Analysis

Ruling on Hebron Shooter's Appeal Shows the Israeli Army Hasn't Lost Its Morals

The judges leave no room for doubt: Sgt. Elor Azaria blatantly violated the IDF's rules of engagement when he shot dead a wounded Palestinian assailant in Hebron last year

Sgt. Elor Azaria with family outside a Tel Aviv military court, July 30, 2017.
Tomer Appelbaum

Eight military judges – three from a lower court in January, and five from the Military Court of Appeals on Sunday – left no room for doubt: Sgt. Elor Azaria blatantly violated the army’s rules of engagement when he shot and killed a Palestinian assailant, Abdel Fattah al-Sharif, as the latter was lying on the ground gravely wounded in Hebron in March 2016. One can only hope this will put an end to the factual and interpretive disputes over the incident.

Now that the defense’s appeal of both the conviction and the sentence has been rejected, Azaria could still try to appeal to the Supreme Court, but that court is unlikely to take the case. Thereafter, the case will move to Israel Defense Forces Chief of Staff Gadi Eisenkot, who must decide whether to accept the soldier’s expected request for a commutation.

The IDF’s appellate judges, like those of the lower court, completely dismantled the defense’s arguments. What should have been clear to anyone who watched the footage of the incident filmed by a Palestinian volunteer for B’Tselem has now been written in black on white in two verdicts.

The judges said the wounded assailant posed no real threat. Azaria acted out of a desire for vengeance, not because he felt threatened by the knife, which had been thrown out of the assailant’s reach, or feared that al-Sharif was wired with explosives. Immediately after the incident, Azaria explained his motives to a colleague. And that colleague’s testimony, like that of other soldiers (aside from the company commander), was deemed credible.

Moreover, scrutiny of the video footage shows that Azaria acted coolly, as if he were at a shooting range, not taking down a terrorist at the scene of an attack. None of the other people present appeared to fear an explosion or did anything to prevent such a possibility. The court also found that Azaria had changed his story several times.

Over the past 16 months, a sizable public campaign has been waged against the IDF and its justice system in an effort to stop the proceedings against Azaria. It didn’t only involve politicians, from Prime Minister Benjamin Netanyahu on down, who tried to gain brownie points with the public by expressing solidarity with Azaria and his family. In addition, jurists, journalists and ordinary people made great efforts to turn this case into a local version of the Kennedy assassination craze – as if there were an organized conspiracy, from Eisenkot downward, whose sole purpose was to scapegoat the poor rifleman. All that was lacking was a theory about a second gunman.

The appellate judges rejected these claims one by one. No “spirit of the commander” dictated the indictment and conviction. The military prosecution didn’t deviate from its indictment policy in other cases. Azaria wasn’t a scapegoat to cover up failures higher up the chain of command. And the lower court judges weren’t promoted as a reward for convicting him.

Pressure not from left, but from right

In fact, the appellate court said, intervention came from the opposite direction, in the form of incessant pressure by right-wing politicians. But these comments seem to have fallen on deaf ears.

To hell with caution, said the ministers and Knesset members, who hastened to leave their imprint on the media debate before public interest in the case fades. Before the court had even finished reading out the lengthy verdict, Deputy Foreign Minister Tzipi Hotovely had already urged President Reuven Rivlin to pardon Azaria. Defense Minister Avigdor Lieberman also couldn’t wait for the reading of the verdict to be over before advising the family via his Twitter account not to appeal again, but to ask Eisenkot for clemency.

That Netanyahu and Education Minister Naftali Bennett (in reverse order, as usual) quickly joined the calls for a pardon shouldn’t surprise anyone. But I wouldn’t lay any bets on what Eisenkot will do, though an expression of regret from Azaria – something he has so far refused to utter – could clearly improve his chances of getting his sentence commuted.

Over the last two years, soldiers and policemen have killed over 200 Palestinians, in the territories and inside Israel. Azaria’s case is exceptional for two reasons. First, the assailant was killed long after he had been overpowered (11 minutes), in clear violation of the rules of engagement. Second, of course, the incident was filmed and broadcast. Despite the IDF’s denials, there’s no doubt this video determined Azaria’s swift and relatively severe treatment.

Nevertheless, the affair’s bottom line, as reflected in Sunday’s verdict, is positive: There are military court judges, and they ruled that the army can’t behave like an ultra-nationalist militia, and that the phrase “the moral code of the IDF” still has meaning.

The IDF isn’t the only army to have dealt with such incidents in recent years. Britain was in an uproar over the case of Alexander Blackman, a British Royal Marine sergeant who killed a wounded, captive Taliban in Afghanistan in 2011. He was originally convicted of murder, but the conviction was changed to manslaughter on appeal. He served three and a half years in jail and was released earlier this year. During his trial, he was adopted by the tabloid Daily Mail and several politicians on the right, who depicted him as a national hero.

The details of the two cases aren’t identical. But compared to Blackman, the Israeli soldier received a lenient sentence, which may yet be shortened even further.

If he submits a request to the chief of staff to ease his prison sentence, Azaria will remain in prison at least about a month before a decision is made on the request. The military appeals court ruled he would not begin serving his 18-month sentence until August 9. Until then, Azaria and his lawyers will have to decide whether to ask the Supreme Court to review the military appeals court decision.

If he decides not to appeal again, he will enter prison on August 9 and only be able to file a request with Eisenkot on September 7. Military law requires the chief of staff to respond such a request within 30 days, during which Eisenkot must consult with the military prosecutor’s office.

Military sources told Haaretz that unless Azaria takes responsibility for his actions and expresses at least some degree of remorse, it is doubtful Eisenkot will accede to any request of his. The soldier’s lawyer, Yoram Sheftel, said he would be prepared “to discuss a concrete proposal” from IDF to lighten Azaria’s sentence. IDF sources rejected Sheftel’s approach, saying ball is in Azaria’s court to submit a request to Eisenkot.

Following the appeals court ruling, Eisenkot said he intends to consider a request to ease the sentence, if Azaria submits one, “out of my sole commitment to the values of the Israel Defense Forces, its combat soldiers and those serving it.” He indicated he will not take into account pressure from politicians or public opinion, and that he views the case as an internal army matter.

In his statement, Eisenkot also hinted at acknowledging that the IDF also erred in part of its handling of the case, saying the army had “learned lessons” from the case “and will also continue to do so” following the appeals court’s decision.