Analysis

Top Court's Order to Try Cop Who Killed Arab Israeli Shows Using Lethal Force Always Warrants Probe

Majority justices found several flaws in the attorney general's decision to reject the appeal to open the probe into the death Kheir Hamdan, stating a clear public interest in legal proceedings

Israeli Arabs demonstrating in protest of the killing of Kheir Hamdan by an Israel Police officer, Haifa University, Israel, 2015.
Rami Shllush

Only rarely does the High Court of Justice intervene in the attorney general’s decisions. It’s even rarer for the court to intervene in his assessment of the facts (as opposed to his assessment of the public interest in a trial) and find that assessment extremely unreasonable. But it did exactly that in its 2-1 ruling in the Hamdan case.

The Justice Ministry department that investigates allegations of police misconduct had decided to close a probe into the death of Kheir Hamdan, a 22-year-old Israeli Arab man who was shot and killed by a police officer, saying that no crime had been committed. Attorney General Avichai Mendelblit then rejected an appeal of this decision.

The majority justices, Ofer Grosskopf and George Karra, found several flaws in Mendlblit’s decision. First, it relied on evidence gathered by the department. But the department conducted only a preliminary inquiry rather than a full-fledged criminal investigation, despite contradictions in the policemen’s testimony, and it never questioned the shooter as a suspect. Thus Mendelblit’s opinion was based on very partial evidence, and gave insufficient weight to the contradictions in the policemen’s testimony.

Video showing the incident leading to the death of Kheir Hamdan, Kafr Kana, November 8, 2014

Justice Noam Sohlberg, who dissented, viewed the meetings that Mendelblit held on the appeal as evidence of serious consideration. But the majority justices disagreed, noting that there were no minutes from these meetings or records of any decisions made in them.

They also said that Mendelblit did not consider the supreme public interest in determining the guilt of a policeman who shot and killed a civilian, or the appearance of a conflict of interest when one law enforcement official examines another’s responsibility. Moreover, they said, Mendelblit failed to give the court a detailed explanation of his position.

But the main disagreement was over whether the incident should be examined from a broad perspective or a narrower one focused on the critical instant of the shooting.

In the broad view, Hamdan’s behavior seemed threatening. Following the arrest of his cousin, he pulled out a large knife and began battering the reinforced windows of the police cruiser in which his cousin had been placed. He attempted to open the locked door of the vehicle and then he looked in through the rear window.

A policeman sitting near the window told him to go away, and when he didn’t, the policeman opened the car door and fired two bullets into the air. Hamdan retreated, but then resumed beating on the window.

Two policemen then got out of the car, aimed their guns at him and told him to drop the knife, but he didn’t. Then, as Hamdan was very close to one policeman, the other, Naor Yitzhak, fired a single bullet. It entered at Hamdan’s elbow and exited at his groin. He died of his injuries soon afterward.

But the picture looks different when we focus narrowly on the shooting itself. Initially, Yitzhak said he opened fire because Hamdan was advancing on the second policeman. But video footage shows that he actually opened fire as Hamdan was moving away from the patrol car and the second policeman.

Yitzhak also initially said he aimed at Hamdan’s upper body, meaning that he shot to kill (raising serious questions about whether this was justified under the circumstances). But later, he said he fired at Hamdan’s lower body.

To justify the shooting, Yitzhak said Hamdan had moved his hand and seemed about to stab his colleague. But the video shows that Hamdan moved his hand only after he was shot.

There’s no doubt that Yitzhak sought to either kill or seriously wound Hamdan. The case was closed on the grounds that Yitzhak shot in self-defense, or at least believed it was in self-defense. But both the video and professional analysis belie the claim that the second policeman was actually in danger, casting doubt on Yitzhak’s subjective belief in this danger.

Moreover, a claim of subjective belief must be based on credible testimony. Given the contradictions detailed above, the credibility of Yitzhak’s testimony is dubious. And the fact that the second policeman’s story so closely paralleled Yitzhak’s raises suspicions that the two coordinated their testimony.

Finally, even if more serious charges proved untenable, Yitzhak could probably have been convicted on a lesser charge of negligence.

Given all this, there was clearly a public interest in legal proceedings, and closing the case on the grounds that no crime was committed was patently unreasonable. After all, the point of an indictment isn’t to obtain an automatic conviction, but to clarify the facts through due process.

Sohlberg declined to reconsider the evidence on the grounds that this violated the separation of powers, and specifically the proper division of labor between the attorney general and the courts. But this case shows that anyone who wants to do justice must examine the evidence, since even senior legal officials can make big mistakes.

The point of judicial review is to discover and correct such mistakes. That doesn’t suit the conservative bon ton. But the court can’t evade this job if it wants to prevent injustice and preserve the public’s trust.