Last Thursday an indictment was served at the Military Court in Tel Aviv against Lt. Col. Omri Borberg and against the soldier under his command who at a range of less than half a meter, fired a rubber bullet at the legs of a shackled and blindfolded Palestinian.
Borberg, the battalion commander, did report the shooting to the brigade commander, who reported it to the division commander, but until the video that was taped by a Palestinian girl from the window of her home came to light, it was not exposed publicly - no one thought it was a grave incident.
Shooting a shackled and blindfolded person, who is clearly not endangering soldiers, and even shooting in order to frighten, or the threat to shoot in order to frighten, and not even directly at the person's body but only in immediate proximity to him, are all acts forbidden by law, whether military or civil, during times of both war and peace, in Israel or anywhere else where respect for human rights exists. To ensure that the prohibition against shooting a shackled person will be clear and unambiguous, the chief of staff should have made an example of the shooting at Na'alin - even if the result of the shooting was only a slight injury to the Palestinian's foot.
However, instead of a strong statement by the chief of staff, instead of the expulsion of the battalion commander from the Israel Defense Forces, a deal was cut whereby Lt. Col. Borberg would be removed from command of the battalion, transferred to another position and tried in the military court on the relatively light charge of "unworthy conduct."
The explanations for this are varied. Some say that the prosecution would have found it difficult to convict the battalion commander of a more serious violation, because he did not give an explicit order to shoot. Others argue that it suffices that his promotion trajectory has been stopped - through no fault of his own - and there are those who say that a battalion commander in the armored corps should not have been engaged in dispersing demonstrators in the first place, and the compromise is intended to spare embarrassment from his more senior commanders and from the IDF as a whole.
The picture emerging from the indictment as formulated is that the utter prohibition on shooting a shackled individual has not been instilled and has not been internalized. The soldier did not view an order to shoot, if he received one, as a blatantly illegal order. The commander did not understand the illegality in the threat to shoot a person in shackles. The battalion commander said - according to the indictment - in order to frighten the Palestinian: "What do you say? Shall we take him aside and shoot him?" and the soldier replied: "I have no problem shooting rubber [bullets] at him."
The commander said: "Insert a bullet," and the soldier said, "I have one in the barrel," and fired. Only after the soldier had fired did his commander clarify to him that "one doesn't shoot a person who is tied up."
The decision to try the two on a relatively minor charge sends a message to soldiers that the IDF is prepared to close its eyes, at least partially, and is not outraged, as might be expected, at the shooting of a shackled person.
Transferring Lt. Col. Borberg to another position in the army is a wink to soldiers that hints that perhaps in the future, when the tempest blows over, the officer will find his place in the command chain anew. The opportunity to send a message of total intolerance of shooting a person in shackles has been missed.
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