Exclusive: Court holds first hearing against IDF soldiers for killing Palestinian minor

In 40 years, no similar indictment has been filed, not even in IDF courts, defense attorney for suspects in 2013 incident argues.

By YONAH JEREMY BOB
Updated: APRIL 15, 2016 06:37
Palestinians walk near an opening in Israel's controversial barrier in the east Jerusalem neighbourhood of A-tur (photo credit: REUTERS)
Palestinians walk near an opening in Israel's controversial barrier in the east Jerusalem neighbourhood of A-tur
(photo credit: REUTERS)
The Ramle Magistrate’s Court held its first hearing Thursday in a case where two former IDF soldiers have been indicted for negligent homicide for shooting and killing an unarmed 16-year-old Palestinian boy near the West Bank security barrier in January 2013.
Supporters of the slain boy, Samir Awad, said the indictment should have been at least for the more serious charge of manslaughter and that the IDF and the state want to sweep the case under the rug. The defense lawyers argued that the two soldiers are being arbitrarily singled out when no other IDF soldiers have been indicted for firing and killing Palestinians in similar operational circumstances in 40 years.
The defense lawyers, Shlomo Rachvi and Idan Pesach, also say they will argue that the IDF and the state were applying the wrong rules of engagement to a complex incident that occurred over a mere 32 seconds. In addition, the case could turn into a public battle over classified IDF rules of engagement.
The hearing was originally intended to be for the purposes of arraignment, but the defense attorneys did not enter pleas for the soldiers. Rather, they told Judge Ami Kobo that they intend to submit a special request to the attorney-general to permanently halt the case. They argued that the attorney-general should not allow details on rules of engagement that would be revealed during a trial to go public.
Thursday’s hearing was also attended by representatives of the Awad family, who expressed heavy opposition to the idea of halting the case, even if they believed the negligent homicide charge was insufficient.
One of the defendants attended in person, while the father of the other defendant did so. The prosecution was represented by lawyer Kobi Moskowitz.
According to the indictment, both suspects clearly violated the rules of engagement, firing on Awad as he was running away into Palestinian territory with his back to them, having done nothing other than try to cross illegally into Israel and presenting no danger.
The defense lawyers claimed Thursday that the indictment is unjustified, because it is based on applying the wrong rules of engagement. The rules of engagement that should have applied, they argued, should have treated Awad as a danger and not just a fleeing Palestinian who presented no danger. The rules for arresting a suspect, which allow for shooting at the legs, should have been applied, according to the defense.
These developments come after the High Court of Justice repeatedly pounded the state for its extreme delay in deciding whether to issue an indictment or close the case.
During a hearing in December 2014, the High Court criticized the IDF and the state for dragging their feet on the investigation, including allowing the two soldiers involved to be released from the army before undergoing proper questioning.
The defense lawyers on Thursday capitalized on the prosecution’s delay as part of their defense, saying it had hurt their clients’ ability to rebut allegations against them and that the case would have been handled better by military courts knowledgeable in operational matters when they were still soldiers.
In August, the state informed the High Court that it had already held special pre-indictment hearings for the soldier suspects on June 21 and June 23 regarding Awad’s death near Budrus, northwest of Betar Illit.
State Attorney Shai Nitzan and the highest levels of the IDF legal division were involved in the case.
Despite the decision to indict the soldiers, the state filed relatively lenient charges, ostensibly since it could not determine which soldier caused Awad’s death or the exact cause of death, having been unable to examine Awad’s body.
However, B’Tselem – the Israel Information Center for Human Rights in the Occupied Territories said at the time that this was caused by the state, as there have been problems with how it has handled or performed autopsies on Palestinian bodies in the past.
The case has also been problematic for the state, as it tries to present its investigative apparatus to the world and the International Criminal Court as objective and prompt in examining alleged crimes by soldiers, and comes at a time when the state’s alleged leniency in dealing with violence against Palestinians is under heavy scrutiny.
In an additional controversy, the defense lawyers wanted to keep the proceedings closed to the public or at least to keep the names of the soldiers classified, leading The Jerusalem Post to address Kobo in a plea for transparency.
The Post noted that the paper had already published an article naming the soldiers when they were indicted in December with no gag order having issued.
Further, the Post noted that the suspects do not have special considerations such as being minors, nor are they still in the army, and that the case has international public significance, with the ICC following such cases, that make it important to maximize the case’s transparency.
The ICC under its own rules is not allowed to intervene in a country if that country seriously investigates and prosecutes its own soldiers.
The court asked the Post to provide copies of its articles to the prosecution and the defense. The court entered an interim order that for Thursday’s hearing, the names of the two soldiers should not be published again, but this is pending review of the previous article.
Later Thursday, the Post provided the December article to the state prosecution and the courts for their review.
Earlier, Kobo indicated to the sides that if in fact the former soldiers’ names were already in the public domain, than “the horses are already off to the races” and it may be pointless for him to issue a gag order, with Moskowitz not taking a strong stand.
The next hearing for the soldiers is set for June 14 to give the defense lawyers time to file a motion with the attorney-general to halt the proceedings.
Even if their request is not granted, the request itself is expected to push off the June 14 hearing by some months.