The Petition (H)
On the night of 13-14 October 2003, a unit of Israeli army soldiers opened fire near the Jewish settlement of Negohot in the West Bank (Hebron Region), killing Mr. Meteb al-Nebari, a 31-year-old Palestinian Bedouin citizen of Israel from Tel el-Sabe (Tel Sheva). Mr. al-Nebari was unarmed and did not constitute any threat to the soldiers, and, according to the General Security Services (GSS), had no record of prior security offenses. The report of an autopsy conducted close to the time of his death stated that the lethal shooting of Mr. al-Nebari’s was sustained to his back, revealing multiple injuries to the back of his body. In addition, the autopsy report concluded that, “a skull fracture was found in the lateral side of the skull, caused by a blow from a blunt object, close to the time of his death, before or after it”. Despite these facts, however, no soldiers have been indicted or punished for the killing of Mr. al-Nebari.
On 25 December 2006, Adalah Attorney Marwan Dalal submitted a petition to Supreme Court of Israel on behalf of Mr. al-Nebari’s widow, requesting that the Court order the Chief Military Prosecutor to indict the soldiers responsible for killing the deceased.
The military police, which learned of Mr. al-Nebari’s death immediately after it occurred, initially refused to open an investigation or even to examine his belongings. Therefore, on 16 October 2003, Adalah filed a motion on behalf of his family to the Magistrate Court in Beer al-Sabe (Beer Sheva) for the immediate appointment of an investigatory judge to examine the circumstances of the death, in accordance with the Investigation into Causes of Death Law – 1958 (See, Cause of Death Investigation 1027/03, In Re. Meteb al-Nebari, deceased). Adalah also requested that the Court order the exhumation of Mr. al-Nebari’s body and that a reliable autopsy be conducted to determine the true cause of death. The Magistrate Court granted Adalah’s requests.
The report of the autopsy, performed at the Institute for Forensic Medicine at Abu Kabir, concluded that the injuries were sustained to the back of Mr. al-Nebari’s body, and that his death was caused by “serious damage to the spinal cord, the liver, and the right lung as a result of a bullet traveling through the back (the entry wound is located in the left side of the back).” Adalah submitted a request to the Beer el-Sabe Magistrate Court to order that bullets remaining intact extracted from the deceased’s body during the autopsy be identified, which was granted. The subsequent examination revealed that the bullets were fired from an M-16 rifle.
Pursuant to these proceedings, the state announced that the Chief Military Prosecutor had decided to open an investigation in the circumstances surrounding Mr. al-Nebari death on 28 June 2004, seven and a half months after the killing. The military police launched an investigation on 18 July 2004.
On 9 March 2005, Adalah petitioned the Supreme Court of Israel against the Chief of Staff of the Israeli Army and the Chief Military Prosecutor, demanding that the army release the summary of the operational military report to the deceased’s family (see, H.C. 2366/05, Atwa al-Nebari and Adalah v. IDF Chief of Staff, et al.). The petitioners had requested the report in August 2004, and the respondents had refused to release it to them. As Adalah argued, the family’s right to receive this summary report is stipulated in Article 539 (A)(b)(5) of the Military Justice Law – 1955. This case is still pending before the Supreme Court. Following the submission of this petition, the Supreme Court instructed the Chief Military Prosecutor on 21 March 2005 to set forth his decision about whether or not he would issue any indictments within 30 days. The military police concluded the investigation and the Chief Military Prosecutor decided not to indict any of the soldiers responsible.
The soldier who opened fired at the deceased stated in his testimony to the military police that he opened fire after he “saw the white in the eyes” of the deceased. The Chief Military Prosecutor accepted the soldier’s account, despite the established fact that the deceased was shot from behind. Moreover, according to the soldiers present at the scene, the deceased did not move forwards toward them, and never posed any clear and immediate threat to them to warrant lethal shooting. In addition, according to the report of the military police, based on the evidence gathered, the Chief Commander of the Central Division of the Israeli military harshly criticized the conduct of the soldiers who opened fire and killed Mr. al-Nebari, and stated that the shooting was not carried out in accordance with military regulations. Despite these conclusions and other relevant facts, as detailed in the new Supreme Court petition, the Chief Military Prosecutor did not initiate any proceedings, either criminal or disciplinary, against any of the soldiers responsible for Mr. al-Nebari’s death. Adalah argued in the petition that this decision is incompatible with basic legal principles governing prosecutorial discretion and thus void, and requested that the Court order the Chief Military Prosecutor to initiate criminal proceedings against the soldiers responsible for the killing.
The Court decided on 25 December 2006 that the Chief Military Prosecutor should submit his initial response to the petition within 30 days.
H.C. 10682/06, Ayman Atrash v. The Chief Military Prosecutor (case pending)