An Israeli policeman who shot to death an Israeli Arab man in the Arab town of Kafr Kana five years ago must face trial even though the case against him was closed a year after the incident, the High Court of Justice ruled on Monday.
As seen in video footage that documented the incident, police officer Naor Yitzhak shot Kheir Hamdan as he was retreating after attacking police officers on November 8, 2014.
In 2015, Hamdan’s family was advised that the case against Yitzhak was closed because an internal police investigation had found him innocent. The family appealed the decision, but their appeal was rejected. They then petitioned the High Court, which overruled the previous decision.
In their Monday ruling, the justices who presided over the case stated that “the way the prosecution handled the case could create the appearance of preferential treatment and bias in that the ‘system’ could exempt policemen from responsibility for their actions by not putting them on trial, even though they caused a person’s death."
Justices Ofer Grosskopf and George Karra ruled in the majority that Attorney General Avichai Mendelblit should be ordered to try Yitzhak, while Justice Noam Solberg held the opposite minority opinion.
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The decision proves that the family was right to not give up, Attorney Omar Khamaisi, a member of the legal team representing the family, told Haaretz. It is a slap in the face of Mahash (the Hebrew acronym for the Justice Ministry unit that investigates police misconduct) and the attorney general who decided to close the case, he added.
Khamaisi went on to say that it was unclear what final decision will be made on the matter. "In any case the decision raises questions about the considerations made by Mahash and the attorney general in deciding to close the case," he stated.
Wielding a knife, victim threatened police vehicle and retreated
In November 2014, an Israeli riot police unit arrested a Kafr Kana resident. As they drove off with the suspect in custody, Kheir Hamdan ran toward the vehicle while holding a 29-centimeter-long knife and shouting, “Allahu akbar.” The vehicle stopped, Hamdan pounded on the armored windows with his knife and tried to open the door unsuccesfully.
An officer sitting by the rear window yelled at him to go away and then opened the van door, firing two bullets into the air. He came out of the van, aimed his weapon at Hamdan and urged him to throw down his knife. While Hamdan was retreating, Naor Yitzhak came out and fired a single bullet at Hamdan, which hit first his left elbow and then his abdomen.
As bystanders approached, officers quickly loaded Hamdan's body into the van while firing into the air. As they set out, the unit reported to the duty officer about the incident and summoned an intensive care ambulance. Hamdan was transferred to the ambulance but was later declared dead in the hospital.
An investigation into the incident was opened that night. Witnesses were summoned and evidence collected. Half a year later, Mahash informed the family that the case was being closed with the consent of the attorney general because it could not be determined whether Yitzhak was guilty. At least subjectively, the shooter was acting in self-defense, Mahash explained at the time. Under the special circumstances, there was no reasonable suspicion of criminal guilt by the officer, who made a quick decision in a pressing situation lasting mere seconds, the unit said.
In his appeal filed that June, Hamdan’s father argued that the officer was directly responsible because he fired at his son's torso, showing no concern for the outcome, which would constitute manslaughter. For two years, the father attempted to contact the attorney general again and again but received no reply. In June 2017, he motioned the High Court of Justice to order the attorney general to respond to the appeal. A decision was handed down that very day – to reject the appeal.