Supreme Court Refuses to Order Israeli Army to Provide Summary Operational Military Report to Family of Mr. Nebari, Killed by the Israeli Army in 2003
Adalah: Mr. Nebari was shot dead in the West Bank, in circumstances indicating the commission of criminal offenses by the Israeli military. Handing down its decision today, the Israeli Supreme Court’s interpretation of the law allowing the military to conceal its findings from Mr. Nebari’s family further encourages an already deeply entrenched culture of impunity within Israel’s security forces.
Today, 29 June 2008, the Israeli Supreme Court rejected a petition filed by Adalah on behalf of Mr. Atwa al-Nebari, the brother of the deceased Mr. Meteb al-Nebari, and in its own name, against the Israeli Army 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. al-Nebari, a 31-year-old Palestinian Bedouin citizen of Israel from Tel el-Sabe (Tel Sheva). Mr. al-Nebari, who was unarmed at the time, was killed by the Israeli army in the West Bank in October 2003 from severe injuries to the back of his body.
Almost three years after the court last heard the case, which was submitted in March 2005, it refused to order the military to provide information in its possession regarding the circumstances of his death to Mr. Nebari’s family, who have waited years to receive any information. The decision was handed down by Supreme Court Justice Arbel and joined by Justices Grunis and Joubran, and is the last in a series of developments in this case that have led to the denial of justice for the late Mr. al-Nebari and his family.
The court rejected the petitioners ’ argument that according to Article 539A of the Military Justice Law – 1955, there is a clear duty under law for the military to release the summary of the operational military report to the al-Nebari family. Adalah argued in the petition that the Chief of Staff cannot refuse to reveal the findings of an operational investigation to an interested party if there is no real risk to the state’s security. The respondents did not base their refusal to release the report on the grounds of national security, Adalah emphasized, but rather on the grounds that an investigation was ongoing at the time. The court, however, interpreted Article 539A as granting the Chief of Staff very wide discretion as to whether or not to reveal the findings in the absence of a security risk.
The 35-page decision discusses the different purposes of military operational investigations and criminal investigations. The court stated that, in its view, the legislature preferred the purpose of confidentiality in military operational investigations to enable the military to learn internal lessons over the purpose of prosecution.
The court further ruled that Mr. al-Nebari’s family had been given access to the findings of the criminal investigation and thus the military’s refusal to reveal the findings of the operational military investigation is balanced.
In the petition, Adalah 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 killing. An absurd situation was created in this case, in which the family has waited years to receive any information about the circumstances of Mr. al-Nebari’s death. Shortly after the death, Adalah and Mr. al-Nebari’s family initiated a proceeding before the Magistrate Court in Beer el-Sabe (Beer Sheva), for the appointment of an investigatory judge (Cause of Death Investigation 1027/03, In Re Meteb al-Nebari, deceased).
In this case, the Attorney General’s Office argued that there was 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 refused 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, to allow them to probe the credibility and reliability of the military’s investigation Severe injuries to Mr. al-Nebari’s body strongly indicate that his death was unnatural and/or caused by an offense committed against him. The autopsy revealed that Mr. al-Nebari had 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. Significantly, the military did not conduct any investigation following al-Nebari’s death. In fact, the military refused to receive the deceased’s personal effects from the police, and, despite immediate requests by the petitioners, the military took eight months to even launch an investigation into the killing.
In June 2007, the Israeli Supreme Court also rejected a further petition filed by Adalah requesting that the court order the Chief Military Prosecutor to indict soldiers responsible for killing Mr. al-Nebari (see H.C. 10682/06, Ayman Atrash v. The Chief Military Prosecutor [petition dismissed on 17 June 2007]).
In that case, the Supreme Court found no reason for its intervention in the decision of the Chief Military Prosecutor not to indict those responsible for the death. In response to this decision, Adalah emphasized that the court’s ruling is extremely dangerous as it gave insufficient weight to the violation of the right to life of an Israeli citizen. As was clear from the evidence presented in the petition, Mr. Nebari, who was unarmed, was killed by live bullets fired at him from behind.
The disdainful way in which this case has been dealt with by the Israeli authorities and courts clearly illustrates and promotes the prevailing culture of impunity and lack of accountability for the killings of Palestinians citizens of Israel by the security forces.
Former Senior Adalah Attorney Marwan Dalal represented Mr. Nebari’s family in these proceedings.
Citation: H.C. 2366/05, Atwa al-Nebari and Adalah v. IDF Chief of Staff, et al.
For more information, see: News Update, “Adalah Petitions Supreme Court to Order Israeli Army to Release Summary of Operational Military Report into the October 2003 Killing of Meteb al-Nebari: Court Allows Military Prosecutor 30 Days to Announce Decisions on the Investigation,” 29 March 2005
