HCJ 7195/08 Ashraf Abu Rahmeh v Brigadier General Avichai Mandelblit, the Military Advocate General

On July 7, 2008, Ashraf Abu Rahmeh was arrested during a protest in Ni’lin. He was detained by Border Police and brought to the intersection at the entrance to the village, where he was forced to sit on the ground, bound and blindfolded. An armored corps battalion commander present at the scene, Lieutenant Colonel Omri Borberg, asked Abu Rahmeh whether he would stop protesting against IDF forces. After a brief exchange, Borberg told one of his soldiers, First Sergeant Leonardo Corea “Shall we take him aside and shoot him with rubber [bullets]?” in order to scare Abu Rahmeh. Borberg led Abu Rahmeh towards the military jeep, and Corea, who went after them, fired a rubber bullet at Abu Rahmeh’s shoe.

The shooting was documented on video by a B’tselem photographer; after it was published, a Military Police Criminal Investigations Division (MPCID) was opened. During their investigation, the soldier and officer provided contradicting testimonies: Corea said that Borberg instructed him to shoot Abu Rahmeh, while Borberg claimed he just told him to “scare him.” After an investigation, an indictment was issued against the two for improper conduct.

Following the decision, Abu Rahmeh petitioned the High Court of Justice (HCJ) together with the Association for Civil Rights in Israel, B’Tselem, Yesh Din and the Public Committee Against Torture in Israel against the Military Advocate General’s Corps (MAGC) decision, demanding Borberg and Corea be prosecuted such that “the articles of indictment reflect the criminal offenses they allegedly committed.”

The petition also noted the Chief of Staff’s statement whereby he sees no reason why Lieutenant Colonel Borberg should be prevented from continuing to serve in senior positions. This statement was made after Borberg was appointed the head of the armored corps division at the Tze’elim land warfare training base, a role that primarily involves instruction of soldiers and officers. The petition specified a series of incidents of alleged abuse and violence committed in the area of Ni’lin during the period under the command of Lt. Col. Borberg.

The petition stressed it is clearly in the public interest that suspects be prosecuted for offenses that correspond to the actual offense they are suspected of having committed. This would send a direct message within the army ranks and outside it, condemning these exceptional grave actions committed by military personnel on duty. The MAGC claimed that under the circumstances, prosecuting the battalion commander and the soldier for improper conduct was a reasonable decision.

On 1.7.2009 The High Court instructed the MAGC to change the offenses in the indictment. “Preserving the rule of law and recognition of individual liberties constitute an important component of the notion of democracy that is the basis of the Israeli regime…honoring human rights, maintaining human dignity even towards the enemy, are engrained in Israel’s Jewish and democratic character,” the ruling stated. “The military’s moral spirit and character depend, inter alia, on preserving the purity of arms and protecting individual liberties for all. In this matter, the ethical gap between the nature of the act described in the indictment and the way it was addressed in the indictment as an offense of improper conduct is so profound that it is impossible.”

In May 2010, the Court Martial convicted Borberg of attempted threat and improper conduct and Corea of illegal use of a weapon and improper conduct. Borberg was handed a suspended sentence without demotion in rank but with a postponement of promotion for two years and preclusion of a commanding role for a year; Corea was demoted to the rank of private.

Petition Status: The petition was accepted