A military court approved a plea bargain on Wednesday which gives a soldier three months of community service for the wrongful shooting of two Palestinians, one of whom died.
According to military prosecutors, Alaa Ghiyada, 38, was shot in the stomach multiple times by the soldier in March on the side of a road near Bethlehem. The soldier, who has not been identified publicly, said that he had incorrectly believed Ghiyada was throwing rocks at passersby.
Ahmad Manasrah, 23, who arrived on the scene and attempted to help Ghiyada, was also shot by the same soldier and died of his wounds. All sides now agree no stones were thrown and that both Manasrah and Ghiyada were innocent.
Under the plea bargain, the soldier pled guilty to the military’s equivalent of negligent homicide and was sentenced to three months of unpaid military service, probation, and a demotion to private. The soldier was not charged at all for shooting Ghiyada.
The plea bargain infuriated Ghiyada’s and Manasrah’s families, who deemed the sentence far too light.
“The army is sending a clear message that soldiers who kill or wound Palestinians won’t be punished,” said the families’ attorney, Shlomo Lecker.
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.
A previous petition to the High Court by the families was struck down, with Justice Menachem Mazuz writing for the court that the justices had no authority to intervene. Lecker said that the families had no intention of appealing.
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.
“This is not a mistake, but a policy — a policy of covering up and protecting those who shot and killed without any justification, instead of protecting the victims. For Israel, Palestinian blood is worthless,” said the left-wing human rights group B’Tselem following the approval of the plea bargain on Wednesday.
But the defendant’s lawyers hailed the plea bargain as balanced in the context of the “very complex operational situation” in which they said the shooting took place.
“The approved plea agreement is fair and will allow the fighter to embark on his new path in civilian life without a stain that would have unjustly burdened him,” wrote the defendant’s lawyers, Ron Cohen and Shlomi Tzipori.
On the night of the incident in early March 2019, 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 said 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 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 and began waving his arms at the other vehicle, which sped away.
The IDF said that 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.
Palestinian witnesses on the scene denied hearing any warning shots, according to Lecker.
“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,” prosecutors said.
Ahmad Manasrah 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, Manasrah’s companions 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 Ghiyada 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 run away from the live fire. The soldier’s bullets hit Manasrah three times, killing him.
In their decision to approve the plea bargain, a three-judge panel ruled 2-1 that the terms of the deal — while not harsh enough in their view — did not justify judicial intervention.
The judges noted that there is a compelling interest in not intervening in plea bargains unless absolutely necessary, or else the institution would lose its force. While the judges agreed that the deal could have been harsher, the panel ruled that the plea deal did not meet that standard given the “complex operational situation” the solider faced that night.
“Most of the judges believe that the plea bargain reflects a legal middle ground which the sides reached after taking in all of the relevant considerations, and does not deviate from the bounds of reasonableness,” the majority wrote.
Lecker rejected that approach, arguing that the court was abdicating any responsibility for the instance.
“Sure, there is an approach which advocates for discretion in dealing with plea bargains. But that doesn’t mean it doesn’t happen at all,” Lecker said.
The judges also emphasized the general “good character” of the defendant, as attested by his commanding officer.
“The defendant is a young man, just beginning his life, without a criminal background. The aspects of rehabilitation for his future ought to be taken into consideration,” the majority added.
One judge, however, dissented, saying that the court had a compelling interest in handing the soldier some jail time rather than a suspended sentence, in order to deter future incidents. The judge — who was not identified in the ruling — suggested three months in jail.
“There’s no disputing that the soldier deviated from open-fire procedures, and shot recklessly within the framework of the military mission on his shoulders — especially when taking into consideration that he violated the body and life of the innocent, such an action demands a punishment,” the dissenting judge wrote.