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(photo credit: AP [file])
The High Court of Justice on Sunday gave the state 40 days to reconsider the Military Advocate General's decision to indict on the lightest possible criminal charge a battalion commander and a non-commissioned officer accused of shooting a bound and blindfolded Palestinian at point-blank range.
The incident occurred on July 7, during a protest against the construction of the separation barrier on land belonging to the Palestinian village of Ni'lin, near Modi'in Illit.
The soldier identified as First-Sgt. L., fired a rubber coated steel bullet towards the toe of Palestinian protester Ashraf Abu Rahme, saying he thought his commander, Lt.-Col. Omri Borberg, had ordered him to do so. Borberg maintained he had not given such an order and had not had any intention of shooting Abu Rahme.
After a military police investigation, Military Advocate-General Brig.-Gen. Avichai Mandelblit decided to court-martial both soldiers on charges of conduct unbecoming a soldier. The charge includes a maximum sentence of one year in jail. However, it does not include the opening a criminal file against any defendant convicted of the crime.
Abu Rahme and four human rights organizations - B'Tselem, The Association for Civil Rights in Israel, Yesh Din and The Public Committee against Torture in Israel petitioned the High Court - arguing that the charge did not reflect the gravity of the soldiers' actions.
They demanded that "the charges reflect the criminal actions carried out by [Borberg and L.] from an extremely close range against [Abu Rahme], who was under their guard, bound and blindfolded."
The justices - Ayala Procaccia, Elyakim Rubinstein and Hanan Meltzer - peppered the state's representative, Dep. State Attorney Shai Nitzan, head of the Special Tasks Section, with questions about why Mandelblit had decided to indict the soldiers on the light charge of conduct unbecoming a soldier when there were more serious ones he could have chosen, such as abuse or improper use of a firearm, both of which carry heavier punishments.
According to the charge sheet, Abu Rahme was handcuffed and blindfolded when Borberg first saw him. When the officer said something to him in Hebrew, Abu Rahme replied that he did not understand the language.
Borberg decided to make him acknowledge that he did. He therefore turned to L. and said, "What do you say that we go off to the side and shoot him with a rubber coated steel bullet." L. replied, "I don't have a problem with that." Borberg stood Abu Rahme up and started walking with him towards a jeep. He ordered L. to cock his gun. L. replied that there was already a bullet in the breech.
Borberg then stood with Abu Rahme in front of the jeep, while L. stood directly in front of the detainee and fired a bullet towards his foot. Abu Rahme was slightly wounded.
When Nitzan tried to explain to the court why the facts in the case did not add up to a charge of abuse, Procaccia interrupted him. "What are we supposed to understand from this dialogue: [between Borberg and L.] Cock your rifle. I already have a bullet in the breech. I find this hard to square with the indictment. This is not the way to talk when you want to frighten someone."
Later, Procaccia added, "This isn't acting cruelly? The detainee is meant to understand the exchange between the officer and the soldier about cocking the rifle. I don't see why this is not abuse."
She added that the fact that Chief of General Staff Lt.-Gen. Gabi Ashkenazi had removed Borberg from his command and sent him to be an instructor did not constitute a demotion. "He was given a good job. In the end, it all depends on which way the wind is blowing." [In other words, it was clear that Borberg did not receive a severe disciplinary punishment and the army's message was that the shooting incident was not that grave.]
Rubinstein was also critical of the indictment for that reason. "Where does the vital factor of proper military norms, the message to the public at large, to the army, come into play?" asked Rubinstein. "What are soldiers to understand from the decision [to charge Borberg and L. with conduct unbecoming a soldier?] Where do we find efforts to restore proper norms to the army?"
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