Otherwise Occupied Why They Shot Him in the Head

The killing of a Palestinian, Ziad Jilani, by border policemen refuses to go away and has reached the High Court of Justice. Is every Arab driver in Jerusalem involved in an accident an automatic terror suspect?

Amira Hass
Amira Hass
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Amira Hass
Amira Hass

From a legal perspective you could begin by saying that the High Court of Justice judges have decided to examine the investigation file of two border policemen – Maxim Vinogradov and his commander, Shadi Kheir al-Din – who shot dead Ziad Jilani, a resident of East Jerusalem, on June 11, 2010.

The State Prosecutor's Office assessed the case files and decided not to file an indictment against the pair, who pursued Jilani and shot at him after he swerved out of his lane and hit several policemen with his car. They claimed they were sure this was an intentional attack and the driver was a terrorist.

The deceased's widow, Moira, and their three daughters, Hana, Mirage and Yasmin, petitioned the High Court of Justice with a request that would require the State Prosecutor's Office to explain why it had decided to close the case. The session took place last week, on March 13, and the State Prosecutor's Office was told to submit all the case files to Justices Edna Arbel, Uri Shoham and Yitzhak Amit by March 24.

This is an unusual, uncustomary step, as laypersons such as we can conclude from the surprised reaction of Kheir al-Din's lawyer and the slight hesitation displayed by the senior deputy State Prosecutor Hila Gorni.

Many laypersons filled the hall of justice – family members, friends, neighbors and the deceased's sister-in-law, who had come all the way from the United States to support her sister and nieces, who are all U.S. citizens. The father and husband who was killed had a Green Card. And no – no representative from the American Consulate attended.

There were also some Jewish members of the Parents Circle - Families Forum, a joint Palestinian Israeli organization (the Palestinians from the West Bank did not have entry permits to attend the hearing). Moira Jilani participates in the Forum's meetings, and says that they help her deal with the pain. Kheir al-Din sat for a short while on a bench at the back, and then left. Vinogradov did not make an appearance.

In non-legal language, the laypersons wondered: Should every Arab driver in Jerusalem involved in an auto accident be treated as an automatic terror suspect and therefore killed as a terrorist? And is verifying the kill when a man lies wounded on the floor by shooting him at close range an integral part of police instructions and therefore immune to prosecution? And are witness testimonies claiming that the police killed an injured man lying on the ground in cold blood, a man who was no longer a danger to anyone, invalid because said witnesses are Palestinian?

I first arrived at the scene of the killing at the East Jerusalem neighborhood Wadi Joz three days after Jilani's killing, when the widespread version in the Israeli media was that given by the police and the Border Police – a foiled vehicular terror attack in which the terrorist was killed. The contrasting version I heard from eyewitnesses was that of a border policeman who stood near a man who was lying on his stomach on the ground – having been shot in the back – and shot him again in the head at close range. The policeman then hit with his rifle butt the head of one of Jilani's relatives, who wanted to help the injured man.

In the meantime, the family contacted the Mezan Center for Human Rights in Nazareth. Its lawyers discovered that the Justice Ministry's department of investigating policemen did not collect any evidence from neighborhood residents. It did question three of the officers, under caution. The investigation department later said that the residents refused to talk to it.

The lawyers say that the investigation department only started to collect testimonies from neighbors after they made a request to investigate the cause of death. So the body was exhumed and an autopsy was conducted. In initial interrogations, Vinogradov told investigators that he did not make the final, fatal shot. Kheir al-Din said that he was the last to shoot. But when they reconstructed the events 18 days after the killing, they changed stories. Vinogradov admitted that he took the last shot, at close range, because Jilani – who was lying wounded on the ground – moved his hand and he feared that he intended to blow himself up.

An Internet search reveals several posts made by Vinogradov, fearless and full of vitriol against Arabs. It's not nice, but it's unrelated, the State Prosecutor's Office decided.

The two policemen's lawyers said the investigation was comprehensive, and that the SPO's initial decision was appropriate. The state's response said that the investigation did not rule out the possibility that the policemen were hit because Jilani temporarily lost control of the car. However, the state said, the policemen, who thought that it was a terrorist attack, acted in accordance with the rules of engagement when they chased after the car and fired at it.

The state argued that the pair changed their version of events due to confusion rather than dishonesty. Vinogradov's shot to Jilani's head did not lead to an indictment, because "it cannot be determined that there was a conscious decision to commit the killingIn the circumstances there is reason to believe that the shooting was a consequence of fear and lack of judgment There is no reason to put [him] to criminal trial, since the opinion is that [he] acted lawfullyThe decision by investigators and the prosecution not to prosecute [Vinogradov and Kheir al-Din] is based upon the assessment of evidence in the case file, which led to the conclusion that there is not a reasonable chance of conviction."

Justice Arbel interrupted lawyer Mohamed Agbaria, who presented the petition, when he implied that this indecision enabled racist attacks against Arabs.

To laypersons, it seems the judges felt uneasy by the fact that Vinogradov took a head shot and was not satisfied with non-lethal fire. Therefore, in an exceptional move, they asked to review the case file, "which means I have a few more weeks to hope that justice will be done", said Moira Jilani.

Maxim Vinogradov reenacting the shooting of Ziad Jilani, June 2010.Credit: Photo reproduction by Alex Levac
Ziad Jilani

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