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Israel: Military Commander and Enlisted Soldier Responsibility for Detainee Abuse

(July 8, 2009) On July 1, 2009, the Supreme Court (hereafter the Court) accepted a petition by Ashraf Abu Rahma and four human rights organizations to void a decision by the Chief Military Prosecutor (CMP) to indict an officer and an enlisted soldier for “unbecoming conduct” under the Military Justice Law 5715-1955, §130. The decision cleared the way for more serious charges to be brought against the two soldiers.

The incident that was the subject of the indictment involved a light injury caused to Abu Rahma's left toe from a rubber bullet shot in his direction from a short distance while he was bound and blindfolded. The shooting was perpetrated by the enlisted soldier upon the order of his officer, in an alleged effort to scare the detainee, a leading and frequent participant in violent demonstrations in a West Bank area controlled by the Israeli Defense Force. The officer involved claimed that the incident was a result of misunderstanding of his order.

In accepting the petition, the Court determined that the offense of “unbecoming conduct” is among the less significant offenses under military law and is punishable by a relatively moderate penalty, without being recorded in the criminal register. The Court recognized that the CMP had previously considered indicting the officer and the enlisted soldier under the offenses of maltreatment, excess of authority to the extent of endangering life or health, and illegal use of arms, all punishable by extended terms of imprisonment. The Court further recognized that the decision to indict the two under the less stringent offense was reached following the release of the enlisted soldier from military service and the removal of the officer from active combat duty, thus impacting on his promotion in the military hierarchy.

Justice Procaccia, with Justices Rubinstein and Meltzer concurring, held that there was a substantive discrepancy between the facts constituting the offenses and the legal provisions selected in the indictment. This discrepancy is reflected in the severity of the circumstances of the event as compared with the leniency of the criminal offense provision selected for implementation, the justices stated. Justice Procaccia determined that the perpetration of harm to a helpless bound detainee has always been considered a serious and cruel offense that requires a proper penal response. She added that this principle is fully integrated into the general system of law in Israel and is reflected in recognizing the duty to protect basic rights of detainees, even when they are suspected of engaging in grave acts and endangering human life. Justice Procaccia re-iterated that violence against either the body or the spirit of a person during and outside of interrogation had been expressly outlawed by the Supreme Court in earlier decisions, and the law was further implemented by numerous decisions of military courts. She emphasized that the preservation of the rule of law and the recognition of individual freedoms and human rights, including those of enemies, are central to Israel's democracy and its Jewish values and also play a significant part in the military strategic defense methodology of Israel.

In citing examples from other countries' experience and from a decision of the European Court of Human Rights on the issue of treatment of detainees, Justice Meltzer mentioned the abuse of detainees in Abu Ghraib. He noted that the behavior attributed to the American soldiers in that case was many times more severe than in the case at hand. The perpetrators in the Abu Ghraib case were indicted for violating serious provisions of the United States Uniform Code of Military Justice, he said. Justice Meltzer further noted the existence of controversy over the lack of indictment of officers as compared with the indictment of numerous enlisted soldiers in that case.

Considering the high regard given by Israeli law to protection of detainees, all justices concluded that the CMP decision to indict the officer and the enlisted soldier under the provision of “unbecoming conduct” was extremely unreasonable and therefore void. The Court further ordered the CMP to reconsider the reissue of an indictment under tougher criminal provisions that would reflect the gravity of the acts perpetrated against petitioner Abu Rahma. (H.C. 7195/08 Ashraf Abu Rahma v. Chief Military Prosecutor Avihai Mandblit [in Hebrew, decision rendered July 1, 2009], The State of Israel: The Judicial Authority website, available at; Military Justice Law, 5715-1955, 9 LAWS OF THE STATE OF ISRAEL 184 (5715-1954/55), as amended.)