Analysis

Israeli Military Sent a General to Do a Lawyer’s Job in Hebron Shooter Sentencing Proposal

If Elor Azaria's chances of winning an appeal are low in light of the lower court's findings, then the defense team's tricks will achieve the opposite of what it wanted.

Elor Azaria in a Jaffa courtroom.
Tomer Appelbaum

Yoram Sheftel, the new addition to Sgt. Elor Azaria’s defense team, boasted last Thursday of the trick the soldier’s family and attorneys had played on the commander of the Kfir Brigade, Col. Guy Hazut, and the Israel Defense Forces Spokesperson’s Unit. “We prepared a honey trap for the IDF spokesperson,” the lawyer told Israel Channel 2 television. “We knew he’d lie about the content of the conversation if he didn’t know it was recorded; we let him lie, and then we published the recording.”

Now, the defense is even demanding an investigation of the military prosecution’s conduct, due to Hazut’s statements to Azaria’s father, Charlie, about an appeal’s low likelihood of success and about the possibility of adding a military defense attorney to the defense team.

Hazut fell into the same trap as Col. (res.) Lior Lotan, Prime Minister Benjamin Netanyahu’s special envoy for negotiations over Israelis missing or captive in the Gaza Strip, during his conversation with the family of one such Israeli, Abera Mengistu, about 18 months ago. Though they should have assumed they would be taped (and Hazut was apparently even told as much beforehand by his superiors), both were embarrassed when the tapes were made public.

The new era isn’t George Orwell’s “1984”; today, it isn’t just Big Brother who’s always watching. Every ordinary citizen can also record the way the system tries to pressure him.

Hazut’s meeting with the Azarias was legitimate. When the legal proceedings first began, the defense rejected the prosecution’s offer of a plea bargain, because prosecutors insisted on a manslaughter charge while the defense would only accept a lesser charge. Cynics in the prosecution said at the time that the defense attorneys wouldn’t accept any deal that didn’t include jail time — for the chief military prosecutor, Brig. Gen. Sharon Afek, that is.

Now, a military court has convicted Azaria of manslaughter but hasn’t yet sentenced him. So this is the logical moment for prosecutors to try to reach a deal with the defense over the sentencing.

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Azaria’s supporters claimed from the start that the military threw him to the dogs. And Hazut’s admission during the recorded conversation that he hasn’t met with Azaria since that day last March when Azaria killed a wounded terrorist, Abdel Fattah al-Sharif, was indeed a mistake on the part of the military chain of command. Azaria remains one of Hazut’s soldiers even if he was charged with a serious crime; thus Hazut should have kept in contact with Azaria’s family throughout the trial.

Nevertheless, the proposal Hazut made last week seems reasonable. The army, he told the family, won’t backtrack on either the manslaughter conviction or a jail sentence. This is the time to make a deal.

Yet instead of sending an experienced lawyer on this mission, the army sent a brigade commander who, in retrospect, appears to lack the sensitivity and sophistication needed for such a delicate task. Hazut let himself be dragged by Azaria’s father into discussing who should be on the defense team, the details of a plea bargain and the chances of an appeal. Instead of focusing on helping the family and letting prosecutors handle the legal details, his conversation quickly entered problematic territory.

Hazut was sent into an unwise confrontation with a legal team prepared to use any means to achieve its ends. It’s not surprising that he lost this battle, or that Sheftel is now so pleased with himself.

The one flaw in Sheftel’s brilliant plan is that it doesn’t necessarily benefit Azaria himself. If the many jurists I’ve spoken to are correct, and Azaria’s chances of winning an appeal are low in light of the lower court’s findings, then the defense team’s trick will achieve the opposite of what it wanted.

The renewed crisis with the prosecution will freeze negotiations over a sentencing deal, reduce the chances of a post-sentencing commutation by the head of the IDF’s Central Command and most likely lead to an appeal. That in turn will delay any chance of a pardon from the president, though a pardon seems unlikely in any case given the army’s opposition.

In other words, as has been true from the start, there’s a gap between the enormous media coverage Azaria and his attorneys are getting and his diminishing chances of extricating himself from this jam at a relatively low cost.