A/HRC/40/43 Despite the disparity between the gravity of the conduct and the charges advanced, the State Attorney’s Office decided to withdraw the indictments against the two soldiers on 4 June 2018. According to reports, the two soldiers advanced a notion of “selective enforcement” in their defence, on the basis that there had been no indictments in similar cases in which Israeli security forces had shot and killed Palestinians. 34 The State Attorney’s reasoning for the decision to withdraw the indictment was reportedly based on the fact that the accused soldiers had not actually violated the open-fire regulations that were in force in that particular part of the West Bank at the time of the shooting, as also confirmed by prosecution witnesses.35 The case illustrates the significant concerns regarding the Israeli military justice system, which focuses on the responsibility of soldiers and the closure of cases based on the lack of reasonable grounds for suspicion of criminal behaviour, while overlooking the responsibilities of military commanders and policymakers. 36 In addition, the case also raises serious questions as regards the conformity of the applicable open-fire regulations with international law.37 20. On 19 August 2018, the Israeli Supreme Court accepted the State prosecution’s appeal against the light sentence imposed on Border Police Officer Ben Deri, charged with killing 17-year-old Palestinian Nadeem Nuwara in 2014 in circumstances where the youth did not pose any threat to Israeli security forces. The Supreme Court doubled the lower court’s prison sentence to 18 months. The Supreme Court justified the harsher sentence, inter alia, on the grounds of the officer’s intent to cause harm even if he did not face any danger. Despite the Supreme Court decision, the sentence still appears to be incommensurate with the gravity of the offence, namely the killing of a child who did not pose a threat to life or of serious injury to the officer. 21. The case of Sergeant Elor Azaria, an Israeli soldier convicted of manslaughter for shooting the already-incapacitated Abdelfattah al-Sharif in the head after the latter had allegedly stabbed an Israeli soldier in Hebron in March 2016, continues to be of grave concern. His already lenient initial sentence of 18 months’ imprisonment issued in February 2017 was reduced to 14 months by the Israel Defense Forces Chief of General Staff in September 2017. On 8 May 2018, the media reported that the sergeant had been granted early release after having served two thirds of his sentence, that is, after nine months. 22. These cases are emblematic of a pattern of killings of Palestinians who did not pose a threat at the time they were shot, as corroborated by eyewitnesses and additional evidence, such as video footage, and in which the perpetrators were known. At the same time, these cases remain exceptions, as they led to an indictment, despite some serious flaws in the investigations.38 The vast majority of investigations into killings of Palestinians by Israeli security forces were closed by the Military Advocate General without further action. 39 23. On 18 June 2018, Israeli media sources reported that the Military Advocate General had decided to close the case against the Israel Defense Forces commander who shot into a Palestinian car on 21 June 2016, killing 15-year-old Mahmoud Badran and wounding four others, including three other children. 40 While the commander of the force had allegedly acted based on the assumption that the occupants of the car were involved in an earlier 34 35 36 37 38 39 40 See www.btselem.org/press_releases/20180610_samir_awad_case_whitewashed. See www.haaretz.co.il/blogs/johnbrown/BLOG-1.6140314 and www.haaretz.co.il/blogs/johnbrown/BLOG-1.6175907 (both in Hebrew); Yotam Berger, “Israeli soldiers indictment over Palestinian’s death to be quashed”, Haaretz (5 June 2018) (in English); and https://news.walla.co.il/item/3163565 (in Hebrew). A/71/364, para. 40, A/HRC/34/38, para. 42, A/HRC/35/19, para. 20, and A/HRC/37/41, paras. 9–16. These regulations are not publicly available. See www.adalah.org/en/content/view/9264. As shown by OHCHR monitoring of the trial in the Nuwwara case; for Awad’s case, see https://mekomit.co.il/%D7%9B%D7%AA%D7%91%D7%90%D7%99%D7%A9%D7%95%D7%9D-%D7%A1%D7%9E%D7%99%D7%A8%D7%A2%D7%95%D7%95%D7%90%D7%93/ (in Hebrew). See www.btselem.org/publications/summaries/201605_occupations_fig_leaf and https://mfa.gov.il/MFA/AboutIsrael/State/Law/Pages/New_investigation_policy_Palestinian_casualti es_IDF_fire_Judea_Samaria_6-Apr-2011.aspx. A/HRC/37/41, para. 21. 7