The Police Investigations Department on Wednesday informed the policeman who shot and killed east Jerusalem special-needs resident Iyad Halak on May 30 that he will likely be charged with Israel’s equivalent of second-degree murder.
The policeman, whose name is under gag order, will still have a pre-indictment hearing where he can try to convince the department to drop or reduce the charge.
The May 30 police shooting of Halak led to huge criticism of the police, and even Prime Minister Benjamin Netanyahu admitted the shooting was a mistake.
If found guilty of second-degree murder, the policeman could be jailed for up to 12 years.
Halak was shot dead after fleeing into a garbage disposal room, bolstering the suspicion that the shooting was far more than a mere act of negligence.
According to a Justice Ministry statement, because of his special needs which were unknown to the officers, Halak had exhibited suspicious behavior that seemed to justify deterrent action against him.
Until Wednesday, there was speculation that the policeman who killed Halak might get leniency. The original police unit that spotted Halak suspected he might be a terrorist, and as the policeman saw his commander try to shoot at Halak while chasing him, there may have been mitigating circumstances.
When Halak fled the Lions’ Gate area, several groups of police officers followed him with the understanding that he had been flagged as a terrorist. One officer said that as he and colleagues ran multiple blocks to catch Halak, he even fired at his lower body to try to prevent him from getting away, but those shots apparently missed.
The ministry said that the officer would not be charged, as the circumstances were viewed as unclear, and he aimed only for Halak’s legs.
However, when the officer arrived at the garbage room and saw the colleague who eventually killed Halak and will likely be charged standing over Halak, he twice ordered him not to shoot.
But the shooter ignored both orders, one coming before the first shot, and one coming between the first and the second shots.
In contrast, the officer who killed Halak has said he did not hear any order to hold fire but he had heard that Halak was declared a terrorist and he had seen his commander fire at Halak as they chased him down the street.
The department’s decision indicates that either it did not believe the shooter, or found that his actions went beyond what was reasonable under the circumstances.
It said that Halak presented no danger, that the shooter was ordered clearly not to shoot, and that he fired in a deadly manner without cause.
The policeman who killed Halak is not being charged with first-degree murder, because of the unique operational circumstances in which he believed he was shooting a terrorist and considered, however unreasonably, that he was upholding public safety.
THE DECISION not to charge Halak with murder drew criticism from NGOs such as Adalah, and MKs of the Joint List.
They said that the circumstances were so blatant that Israel should not be praised for charging the policeman with an equivalent of second-degree murder.
Moreover, they accused the state of failing to charge dozens of others in recent years who illegally killed Palestinians or Arab-Israelis, using an overly broad justification of empowering soldiers to defend themselves – even when there was no danger.
There was also a clear undertone of mistrust that between now and the verdict, the charges will be reduced, as has occurred previously.
Finally, there is suspicion that the absence of video footage of the actual shooting is part of a cover-up, although the ministry said that the video camera in the garbage room had been disconnected a full day before the incident.
At the same time, the department said that there were two east Jerusalem Arab witnesses along with the police commander who saw the shooting.
Two Jewish civilians have been charged with murdering Palestinians in recent years, but IDF soldiers and police are usually not charged, or are charged with lesser offenses, such as negligent homicide. Prosecutors say that there are still far more attempted terrorist attacks than there are cases of mistakenly killing innocent Palestinians.
The question had been whether the department would decide to indict the police officer who killed Halak for anything from murder to manslaughter to negligent homicide, or even close the case, based on how reasonable it was for the shooter to believe that the unarmed Halak posed a threat.
While there is no exact equivalent between Israeli and US law, the charge is closest to second-degree murder, a charge that was created in Israel only in July 2019.
The idea of the new charge was that there were too many cases where extenuating circumstance prevented prosecutors from filing a charge of premeditated murder, but where dropping to the much lighter charge of manslaughter seemed to be too lenient.
In another twist, the ministry said that between the first and second shots, the shooter asked a Palestinian female bystander where Halak was hiding his gun, to which she replied, “What gun?”
Immediately afterward, the shooter shot Halak again.
Supporters of the shooter have noted that the Lions’ Gate in the Old City, where the incident occurred, has seen many attacks by east Jerusalem or West Bank Palestinian residents on police officers.
It is also possible that the original police officer who declared Halak a terrorist breached protocol, as he could have issued a warning before jumping to the most dangerous conclusion merely based on suspicions that Halak was concealing a gun.
The ministry statement did not indicate any probe of whether that officer’s initial warning was unwarranted.
Justice Minister Avi Nissenkorn said that even as the country must support its soldiers, it must also ensure that they do not depart from ethical norms.