John Sweeney is a BBC reporter who worked with James Miller in Chechnya, Kosovo and Zimbabwe. James taught his children how to surf. Sweeney wrote this article for the World Association of Newspapers.

James Miller - perhaps the best television documentary maker of his generation - was shot dead on 2 May 2003 while shining a torch onto a white flag and shouting "We are British journalists" as he and two colleagues approached an Israeli armoured vehicle.

Two years later the Israeli government has announced that the officer who killed James is to be charged with the minor offence of not obeying the rules of engagement - an outcome described by his widow, Sophy, as "an outrage". James had been in Rafah, perhaps the most dangerous part of the Gaza Strip, for more than two weeks, for a good part of the time basing himself in a private home that the Israeli Defence Force (IDF) called "the house of the journalists." On the last night of filming there had been some gunfire, mainly or exclusively from the Israeli armored personnel carriers, at Palestinian targets.

A long period of quiet followed, and then the troops in the personnel carriers addressed James and his reporter Saira Shah. (The pair had made two stunningly successful films in Afghanistan, winning many awards.) James’s camera recorded that the Israeli troops were calling out to them, not in Hebrew, but in Arabic. It is believed that they were from the Bedouin Desert Patrol Unit - Arab volunteers who fight for the Israelis for money. The Bedouin are not nervous Israeli reservists but battle-hardened volunteers who serve in Rafah for long periods of time.

They called out in Arabic: "Do you like Fairuz?" (a Lebanese folk singer) and: "Do you wear perfume?" (a catchphrase from an Egyptian sitcom). Saira Shah thought them so outspoken that they might have been high on something. There were two cameras recording the scene; James’s and that of a Palestinian stringer working for Associated Press TV News (APTN).

Two personnel carriers that had been in the area shut off their engines and switched off their lights. It’s an old soldier’s trick: to see in the dark you douse your lights and your natural night vision improves dramatically. You can see them; they can’t see you. Moreover, thanks to American military aid, the IDF has some of the best night-vision equipment in the world. The armored personnel carriers in Rafah routinely carry two rifles equipped with Aquila night-sights, which draw in the available light and give fourfold magnification. James and his team were sitting in a well-lit veranda. The soldiers in the personnel carrier would have seen them clearly with their natural night vision and brilliantly through their night-sights.

The IDF field report into James’s death remains confidential, but we have seen a leaked version. It clearly states that, after some shooting, the night fell quiet. James had been filming in the hope of recording the Israelis dynamiting one of the abandoned homes on the edge of the death strip, but it looked as though the IDF had stopped work for the night. The team decided to leave the house from where they had been filming and return to their (much safer) flat in the center of Rafah. It was the last day of filming.

They decided to be open and straightforward; to approach one of the personnel carriers directly and ask for safe passage. James, Saira and their local fixer Aboud headed directly for the vehicle, shouting in English and Arabic. Saira was holding a British passport, Aboud held a white flag on to which James was shining a torch. From the veranda, the APTN cameraman filmed the scene. On tape you can clearly hear that the night is deathly quiet. There is no sound of crossfire. Had there been any, the team would not have taken the risk.

They had walked about 20 meters from the veranda when the first shot rang out. The team froze. For 13 seconds, there is silence broken only by Saira’s cry: "We are British journalists." Then comes the second shot, which killed James. He was shot in the front of his neck. The bullet was Israeli issue, fired, according to a forensic expert, from less than 200 meters away. Immediately after the shooting, the IDF said that James had been shot in the back during crossfire. It later retracted the incorrect assertion about him being shot in the back. There was no crossfire according to all the non-IDF witnesses and there is none to be heard on the APTN tape.

Two years on from the shooting, the IDF has announced that the unnamed Israeli officer who killed James did so because he had seen a terrorist with a Kalasknikov one hour and a half before. The officer also admitted that it had been quiet for half an hour before he opened fire. The officer claimed that he did not see James - so that the killing appears to be an accident.

Sophy Miller said the family intended to bring a civil action for damages against the Israeli army and to seek a judicial review of the decision not to prosecute the soldier for murder. "To keep people waiting for two years only to deliver nothing is an outrage," she said.

"They presented it as if they have gone to every length to secure the truth, that they’ve left no stone unturned, but at the same time failed to even secure the evidence the night James was killed." The Miller family describes the killing as murder and accuses the army of ignoring, destroying or sabotaging evidence.

The soldiers in the vehicle were not asked to hand in their weapons for inspection until 11 weeks after the killing, and there is some evidence that the guns may have been swapped. The IDF have said the soldier concerned would not face more serious charges because of a lack of ballistics evidence. Sophy Miller said: "On the night he died there was a whole army unit who knew who killed him. If they’d been serious to get to the truth the guns would have been surrendered that night and not a month later."

"And now when they say the reason they can’t bring a prosecution is because the ballistics evidence doesn’t match, what does that tell you?"

The Miller family met the advocate general, Brigadier General Avichai Mandelblit, in Tel Aviv. He admitted that the lieutenant’s account was inconsistent and that the soldiers knew there were journalists there when the shooting took place. But General Mandelblit said the army was prepared to take disciplinary action against the lieutenant only for breaching the rules of engagement and "for his conduct during the investigation," which may mean lying to investigators.

Sophy Miller said the army investigators had expressed a strong suspicion that the lieutenant was guilty of illegally killing her husband. "We still have prosecutors who suspect and continue to suspect a commanding officer and who will only bring disciplinary measures because of an initial flawed investigative process," she added.

A BBC team investigating James’s death showed the APTN film of James’s shooting to a serving Israeli soldier. He noted that the television team did not look like Islamic terrorists and concluded: "That’s murder."