How Israel's High Court Implicitly Aids the Soldier Accused of Hebron Manslaughter

Why be shocked at the public's support for arrested IDF soldier when the country's justices have already provided him with a line of defense?

The IDF soldier who shot the wounded Palestinian terrorist in Hebron being escorted to court on the day after the incident, on March 25, 2016.
Ofer Vaknin

To the attorneys of Sergeant E. (the Israeli soldier facing a manslaughter charge after fatally shooting a subdued Palestinian assailant in the head, in Hebron two weeks ago): These lines are written in case you missed High Court of Justice ruling 143/12. Did it discuss making sure that a suspect, lying wounded and bleeding on the ground, is dead by delivering a kill shot? It did. Did it discuss the police fear of an explosive belt (a demagogic claim, since it all happened in the heart of a Palestinian neighborhood)? It did that, too. Racist online posts? Did it ever. Justices Miriam Naor, Yoram Danziger and Uri Shoham saw fit in their ruling not to intervene in the State Prosecutor’s Office’s decision to close the investigation into the killing of Ziad Jilani, 38, by Border Policeman Maxim Vinogradov and his commander, Shadi Kheir al-Din.

We will never know what exactly went through Jilani’s mind when, on his way back from Friday prayers on June 11, 2010, he pulled his car out from the line of vehicles progressing slowly down the main street of Wadi Joz in East Jerusalem. He suddenly accelerated into a group of 10 Border Policemen who were armed with rifles, handguns and batons. There were two mounted police there as well. Jilani’s American wife, Moira, finds it hard to believe that he really intended to run them over. That’s not the behavior of a man who had informed her on the phone an hour earlier that he was on his way home from prayers and that she and the girls should get ready to go on a picnic. Maybe he was frightened by the youngsters throwing stones at the police, and which perhaps also struck his car?

He hit four officers, who suffered fractures and bruises. Their colleagues feared one of them would get killed and were sure this was a car-ramming attack. They shouted “Stop!” and fired into the air and at Jilani’s vehicle. He did not stop. Jilani had lived for many years in the United States and Switzerland. Might he have forgotten that police armed to the teeth are a common sight on the streets of East Jerusalem?

The police fired again and again. Perhaps he lost control and didn’t brake because of the shooting? We will never know. He kept on driving, turned into an alley (where his relatives lived – although the police couldn’t have known that, of course), got out of the car and started running. The police chased after him and shot him again, his back to them. He fell to the ground, bleeding. Then one of the policemen shot him in the head. It transpired that the shooter had been Maxim Vinogradov, whose Facebook page contained posts like “Death to Arabs, I’m nervous.”

Palestinian medical staff found two gaping holes between Jilani’s smashed jaw and his right temple, and other gunshot wounds in his leg, abdomen and hand.

Vinogradov and his commander were questioned and gave their versions, and later revised them. The Justice Department unit that investigates potential police wrongdoings recommended closing the case. The deputy state prosecutor decided not to intervene. The family’s attorneys, from the Nazareth-based nonprofit Meezan for Human Rights, appealed. The state prosecutor decided not to intervene in the unit’s decision. Then the family’s attorneys petitioned the High Court of Justice to instruct the attorney general to explain why no indictment would be filed against the two officers. On July 20, 2014, the High Court ruled it would not intervene. The justices took care to note that their ruling did not mean Vinogradov’s actions were legal and proper.

The justices quoted previous verdicts (including those handed down by the highest authority, former Supreme Court President Aharon Barak), which had tried to understand the situation facing soldiers and police. For example: “The court has ruled more than once that ‘margin for error’ had to be given to soldiers and police operating under combat conditions, or as part of an operation. The reason for this position lies in the understanding that ‘soldiers must be given reasonable margin for error that might be caused by conditions on the ground and the time available, which are the backdrop of the operational incident at issue, and require a quick decision without legal consultation on what is permissible in that moment.’”

And look what they wrote about Vinogradov: “We cannot ignore, in this context, the young age of the respondent ... who found himself in a difficult and complex situation in performance of his duty. More than once, we are asked to examine in retrospect the actions of soldiers and police in the conscript army. In these cases, we must not forget that, in general, these are young and normative people, required to act under harsh and complex conditions that an older and more experienced person would find difficult. This gap between the young age and relatively minor experience of the police and soldiers in the conscript army, and the heavy responsibility that is often placed on their shoulders, should be reflected in the subsequent examination of their actions and judgment.”

As for the racist Facebook posts, the justices wrote: “Indeed, these are infuriating statements that should be roundly condemned [But] the claim that [Vinogradov] shot the deceased in the head out of racist motives is speculative and unfounded.”

And so we will reiterate: Instead of being shocked at the voice of the masses in the case of Sergeant E., go and read the statements of the High Court justices.

Ziad Jilan
Photo reproduction by Alex Levac