The High Court of Justice rejected Sunday a petition demanding the prosecution of Israeli service members for involvement in the death of a Palestinian protester in the West Bank in 2009.
Despite its ruling, the panel of three justices criticized the army’s handling of the incident. They noted that soldiers’ testimony was taken with considerable delay after the incident and in a manner that undercut the search for the truth and witness credibility, as well as delays in of decisionmaking and the loss of the investigation file.
Abu Rahmeh’s mother, Subhiyeh, has been fighting in the courts for nearly a decade, together with Yesh Din. The Military Police investigation began only in 2010, over a year after Abu Rahmeh’s death. In 2013, then-Military Advocate General Danny Efroni ordered its closure, citing insufficient evidence to prosecute.
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Two appeals against closing the case were denied, most recently in March 2017 by state prosecutor Shai Nitzan. In the preface to that ruling, Nitzan noted that the military advocate general had stated that the original investigative file was lost and that some evidence, including video of the incident, was impossible to restore. The current appeal to the High Court was based on this decision.
Besides rejecting the appeal because of the policy of not getting involved in decisions of the prosecuting authorities, the justices commented on the behavior of the criminal investigation division and the military advocate general.
Justice Ofer Grosskopf wrote, “It is impossible to complete this ruling without discussing the problems with the authorities’ handling of the affair over the course of many years, especially the handling of the case that certainly added personal pain and sorrow for the petitioner and practically hindered the uncovering of the truth.”
He added: “The prosecutor’s decision shows that the amount of time between the incident to the recording of statements also compromised the credibility of the testimony regarding the possible identity of the soldier who injured the deceased ... [and] the ability to locate the soldiers who, it is claimed, were coached in the manner of the hearing in the weapons employed in the incident.”
Justice George Karra discussed the numerous of inquiries and appeals Abu Rahmeh’s mother had to make, including three petitions to the High Court over nine years and five months to get clarification on the circumstances of her son’s death.
He sharply criticized what he called the state’s foot-dragging. “Although I agreed to the legal analysis and the ruling, it is hard to escape the difficult feeling rising from the way in which things were handled, and these circumstances tied our hands when the handling — more correctly, bungling — of the state in the investigation of the incident led to among other things ‘damage to the evidence,’ and an inability to find the one responsible for the deceased’s death. One can only regret this,” Karra said.
The High Court rejected the petitioners’ request to try the soldiers and their commanders in a disciplinary tribunal, and to take action against the commanders. The justices ruled that the amount of time passed and the difficulties with the evidence also eliminate the possibility of such measures.