Hayut: How could a fleeing rock-thrower be mortal danger?

ACRI asks court to order war crimes trial against IDF Col. with ICC hovering

By YONAH JEREMY BOB
Supreme Court President Esther Hayut (photo credit: MARC ISRAEL SELLEM)
Supreme Court President Esther Hayut
(photo credit: MARC ISRAEL SELLEM)
High Court President Esther Hayut on Monday seemed to be weighing ordering a war-crimes trial of a senior IDF official.
She aggressively questioned the IDF about why it believed the alleged war-crimes incident included sufficient mortal danger to negate a criminal charge. “Why was mortal danger claimed... to run after a stone thrower and to try to arrest him is standard operational procedure, but where did danger to life enter the picture?”
In March 2019, the Association for Civil Rights in Israel petitioned the High Court to order the IDF to indict Col. Yisrael Shomer for killing a Palestinian who ran away from him in 2015.
The High Court’s ruling could have broader implications for the rules of engagement in the conflict between Israel and the Palestinians and for how the International Criminal Court, which decided on December 20 to delve deeper into the conflict, views Israel’s legal system.
The ACRI petition filed on 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 during the incident, came after Attorney-General Avichai Mandelblit endorsed, in December 2018, 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. However, 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 Casba presented a concrete danger.
High Court Deputy President Neal Meltzer suggested at Monday’s hearing that the IDF should have at least considered a court martial for Shomer, which would have been harsher than a delay in promotion but less than a negligent-homicide charge.
An IDF lawyer responded that it was not policy to use such disciplinary hearings in the cases of a dead victim. Rather, it was to decide either to indict or to suffice with a lesser measure, such as delayed promotion.
Meltzer, who served in the IDF prosecution, said there had been past cases in which other kinds of disciplinary violations had been used to charge IDF soldiers who killed someone in violation of the army’s expectations. At the same time that the justices pressed the IDF about aspects of its decision not to indict, the tone of the questions did not give a clear signal about whether they would go as far as the unusual measure of reversing a prosecutor’s decision to close a case without an indictment.
A lawyer for the state prosecution said there had been other Palestinians beyond the reach of the video footage who caused Shomer to feel in danger of a potential lynch. 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, 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, which includes multiple interrogations of Shomer, “Soldier D” and “Maj. G,” showed Shomer’s narrative was rife with contradictions that collectively proved he should be indicted for manslaughter or negligent homicide.
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. 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. However, Mandelblit said even accepting Soldier D’s view of events, which was less favorable to Shomer, there was still no criminal basis to prosecute.
    
    
    


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Esther Hayut