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(photo credit: AP [file])
The military advocate-general, Brig.-Gen. Avi Mandelblitt, informed the High Court of Justice on Tuesday that he had not changed his mind regarding the criminal charge to be levied against an officer and a soldier responsible for shooting a bound and blindfolded Palestinian detainee during a demonstration in Nil'in, near Modi'in Illit.
The case involves a petition by four rights organizations and the victim, demanding a more serious charge against the two suspects than the one that Mandelblitt brought in the indictment.
During a hearing on the petition on September 28, the court gave Mandelblitt 40 days to reconsider his decision to charge with soldiers with "conduct unbecoming a soldier," the lightest possible criminal charge in military law.
"After seriously considering the matter and the questions [raised by the court], I decided not to change my original decision regarding the charge that would be made against the battalion commander and the soldier," wrote Mandelblitt. "I still believe that court-martialing the two soldiers on the charge of unbecoming conduct, given that it comes after the disciplinary measure already taken against the battalion commander, is the most appropriate legal response in the circumstances."
In response to Mandelblitt's brief to the court, attorney Dan Yakir, the legal adviser of the Association for Civil Rights in Israel, one of the four rights groups that filed the petition, said, "We are very distraught that despite the Justices' severe rebuke, the military advocate-general did not change his position: namely, that the abuse of a handcuffed Palestinian detainee by a senior officer and shooting him is at most 'inappropriate conduct.' Therefore, it is the court's responsibility to determine what the appropriate response is for such grave actions."
The shooting occurred on July 7, during protests by residents of Nil'in and their supporters against the construction of the West Bank security barrier on their land. The barrier cuts them off from farmland belonging to them on its "Israeli side."
One of the Palestinians detained that day was Ashraf Abu Rahme. He was bound and blindfolded when the battalion commander, Lt.-Col. Omri Borberg and the soldier, identified only as "Lamed," spotted him.
Borberg started to speak to Abu Rahme in Hebrew, but the detainee said he did not understand. The officer did not believe him and decided to frighten him into talking Hebrew by telling his aide that they should shoot him.
The aide allegedly misunderstood Borberg's intention and opened fire with a rubber-coated steel bullet at point-blank range, wounding Abu Rahme in his toe.
The petitioners suspect that Borberg meant for the soldier to shoot the Palestinian.
In his response to the court, Mandelblitt agreed that Borberg's conduct was improper and, therefore, he had decided to press criminal charges against him. But he had also concluded that Borberg had not intended for the soldier to shoot Abu Ashraf.
His conduct lacked the cruelty and evil that might have justified charging him with abusing the detainee, Mandelblitt said.
He also called on the court to keep in mind that Chief of General Staff Lt.-Gen. Gabi Ashkenazi had punished Borberg by stripping him of his command and sending him to serve as an instructor.
Mandelblitt added that when a soldier violated army norms, there were two avenues of punishment - disciplinary and judicial.
The army usually took disciplinary action first because it was quicker.
However, in determining what legal charges to press, the military prosecution took into account the disciplinary punishment the suspect had already suffered.
It was the "sum total" of the punishment that impacted on other soldiers and the public and served as an educational and deterrent action, he said.
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