In a landmark decision, the High Court of Justice on Wednesday rejected the charges against both an officer who ordered a soldier to shoot a bound Palestinian at close range, and the soldier who shot the detainee, saying the indictment was too lenient and did not reflect the gravity of the action.
The court was referring to charges filed by Advocate-General Brig.-Gen. Avihai Mandelblitt against battalion commander Lt.-Col. Omri Borberg and St.-Sgt. L. of "conduct unbecoming a soldier."
The incident occurred in the West Bank village of Nil'in on July 7, 2008, when Borberg ordered L. to fire a rubber bullet at point-blank range at Ashraf Abu Rahma after Abu Rahma acted as though he did not know Hebrew.
While Borberg was holding Abu Rahma by the shoulder, L. fired a rubber bullet, which struck the Palestinian's toe.
The army tried to cover up the affair and it only came to light two weeks later, when B'Tselem-The Israeli Information Center for Human Rights in the Occupied Territories aired a video of the incident taken by a 17-year-old girl from Nil'in.
As soon as the film was shown on television, Mandelblitt ordered the Military Police to investigate. At the end of the probe, Mandelblitt decided to charge Borberg and L. with conduct unbecoming a soldier, the least serious crime in the military criminal code, and one which does not leave a criminal record.
Abu Rahma and four human rights organizations, including the Association for Civil Rights in Israel (ACRI), B'Tselem, Yesh Din and the Public Committee against Torture in Israel petitioned the High Court, arguing that the charges against the two soldiers were disproportionate to the crimes they had committed.
A panel of three justices - Ayala Procaccia, Elyakim Rubinstein and Hanan Meltzer - agreed with the petitioners.
"The deviation from reasonability in attributing the crime committed by the battalion commander and the soldier to 'unbecoming conduct' is substantial and extreme," wrote Procaccia.
"We are not talking about a marginal difference between a harsh charge and one that is somewhat less harsh, but about a large and wide gap between a possible criminal charge that expresses the true gravity of the act, and a criminal charge that is regarded by the legislature as the lightest of crimes in the military penal code."
Procaccia added that the failure of Borberg as a commander was secondary to his failure to set a personal example of moral behavior.
"Battalion commanders in their operational duties are not only at the vanguard of executing military missions at the head of their soldiers," wrote Procaccia. "They are also, no less, figures of leadership authority who serve, in the eyes of the soldiers, as educational models in fulfilling the values of 'purity of arms,' and proper battle conduct that characterize the Israeli army and Israeli society.
"A soldier who fights alongside his commander absorbs from him not only guidance, training and orders about how to fight. He is also supposed to absorb the awareness of self-control, restraint and repression with regard to the use of arms against the civilian population of the enemy, prisoners of war, detainees, those being held for interrogation and anyone held in military custody."
Regarding L., Procaccia wrote that even if he believed Borberg had ordered him to shoot the Palestinian detainee, he should not have done so because it was a manifestly illegal order. But she seemed to leave open the possibility that Mandelblitt might find that L. was taken by surprise and did not have time to think about the legality of his action before he shot the rubber bullet.
Borberg maintained during questioning by the Military Police that he had not meant for the soldier to shoot Abu Rahma but only to scare him. L. said he thought Borberg was serious and was obeying his commander's orders.
Borberg was also punished by Chief of General Staff Lt.-Gen. Gabi Ashkenazi after the incident. He was relieved of his combat command and given administrative duties instead, though he was not demoted.
ACRI legal adviser Dan Yakir told The Jerusalem Post the Borberg affair was an extreme case, and that it reflected the "lenient and permissive" attitude on the part of the army toward soldiers who had committed crimes.
He said ACRI had always fought against this tendency, although this case marked the first time the High Court had intervened to reject an indictment by any prosecution - military or civil.
As part of this ongoing fight, Yakir pointed out that last week ACRI and Yesh Din petitioned the High Court to suspend the commander of the Kfir Brigade, Col. Itai Virob, and the former commander of the Shimshon unit, Lt.-Col. Shimon Harush, and to open a criminal investigation into the suspicion that crimes of violence and exceeding authority had been committed in the units under their command.
Yakir added that last week, Mandelblitt agreed to investigate the death of a Palestinian woman after ACRI petitioned the High Court.
Yakir made it clear that although he welcomed the court's decision in connection with Borberg and L., it did not constitute a turning point in terms of ACRI's pursuit of proper investigation and law enforcement in the army, a subject the organization had always been concerned with.