IDF Prosecutor Lt.-Col. Edoram Rigler said on Tuesday in a military court hearing that there was no military need for the Hebron shooter to kill the neutralized Palestinian stabber.
“The investigation leads to the suspicion that the shooting was done without any operational need for it,” Rigler said at the beginning of the hearing.
Judge Lt.-Col. Ronen Shor, a former army prosecutor, partially rejected the prosecution’s request for nine additional days of pre-indictment detention to continue its investigation, granting an extension of the detention only until Thursday.
A media circus has surrounded the incident with details leaked from both sides of the investigation day after day highlighting two opposing stories. In one narrative, the killing was a cold-blooded murder. In another, it was possibly only a less serious negligent homicide with elements of self-defense from danger posed by the Palestinian who had been involved in a terrorist attack before being shot and immobilized by security forces.
The Palestinian and an accomplice had attacked another soldier with knives, and were neutralized. The accomplice was shot dead during the attack, but the stabber, named later as Abdel Fattah al-Sharif, 21, is seen on a video, which immediately went viral, lying on the ground motionless for an extended period until the accused soldier, who arrived after the attack, suddenly, and seemingly without cause, shoots the Palestinian dead, causing blood to pour out of his head.
Originally, the case was to be heard in the Yafo military court, but it was moved to Kastina near Kiryat Malachi to try to reduce the media coverage and number of protesters.
The picture appeared grim for the soldier on Tuesday as the prosecution deemed the shooting a “grave offense,” terminology usually reserved for murder or manslaughter and not mere negligent homicide – a mistaken killing violating the rules of engagement, but without murderous intent.
The prosecutor said investigative actions carried out raise doubts about the suspect’s account of events, and his claim that soldiers’ lives were in danger, due to the soldier’s conduct during the incident. The prosecutor added that the soldier’s statements and motives all cast doubt on his claim that he acted in self-defense.
“The evidence collected so far raises doubts concerning the soldier’s claim that he was in danger of his life,” he said.
Further, the prosecutor stated that the soldier was not an early responder and that by the time he arrived to the scene, the Palestinian had already been checked for the possibility he was wearing a suicide belt, and that the possibility had been ruled out.
Widely confirmed reports indicate that the shooter told other IDF personnel before and after that the Palestinian should be killed in light of him being a terrorist.
The prosecutor noted that even the shooter himself did not act with any immediacy or desperation when he shot the Palestinian that indicated he felt in danger.
Still, the soldier’s two defense lawyers struck back hard at the hearing, cross-examining a Military Police major and getting him to admit that there were still uncertainties surrounding whether the Palestinian was fatally wounded before the soldier under investigation shot him.
An autopsy was expected to be performed Tuesday night to clear up the issue of cause of death. The autopsy has been delayed by a debate between the IDF and the Palestinian’s family about who will perform it. The IDF agreed to have a medical representative of the family present as an observer, but the Palestinians had demanded their representative take an active part in the autopsy.
Defense lawyer Ilan Katz has argued that the autopsy could save the soldier from both murder and manslaughter charges if it shows that he was already fatally wounded and would have died from his earlier wounds.
In that case, he might only face charges for negligent homicide or for violating the rules of engagement.
Conversely, if the autopsy shows that the Palestinian was not already fatally wounded, Katz will argue that he was not as badly hurt as the video seems to imply, and that the additional shooting was necessary to neutralize him as a threat.
Katz criticized the Military Police on Tuesday, questioning how they could negate the soldier’s self-defense argument if they admitted that the Palestinian still showed clear signs of being alive.
The prosecution is expected to oppose these arguments, arguing that the Palestinian was alive when shot and that the soldier had murderous intent regardless of the extent of his prior wounds.
Yet another report that could aid the self-defense claim is a Magen David Adom statement that there were suspicions of an explosive vest being used in the area. However, it is unclear if this report will only help MDA explain why it did not attend to the wounded Palestinian, or whether it will also help the shooter.
At the hearing, the prosecution said it could not reveal all of the details yet, but that the shooter had been checked and it was clear he did not have an explosive vest.
Another issue that remained unclear, even when Judge Shor asked for clarification, was whether the prosecution is leaning toward a murder or manslaughter charge.
Manslaughter requires only general intent to kill or a high level of recklessness leading to killing, while murder requires a specific intent to kill.
Prior to hearing the court’s decision about the detention, Katz told the press that it was unfair for the IDF to have arrested the soldier and kept him in detention, when in similar past instances other soldiers and police were brought to trial without ever being detained.
After hearing all of the arguments, Judge Shor said that while there “exists a reasonable suspicion” that the soldier committed a crime, the circumstances and level of the crime were extremely ambiguous at this stage.
Shor also wrote that even if the ultimate charges were the gravest, all that mattered at this stage was that most of the remaining investigative actions, including most of the secret investigative actions, could be performed even if the soldier gets released from custody.
Since only two of several secret investigative actions required the soldier to be in custody, Shor wrote that detention until Thursday should be adequate.
Katz declared Shor’s language that the evidence “is not unambiguous” and his partial rejection of the prosecution’s request for even longer detention, as a sign that it would need to downgrade the charge to something less serious than murder and possibly even less than manslaughter.
He also praised Shor for a moderate ruling, which he said ignored a public inquisition against the soldier.
Despite Katz’s analysis, Shor was very careful to write that his view of the evidence was only from the perspective of the detention stage, and did not impact how a later trial judge should view the evidence for purposes of the ultimate verdict.
Shor also did not say that this was the last extension, meaning he could extend the pre-indictment detention further at Thursday’s 3:00 p.m. hearing.Yaakov Lappin and Maariv’s Noam Amir contributed to this report.