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A Chain of Errors: CC (Jer.) 2347/04 Abu Judah v. the State of Israel (Judgment of August 17, 2008)
Court Watch | 2347/04 | 1.10.2013 | Adv. Yossi Wolfson
The time: Friday, February 22, 2002 at about 2:20 P.M. The place: The village of Beit Umar near Hebron. Murad Abu Judah, 13 at the time, was playing war games with his friends: He was an Israeli soldier and his friends were Palestinians. Murad held a plastic toy rifle which he had bought earlier in the day and “fired” at his friends. While the children were playing, Israeli soldiers entered the area. The toy rifle, which had turned Murad into an Israeli soldier in the game, made him a legitimate Palestinian target in real life. One of the soldiers shot Murad with the intent of killing him. Murad suffered a severe leg wound; after a lengthy hospitalization, his leg was amputated.

If we accept the analysis of the facts offered by Jerusalem Magistrates Court Judge David Mintz in the Abu Judah case, Murad’s serious injury was the outcome of a tragic chain of errors. An Israeli who was driving on the road, a civilian serving in the army reserves together with the soldiers involved in the incident, mistakenly thought that shots had been fired at him from Beit Umar. He took out his hand gun and began firing. The soldiers, who were stationed at a nearby checkpoint, thought the driver was shooting at them and opened fire with a barrage of shots that penetrated the car and wounded the driver. A military force that arrived on the scene began a pursuit in the direction of the village, perhaps to locate the Palestinians whom the driver had mistakenly believed to have fired at the car. The soldiers caught sight of Murad playing and mistook him for an adult holding a real weapon and threatening them or passengers on the road. One of soldiers, with the permission of his commander, shot at Murad with intent to kill. Murad was evacuated by local residents and only in retrospect, when the soldiers reached the place where he had been standing, did they realize that the weapon (which remained at the scene) was a toy gun.

The bottom line: Judge Mintz determined that the soldiers’ grasp of the situation was reasonable given the facts before them, and that the shooting was justified in view of this understanding. At most, even if the soldiers failed to do what was expected of them, it was a failure that was within the range of reasonability, and did not amount to negligence. The judge even found that there was a basis for the state’s argument that it had immunity because the action of the soldiers was a “wartime action” which receives special immunity in Israeli law. In light of this, the judge rejected the civil claim and ordered the plaintiff to pay the state’s legal costs – however, in view of the tragic event, only part of the costs and not all of them.

Reading the judgment raises doubts with regard to the judge’s conclusions. Did the soldiers really act reasonably upon examination of the facts before them? Did they employ appropriate caution in shooting the child? Regarding these questions, we should keep in mind that this is a civil claim against the state, rather than a criminal charge against the soldiers for deliberately causing injury. Whereas in classic criminal charges, a person is not criminally liable for an act they committed on the basis of a genuine error in assessing the situation, liability in torts depends on how reasonable the conduct was. Indeed, the reasonability of a person’s conduct is examined in the context of the concrete circumstances of the event, including the information available to the person who committed the harmful act and that person’s own special characteristics (such as special training), but in principle, this is an objective test which balances between values and the interests of all parties involved in the incident in which the harm was caused.[1] In our case, therefore, the question is not whether, when we put ourselves in the shoes of the soldiers, we can feel empathy for their actions since they are only human beings who can err. The question is whether from the point of view of the social values to which we adhere, we should expect a trained soldier to take special caution before opening lethal fire inside a civilian community, given the facts that were established during the court hearing.

The bottom line of the incident alone – the severe wounding of a 13-year-old boy who had caused no harm to anyone and was left with a disability for life – arouses a strong sense that something was wrong here. This obviously need not make us Monday morning experts, but still, several additional disturbing facts emerge from the judgment.

First of all, it turns out that the two soldiers who opened fire were experienced and properly trained. One of them had served for more than three years in the army and was an officer (deputy company commander) in the lead company of Battalion 50. The company is described in the judgment as one “made up mostly of veteran combat soldiers with vast combat experience, high level personal abilities and extremely high operational capabilities”.[2] The second soldier had served in the military for more than two years, a member of the same company as the officer and served as his signal operator. One might have expected a high level of professionalism and discretion from such soldiers and for restrained and measured reactions which would not have been easily influenced by subjective panic.

