On October 31, 2001, soldiers shot and killed a resident of Tulkarm while he parking his car in the courtyard at his sister's home. Some 18 months later, the military police started an investigation. After another 18 months, depositions were taken from the soldiers and officers involved in the case. The investigation material indicates that the decision to kill the deceased had been based on the soldiers' suspicion that he was keeping watch and directing gunfire to the soldiers’ positions via his mobile phone. A week or so before the killing, the company commander contacted the battalion commander for permission to shoot, based on this suspicion–unexamined before or since–: "I asked for permission to kill […] we talked about it a couple of times, and after he refused several times, I received permission." When conditions were suitable, the soldiers fired toward the front of the vehicle, straight at the driver's seat, using a weapon which–as one soldier testified–"can only kill", in order to fatally hit the man.
Seven years after the event–and only after
HaMoked petitioned the High Court of Justice (HCJ) to order the military advocate general (MAG) to decide whether to prosecute those responsible for the killing–
the MAG announced the investigation was closed, inter alia, "in light of the commanders' cognizance that the deceased was repeatedly implicated in directing Palestinian gunfire at the IDF forces, endangering the lives of the soldiers ".
HaMoked filed an objection against this decision, and asserted that the shooting had been both approved and executed in an arbitrarily manner, contrary to the open fire regulations, based only on the fact that the deceased had been talking on his mobile phone, without any no substantial evidence that he had been involved in the fighting. HaMoked further asserted that the soldiers should be held responsible for the deliberate killing of a protected person, perpetrating a severe criminal act, and a blatant violation of
international humanitarian law.
In January 23, 2011,
the Chief Military Prosecutor dismissed the objection on the grounds that the "necessity defense" was available to the soldiers; this, in disregard of the fact that the deceased was unarmed and that, even according to the military, the risk to the soldiers was not imminent. Alternatively, the MAG claimed, the soldiers had at their disposal the "mistake-of-fact defense", given that "an analysis of the operation of the forces suggests that in their hearts the understanding had developed that the man at whom the shooting was directed–was a person who had removed himself from the circle of 'protected persons'", by participating, as they perceived it, in the acts of hostility. The MAG went on to state that a civilian who removes himself from the circle of protected persons "becomes a legitimate target for attack". In effect, the Chief Military Prosecutor granted the soldiers license to kill people, simply based on "suspicions in their hearts"'; this, when the would-be targets pose no threat to life.
On July 26, 2012,
HaMoked petitioned the High Court of Justice to order the MAG and the Chief Military Prosecutor to put the soldiers on trial for their part in the man's killing, which constitutes an act of targeted killing. HaMoked stated that under international law, so long as a person does not participate directly in hostilities, he is deemed to be a "protected person". Given that when the soldiers shot the deceased, he was not endangering anyone, and as the decision to kill him was been made well in advance, and executed at a suitable moment, the soldiers could not rely on the "necessity defense". HaMoked further argued that under international law and the legal principle of proportionality, even when a person has "extracted himself from the circle of protected persons" he should not be killed if a less harmful measure can be used against him. The soldiers shot the deceased using a weapon "which can only kill", without any attempt to arrest him, hence, acted contrary to the open fire regulations, and in an unreasonable and excessive manner. Therefore, continued HaMoked, the shooting of the deceased did not constitute a legitimate life-saving measure but the arbitrary taking of life.
HaMoked requests the court to decide on the issue of principle arising from the MAG's decision, concerning the level of the threat which emanates from a civilian, which justifies the use of lethal force against him, and the required level of certainty that such a risk in fact exists. The MAG's decision, that the soldiers who shot the deceased enjoy legal protections, is a dangerous moral statement which has wide-ranging implications for the military culture surrounding the use force against civilians, and sends a message to those who carry weapons as part of their military participation, that they have impunity even when their criminal actions results in the death of innocent people.
