The Petition (H)The Decision (H)
On 18 June 2007, the Supreme Court of Israel issued a decision on a petition filed by Adalah, requesting that the Court order the Chief Military Prosecutor to indict soldiers responsible for killing Mr. Meteb al-Nebari, a 31-year-old Palestinian Bedouin citizen of Israel from the Naqab (Negev). The Supreme Court decided that there was no reason to intervene in the decision of the Chief Military Prosecutor not to indict those responsible for the death.
Mr. Nebari was killed in October 2003, when a unit of Israeli army soldiers opened fire near the Jewish settlement of Negohot in the West Bank (Hebron Region). The soldiers claimed to have felt at that moment that the deceased was a terrorist. However, Mr. Nebari was unarmed and did not constitute a threat to anyone, and, according to the General Security Services (GSS), had no record of any security offenses. The report of an autopsy conducted close to the time of his death stated that the lethal shooting of Mr. al-Nebari 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.”
The military police refused to open an investigation into the incident, until after Adalah filed a motion to the Beer el-Sabe Magistrates’ Court pursuant to the Investigation into Causes of Death Law – 1958, demanding an investigation into the circumstances surrounding the death. Accordingly, the deceased’s body was exhumed and an autopsy conducted on it. Thereafter, just over seven months after the killing, the Chief Military Prosecutor announced his intention to open an investigation into the circumstances of the death.
The Chief Military Prosecutor decided in May 2005 to close the investigatory file without indicting any individuals responsible for the killing. In his report, the Chief Military Prosecutor stated that the soldiers had not broken the law, and therefore the file had been closed. 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 in the autopsy report that the deceased was shot from behind. Moreover, according to the soldiers present at the scene, the deceased did not move forward toward them, and never posed any clear and immediate threat to them to warrant the opening of fire at him, and particularly not lethal fire.
Adalah Attorney Marwan Dalal, who represented Mr. Nebari’s widow in the case, argued in the petition that the decision not to indict those responsible for the killing is illegal, unreasonable and requires the intervention of the Supreme Court. The petitioners contended that, “The deceased did not pose a threat to the army; the soldiers opened fire at him from behind; the deceased was unarmed, and no weapon was evident in his possession; the army employed excessive force and the soldiers breached the directives governing the opening of fire.” Adalah further argued that the report submitted by the Chief Military Prosecutor contained many errors, and that he disregarded the direct cause of the death, according to the autopsy report, i.e. the firing of live fire at the deceased from behind.
The Chief Military Prosecutor claimed that the opening of fire occurred in the framework of “a military operation by troops who suspected that al-Nebari was a terrorist.”
In its decision, the Supreme Court ruled that it would not interfere in the decisions of the Chief Military Prosecutor except in exceptional cases in which it is clear that the this office has erred in its decision regarding a fundamental issue. The court summarized the issue by stating that the deceased had died in a tragic incident, but that it had not found a justification to intervene in the Chief Military Prosecutor’s decision.
Prior to the filing of this petition in December 2006, Adalah filed a separate petition to the Supreme Court in March 2005 on behalf of the family of Mr. Nebari against the Chief of Staff of the Israeli Army and the Chief Military Prosecutor, following their refusal to provide his family with the summary of the operational military report written immediately after the death. This refusal came despite the fact that under the law the family has the right to receive this material (see, H.C. 2366/05). This case is still pending before the Supreme Court.
It is Adalah’s opinion that the Supreme Court’s decision is extremely dangerous since the court did not give sufficient weight to the violation of the right to life of a citizen. It was clear from the evidence presented in the petition that Mr. Nebari, who was unarmed, was killed by live bullets fired at him from behind. The disdainful way in which the case was dealt with illustrates and promotes a culture of impunity and lack of accountability for the killings of Palestinians citizens of Israel.
H.C. 10682/06, Ayman Atrash v. The Chief Military Prosecutor (petition dismissed)