High Court rejects petition for IDF to indict Col. who killed Palestinian

Justices cited that rocks can kill, officer was reprimanded

By YONAH JEREMY BOB
High Court of Justice prepares for hearing on whether Prime Minister Benjamin Netanyahu can form the next government, May 3, 2020 (photo credit: COURTESY HIGH COURT OF JUSTICE)
High Court of Justice prepares for hearing on whether Prime Minister Benjamin Netanyahu can form the next government, May 3, 2020
(photo credit: COURTESY HIGH COURT OF JUSTICE)
The High Court of Justice on Thursday rejected a petition by an NGO to compel the IDF to indict IDF Col. Yisrael Shomer for killing a fleeing Palestinian in 2015, ending one of the highest profile potential war crimes sagas facing the armed forces.
High Court President Esther Hayut, Vice President Hanan Melcer and Justice Yael Wilner found that the IDF decision to reprimand Shomer and slow his path to promotion was reasonable in light of the Palestinian having seconds earlier attacked Shomer’s vehicle point-blank with a large rock.
They further justified their decision stating that courts must be deferential to military prosecutions in most instances where there is an operational situation, and that the IDF prosecution’s decision was consistent with similar cases in other countries.
The decision came despite harsh questioning of the prosecution by Hayut at a hearing in January, when she seemed to be weighing ordering a war crimes trial of Shomer, which would be extremely rare for such a senior IDF official.
She aggressively questioned the IDF about why it believed the alleged war crimes incident included sufficient mortal danger to negate a criminal charge. “Why was mortal danger claimed?" she asked. "To run after a stone thrower and to try to arrest him is standard operational procedure, but where did danger to life enter the picture?”
In March 2019, the Association for Civil Rights in Israel petitioned the High Court to order the IDF to indict Shomer for killing the Palestinian.
The High Court’s ruling could have broader implications for the rules of engagement in the conflict between Israel and the Palestinians and for how the International Criminal Court, which is weighing an ICC Prosecution request to delve deeper into the conflict, views Israel’s legal system.
The ACRI petition filed on behalf of the parents of 17-year-old Muhammad al-Casba asked the court to order an indictment for either manslaughter or negligent homicide, and to freeze Shomer’s designated appointment to take command of the IDF’s Nahal Brigade.
The petition against Shomer, the Binyamin Brigade commander during the incident, came after Attorney-General Avichai Mandelblit in December 2018 endorsed the IDF legal division’s earlier decision to close the case (though Mandelblit voiced some implied criticism).
However, due to some criticism of Shomer by Mandelblit, his promotion has been held up until now. He is not expected to rise to the rank of brigadier general, even if he assumes command of the Nahal Brigade, though purely by seniority rules he would have already risen in rank.
Shomer shot Casba after he had thrown a large rock at Shomer’s vehicle. But by the time of the shooting, Casba was already fleeing. Even Military Advocate-General Maj.-Gen. Sharon Afek did not think that Casba presented a concrete danger.
Melcer suggested in January’s hearing that the IDF should have at least considered a court martial for Shomer, which would have been harsher than a delay in promotion, but less than a negligent homicide charge.
An IDF lawyer responded at the time that their policy was not to use such disciplinary hearings in the cases of a dead victim. Rather, their policy was to decide either to indict or to suffice with a lesser measure such as delayed promotion.
Melcer, who served in the IDF prosecution, said that there had been past cases where other kinds of disciplinary violations had been used to charge IDf soldiers who killed someone in violation of the army’s expectations.
At the same time that the justices pressed the IDF about aspects of its decision not to indict, the tone of the questions did not give a totally clear signal about whether they would take go as far as the unusual measure of reversing a prosecutor’s decision to close a case without an indictment.
A lawyer for the state prosecution said that there had been other Palestinians beyond the reach of the video footage who caused Shomer to feel in danger of a potential lynch.
A video of the shooting, distributed at the time by B’Tselem-The Israel Information Center for Human Rights in the Occupied Territories, went viral, brought about calls for Shomer’s prosecution and led to an unusual full criminal investigation.
The video did not show the shooting, though it showed some events before and after.