Analysis

Judges in Hebron Shooter's Appeal Failed to Act on Their Own Harsh Rhetoric

Sgt. Elor Azaria's aggressive lawyer lost the manslaughter appeal but emerged a winner nonetheless

Elor Azaria's defense attorney Yoram Sheftel outside the military court in Tel Aviv, July 30, 2017.
Tomer Appelbaum

Sgt. Elor Azaria lost his appeal on Sunday, but defense attorney Yoram Sheftel won. The ruling — in which the judges scolded Azaria but did not add even a single day to his original 18-month prison sentence — was an enormous victory for Sheftelism.

Sheftel, who took over the case after the original trial ended, gained not an iota of leniency for his client, but he gained enormous publicity for himself and his aggressive style. In the public debate, the right flank is dragging the center toward it due to the evaporation of the left flank.

The verdict contains numerous winning phrases, such as “a shooting range, not the scene of an attack.” But they merely underscored the big question: If the appellant’s actions were so terrible, the excuses so lame, how could the judges settle for an 18-month sentence?

The answer has to do with both judges and military officers. The judges, like others who make their living from their opinions, are in love with the words produced by their mouths and computer keyboards. To them, the word is greater than the deed. In fact, the word is the deed. There’s no need to accompany it with any real action.

That’s how then-Attorney General Elyakim Rubinstein acted in a 1999 case against Prime Minister Benjamin Netanyahu, and how then-Attorney General Yehuda Weinstein acted in 2012 in a case against then-Foreign Minister Avigdor Lieberman: There were plenty of harsh words, but since they were accompanied by a decision not to prosecute, they cut like a rubber sword. The same went for State Comptroller Micha Lindenstrauss’ report on Netanyahu’s responsibility for the 2010 Carmel forest fire disaster.

Inside their bubble, harsh descriptions, exclamation points and blunt phrases create reality. But the mob outside ignores them.

Sgt. Elor Azaria at the military court in Tel Aviv, July 30, 2017.
Tomer Appelbaum

The dissents written by the two judges who wanted a stiffer sentence have the aroma of the professional judiciary. It’s hard not to notice the tone of former District Court Judge Zvi Segal’s revulsion at the Wild West on the West Bank. “Precision of language,” his partner in dissent termed it.

But life and death don’t lie in a silver tongue when a ruling contradicts its own lofty rhetoric. There’s no shortage of such rhetoric. But it’s pointless when it’s just words, letters written in the sand. With all due respect, when a judge faces a defendant, what matters isn’t what the former thinks, but how long the latter sits in prison.

Since the dissenting judges weren’t identified by name, the following conclusion, based mainly on transcripts of the five judges’ remarks during the trial, may do someone an injustice. Nevertheless, it’s hard to avoid concluding that the three generals on the bench, after 30 years or more of service in the career army, were on the side of leniency. In any event, one of the three was certainly the tiebreaker.

There are two possible reasons for this, both of them wretched. Either they really think 18 months in prison for manslaughter sends a convincing message to soldiers and civilians, or they’re afraid of outside actors and prefer to hide behind the three junior military judges on the trial court. It’s the opposite of the War of Independence ethos: “The privates retreat, the officers cover them.”

Here’s another either-or: Either the two reserve officers who sat in judgment alongside Maj. Gen. Doron Piles accurately reflected the feeling in the officers’ corps, or the arbitrary choice of these two rather than a different pair of officers determined the outcome. Either way it’s a problem, and maybe the time has come to finally scrap the system of having officers judge their own, in favor of professional judges.

Armies aren’t democracies, Chief of Staff Gadi Eisenkot often says; there’s a hierarchical chain of command. That’s true in all situations except in court, where democracy reigns. Decisions are made by majority vote. In other words, they’re determined by who sits on the bench.

Somehow, the 3-2 result beautifully echoed public opinion polls. It’s a typical compromise: conviction without a stiffer sentence, thereby leaving the final decision to the higher-ups. But perhaps the moral arguments made by the dissenting judges will nevertheless have an impact, because when Eisenkot listed his priorities in considering Azaria’s expected request for commutation, he put values ahead of the soldiers.

The key may lie in the person who initially fomented the political uproar and has benefited from it: Lieberman. If early elections are called within the next year, he can put Azaria fairly high up on his Yisrael Beiteinu party’s ticket, win votes from the Sheftelist right and free Azaria from prison if he’s elected. Granted, that’s a fantastic scenario. But so, three and a half years ago, was the idea that Lieberman would demand and get the defense minister’s job from Netanyahu.