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Supreme Court: Soldiers Not Required to Hide

Supreme Court rules that soldiers are not required to take cover if they believe a suspect poses a threat, and may take defensive action instead.
By Maayana Miskin
First Publish: 9/24/2009, 6:14 PM

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The Supreme Court ruled Thursday that soldiers are not required to hide if approached by a potentially dangerous person while on guard duty, but rather, may take defensive action. The ruling was issued regarding an incident that took place in 2008 in which soldiers stationed near Jenin fired on a mentally ill Arab man.

In 2008, Ibrahim Aghrabia, who suffers from schizophrenia, approached soldiers at a checkpoint near Jenin while holding a sack. The soldiers called on Aghrabia to stop, then when he failed to do so, fired in the air. Finally, when Aghrabia failed to retreat from their position, the soldiers shot him in the leg.

Aghbaria, who lost his leg as a consequence of the shooting, later sued the state for damages. His attorneys argued that at the moment of the shooting Aghbaria was not yet close enough to the guard point to cause injury; therefore soldiers should have taken cover and waited to see if Aghbaria was dangerous or not.

An Israeli court ruled in Aghbaria's favor, stating that the soldiers should have “taken cover and attempted to determine [Aghbaria's] intentions.” In addition, the court ruled that IDF guard duty is not considered a “wartime operation.”

The state appealed the verdict, criticizing in particular the ruling that soldiers should hide from potential attackers in order to take more time to assess the situation. Calling the ruling “unprecedented interference” in military proceedings, state attorneys argued that soldiers must be allowed to use their own discretion when faced with danger.

Judges Edmond Levi and Eliezer Rivlin ruled in the state's favor. Israel's courts should interfere in military procedure only in extreme cases, they declared, and should grant IDF commanders and soldiers the maximum tactical freedom.

Regarding the specific incident in question, Levi and Rivlin determined that the soldiers were justified in suspecting that Aghbaria could be a terrorist given his behavior. They cast doubt on Aghbaria's argument that he was too far from the soldiers to cause them harm at the time that they opened fire, saying in their verdict that Aghbaria had clearly not been fully mentally competent during the event and thus his testimony is questionable.

Justice Salim Joubran opposed his colleagues.