The trial of Lieutenant-Colonel Omri Borberg, and his subordinate L., charged of disorderly conduct over their involvement in shooting at a bound Palestinian, Ashraf Abu-Rahma, was called off by the Supreme Court on Wednesday, after the judges accepted a petition by human rights organizations that argued that the charges were extremely insufficient.
The ruling was unanimous, and the judges ordered the Military Advocate General reexamine the case and reconsider the charges to be brought against the two.
Justice Ayala Procaccia ruled in the verdict that injuring a detainee while they are bound, blindfolded and helpless, is a brutal and serious offence that calls for a fitting penalty in the criminal realm.
Upholding human rights and maintaining human dignity, even among the enemy, are engraved in the State of Israel's character as a Jewish democratic state, and in the IDF's legacy, she said.
Justice Elyakim Rubinstein wrote that despite the difficult internal conflict brought about by this case, he agreed with Judge Procaccia that the plausibility of the Military Advocate General's decision should be examined with the State of Israel's values as a Jewish democratic state.
The judge stressed that even if the suspects get a criminal record, this should not take away from their rights and their past contributions.
The Military Advocate General expressed surprise at the ruling and said in response: "We did not expect such a decision. This is a touch blow to the Advocate General. There is no doubt that this compels all of us do to some serious thinking."
In response to the ruling, Abu-Rahma told Ynet, "I only hope that justice will be served. I don't really believe that t will. In the end, they judge what they want to judge and not according to what really happened."
The B'Tselem organization that documented the incident welcomed the ruling.
Advocate Yael Stein, head of B'Tselem's research director, said, "Today the High Court drew a very clear line for the Military Advocate General and made it clear that when soldiers and officers harm Palestinians, they will have to be held accountable.
"The High Court said that it is the prosecution's duty to give a clear message, that the Palestinians' honor and bodies much be protected, and whoever fails to do so will have to pay."
'Borberg only meant to scare Abu-Rahma'
In response, Borberg's lawyers Shlomo Tzipori and Udi Ben-Eliezer said, "At no point during the incident did the Lieutenant-Colonel ask that any kind of shooting at the detainee take place. He did not give out any order for such a shooting, did not watch the shooting, and certainly did not think that the soldier misunderstood his intentions.
"These findings are anchored in the evidence that was collected in the investigation. The petition and the hearing that following the inquiry in the High Court of Justice do not change the factual evidence, and therefore, we believe that the honorable court erred in accepting the petition.
"We look forward to the start of the legal proceedings and are certain that we will prove beyond all doubt that at most, there was a misunderstanding between the Lieutenant-Colonel and the soldier, and that the Lieutenant-Colonel's actions certainly did not constitute any moral or ethical failures."
In August, Abu-Rahma, the bound Palestinian who was shot at by the IDF soldier in Naalin, filed a petition against the Military Advocate General Brigadier-General Avichai Mandelblit, and demanded he argue why the indictment filed against the suspects had not been amended so that the charges reflect the criminal offences allegedly carried out. The Lieutenant-Colonel was charged with disorderly conduct.
The military said the Lieutenant-Colonel, who held the Palestinian as the soldier shot rubber bullets at him, only meant to scare the detainee, and that the decision to prosecute him for disorderly conduct was made based on the evidence.
Borberg's lawyers submitted the testimonies of Northern Command chief, Major-General Gadi Eisenkot and Gadi Eisenkot and Major-General Avi Mizrahi, who stated that the lieutenant-colonel's punishment was sufficient.
In a hearing held in September, the High Court ordered that Military Advocate General to reconsider the decision to prosecute Borberg for disorderly conduct alone. It was ultimately decided not to aggravate the charges, since "this offence reflects the two's conduct in the best way, in light of the fact that they had no real intention of shooting".
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