A military court denied an appeal to put Sergeant E., who shot the wounded Palestinian attacker in Hebron on March 24, back under full arrest on Tuesday, leaving the soldier confined to his base in what has been termed "open detention."
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The soldier's version of events, according to which he thought the subdued attacker was armed with an explosive device, "is seemingly a possible alternative explanation," the Vice President of the Military Court of Appeals said in his decision, which means he will remain on his military base until a further court hearing slated for Thursday.
However, the judge also noted that not all of the problematic details identified by the prosecution had been explained by the defense in such a way as to put doubt to rest.
He added that while the evidence seems to show a picture of an unjustified shooting perpetrated out of revenge, another possible scenario can also be seen, one in which the soldier mistakenly thought that the attacker was armed and intended to detonate an explosive device.
"Even if the shooter was mistaken, he should have behaved differently," said the judge before adding that if the soldier was indeed mistaken, the charges against him should be downgraded, with less severe repercussions.
Military prosecutors say the pathological findings prove that the soldier’s gunshot was the cause of death, and that the soldier did not appear to be flustered after the shooting, as he claims he was.
The chief prosecutor, Col. Sharon Zagagi-Pinhas, said that “the bottom line of the autopsy is that the lethal shot was the gunshot to the head, fired by this soldier.”
According to quotes from the soldier's interrogation, read out loud by his attorney at the court, he claimed that he "used reasonable force with a single shot."
"I fire a single bullet to neutralize the danger I felt. In a split-second, I made a difficult decision, to shoot in order to neutralize a danger," the soldier told his interrogators, according to his attorney. "If there was an explosive belt I wouldn't be in a courtroom but in a cemetery... I wouldn't have shot him unless I felt real danger."
According to his attorney, the soldier also remarked on the fact that none of his comrades at the scene appeared to feel the same danger, and said that it was a case of complacence. "If he had an explosive belt on and would have, god forbid, exploded, what then? They taught us that if there's doubt, there's no doubt," the soldier said.
Sgt. E. was again interrogated by Military Police on Monday. According to Zagagi-Pinhas, when questioned about his version of events – according to which he had suspected that the terrorist was carrying an explosive vest – the soldier was evasive, and also did not respond to queries regarding the conduct of other soldiers who were present during the incident. The prosecutor added that during questioning, Sgt. E. said that only once did he hear one of the civilian medics on hand shouting that the terrorist was carrying an explosive device.
The prosecutor added that “the conduct of all the commanders there did not attest to serious concerns about the presence of such a device. None of them thought that the terrorist had to be shot in the head, either. A person who thought there was a device and that he saved everyone by shooting the terrorist in the head (as per his version) would have referred to this right after the shooting, or soon afterward. This isn’t the picture that emerges.”
Military prosecutors presented the court with the video exposed in Haaretz, in which the soldier is seen shaking hands with right-wing extremist Baruch Marzel after the incident. According to prosecutor Capt. Avishai Kaplan “the respondent (the soldier) didn’t look at all flustered. He went up to two civilians there, shaking their hands and smiling, with an exchange of friendly pats on the back. One can see that he’s not stressed or emotional, even though he’s arguing that he was, despite his friendly behavior.”
Defense attorney Ilan Katz said in response that, “the prosecution is presenting a one-sided picture which is contrary to the evidence.” He said that the soldier’s company commander testified on the day of the shooting that the soldier “was in shock, and that he was a good and quiet kid.” A paramedic who was at the scene said in her testimony: “I felt that he was very frightened and I directed him to the mental health officer.”
Attorney Katz presented the testimony of another soldier who was present at the scene, testimony documented by the Military Police.
“Sgt. E. didn’t look happy – he looked stressed after the shooting," the soldier told investigators. "I saw in his face that he didn’t know what to do and he seemed as if he was under pressure ... At first I thought that what he did was very grave, but when I understood that he did it out of concern that there was an explosive device there, I understood that he acted instinctively. He saw the terrorist move so he shot him."
Katz said that only on Monday did the mental health officer arrive on the base where the soldier is being detained, in order to find out if he wished to speak with him. “There is no way of proving any premeditation before he committed the act," the attorney said, "in which case he could be convicted of manslaughter.”