Analysis

Supreme Court’s Resentencing a Small Step in Right Direction

Doubling of border policeman’s sentence for killing Palestinian protester was eminently reasonable

Dari, center, at the Jerusalem District Court, April, 2017.
Emil Salman

The Supreme Court’s doubling of border policeman Ben Dery’s sentence for shooting an unarmed Palestinian teenager from nine months to 18 months on Sunday has generated contradictory responses. Knowing the facts can’t hurt.

As a result of a plea agreement, the prosecution dropped the manslaughter charge and instead charged Dery with causing severe bodily harm, a crime whose maximum sentence is six years’ imprisonment, and causing death by negligence, whose maximum sentence is three years’ imprisonment. A petition to the High Court of Justice by the family of the deceased was dismissed. In principle one could disagree with the plea bargain, but without a thorough familiarity with the investigative material, such arguments can’t be supported. This is the penal framework within which the court had to determine the appropriate punishment. Expecting a sentence derived from a murder or manslaughter charge is therefore out of place.

The facts as agreed upon are that Dery shot the deceased, 17-year-old Nadim Nuwara, in May 2014 in the area of the Beitunia checkpoint, four minutes after rioters, including the deceased, threw rocks at border policemen and at Dery, their commander. The shooting that caused the death of the deceased took place after he no longer posed a threat, as he was walking toward the soldiers with his arms at his sides.

The shooting was committed against orders, with Dery aiming at the center of his body and shooting what he thought were rubber-tipped bullets with the objective of wounding him. Along with the intent to wound there was serious, dual negligence by Dery because he did not check that he only had non-lethal bullets in his magazines, nor did he load his weapon with rubber-tipped bullets as was required before shooting. As a result, the deceased was hit by a live bullet, which caused his death.

For a policeman (or a soldier) to use the weapon he was entrusted with to shoot a person when there is no longer a danger to our forces, even if he had previously been involved in throwing stones, with the aim of wounding the victim as a punitive action, is a grave offense. That this was committed by a commander (albeit a junior one), makes it particularly serious. The severity of the act puts it in the upper range of the crime of causing severe bodily harm. To this we must add Dery’s grave negligence in handling his weapon, such that what could have ended in an injury instead ended in the loss of a life.

Therefore, even if we give significant weight to all the mitigating circumstances, including the time that has passed since the incident, Dery’s positive character and the general background to the act, the doubling or even tripling of the Supreme Court sentence would have been within the range of an appropriate punishment. The sentence meted out by the Jerusalem District Court was puzzling in terms of the lack of connection between the considerations weighed by the court and the sentence it arrived at, which was not close to being a proper punishment. It is regrettable that Justice Yosef Elron took the position of the Jerusalem District Court judges. To this end, he concealed agreed-upon information, like Dery’s malicious intent, and “created” for him a sense of danger that supposedly motivated him to act.

Even if one takes into account Supreme Court policy not to impose the maximum sentence when it accepts the prosecution’s appeal of a sentence, the punishment it decided upon tended toward leniency, but one must view it as the lesser of two evils.

For years, a struggle has been waged in Israeli society over its moral image in the context of the killing of those who seek to harm soldiers or civilians. Quite a few politicians and retired security officials promote the notion that anyone who attacks us has essentially forfeited his life and can be killed even when he no longer poses a danger. It is tempting to adopt this approach, which reflects hatred for the enemy and the gut desire for revenge. But this attitude has a bad effect on society as a whole, including on law enforcement, and we must fight it. In this respect, the Supreme Court’s increased sentence is a call in the right direction. It’s a faint call, but in the right direction all the same.

It is essential that decisions on closing such cases and or on plea bargains – whether in the military or the civilian legal system – be examined by the prosecution review agency established by the state comptroller. Both the public and legal academics must be vigilant with regard to sentences handed down. Only with a comprehensive effort will it be possible to thwart the above-described approach, which is part of the overall campaign to change Israel’s image.

We cannot conclude without posing the question: What makes a positive person like Dery, a policeman who excelled and was admired, commit such a grave act, which was only a step away from an even more serious crime? No matter how hard those who whitewash the occupation may try, they will not be able to refute the connection between the occupation and Dery’s crime.

Nadim Nuwara (center) a moment after being shot in Bitunya, May 15, 2014.
Mohamad Torokman, Reuters
Emil Salman