter, and border guard Ben Deri was prosecuted for negligent homicide. Both expressed subjective feelings of danger. Were their feelings discredited as too subjective because of video evidence?
Abu Thuraya died of a gunshot wound. Who shot him if not the IDF? Perhaps he was killed by an errant shot by Hamas.
But if that were the case, the IDF would put that forward loudly as it did with dozens of Palestinians killed by Hamas’s misfires during the 2014 Gaza war.
Also, the IDF’s recounting of the incident indicates that Palestinians were throwing rocks and burning tires, not using live fire. Not that the Palestinians have not used live fire on the Gaza border against IDF troops. They have. But that was not reported in this case.
While none of this proves a criminal case against a specific IDF soldier, might it not be smart for the IDF to take some responsibility based on the scenario that a ricochet fired at someone else hit Abu Thuraya?
Prosecuting Shomer for criminal negligence, and taking responsibility for Abu Thuraya would not quiet Israel’s critics. But when Israel assumes responsibility in ambiguous circumstances, it can only help influence fair-minded neutral parties.
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