The Azaria verdict (Vic Rosenthal)

 Vic Rosenthal's Weekly Column

At 10 AM on Wednesday, a military court handed down the verdict in the manslaughter trial of Sgt. Elor Azaria, called by the media “the soldier who shot in Hevron.”

10 months ago, Azaria shot and killed an Arab terrorist who was lying on the pavement, several minutes after the terrorist was shot and wounded while stabbing another soldier, who was lightly injured.

The IDFs rules of engagement stipulate that deadly force should not be used in such circumstances (considered “law enforcement” rather than war) unless there is an “immediate threat to life.” Azaria said that he thought there was such a threat, that the terrorist could have been wearing an explosive vest under his jacket. 

He was initially charged with murder, but the prosecution decided that it would be difficult to prove premeditation. The manslaughter charge only requires a deliberate, wrongful killing. He could be sentenced to as much as 20 years in prison; but probably he will get much less than that.

In Israeli military court there are three judges, one of whom is the head judge, a professional who is appointed by the President of the state, on recommendation of the Judicial Selection Committee, like civilian judges. The other two can be officers who may not have a legal background. In this case there were two professionals and a field commander. Cases are decided by a majority vote. There are no juries.

The verdict and the penalty turn on whether the judges believe Azaria’s testimony. They could have decided that he lied, or that he was telling the truth but should have acted differently, based on the information available to him. Or they could decide that he told the truth and that his action was justified. 

The trial has been the  biggest thing in the media for the past months, bigger than all the countless sexual harassment scandals put together. The country is strongly divided about the appropriate response to Azaria’s act, ranging from jail time to a medal. Before the verdict was announced, there were rowdy demonstrations in his favor outside the courtroom (which had been moved to a more secure location and closed to the public). 

It’s important in this connection to note why the incident became a media circus. The shooting was videotaped by an activist for the left-wing NGO B’tselem and the tape shown over and over by the media. What would probably have been a simple matter – one way or the other – became a national affair.

I’m not going to discuss all the evidence that has been presented, such as whether he heard a paramedic at the scene call out “watch out, he has a suicide vest,” whether shooting might detonate the vest, whether the terrorist had already been checked, and more. The trial went on for 6 months, and a great deal of testimony was presented. The court’s opinion will cite the facts that the judges found important in reaching their decision.

My guess before the announcement was that he would be convicted – that the judges would decide that a reasonable soldier would not have fired, given the facts and the rules of engagement. I also thought that the sentence will be relatively light, in consideration of the pressures on the soldier.

***

At exactly 10 AM, I turned on the radio. Israel Radio’s reporters repeated the words of the head judge, Maya Heller, as she read the verdict (the court did not permit the proceedings to be broadcast, so a reporter inside transmitted her words by WhatsApp to the broadcasters outside). Because there is a requirement that an innocent defendant must be informed immediately, the fact that there was no such announcement at the beginning – the whole judgment took 2-1/2 hours to read – told the story. 

Elor Azaria was found guilty of manslaughter and conduct unbecoming of an IDF soldier.

The judges did not believe him, and the judgment was unrelievedly harsh. They rejected every one of his points of defense. They did not accept his explanation that he was afraid the terrorist had an explosive vest or that he was reaching for a knife. They found contradictions between various versions of Azaria’s story, and said that he appeared to be changing his story as he went along in order to improve his case. They gave significant weight to testimony that Azaria said “he stabbed my friend, he deserves to die” to another soldier immediately before the shooting. They did not accept arguments from a psychiatric panel that he suffered from PTSD or that he was significantly impaired by lack of sleep or other factors. They accepted the autopsy data that it was Azaria’s bullet that caused the terrorist’s death (and rejected the opposing view of former chief pathologist Yehuda Hiss, who did not examine the body). They did not credit the statements of several reserve generals who testified on Azaria’s behalf. Finally, they decided that the shooting was not merely an error,  but demonstrated “criminal intent.” Criminal intent!

I didn’t hear a word of excuse or understanding. The judges agreed with Chief of Staff Eisenkot and former Minister of Defense Ya’alon that the shooting was entirely unjustified. Had he been accused of murder, I believe that Azaria would have been convicted of that as well.

The punishment will be determined by the court and announced in about ten days. From what I heard from the judge, I suspect that I was mistaken in thinking that he will get a light sentence.

***

Something here is wrong. 

Of course, the IDF’s judges had no alternative. An army has rules, and Azaria broke an important one. His explanation that he felt endangered didn’t hold water, no matter how much one wants to support him. He knew what he was doing: killing a terrorist. The court was right about that and the best explanation for his motive was provided by his comment that the terrorist deserved to die. But it didn’t have to come to this.

Explaining his tough stance last April, Moshe Ya’alon said “Part of the power [of the IDF], as many have described it — Ben-Gurion, Menachem Begin and others — is our ethical strength. We aren’t Daesh.”

We aren’t. But we also aren’t a people who would send a soldier to prison for killing a terrorist. There is a feeling in Israel that has become sort of a slogan in this case, that our soldiers are everyone’s children. How can we abandon our children? Chief of Staff Eisenkot disagrees. Yesterday he said this:

An 18-year-old man serving in the army is not “everyone’s child.” He is a fighter, a soldier, who must dedicate his life to carry out the tasks we give him. We cannot be confused about this.

He’s both right and wrong. A young man who is a soldier does have to dedicate his life to – and sometimes lose it for – his country and his people, at least for the 32 months of his service. But he is still “everyone’s child.” Ya’alon said that part of our power comes from our “ethical strength,” but it also comes from the way we love our soldiers – and our army. There are many who would like Israel to have a professional army, but this hasn’t happened yet (and I think it would be a disaster). 

Among the most troubling aspects of this case were the statements condemning Azaria’s act made by Eisenkot, Ya’alon, other officers, and even PM Netanyahu (who later changed his tune) immediately after the B’tselem video was made public. Eisenkot and Ya’alon later said that it wasn’t the video that convinced them, that they already had received evidence from the chain of command – but surely it had something to do with their making public statements of this sort (in the US, this would be grounds for appeal).

Indeed, this is where everything went off the rails. Elor Azaria should have had a hearing with his commanding officer, and maybe gotten a weekend of guard duty and an explanation of the rules. Instead, thanks to a video camera probably bought with European money, another kind of soldier, one fighting the cognitive war against Israel, threw the nation into chaos. As usual, we walked right into this.

The distinction between law enforcement and war becomes blurred when terrorists are stalking us – and especially our soldiers and police – in the streets, with every day bringing reports of stabbings and vehicular attacks, as was the case when Azaria killed his terrorist. No, Azaria’s wasn’t a split-second decision where hesitation could be fatal, as the court noted, but our soldiers and police do face such decisions on a daily basis. Could not this verdict deter them from taking action in a situation that isn’t so clear-cut?

Soldiers don’t make good policemen anyway. They are trained to kill the enemy, not to detain suspects who have rights. Enemy soldiers in a firefight don’t have rights. 

And we mustn't forget that in the eyes of our enemies in today's asymmetric war, no Jew in the Land of Israel, from a baby to an 80-year old grandmother, has a right to live. Possibly if the nation had an official death penalty for terrorism, soldiers wouldn't feel the need to take the law into their own hands.

In this kind of war, is the principle that a terrorist deserves to die a bad one?

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