The verdict in the trial of Sgt. Elor Azaria, who is accused of the shooting to death of a wounded and immobilized Palestinian assailant, will be handed down by a three-judge panel in the Jaffa Military Court on Wednesday.
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The months-long trial has highlighted deep rifts in Israeli society. The military establishment supported putting Azaria on trial for the killing, a move that was vociferously condemned by the country’s right wing, which believes that Azaria is innocent of any criminal offense and should be exonerated.
Azaria, now 20, an Israeli Defense Forces medic, shot and killed Abd Fatah al-Sharif in Hebron in March last year. The shooting was captured on video by a Palestinian human rights activist and widely distributed. At the time of the shooting, Sharif was lying on the ground motionless after being shot while attempting to stab an Israeli soldier.
Azaria is facing a charge of manslaughter, which carries a maximum prison sentence of 20 years. If convicted, he can appeal both the conviction and the sentence to the Military Appeals Court.
Azaria’s case revolves around his mental state. Did he shoot the terrorist, as he claimed, because of the sense of danger he felt, or did he do it with malice aforethought and a vengeful motive, as the military prosecution attributes to him? Thus, the judges’ decision to convict or acquit Azaria, will in fact resolve – at least in the judges’ eyes – the reason for the shooting.
One possibility mentioned by a number of jurists who served previously with the military prosecutor’s office is that Azaria will be convicted on a lesser charge, such as exceeding authority or causing death by negligence. The line argued by Azaria’s lawyers throughout the trial was that he acted deliberately to kill Sharif due to the danger he posed to military personnel and civilians at the scene.
If Azaria is convicted, President Reuven Rivlin may face a request to pardon him. Procedure stipulates that the defense minister and chief military prosecutor must both submit a pardon request to the president, who has the authority to pardon Azaria if such a request is submitted to him.
Education Minister Naftali Bennett has already stated that Azaria should be granted an immediate pardon. In private talks, Defense Minister Avigdor Lieberman has not ruled out that possibility either.
Military law also allows for the sentence of someone convicted in military court to be reduced at the request of the IDF chief of staff or the officer commanding one of the general commands.
While the maximum sentence for manslaughter by law is 20 years, it is not expressly reasonable that the sentence, if Azaria is convicted, will come even close to so long an imprisonment. The last soldier convicted of manslaughter was Taysir Heib, a member of the Bedouin reconnaissance battalion, who shot and killed British citizen Tom Hurndall. He was sentenced in 2004 to eight years, and he ended up serving six-and-a-half years.
If Azaria is convicted, the judges will probably take the circumstances of the incident into account. The shooting occurred in Hebron after a stabbing attack (albeit it 11 minutes earlier without Azaria being attacked himself) by a soldier with little operational experience, who was in the area of a terrorist attack for the first time. The judges are also expected to take into consideration Azaria’s personal situation, being a soldier who insisted on serving combat, as well as the health of his parents.
The military prosecution called 21 witnesses to support its contention that Azaria shot Sharif in revenge for the stabling of another soldier in his company. The defense, for its part, produced 31 defense witnesses in support of its argument that Azaria acted in self-defense. Most of the defense witnesses described the general atmosphere in Hebron, where only a few hundred of Israeli settlers live under military protection among over 200,000 Palestinians, and the specific circumstances at the time of the shooting.
The wide-ranging repercussions of the affair were unforeseen when the trial began. Prime Minister Benjamin Netanyahu initially condemned Azaria’s actions, but later called the family and considered inviting them to his home. Then-defense minister Moshe Ya’alon ended up leaving his post, in part over the issue, and nearly every politician, from both right and left, has pronounced on Azaria’s guilt or innocence.
Azaria’s defense attorneys have expressed doubt about the ability of the head of the judges’ panel, Colonel Maya Heller, to rule objectively on the issue. They argued in their summation that Heller had toed the line of the prosecution and made unbalanced rulings. IDF Chief of Staff Gadi Eisenkot, however, has consistently stated that he has full faith in the integrity of the commanders, investigators and judges.
Just two days ago, Colonel Heller was appointed to the Military Court of Appeals in a ceremony attended by President Reuven Rivlin and Lieberman, who prior to his appointment as defense minister was one of Azaria’s most outspoken supporters.
Lieberman even sat in the back of the courtroom at one of the remand hearings, and wrote on his Facebook page that the military prosecutor was adhering to “a distorted version of events in which the soldier from Hebron is guilty of manslaughter.”
Sharon Gal, a former Knesset member from Lieberman’s Yisrael Beiteinu party, was appointed spokesman of the Azaria family and organized a support rally for Azaria in Rabin Square. Lieberman’s statements have moderated since he became defense minister. Today he argues that Azaria should be supported, even if he erred.