HCJ 8270-08-24

Date of submission: 4.8.2024

On June 21, 2022, a group of settlers, about 17 teens and one adult, Avraham Shemesh, invaded land belonging to the Harb family from the village of Iskaka in the West Bank. The settlers came ready to set up a new unauthorized outpost, bringing mattresses and tools with them, as part of a “settlement building week” announced by the Nachala movement (a right-wing movement that promotes Israeli settlements in the OPT). Shemesh, the eldest of the group, was armed with a knife.

When word got out of the invasion and the attempt to set up an outpost, several Iskaka residents headed over to the land and demanded the trespassers leave. The settlers ignored them and continued advancing inside the privately owned area. The Civilian Security Coordinator of the nearby settlement of Ariel arrived at the scene from the other side of the fence, and, he says, tried to calm both sides down. Several officers with the Israel Police Special Patrol Unit (Yasam) arrived shortly after, along with the settlement emergency response team. Just then, when the police officers were only a few meters away from the settlers, the settlement Civilian Security Coordinator fired three shots in the air. Immediately after that, Avraham Shemesh walked up to 27-year-old Ali Harb and thrust the knife into his heart. Ali collapsed on the spot and died. His friends later eulogized him, recounting he had dreamed of traveling to Germany to work, and had spent most of the time leading up to his death preparing for the trip.

The police displayed criminal negligence both during and after the incident. Though police officers were on the scene, and had witnessed the fatal stabbing, no one detained any of the settlers, including the stabber himself Avraham Shemesh, who for his part made sure to hide the knife. Military forces that arrived at the scene after the stabbing checked Shemesh’s ID card and questioned him, but he told them nothing of his involvement in the incident and did not disclose that he was armed with a knife. Shemesh went home, and from there, traveled to Honenu (a right-wing legal aid group) to receive legal advice. Rather than turning himself in after the consultation, Shemesh returned home. The group of teens who had been with him also went home. They met with a Nachala activist by the name of Merav Mishlov that same day. She instructed them on how to engage with the police and was later interrogated about that on suspicion of obstructing the investigation.

Shemesh reported to the police the next day, having received a summons for questioning. From there, he was taken to an interrogation by the Israel Security Agency (ISA, also known as Shin Bet), during which he was denied access to counsel. The investigation materials indicate he initially denied he had anything to do with the stabbing and claimed he was unarmed. Several days later, after the knife he had hidden was recovered, Shemesh was interrogated under warning by the police for suspected murder as an act of terrorism, obstruction of justice, and crimes motivated by racism or hostility towards the public. Shemesh retracted his initial account during the police investigation and reconstructed the stabbing. According to his updated version of the events, the Palestinians who arrived at the scene were armed with axes and sticks and the stabbing was an accident that occurred when he tried to push Ali Harb off and protect himself from him.

Contrary to the settlers’ version of the events, the investigation materials and the statements of the police officers who were on the scene reveal that, with the exception of one adult who was holding a stick, none of the Palestinians, including Ali Harb, were armed. The investigation materials further indicate that none of the Jews present were hurt either before or after the stabbing, casting significant doubt over the allegation that the Palestinian residents threatened the lives of the settlers, not to mention that armed police officers were already on the scene to protect them. The investigation materials also show Avraham Shemesh’s motivations were clearly nationalistic. For example, on the day of the incident, he bragged to his friend, who had entreated him to get a gun license: “Forget it. I’m for sure going to kill someone… It’s better for me if I cause serious injury with my hands. It looks better in court.” The group, it should be noted, arrived at the site with the object of trespassing and taking over Palestinian land.

The arrest caused an uproar in right-wing circles in Israel, with protests outside the detention facility where Shemesh was held. Public figures called for his release, and he was portrayed as a hero who protected the boys. Ultimately, on July 5, 2022, the stabber was released to house arrest and about six weeks later, the police announced it was closing the investigation on the grounds of “insufficient evidence.” Even though the Palestinians’ statements matched the accounts given by the officers who were at the scene, the Israel Police decided to interrogate them under warning for allegedly obstructing justice, though none of them were tried.

After the investigation was closed, Ali’s father filed an appeal against the decision through Yesh Din, who is helping the family. The appeal demands the stabber be prosecuted, including for murder and obstructing an investigation, detailing the evidence against the stabber and the many flaws in the investigation. On October 24, 2023, the State Attorney’s Office denied the appeal, stating, “all conditions required to establish self-defense were met, and therefore the case against the impugned individual was closed for insufficient evidence.” Importantly, the statement that the stabber had acted in self-defense contradicts the accounts given by the police officers at the scene, and the stabber himself, who claimed the killing was accidental.

On February 29, 2024, Yesh Din submitted a request for reconsideration of the decision to close the investigation file, attaching further evidence received, including a report from a forensic medicine expert. Yesh Din also submitted an enhanced version of a video the police had that captured the seconds leading up to the fatal stabbing. Three months later, Yesh Din received notice that the State Attorney’s Office decided not to reopen the case, not even on the count of obstructing the investigation after Shemesh had hidden the knife and lied about it. The State Attorney’s Office also accepted the accounts given by the teens who were with Shemesh, even though they had coordinated their stories.

On August 5, 2024, Ali Harb’s father filed a High Court petition via Yesh Din, demanding Avraham Shemesh, who stabbed his son to death, be prosecuted for manslaughter and obstruction of justice. According to the petition, the police and the State Attorney’s Office accepted Shemesh’s testimony – which was riddled with contradictions and lies – without any basis. The petition also asserts that the State Attorney’s Office had “failed to conduct a thorough examination appropriate for a murder investigation,” when it decided to reject the appeal and the request for reconsideration. The State Attorney’s Office chose not to prosecute Shemesh even though there is no dispute he stabbed Ali Harb to death when he thrust his knife into his heart. The petition notes this decision runs counter to the Prosecution’s policy in countless similar cases, in which indictments were filed. In fact, Yesh Din’s legal team was unable to find a single example of a similar case with Jewish victims that closed citing self-defense.

The petition presents a detailed analysis of the sequence of events. The account Shemesh and the teens gave and the police and State Attorney’s Office accepted was disproved by Yesh Din, using materials from the police investigation and further evidence. For example, an autopsy report by Prof. Yehuda Hiss submitted with the petition concluded that the force and angle of the stabbing were inconsistent with the stabber’s claim that he had pushed Ali off and accidentally killed him with the knife. The claim that the Palestinian residents were armed with cold weapons and posed a threat was also disproved, in part by the statements given by members of Israeli security forces who were on the scene and a video documenting the incident, which was also submitted with the petition. The petition also argues that the self-defense claim is moot given armed police officers were present at the scene during the actual incident, such that neither the stabber nor the teens were in mortal danger and none of them were injured before or after the stabbing.

The negligence and bias shown by the authorities in this case are a direct extension of Israel’s law enforcement failure when it comes to offenses Israelis commit against Palestinians – a failure Yesh Din has been documenting for 20 years. The petition notes this is a “clear demonstration of the continued failure by enforcement agencies to prosecute extremist settlers for violence against Palestinians,” a failure recently addressed by the International Court of Justice in The Hague as well.

Petition status: Pending.