To overturn or not, the length of the sentence and the why and wherefore – these are the questions to be answered Sunday when the verdict is delivered on the appeals by the defense and prosecution in the case of Sgt. Elor Azaria. The sergeant has been convicted of manslaughter for shooting to death an already incapacitated Palestinian assailant in March 2016.
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Will his conviction for the death of Abdel Fattah al-Sharif in Hebron stand or be overturned? How many years in prison will he be sentenced to if the judges don’t acquit him? And most importantly, what values will frame the affair?
Only the five judges and their aides know for sure what the final verdict is, which they agreed on in broad strokes weeks ago but only signed toward the end of the week. A military court convicted Azaria and sentenced him to 18 months in prison. When we peel back the verdict’s thick layers, we are left with a question: If the crime was so serious, why is the penalty so light?
This week the army proudly announced a sentence of 12 and a half years for another sergeant who, with his company commander, stole weapons that were sold to civilians. The leaking of weapons from military storerooms to criminals is certainly a dangerous and nefarious act justifying a harsh punishment that deters.
But what kind of proportionality does the military justice system convey when it rules that smuggling lethal weapons is so many times more serious than lethally discharging one? That is, unless the message is that in a simple criminal case those who might be killed are Israeli Jews, while in the other case the person who was actually killed was an Arab.
The legacy of Kafr Qasem
The verdict in the lower court covered almost 100 pages. We may assume that the verdict in the appeal will be a few dozen pages longer, out of which no more than a few dozen lines and paragraphs will be remembered. The wisdom and polish of the wording will decide its shelf life when they update the phrase “black flag, coined by Judge Benjamin Halevy at the trial of the perpetrators of the Kafr Qasem massacre.
In that case, on October 29, 1956, the Border Police opened fire on Arabs returning from their fields; they didn’t know that a curfew had been imposed during the Sinai Campaign. Forty-eight civilians were killed. In his ruling, Halevy said: “The distinguishing mark of a manifestly illegal order is that above such an order should fly, like a black flag, a warning saying: ‘Prohibited!’”
Six decades have passed between the Kafr Qasem massacre and the Azaria case. The imaginary black flag that should stop a soldier from wondering whether he should carry out a patently illegal order has been eroded more by time than by use. The judges real task in the Azaria appeal is to send the black flag to the laundry and have it returned good as new.
Over the years, the most moral army in the world has given itself high marks for the existence of that black flag. But rarely have soldiers pointed to it as a reason not to carry out an order, and even less to lodge complaints against their commanders.
Still, waving the black flag has been good for everyone. Judge Halevy, who was drafted into the reserves from the district court bench as a colonel, progressed to the Supreme Court and from there to the Knesset. The penalties he imposed were lightened on appeal by a panel headed by Justice Moshe Landau.
Eventually Landau headed an inquiry into the Shin Bet security service’s investigation methods. The Bus 300 affair was in the background; Shin Bet members who ordered and carried out an execution of terrorists weren’t impressed by the court’s leniency in the Kafr Qasem case.
The Kafr Qasem case, after the Nuremberg trials of war criminals and people who followed orders, dealt with the obedient, unfeeling actions of the chain of command, from the sector commander to the squad commander to the privates who pulled the trigger. In the Azaria trial, the background is different. This was the individual initiative of a low-ranking soldier acting without orders from any officer and against standing instructions. The chain of command’s error was one of omission, not commission.
Alongside the presiding judge, Maj. Gen. Doron Piles, there are two other jurists as required, and with them two senior officers. The jurists are Jerusalem District Court Judge Zvi Segal and the president of the National Labor Court, Yigal Plitman. Plitman is considered an agreeable judge who will go with the opinions of his colleagues, experts in criminal law.
Segal, experienced and intelligent, is the Benjamin Halevy of the Azaria trial. It’s from him that we can expect the new version of the “black flag.” Two months ago, a year before his time, he decided to retire after nearly being appointed district court president in Jerusalem and having been in the running for state prosecutor.
An informal survey
Two possible milestones for his thinking can be found in his educational background (in his youth he was a high school teacher in Arad and this year he taught in Dimona) and his close friendship with the late Col. (res.) Danny Wolf (Rahav). Wolf was one of the most famous commando officers in the Israel Defense Forces; he parachuted into the Mitla Pass in the Sinai Campaign, and served with distinction both in the Six-Day War and in the reserves during the War of Attrition.
As lethal as he was on the battlefield, Wolf, who died in 2004, was precise and uncompromising in avoiding harm to the helpless, from children to war prisoners. He was furious when children were killed by IDF bullets, calling it a stain on the uniform. His memory and legacy are still with Segal.
Experienced military jurists who agreed Friday to take part in a small survey were willing to gamble that Azaria’s appeal would be denied. The appeals court bases its assessments on the reliability of witnesses from the lower court, and only if the logic that guided the lower court is shown to be faulty will the appeal have a chance.
As for the length of the sentence, opinions were divided – some said the sentence would stand, and others said it would be increased to three years as the prosecution has demanded, knowing that the end of the trial signals the beginning of the race for a presidential pardon.
The experts said they believed that the ruling to let the conviction stand would be unanimous. They said they thought the sentence would be increased to a figure in keeping with a manslaughter conviction, but that this wouldn’t be unanimous. One member of the panel would dissent, but the rest would take the dissenting opinion into consideration and moderate the addition to the sentence. The verdict in terms of the values it expresses, to be taught in the army, will update the fairly dead letter of the black flag ruling.
When the verdict is published, we will see if and to what extent the pro-Azaria public atmosphere influenced it – and the judges better duck for cover. Of course, it won’t satisfy Azaria’s supporters. A sign of this will be the size of the contingent of security guards assigned to the courtroom and the judges.