Adalah: Press Release

On 9 March 2005, Adalah filed a petition and a request for an urgent hearing to the Supreme Court of Israel on behalf of Mr. Atwa al-Nebari and in its own name against the IDF Chief of Staff, the Judge Advocate General, and the Chief Military Prosecutor. The petitioners sought an order requiring the Israeli military to release a summary of the operational military report on the killing of Mr. Meteb al-Nebari, a 31-year-old Palestinian Bedouin citizen of Israel from Tel el-Sabe (Tel Sheva). Mr. al-Nebari was killed by the Israeli army in the West Bank in October 2003.

At a hearing held on 21 March 2005, the Supreme Court ruled that the Military Prosecutor must inform the Court and the petitioners within 30 days of decisions made regarding the military's investigation into the case. The petitioners would then have 30 days to respond. Adalah Attorney Marwan Dalal is representing Mr. al-Nebari's family.

In the petition, Adalah argued that there is a clear duty under law for the military to release the summary of the operational military report to the al-Nebari family. Article 539 (A)(b)(5) of the Military Justice Law – 1955 states that the Chief of Staff has the authority to give the summary report to an interested person. The only legally recognized exception is when the release of the summary report will jeopardize national security. When the petitioners requested the summary report in August 2004, the respondents refused to release it to them on the ground that there is an ongoing investigation. The respondents did not base their refusal to release the report on the grounds of national security, Adalah emphasized.

Adalah also argued that Mr. al-Nebari's family has a basic right to know the military's findings in this summary report, especially as the military has a connection to the death. An absurd situation has been created in this case, where the family has still received no information about the circumstances of Mr. al-Nebari's killing. Before the Magistrate Court in Beer el-Sabe (Beer Sheva), where a proceeding initiated by Adalah and Mr. al-Nebari's family for the appointment of an investigatory judge in the case is underway (Cause of Death Investigation 1027/03, In Re Meteb al-Nebari, deceased), the Attorney General argued that there is no need to hasten an investigatory judge's examination into the circumstances of the killing, due to the existence of an ongoing military investigation. At the same time, the military is refusing to release any information on its findings on the grounds that an investigation is ongoing, in spite of its duty under law to do so.

Adalah further argued that it is essential for the victim's family to receive this report without delay, in order that they can probe the credibility and reliability of the military's investigation, given the patterns of "fraud and deception by those responsible for carrying out the investigations" within the military. In this regard, Adalah cited the main conclusions of a recent examination of Israeli military investigations undertaken by a sub-committee of the Knesset's Foreign Affairs and Defense Committee:

At the discussion, it was reported that the main conclusion of the subcommittee is the IDF culture of investigation is defective, there is no system of punishment for acts of fraud and deception by those responsible for carrying out the investigations, and there have been quite a number of cases of cover-ups and attempts to whitewash facts. (Gideon Alon, "An Attack on IDF Probes," Haaretz English Edition, 28 February 2005)

In Mr. al-Nebari's case, severe injuries to his body strongly indicate that his death was unnatural and/or caused by an offense committed against him. The autopsy revealed that Mr. al-Nebari sustained serious damage to several of his organs as a result of being shot, as well as wounds to his arm, buttocks and back, and a skull fracture, caused by a blow from a blunt object, probably close to the time of death. Moreover, the military did not conduct any investigation following al-Nebari's death. In fact, the military refused to accept the deceased's personal affects from the police, and, despite immediate requests from the petitioners, the military took eight months to even launch an investigation into the killing. Now, almost one and a-half years after the killing, the military is still refusing to release the summary report to his bereaved family, Adalah stressed.

In its response to the petition of 17 March 2005, the Attorney General's representative raised two main claims. Firstly, that, according to the law, when a military investigation is ongoing the summary operational report need not be released to an interested person, that its release is a matter of discretion for the Chief of Staff, and that national security is only one of several possible considerations for not releasing it. The second claim is that the petitioners should await the Military Prosecutor's decision, which is due shortly. Adalah countered these claims at the Supreme Court hearing held on the petition before Chief Justice Barak and Justices Proccacia and Jubran on 21 March 2005.

Attorney Dalal argued before the Court that there is no legal basis for the military's refusal to release the report; that the family members have the right to receive the summary report under law; and that, on principle, after the passage of such a long period of time since his killing, Mr. al-Nebari's family want to know how he died. In spite of these arguments, however, Chief Justice Barak asked the petitioners to wait for the Military Prosecutor's decision. Adalah responded that, at the very least, a timetable for the release of information was necessary.

H.C. 2366/05, Atwa al-Nebari and Adalah v. IDF Chief of Staff, et. al. (case pending).