State prosecutors on Sunday called for the High Court to extend the sentence of a Border Police officer who shot dead a teenage Palestinian protester in the West Bank in 2014 in what was ruled to be criminal negligence.
Seventeen-year-old Nadeem Siam Nawara was shot during a Nakba Day demonstration in the West Bank village of Beitunia, near Ramallah, on May 15, 2014.
In April, border guard Ben Deri was sentenced to nine months in prison after being convicted of “causing death by negligence.” Deri used live ammunition instead of rubber bullets, and the court ruled he unnecessarily opened fire at Nawara, who did not represent a threat at the time.
The Jerusalem District Court ruled that the two months Deri had already spent in jail counted towards time served, meaning he will leave prison in approximately seven months — unless he is granted an early release by a parole board at the end of August, when he will have served two-thirds of his sentence.
In addition to his prison sentence, Deri was ordered to pay NIS 50,000 ($14,000) to Nawara’s family in damages.
In its appeal to the High Court of Justice, the state prosecution argued that the Jerusalem District Court’s sentence “does not sufficiently reflect the severity of the incident for which Deri was convicted.”
The appeal alleged that the Jerusalem court also did not take into account the “significant consideration” of Deri’s punishment serving as a deterrent to others against committing similar crimes.
“The lower court needed to set a much harsher sentence than it did,” lead prosecutor Yosef Esh wrote.
Deri was initially charged with manslaughter, with prosecutors arguing that he had deliberately used live rounds instead of rubber bullets. The charge was later reduced to the lesser crime of causing death by negligence, as part of a plea deal, under which Deri admitted to firing his weapon without justification but not to intentionally using live rounds.
While the district court noted that Nawara had previously thrown rocks during the protest, at the time of the shooting he was a considerable distance from the demonstration and posed no threat to Deri’s Border Police unit.
“Against protocol and despite the deceased not representing a threat to the unit, the defendant aimed his weapon at the center mass of the deceased’s body and fired at him with the intent to harm,” the lower court wrote in its sentencing decision in April.
The live round fired by Deri struck Nawara in the chest, causing him to collapse immediately. He was pronounced dead at a nearby hospital a short time later.
In its decision, the court said Deri’s apparent mistaken use of live fire required not one but two acts of criminal negligence. The method used by Border Police to fire large rubber bullets from an M-16 rifle requires the use of an adapter, known as a Roma, which is affixed to the gun’s muzzle. The rubber bullets are placed in the Roma and blank cartridges are loaded into the gun itself. The force of the explosion from the blanks is what propels the rubber bullets.
According to the judges, not only was a live round introduced into a magazine that was meant to hold only blanks — the court did not say how or by whom — but Deri negligently failed to notice that fact and also failed to load a rubber bullet into the Roma before opening fire.
“The defendant did not check that his magazine contained only blanks and did not load a rubber bullet into the Roma as required. These two oversights, which amount to gross negligence, caused the death of the deceased,” the district court wrote in April.
A second protester, Muhammad Abu Taher, 22, was also shot dead during the same demonstration and a third Palestinian was injured. Police closed those cases due to lack of evidence of wrongdoing.
In the appeal, Esh argued that the lower court focused more on the criminal negligence aspects of the case and less on Deri’s deliberate and unnecessary use of force, to which the border guard himself had admitted, the prosecutor noted.
“If the defendant had not deliberately pulled the trigger with the goal of injuring the victim, his acts of negligence would never have taken place, and the tragic result would have been prevented,” he wrote.
“The degree of guilt by the defendant in the case before us is of the highest level and is not limited to the negligent way in which he fired [his weapon]. This fact was insufficiently expressed in establishing the length of the sentence, and this caused an error in the lower court’s decision,” Esh said.
If the defendant had not deliberately pulled the trigger with the goal of injuring the victim, his acts of negligence would never have taken place
In the initial decision, the presiding judge from the lower court, Daniel Teperberg, said that Deri’s actions represented “serious and severe harm” to the Israeli social values of “sanctity of life and the human right to wellbeing.”
The judge noted the pain Nawara’s death had caused the rest of his family, especially his father, who testified during the trial.
“The deceased was an outgoing boy, involved in the life of his family and full of love toward it,” Teperberg wrote.
Nawara’s family had previously vowed to use every means possible to see justice served, including an appeal to the International Criminal Court.
The family of the Palestinian teen rejected the defense’s arguments that Deri had not realized he was using live ammunition instead of rubber bullets.
“There is a video that proves that it was murder in cold blood, and all the proof and the autopsy of the body say that Deri is the murderer,” Nawara’s father told Channel 2 news in December 2016. “We don’t need a plea bargain, we have 70 witnesses that were there, and hard evidence.”
In a letter to the prosecution, a lawyer for the family, Firas Asli, wrote that it was not clear why the plea agreement was pursued and why the “rights of the victims were being harmed,” according to Haaretz.
— adri nieuwhof (@steketeh) May 17, 2014
The four-year legal process was marred by numerous hearing delays and cancellations, and the dismissal of the first judge due to a connection to one of the witnesses, followed by a holdup in appointing a second judge. A new judge was finally appointed following a lawyers’ plea to spare the victim’s family from torment.
Deri, who was a commander in the unit, initially claimed that he had fired only rubber bullets. According to his initial version of events, he used rubber bullets in accordance with received orders. However, the indictment claimed police found evidence Deri had allegedly intended to fire live ammunition at the back of the deceased, even though he posed no threat, with the explicit intent to cause serious harm and possibly death. Deri was also accused of covering up his actions at the time.
Deri’s lawyer Tzion Amir negotiated the plea deal.