High Court split on whether to intervene in Ni'lin shooting indictment

Three-justice panel holds final hearing on petition of Palestinian shot by Omri Borberg.

By DAN IZENBERG
soldier shoot pally 224. (photo credit: AP [file])
soldier shoot pally 224.
(photo credit: AP [file])
A three-justice High Court panel appeared to be split on Tuesday over whether to accept a petition filed by a Palestinian and four rights organizations demanding that the army indict Lt.-Col. Omri Borberg on more serious charges than inappropriate conduct. The court held its final hearing on the petition by Ashraf Abu Rahme, who was shot in the toe by St.-Sgt. "Lamed" on July 7 while he was bound and blindfolded, and the four NGOs. According to Lamed, he shot the Palestinian because he thought he had been ordered to do so by Borberg, the commander of a tank battalion on duty in the Palestinian village of Nil'in, near Modi'in Illit, during a demonstration against the West Bank security barrier. Borberg had suggested to Lamed that he should shoot Abu Rahme after the Palestinian said he didn't understand Hebrew. Borberg later said he had not been serious and had only wanted to frighten Abu Rahme into showing he did understand Hebrew. Lamed said that at first he hadn't taken Borberg seriously, but then thought he had meant what he said. The presiding justice, Ayala Procaccia, said there were many question marks regarding the portrayal of the facts included in the indictment. She seemed to indicate that she wasn't convinced Borberg had not intended for Lamed to shoot Abu Rahme. But even if he had only meant to frighten the Palestinian, there was still a question of whether he had not violated moral standards that exceeded a disciplinary infraction. Disciplinary measures have already been taken against Borberg. Chief of Staff Lt.-Gen. Gabi Ashkenazi removed the officer from his operational command and sent him to be a training instructor. After that, the military advocate-general, Brig.-Gen. Avihai Mandelblitt, decided to court-martial him. However, he charged Borberg with the lightest criminal charge in military law. Procaccia said the charge was essentially a disciplinary rather than a criminal one, and seemed to imply that it was disproportionate to what Borberg had done. Justice Elyakim Rubinstein, on the other hand, said he agreed with the position of the state and Borberg's lawyer; that Ashkenazi had demoted Borberg and that the punishment was severe. The third member of the court, Justice Hanan Meltzer, pointed out that this was the first time the High Court of Justice had been asked to order a prosecutor to charge a suspect with a specific crime. The state's representative, attorney Shai Nitzan, head of the Special Tasks Section in the State Attorney's Office, warned the court that if it ordered Mandelblitt to charge Borberg with a more serious charge, it would be signaling to the military court that it believed there was a reasonable chance for a conviction on the more severe charges. This would strongly influence the lower court's ruling and would therefore prejudice the judicial process. The court will hand down its ruling at a later date.