Secondly, it emerges that the signal operator, who shot Murad, had spotted him from 200 meters away, not only with his naked eye but also with a telescope. In court, he described in great detail the weapon that Murad was holding: It looked like an M-16 with a bipod and something like a telescopic sight. Furthermore, it wasn’t a fleeting view while the soldier was in movement. The officer and the signal operator had observed Murad while lying in a sheltered place where they had taken cover. The officer testified that he had seen Murad “trying to take cover,” “playing ‘war games’, bending and kneeling. The signal operator said he saw Murad “was holding the weapon was soldier, combat like, and that he seemed to be engaged in urban warfare – hiding behind the side of a building and peeking out intermittently”.[3] It is not entirely clear how the two accounts fit together, but there is no question that the soldiers had enough time to look at the boy, with a telescope as well, to ascertain what he was doing and to note the details of the object he was holding. In these circumstances, the question arises as to how they thought the boy was an adult and had not the slightest doubt regarding his age and what he was doing. The judgment does not provide an answer to this question.

Third, Judge Mintz stated explicitly in his judgment that the soldier who shot Murad testified that his life was not in substantial or immediate danger while he was firing. At that point, there were no sounds of shooting. He found cover and did not see Murad aiming his weapon at him.[4] (On this matter, there are again contradictions between the accounts of the signal operator and the officer, who is quoted in the judgment as testifying that “It looked like he was aiming his weapon at us and at the road”). The soldier maintained that he had to open fire at the figure before he discovered his location and started shooting at him. Judge Mintz’s handling of this issue raises doubts. There is no dispute that the open-fire regulations prohibit shoot-to-kill as the first step in neutralizing a suspect in a dangerous crime. Nevertheless, the judge ruled “suspect apprehension procedure” did not apply when “the soldier, or persons the soldier is protecting, are in immediate grave danger”. As we have seen, the soldier himself testified that while he was shooting, he anticipated no such danger. Perhaps that was the reason why the judge expanded the exception and declared that the suspect apprehension procedure also does not apply “during combat, or when pursuing an armed terrorist who, according to the assessment of the unit in pursuit, has already carried out an attack and is about to carry out another”.[5] But was this really combat? Was it proven that the pursuing force had made a reasonable assessment that Murad “had already carried out an attack and was about to carry out another”?

Fourth, there are several discrepancies between the accounts given by the officer and his signal operator. I have mentioned two. A third one had to do with the question of whether, when they set out in the direction of the village, they already knew that bullets which struck the car were fired by Israeli soldiers rather than Palestinians. The officer testified that he already knew that when he reached the damaged car, but could not rule out the possibility that before the driver was shot, the incident which led to the soldiers’ shooting, there might indeed have been shooting by Palestinians. This testimony undermines the judge’s conclusion that the soldiers surmised that Murad “had already carried out an attack” or at least turns this conclusion into a vague, unfounded suspicion. The testimony of the signal operator offers an account which is the opposite of the officer’s: The signal operator maintained emphatically that the report they received did not state that soldiers were responsible for the (inadvertent) shooting at the car. The discrepancy between the testimonies of the two soldiers, especially combined with the contradictory testimonies referred to above, arouses suspicion that the soldiers tried (consciously or subconsciously) to “touch up” their description of the facts so as to justify their conduct.

Aware of the borderline (at the least) conduct of the soldiers, Judge Mintz determined, as an alternative reason for his decision, that “even if the soldiers had erred in their decision to shoot the Plaintiff without warning, it is a reasonable mistake in the circumstances, and does not amount to negligence. The reasonable soldier is not the perfect soldier. Even a reasonable soldier may err in exercising his discretion and make decisions that are not ideal. In circumstances in which he may err in exercising discretion, all that is required is for the error to be reasonable”.[6]

With all due respect, it is difficult to accept the judge’s conclusion. Even if we assume that genuine mistakes were in fact made every step of the way, it would seem that the chain of errors which led to the wounding of the boy, Murad, is indicative of a trigger-happy culture dictating each stage of the incident. In applying tort law, the role of the court is to determine the threshold of appropriate conduct expected of soldiers, which, if met, would minimize tragic mistakes like the one made in this case. Unfortunately, this kind of threshold of conduct was not established in this case. Perhaps this is another link in the chain of errors – a chain that began even before 2:20 P.M. on February 22, 2002 and regretfully, can be expected to continue in the future.

Adv. Yossi Wolfson
The author is a lawyer and activist for human and other animals’ rights. He was formerly on staff at HaMoked: Center for the Defence of the Individual.

For a discussion and ruling on this issue see CA 5604/94 Hamed v. State of Israel (2004), judgment of January 12, 2004.
CC (Jer.) 2347/04 Abu Judah v. State of Israel (2008), judgment of August 17, 2008 (in Hebrew), para. 8.
Ibid., para. 11.
Ibid., paras. 10, 23.
Ibid., para. 22.
Ibid. (02) 627 1698   (02) 627 6317

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