HCJ 7953/15 Masri V the Attorney General
Petition Submission Date: 22.11.15
Petition Description: On January 20 2011 Jalal al Masri, a resident of East Jerusalem, came across an emergency checkpoint near the village of Idna. Masri slowed down as he approached the checkpoint and then sped up and passed the soldiers. One of the reserve soldiers, a sniper stationed in the adjacent guard post, fired four bullets at Masri’s car without receiving an order to do so, and hit him. Masri was critically injured and died several months later in the hospital.
IDF trackers who examined the scene immediately after the shooting testified that the fire did not target the car but Masri himself. “It was directed at the driver’s head […] the man in the guard post shot him with the intention of hitting him, it was not a discharge, you don’t just target someone’s head for no reason. But I don’t know why he shot,” one tracker said.
The next day an MPCID investigation was opened, but it was closed two months later by order of the Military Advocate for Operational Matters. Yesh Din, which represents the Masri family, was only informed in July 2012 that the State Attorney instructed to transfer the case for continued investigation. On 9.10.13 the State Attorney informed Yesh Din that the investigation was closed on grounds of lack of evidence. On 20.1.14, Yesh Din appealed the decision. The appeal stated that the investigative material clearly indicates that the soldier shot at Masri and not the wheels of the car, against procedures and lacking an order to do so. It also stated that as opposed to the soldier’s claim that he felt his comrades were in danger, the rest of the soldiers did not feel this way and didn’t think the shooting was justified.
Since this was a reserve soldier who is no longer subject to military law, Yesh Din demanded that the Chief Military Prosecutor transfer the investigative material and the appeal filed by Yesh Din to the Attorney General, so that the latter could consider issuing an indictment against the soldier.
Over a year later, in March 2015, the Chief Military Prosecutor Col. Ehud Ben Eliezer rejected Yesh Din’s appeal and refused to transfer it to the Attorney General. The Chief Military Prosecutor claimed that the soldier was authorized to shoot at the wheels of the car, adding that there is no evidence to contradict the soldier’s claim that he shot at the wheels, and that even if some of the bullets hit the windshield of the car “and maybe even the deceased himself,” this doesn’t reflect the intentions of the soldier.
Following the military’s decision to reject the appeal, Masri’s family petitioned the High Court with the assistance of Yesh Din to demand the Court instruct the Attorney General, the State Attorney, the Military Advocate General and the Chief Military Prosecutor to explain why they do not indict the soldier.
The State’s response to the petition claims that the evidence in the investigation file was examined by the Military Advocate General and it was decided that there is insufficient evidence to indict the suspected soldier. It stated that the shooter thought that shots were fired from the direction of the vehicle and felt that his life and the lives of fellow soldiers were in danger; which is why he fired one shot in the air and after that an additional three in the direction of the vehicle wheels. The prosecution argued that in light of the of the fact that Masri was injured in his upper body, there are grounds to suspect that the shots were not directed at the wheels as the shooter claimed, however this cannot be proven.
“The suspect allegedly operated on the basis of a flawed assessment of reality and operated erroneously according to the notion that the vehicle of the deceased tried to run his friends over. The suspect allegedly operated in accordance with the rules of engagement, and primarily the rule that allows shooting in the case of a life-threatening situation. In light of his operating according to the rules, the suspect is allegedly entitled to a defense of justification” the response stated.
After the High Court’s hearing on the petition, the judges ruled that the case does not merit judicial intervention into the professional judgment of the JAG and the Attorney General.
“There is no dispute regarding the circumstances of the case. The deceased was shot while speeding through an army barrier driving a white Peugeot after the soldiers were warned that such a car containing a wanted person had earlier run through a different barrier,” the verdict states. “Despite the tragic outcome, it cannot be said that under these circumstances the shooting was negligent to the extent that it a prosecution is warranted.”
Petition Status: Dismissed