Analysis

As Army Tries to End Affair, Hebron Shooter's Lawyers Prepare for Another Round

With a lenient sentence for shooting a wounded Palestinian attacker, the IDF seeks a quick end to the affair. But that would require the help of politicians, Azaria's family and his lawyers.

Elor Azaria during his sentencing hearing, Feb. 21, 2017.
Moti Milrod

It’s impossible to ignore the gap in language and tenor between the verdict in the trial of Elor Azaria, the soldier convicted in January of shooting and killing a wounded, prone Palestinian assailant, and the sentence passed on Tuesday.

In the verdict, the judges stressed how Azaria’s version of events changed during questioning and the trial, and deemed his testimony unreliable, inconsistent and convoluted. On Tuesday, along with the expected statements that the shooting contravened the IDF doctrine of “purity of arms” and went against the rules of engagement, an entirely different rhetoric emerged with regard to the Palestinians assailant, Abdel Fattah al-Sharif, whom Azaria killed. From just an ordinary terrorist, Sharif became at sentencing one of “a pair of contemptible terrorists” who had committed a “low and despicable act” when they attacked and injured an IDF soldier.

This gap is also reflected in the dissonance between the harsh condemnations of Azaria in the verdict and the relatively lenient sentence, considering the offense – a year and a half in prison. It is clear that the judges, like the entire military system, want to put the affair behind them. The standard of values was set, to their way of thinking, by the very decision to convict Azaria despite political and public pressure, and in ruling that his act went against IDF values.

Now their intention seems to have been to seek a quick end: a relatively short prison term, the possibility of a subsequent reduction of the sentence, and simply an end to the story. This is the army’s way of trying to limit the damage done by the affair to its relationship with Israeli society: the broad public support Azaria received, the tongue-lashings inflicted by politicians on officers, the violence of demonstrators outside the courthouse.

Ostensibly, the sentence gives the army quite a bit of leeway. The head of Central Command, Maj. Gen. Roni Numa, can decide to reduce it. It can also be decided that Azaria’s prison term will include the 11 months he has already spent in “open detention.” Under those circumstances, he could be out in a few months, if not weeks. That is the direction sought by Defense Minister Avigdor Lieberman, who is pressuring the army brass to make a decision in this spirit since the day Azaria was convicted.

But to reach the resolution the army intends, there has to be peace and quiet on three fronts – the politicians, Azaria’s family, and his lawyers.

At the moment it seems that none of the above are cooperating with the army’s intent. Ministers and MKs bombarded the media with calls for a presidential pardon from the moment the sentence was announced on Tuesday afternoon. Clearly most of them are doing this without the slightest interest in required procedure. In fact, the president rarely intervenes immediately to overturn sentences. Neither Azaria, his parents nor his attorneys have approached President Reuven Rivlin with a request for a pardon. And a request from the military for a presidential pardon has to go through the military advocate general, the head of the Manpower Directorate, the IDF chief of staff and the defense minister, and nothing has been done in this direction either.

Not only has the family not approached the president, Azaria’s attorneys have signaled that they intend to go in the opposite direction and appeal the sentence. That is a risky gamble. Higher courts can issue a harsher sentence. This would not be the first time the question arises as to whether the good of the client necessarily dovetails with drawing out the affair – and with it the huge exposure his attorneys receive as a result.

Public exposure of trial will follow Azaria his whole life

After the sentence was announced, commentators in some media outlets said the aggressive line taken by Azaria’s PR people and his attorneys had proven itself. They were roundly defeated in the conviction, but were able to frighten the judges and the military enough to get Azaria out of the trial with a lenient sentence, even before appeal. That is a somewhat simplistic viewpoint, too tactical, because it focuses only on the punishment. The question is whether the cost – instead of a quicker plea bargain – was worth it to Azaria, who had to bear the burden of intense media coverage during the trial. The public exposure he received will follow him for his whole life.

The Azaria affair comes up frequently when senior officers pay visits to combat units. Almost all the combat troops have come to the same conclusion. Most of them say they understand that Azaria’s action was wrong, but they expect military justice to go easy on him. They believe the attitude toward Azaria at the beginning – the handcuffs, the condemnation by the defense minister and IDF spokesman, the fact that a charge of murder was under consideration – was too harsh. And they ask themselves if they will be supported if they make a similar mistake. A survey by the IDF’s behavioral sciences department last year showed that only 41 percent of combat soldiers believe they would be backed up if they made a similar mistake.

These are the serious, internal implications of the affair for the army, which the General Staff will have to try to limit. When the legal discussions end, a clear statement by Chief of Staff Gadi Eisenkot to the soldiers and their parents will be needed: What the army expects from its soldiers in the territories and how the army will respond when soldiers deviate from orders. These are the messages that are conveyed in visits by senior officers to the units, but they have not been made sufficiently clear to the public.

The Azaria affair revealed rampant extremism in Israeli public opinion and a large gap between the positions of the public and the army. The court, showing a certain amount of legal acrobatics, tried to bridge the gap in the sentence it passed on Tuesday. But the main work will have to be done by the chief of staff and the generals down the road, to prevent a situation in which the execution of a wounded, neutralized enemy is considered an act that somehow can be defended and justified.