Why trials against IDF soldiers killing Palestinians are falling apart

Another case against Israeli security forces for killing a Palestinian minor fell apart on Tuesday – so badly that it was actually withdrawn. The state prosecution had indicted two IDF soldiers for negligence in the killing of unarmed 16-year-old Samir Awad in 2013. The state's indictment said that Awad – having committed no violent acts and presenting no concrete or potential danger – was running away from the soldiers in or into Palestinian territory. Maybe there are legal arguments for why the case could not result in a conviction – even for mere negligence of the two IDF soldiers involved, whose names are under gag order. Even so, the case was dropped and the soldiers will not face any consequences. This comes only six weeks after Israeli border policeman Ben Deri, originally indicted for manslaughter in the May 2014 killing of 17-year-old Palestinian Nadim Nuwara, was sentenced to a mere nine months in prison. Both of these cases were potential manslaughter cases which could have resulted in several years in prison, and both fell apart into either reduced charges or nothing at all. How is this happening so often? Before we get into the bigger picture, it is important to first understand what happened legally that undermined these two cases. In the Samir Awad case, the crash-and-burn moment was in November, as reported in The Jerusalem Post, the IDF Colonel who was in charge of the two soldiers shocked the prosecution by pulling the rug out from under one of its central arguments. The soldiers had claimed they aimed for his legs and hit him higher up, mortally wounding him by mistake. When questioned by police, the officer had said that his two soldiers should have shot in the air to stop Awad from running away and not aimed at his legs. But when questioned at trial in the Ramle Magistrate's Court, the same colonel said that really what he meant was that if they had been acting as ideal soldiers they would have fired in the air, but that firing at Awad's knees – and mistakenly hitting him in a deadly manner – still did not violate the rules of engagement. He said that the rules permitted firing at the knees of a fleeing Palestinian as long as he was still in Israeli territory. He added that while Awad had fled toward Palestinian territory and gotten past the main border wall, he still had not crossed through a second wire-fence barrier and was close enough to the border wall to justify shooting at his knees when the chase had started on the opposite side of the wall. How was it that the military police did not ask either about the second wire-fence barrier or for the commander to clarify whether his criticism of his soldiers was merely at the level of acting less than ideally versus illegally? The Post has learned that investigators did visit the area where the incident occurred, but did not properly photograph all of the relevant portions, such as the second wire-fence wall. IN THE Ben Deri case, the turning point was when the border policeman's lawyer raised the possibility – since it is common for border police to switch between rubber bullets and live fire – that Ben Deri had accidentally placed a live bullet in his gun. If he intended to shoot Nuwara with live fire in violation of the rules of engagement, he should have at least been charged with manslaughter. But if he thought he was shooting him in violation of the rules only with a rubber bullet – to wound and not to kill – then the charge would drop to negligent homicide. Suddenly, a case which could have led to years in prison had fallen to months in prison. The Palestinian side would argue that these two examples prove that the whole Israeli legal system is for show and that the outcomes demonstrate that Israel bends over backward to be lenient with its security forces for killing Palestinians, regardless of the circumstances. There are two problems with that argument. Firstly, the Palestinians' failure to allow an autopsy in the Awad case severely hurt the case from the start and may have undermined certain evidentiary avenues for conviction. Secondly, the Post, having been present at portions of both trials and having seen the sincere efforts of the prosecutors to obtain a conviction and the fights between the prosecutors and the defense lawyers over legal issues, knows that this claim does not seem to capture the full reality of the cases. The Post has also discussed the two evidentiary issues with experts who have been on the inside in the past and are familiar with IDF practical issues in the field, but who are now no longer within the system and can speak their mind. Those experts found both problems to be potentially legitimate and not merely an overt cover for tanking the cases. SO WHY did the cases fall apart? Perhaps part of the answer lies in the one recent case which did not fall apart – the Hebron shooter trial which led to a manslaughter conviction and an 18-month sentence (which was not far from being 30 months.) For that case, the IDF brought in a reservist known as one of the top lawyers in the private sector. The military police and the prosecution turned over every rock, dotted every “i” and crossed every “t” to ensure a conviction. No theoretical evidentiary problem was too small for them to anticipate and rebut. That was simply not the case in the Samir Awad and Ben Deri cases, where the prosecution also earnestly sought a conviction, but with none of the at-any-cost attitude that there was in the Hebron shooter case. Rather, the cases were treated as regular cases as if there was no understanding at the higher levels that they would showcase for the world, including the International Criminal Court, just how serious Israel is about prosecuting its own. Whether Israel learns from these cases and takes future ones more seriously could significantly impact global opinion and the ICC's evaluation of Israel's legal system.

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