(photo credit: AP [file])
The High Court of Justice on Wednesday issued a show-cause order instructing the government to explain why it opposed a petition demanding that the Military Police investigate the 2003 shooting of International Solidarity Movement volunteer Brian Avery in Jenin.
The petition was submitted by Avery, an American citizen, who is represented by attorney Michael Sfard.
Sfard submitted the petition after a field investigation conducted by the military unit responsible for the Jenin area concluded that there was no need for further investigation.
According to Sfard, on April 5, 2003, Avery was in an apartment rented by ISM volunteers in Jenin. During the afternoon, he and another volunteer heard gunfire. They telephoned other volunteers in the city and went out to see if there were casualties in need of aid.
According to affidavits signed by Avery's comrades immediately after the incident, he and one of the other five volunteers stood in an illuminated section of the road to make sure the soldiers saw them. Avery was wearing a fluorescent red jacket with the word "Doctor" in English and Arabic on front and back, when an IDF armored personnel carrier and a tank approached.
According to the affidavits, the APC and the tank continued driving at speeds ranging from 10 kilometers per hour to 20 kph towards Avery, when the APC fired 30 bullets. One struck Avery in the eye and exited through his cheek.
According to the petition, "the gunfire caused severe injuries to the petitioner's face. The entire lower part, from the nose down, was completely mutilated, his left cheek was torn away and his jawbone and mouth were shattered." He has undergone nine operations since then.
The state's representative, Yuval Roitman, told the court that the army investigated the incident shortly after it occurred and recommended closing the case without further investigation by the Military Police. The field investigation found that the tank and APC that patrolled the relevant part of Jenin were involved in four shooting incidents on April 5, 2003. None of them tallied with the testimony of Avery or the other volunteers.
Avery originally petitioned the High Court of Justice in 2004, demanding that Judge Advocate General Brig.-Gen. Avi Mandelblit order a criminal investigation of the affair. During an earlier hearing on the petition in February 2005, the state accepted a suggestion by the court to take testimony from the other volunteers who had been present at the incident. Nine months later, the army reported back to the court, repeating its position that the case did not merit further investigation.
During Wednesday's hearing, the state's representative, attorney Yuval Roitman, told the court that the volunteers had refused to cooperate with the army and would not answer the field investigators' questions. He also wrote that the incident described by Avery was similar to one of the incidents the army patrol had recorded on the day in question. The time difference of one hour may have been accounted for by the fact that Israel was on daylight savings time while the Palestinian Authority was still on standard time.
The only serious difference in the two accounts was the location of the incident, Roitman acknowledged. He added that a curfew had been imposed on Jenin, and that the volunteers had violated it. The soldiers on patrol were tense because the city was dangerous and they had already been attacked earlier in the day. He also argued that too much time had passed since the incident took place and that Mandelblit was satisfied with the field investigation and opposed a Military Police investigation.
Sfard told the court, "The most important thing is the victim. An investigation will help [Avery.] The man was hurt and we are hiding the matter as if it were dust. We are not giving him an answer to his basic question, 'Why did you shoot me.?' We must tell him for the sake of our own society that the incident was important enough to be investigated."
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