HaMoked to the Attorney General: the soldiers responsible for the killing of a Tulkarm resident in 2001, who was shot to death for talking on the phone, must be put on trial המוקד להגנת הפרט
11.11.2013
HaMoked to the Attorney General: the soldiers responsible for the killing of a Tulkarm resident in 2001, who was shot to death for talking on the phone, must be put on trial
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On October 31, 2001, soldiers killed a Palestinian in Tulkarm while he was parking his car in his sister's yard. The Military Police Investigation Unit began investigating the incident some 18 months later, and only after another 18 months had passed, took the depositions of the soldiers and commanders involved. The investigative material indicates that the soldiers sought and received the battalion commander's "permission to kill", based on a suspicion that the man had acted as a lookout, directing gunfire toward the soldiers' posts via his cell phone. Based on this suspicion – unexamined before or since – the soldiers shot him with intent to kill, using a weapon which "can only kill," as they had put it.

Seven years after the killing – and only after HaMoked petitioned the HCJ to order the military advocate general (MAG) to decide whether to indict those responsible – the MAG announced that the investigation file had been closed. HaMoked's appeal against this decision was dismissed in January 2011 by the Chief Military Prosecutor, on the claim that the soldiers could rely on the "necessity defense"; this despite the fact that the deceased han been unarmed and that even according to the military, the soldiers had not been under imminent threat.

On July 26, 2012, HaMoked petitioned the HCJ to order the MAG and the Chief Military Prosecutor to indict the soldiers involved in the man's killing, which constituted an act of targeted killing. During the hearing of the petition, counsel for the soldiers argued that the soldiers had been discharged from the military years before and therefore, should not be tried under the Military Adjudication Law; and that the statute of limitations of civilian criminal law also applied here. HaMoked countered that the delay in bringing charges against the soldiers had resulted from omissions on part of the military prosecution; that the investigation file should be transferred to the Attorney General for the indictment of those responsible under civilian criminal law; and that in any case, these were grave offenses which did not come under the statute of limitations.

In July 2013, the court deleted the petition in view of the state's statement that the MAG would substantiate his position concerning the statute of limitations in "general" criminal law; explain why he had not transferred the case to the Attorney General at the time, and would consider doing so now.

Therefore, HaMoked contacted the MAG on August 4, 2013, requesting to transfer the investigation file to the Attorney General for consideration of  possible indictment of those involved in the killing. HaMoked noted that the evidence in the file raised grave concern that very serious offenses, which are not subject to limitations, had been committed and that a decision to uphold the MAG's decision to close the file would constitute a carte blanche for the killing of civilians based on nothing but suspicion of involvement in hostilities, even when the intended targets pose no actual threat to life. HaMoked added that a decision not to transfer the file for the consideration of the Attorney General would be extremely unreasonable, leaving this case, with its severe outcome, without proper scrutiny because of technicalities arising from negligence on the part of the officials charged with enforcing military law, who had kept the case in process for about ten years.

On September 3, 2013, the Chief Military Prosecutor rejected the request, claiming the court's judgment did not require that the MAG transfer the case to the Attorney General, only to justify his decision not to do so. The Chief Military Prosecutor further asserted that the case had been closed primarily because of insufficient evidence for indictment, and not because of the statute of limitations. He further argued that the killing should not be viewed as premeditated targeted killing, but rather as an operational activity "in progress" in life threatening circumstances, and as such, it was the authority of the MAG to decide how to pursue the matter.

In view of the response, on October 6, 2013, HaMoked contacted the Attorney General requesting that he examine the investigation file and consider indicting those responsible for the killing. HaMoked asserted that as the head of the law-enforcement system, the Attorney General should give consideration to this affair, in which, it seems, a dangerous legal norm has been established.
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