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Open-Fire Regulations: CA 7995/02 Military Commander in the Judea and Samaria Area v. Sha’anubi (Judgment of September 25, 2007)
Court Watch | 7995/02 | 10.9.2011 | Adv. Yossi Wolfson
Criticism
It is commonly accepted that law enforcement agencies have the authority to use force in order to apprehend suspected offenders. This authority is far reaching: it does not concern self-defense or stopping the commission of an offense, nor use of force in order to enforce a served judgment. This is a secondary power which is adjunct to the power to imprison an individual for the purpose of clarifying suspicions (as yet unproven) against him. The power to use force in such situations should be restricted in any case. The rules pertaining to the use of force in these circumstances are a litmus test of the weight given by society to a person’s right to bodily integrity against the power of the state.

In the Sha’anubi case, the Supreme Court adopted a particularly liberal approach with respect to the military’s use of firearms for the purpose of arresting suspects during operations in the OPT.

The incident which forms the backdrop for this judgment occurred in the village of Burqa in the Nablus District, on a late summer’s day of 1991. We can never know exactly what happened: Sha’anubi testified that he was in a wooded area in the village when the soldiers who arrived there area shot him after he tried to move away from them. Conversely, one of the soldiers testified there was a relatively long pursuit, during which Sha’anubi was shot in the leg after ignoring both calls to halt and a warning shot in the air. Whatever the circumstances, the gunshot wound to the plaintiff’s left leg caused severe bodily damage estimated by the Haifa District Court to amount more than half-a-million ILS. After the plaintiff was so severely injured, it turned out that he was not among those the soldiers sought to apprehend that early afternoon – although, completely unrelated to the incident, he was suspected of being a Fatah member and had an administrative detention order pending against him.

Of the accounts of the incident, the District Court, of course, accepted the soldier’s, and that was also the court’s factual starting point. The question that was asked was whether in the circumstances, as described by the solider, the shooting was justified.

As in many judgments, the main examination performed by the court focused on whether the shooting complied with the Open-Fire Regulations. The court uses the military Open-Fire Regulations as an indication for reasonable conduct by soldiers – although the courts always reserve the right to determine that a certain conduct did not amount to negligence, despite some deviation from the regulations (or vice-versa, that conduct was negligent despite complying with the military’s internal regulations). Thus also the Supreme Court focused on the Open-Fire Regulations. These allow under certain circumstances the use of live rounds as part of the “suspect arrest procedure”; however, permission to use firearms to enforce arrest is limited only to instances of suspects who come under the military definition, presented by the court in its judgment, whereby:

4. “Suspect” – a person regarding whom there is reasonable cause to assume that he or she committed, aided and abetted, attempted or was en route to commit a dangerous crime.

Attention! There must be suspicion based on facts, figures or reliable information, subject to conditions of time and place. Vague suspicions, feelings or guesses are insufficient.

5. “Dangerous Crime” – a crime which presents a real risk to a person’s life or body such as: murder, illegal gun possession, membership in a hostile organization or activity in such in a manner which may pose a risk to human life or bodily integrity, stone throwing at a person or vehicle where actual danger is present and the arrest is made in real time, and deliberately causing damage to property in relation to security and in a manner which may risk human life or bodily integrity.[1]

The suspicion must be based on facts, figures or reliable information and vague suspicions, feelings or guesses are insufficient. What were the facts and figures in the possession of the officer who shot Sha’anubi? Well, the officer had intelligence information according to which some wanted individuals whom he was to arrest, were located in that part of the village. However, obviously, other individuals were also expected to be in that area. It is, after all, an inhabited community, in the early afternoon, not a distant, abandoned area late at night. The officer also testified that Sha’anubi matched the general description of the wanted suspect with respect to “age, gender, etc.” – undoubtedly highly distinctive identifying details. Finally, Sha’anubi tried to flee! And this was the nature of the officer’s suspicion, as brought in the judgment: when the officer was asked “What offence did you think he was suspected of?” he replied, “That he was a suspect and could be the suspect we are looking for, who belongs to a hostile organization, and the he was fleeing the spot”.[2] In other words, the officer had no real fact that could have linked any of the wanted suspects to the person he shot. He had no item of data that could have established reasonable cause to assume that the person before him had committed a serious crime. Indeed, the lower court ruled that the officer breached the Open-Fire Regulations and was negligent in shooting at Sha’anubi.[3]

The Supreme Court, in the words of Justice Grunis and with the assent of Justices Rivlin and Hayut, overturned the judgment. The Supreme Court granted the appeal, ruling that in the circumstances of time and place, the plaintiff’s gender, general age, presence in a specific area of the village and the fact of his flight were enough to provide the “facts, figures or reliable information” sufficient for the soldiers to conclude that he was the person they were after and hence justify firing at him. Or, as Avigdor Feldman put it, the Supreme Court ruled that “a fleeing Arab is a suspect Arab”.[4]

For caution’s sake, Justice Grunis ruled that even if there were some deviation from the Open-Fire Regulations in that case (while stressing that in his opinion, the officer fully complied with them), this deviation was within the scope of “a reasonable margin of error”, which must be permitted under the stressful conditions in which the soldiers operated, and that it did not render the shooting negligent.[5]

One might have expected the court to stand for the protection of human rights and the restraint of force. Yet, in the Sha’anubi case, the justices emptied of meaning even the self-imposed restraints the military undertook in formulating the Open-Fire Regulations, and thus released the checks on the use of force. It is hard to shake off the feeling that the endorsement given by the justices to the trigger-happy occurrence is related to the identity of the person on whom the weapon was aimed. Would the court have reached a similar result if it were a police chase on a summer’s afternoon at the outskirts of one of the kibbutzim in Israel, a chase culminating in the severe injury of a kibbutz member who was scared by the police officers into fleeing and whose general age and gender corresponded to those of a criminal on the run?


Adv. Yossi Wolfson
The author is an attorney and an activist for human and other animals’ rights. Formerly on staff at HaMoked: Center for the Defence of the Individual.


[1] 
CA 7995/02 Military Commander in the Judea and Samaria Area v. Sha’anubi (2007), judgment of September 25, 2007, para. 5; emphases are in the Open-Fire Regulations themselves.
[2] 
Ibid., paras. 3 and 5.
[3] 
CC (Hf) 993/98 Sha’anubi v. Military Commander in the Judea and Samaria Area (2002), judgment of July 16, 2002.
[4] 
See Avigdor Feldman, “Tin People” (October 3, 2007), from his blog, Local Poetry (in Hebrew).
[5] 
See above note 1, para. 5.
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