The High Court of Justice on Wednesday questioned the Israel Defense Forces' decision not to launch a criminal investigation into an incident in the West Bank city of Jenin in 2003, during which an American peace activist was shot in the face.

Brian Avery, a 24-year-old member of the International Solidarity Movement (ISM), arrived in Israel in January 2003, three months before he was shot. He has said he wants to know who was behind the shooting which left him critically wounded.

On Wednesday, Avery's lawyer, Michael Sfard, asked the court to open a criminal investigation into the shooting. The court agreed to allow the case to proceed and gave the army 45 days to respond to Avery's request.

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"Today marks a major turning point in the case," said Sfard, adding that the decision should send a message to soldiers that "there are still people who are asking the army for accountability."

Yuval Roitman, the Justice Ministry lawyer representing the army, said that a criminal investigation would not add anything to the 2003 army probe.

"The army field investigation that was conducted was very thorough and independent," he said at the hearing. "The army thinks it's the way to investigate events that occur in war time. One has to remember that the incident occurred in the middle of 2003 when there was a lot of fighting in Jenin and all over the West Bank."

Avery's disabilities from the shooting include impaired vision in his left eye and several missing teeth. Avery had bone grafts to reconstruct his upper left jaw bone, and his left eye also was damaged.

The original IDF internal probe, carried out immediately after the incident by Colonel Dan Hefetz, commander of the Menashe Brigade, concluded with the following surprising IDF statement, which was delivered to the U.S. Embassy in Tel Aviv:

"Mr. Avery's injury is an unfortunate incident. ISM activists knowingly endanger themselves by operating during curfew in combat situations, seeking clashes and frictions with IDF soldiers. No findings indicate that Mr. Avery was injured by IDF fire in any of the above-mentioned events."

In March 2005, a panel of three High Court justices instructed the judge advocate general (JAG) to interview, within 90 days, the witnesses to the incident in which Avery was injured in Jenin, and to reconsider the decision not to hold a criminal investigation.

"As a nation, the least we can do for a man who is sitting here with very serious wounds is to clarify what happened to him," Justice Edmund Levy said at the time.

The JAG, however, reiterated that such an investigation was unnecessary. Avery said in his petition that the IDF probe was unreliable and no substitute for a criminal investigation.

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