The High Court of Justice rejected a petition on Monday night to reexamine a military court plea bargain that would give an Israeli soldier three months of community service for the wrongful shooting of two Palestinians, one of whom died, saying it did not have justification to intervene in the case.
According to the indictment, Alaa Ghiyada, 38, was shot in the stomach multiple times by the soldier in March of this year. The soldier, who has not been identified publicly, said that he had incorrectly believed he was throwing rocks at passersby. Ahmad Manasrah, 23, arrived on the scene and attempted to help Ghiyada before being shot and killed by the same soldier.
“There’s no doubt that this is a difficult event, one whose consequences were tragic. Nor does anyone dispute that in retrospect this turned out not to be a terror incident,” Judge Menachem Mazuz wrote in the court’s ruling.
Under the proposed plea bargain, the soldier would plead guilty to the military’s equivalent of negligent homicide and would be sentenced to three months of unpaid military service, probation, and a demotion to private. The soldier would also not be charged at all for shooting Ghiyada.
Ahead of the plea deal, several high-ranking former military officers submitted testimony that the soldier’s actions were not malicious as he believed he was preventing a terror attack.
But the plea bargain infuriated Ghiyada’s and Manasrah’s families, who deemed the sentence far too light. Along with attorney Shlomo Lecker, they filed a petition seeking the High Court’s intervention before the deal could be approved by a military court.
As the High Court session finished discussing the case at a hearing two weeks ago, Mazuz asked Ghiyada to stand up. The court, the judge informed Ghiyada, would likely reject the petition.
“Everything is dwarfed by the horrible thing that happened,” he told Ghiyada, who appeared utterly exhausted and refused to speak to reporters outside the court. “There’s no way to take it back…but we are formally prohibited from intervening.”
Mazuz added in the court’s ruling Monday night that established precedent has imposed strong procedural limits on the High Court’s ability to interfere with the decision by military prosecutors to seek such a low sentence.
According to Mazuz, the petition comes both too early and too late: too early because the military court has yet to rule, and too late because the military prosecutors have already conducted their investigation and filed their indictment.
The judge added that the soldier may have acted recklessly, but that the army’s investigation had been “comprehensive and intensive” despite the sensitive circumstances.
“It is not possible to assert that he acted with criminal intent; that is to say, that he committed an action intended to harm the innocent,” Mazuz wrote in his ruling. “In this circumstance, there is no justification for judicial interference in the defendants’ decisions and their considerations.”
Human rights groups in Israel have often accused both the military and judicial system of failing to sufficiently hold troops accountable for crimes committed against Palestinians.
The issue came to the fore in 2017 when a soldier, Elor Azaria, was sentenced to 18 months in prison after being found guilty of manslaughter for the killing of a wounded Palestinian assailant roughly 11 minutes after he’d already been shot and subdued. The sentence was later commuted by the Israel Defense Forces chief of staff at the time, Gadi Eisenkot, and Azaria was released after less than nine months in prison.
On March 19, 2019, the night of the incident, the soldier who shot Ghiyada and Manasrah was stationed alone in a pillbox on a road leading toward Bethlehem, close to an unstaffed checkpoint. The IDF later claimed that troops stationed in that area had been warned earlier that day about the possibility that a terror attack could be carried out in the area.
According to court filings, the Ghiyada family — 38-year-old Alaa, his wife 34-year-old Maysaa, and their two daughters — were traveling on the road in their car and had a small collision with another vehicle. Alaa pulled over near the pillbox at approximately 9 p.m. and began waving his arms at the other vehicle, which sped away.
“He tried to start the car, but the engine wouldn’t start. So he got out. As soon as he got out, shots rang out. I was confused and very frightened. My two little girls also started screaming and one of them threw up,” Maysaa Ghiyada told the B’Tselem rights group.
According to the IDF, the soldier “believed [Ghiyada] was throwing rocks and endangering Israeli cars traveling along the roadway.” The indictment formulated by military prosecutors states that the soldier — a new immigrant from Colombia — first fired two warning shots in the air and called for Ghiyada to stop.
“Subsequently, and since [the soldier] believed that Alaa continued to throw stones and endanger the Israelis passing in the area, despite his warnings, the defendant fired a number of shots toward Alaa…wounding him in the abdomen,” the indictment states.
Manasrah, a resident of Wadi Fukin, was in a car with three other people on their way home from a wedding in nearby Bethlehem. They saw Ghiyada’s wife calling for help and pulled over. When they saw his condition, they called an ambulance.
Realizing time was short, the other three people in the car — including Manasrah’s cousins Ahmad and Wahib — helped Ghiyada into the vehicle and sought to drive him to a nearby hospital for treatment, while Manasrah stayed behind to help the rest of the Ghayadah family get out of the area safely, according to court filings.
According to the IDF, the soldier mistook Manasrah for Ghiyada and again began shooting as Manasrah attempted to flee the scene.
The soldier’s bullets struck Manasrah three times, according to court filings. Manasrah’s cousins both testified independently that only about three minutes from from the moment they saw the Ghiyadas’ car to the moment the final shot rang out.
In the High Court hearing earlier this month, Ghiyada’s attorney Lecker asked why the soldier did not attempt to use any other means before resorting to deadly force.
“There’s an arrest procedure for suspects. When are soldiers allowed to kill? Only in the event of an immediate threat to themselves or to those whom they are responsible for,” Lecker said, contending that the soldier’s circumstance in the pillbox did not rise to that level.
Lecker added that the soldier had allegedly fired at Manasrah as he sought to flee the scene — making the likelihood that there was a significant threat to his life even less likely.
Dozens of former senior military officials disagreed, however. In numerous affidavits submitted to the court, former generals defended the soldier’s actions as “done without malice…as he was convinced that he was preventing a terror attack.”
“The soldier believed that there was a lethal danger to passersby. He acted as he was expected to, implementing the arrest procedure against stone-throwers,” wrote Meretz MK Yair Golan, a former IDF deputy chief of staff.
Former defense minister Moshe Ya’alon, who faced far-right fury over his denunciation of the Azaria shooting incident, came out in support of the soldier as well.
“The clear interest of the army, as well as the public good, justify that [the soldier] not be tried,” Ya’alon wrote in a professional opinion submitted to the court.
The soldier’s lawyers praised the decision by the High Court to uphold the plea bargain.
“The deal that we have reached is balanced and will allow the soldier to begin his new path as an ordinary citizen without a stain that would unjustly weigh him down,” said his attorney Ron Cohen.