The High Court of Justice denied on Thursday a petition seeking to put on trial Col. Yisrael Shomer, who in July 2015 shot and killed a 17-year-old Palestinian seconds after he smashed a large rock from close range on Shomer’s vehicle, shattering the front windshield.
Shomer, who was sitting next to where the rock hit the car, was injured lightly. Mohammad Kosba, who threw the rock, tried to flee and was shot, subsequently dying of his wounds, near the West Bank town of al-Ram, just north of Jerusalem.
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Supreme Court justices Yael Willner and Hanan Melcer, as well as Supreme Court President Esther Hayut heard the petition and were unanimous in their decision.
Melcer wrote in the court ruling that there was no reason to intervene in the decision of the Military Advocate General and attorney general not to try Shomer given the circumstances involved, and to make do with the disciplinary steps taken against Shomer because the incident was not criminal. Shomer, who was the commander of the Binyamin regional brigade at the time of the incident, had his promotion delayed as part of the disciplinary proceedings.
Melcer said the decision of the High Court not to intervene was made in light of the narrow limitations on judicial intervention in the decisions of the authorities on criminal matters, and accepted the position that their lives were in danger, in part because of the presence of other young men holding stones nearby, emphasizing: “Stones can kill.”
The decision was also made in light of the disciplinary actions taken by Shomer’s superiors, which could serve as a warning sign for every soldier and commander concerning the importance of strictly following the regulations on opening fire.
“In spite of the lethal results of the incident, the matter of the petition, which no one argues with, including Col. Shomer himself, that they were caused by not following the orders for opening fire in full – I have not found, given the circumstances, that the disciplinary sanctions imposed on Col. Shomer, in the form of delaying his advancement, are a too lenient sanction that exceeds the range of reasonableness,” wrote Melcer. He added that the entirety of the relevant considerations did not meet the level required for the court to intervene in the decision not to try Shomer.
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“It would have been expected that Col. Shomer act according to the regulations for opening fire. There is no disagreement that Col. Shomer acted in deviation from the procedure for arresting a suspect, as part of the opening fire regulations, by firing while in movement toward [Kosba], while he was not looking through the rifle sights, and while [Kosba] did not seemingly represent a concrete and immediate danger any longer for him and the force,” wrote Melcer.
Melcer also pointed out a number of problems with Shomer’s testimony, but in the end, Melcer accepted Shomer’s position that he and his soldiers felt their lives were in immediate danger, which was demonstrated by security camera footage of the incident.
Willner concurred with Melcer’s position, saying that we must remember that the events involved began with an act of terrorism carried out by Kosba, who smashed a very large rock on the unarmored vehicle from only a meter away. She wrote that the attack on Shomer and the three other soldiers in the car put their lives at risk, and such a situation could even be considered attempted murder. Willner noted the hostile surroundings which Shomer and his soldiers were in, with other people holding rocks and the fear that crowd was trying to draw the soldiers into a “lynching.”
Hayut was more critical, writing that the rules of opening fire “Fulfill IDF values and above all the purity of weapons, human dignity and human life. [The incident’s] severity stems not only from the difficult result caused in its wake, but also because it can be expected that a commander in the rank of the defendant would act differently.”