Analysis |

No Gray Areas, No Doubts: How the Judges Unraveled Elor Azaria's Defense, Point by Point

In the end, one of the key pieces of evidence that led to the Hebron shooter's undoing were his own words.

Gili Cohen
Gili Cohen
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Elor Azaria arrives at court with his lawyer and family, December 2016.
Elor Azaria arrives at court with his lawyer and family, December 2016.Credit: JACK GUEZ/AFP
Gili Cohen
Gili Cohen

The 97-page verdict in Elor Azaria’s trial doesn’t leave a single one of his lawyers’ arguments unanswered. The presiding judge, Col. Maya Heller, unraveled version after version of Azaria’s testimony, and claim after claim made by his attorneys. Her ruling was unequivocal, and had the backing of the other judges on the military court panel. One of them, Lt. Col. Yaron Sitbon, is a combat officer who today commands the army’s anti-terror unit. The only plausible conclusion is that the prosecution’s charge of manslaughter against Azaria was proven beyond a reasonable doubt.

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One of the most significant pieces of evidence in the case – aside, of course, from the video that documented Azaria shooting the wounded assailant in Hebron – was his remark afterward, “They stabbed my friend, they wanted to kill him, so he also deserves to die.” The witness, who shortly after the shooting, told military police that Azaria had said those words was T., a soldier in Azaria’s company.

“Elor was very upset and angry that they stabbed his friend, saying ‘How is it that my friend was stabbed by a terrorist and remained alive,’” said T., describing what Azaria said to him even after he killed Abdel Fattah al-Sharif, who had been lying gravely wounded by soldiers’ gunshots for 11 minutes after he stabbed and wounded a soldier. After Azaria killed Sharif, T. said he told Azaria that the shooting wasn’t right and he shouldn’t have done it.

Presiding Judge Col. Maya Heller, right, with her fellow judges in the manslaughter trial of Sgt. Elor Azaria, July 2016.Credit: Moti Milrod

When the military police investigator asked T. how Azaria responded, T. said, “He was still under pressure, and I think that even he didn’t really understand the gravity of his action. He said something like they stabbed my friend and tried to kill him, so he also deserved to die. I think that Elor told the company commander [Maj. Tom Ne’eman] the same thing that he said to me, that they stabbed his friend and tried to kill him, which is why the terrorist deserved to die.” These remarks by Azaria, among others, were the basis for the judges’ guilty verdict. “They are self-incriminating with regard to the mindset that led the accused to shoot,” the judges said in their ruling.

Read more on Azaria verdict: How the judges unraveled Elor Azaria's defense | Why the Hebron shooter trial is dividing Israel | Netanyahu threw army under the bus / Analysis | Enemies of Israeli republic suffer setback / Analysis | Hebron soldier Elor Azaria is no hero / Analysis | Israel's ruling party more dangerous than pro-Azaria mob / Analysis | Hebron shooter convicted, but those responsible will never be put to trial / Analysis | The death throes of a healthy society / Opinion

Credit: B'Tselem, Ofer Vaknin, Ilan Assayag, Moti Milrod, David Bachar and REUTERS/Heidi Levine/Pool

When first interrogated, Azaria denied that the exchange with T. had ever taken place. When the military police investigators proposed a confrontation with T., he responded somewhat differently. At the advice of his lawyer, he asked to read T.’s testimony and only then to decide whether to confront T. or not. Azaria then claimed that there was only one thing he was prepared to challenge T. on, which was that he hadn’t spoken to T. before the shooting. But in court, Azaria once again claimed that he didn’t recall any conversation with T. at all. When Azaria was asked if he had shot Sharif out of revenge, he chose to answer in a roundabout and evasive way, the judges wrote.

The main argument that Azaria used to try to explain the shooting was his fear that Sharif was wearing an explosive device. He testified that he’d heard shouts at the scene about a possible bomb, and he noticed that Sharif was wearing a puffy black coat and was afraid he would activate an explosive belt or other bomb. Azaria testified that he shot “one bullet at his head to save the lives of the people at the scene,” noting that he had only seconds to act, which is why he didn’t even warn those around him.

Defendant's claims, court's refutations

What follows is a list of Azaria’s claims and how they were refuted by the court.

* Azaria claimed he heard someone shout, “Be careful, he has a bomb,” and he immediately fired. The judges: The warning came two minutes before the shooting.

Under questioning by Military Police, Azaria claimed he had to make a decision “in a fraction of a second,” out of fear of an explosive, which is why he acted immediately and shot the terrorist in the head. But the judges, based on the videos, proved that the warning was heard around two minutes before the shooting. The court also criticized the defense, which “for reasons of its own,” didn’t summon the civilian who shouted the warning, Uri Ofer, whose testimony could have “shed light on the incident in question,” as the judges put it.

* Azaria claimed he acted urgently because of the risk of an explosive. “The moment I identified the danger, I acted. In the field, one second you’re alive and the next second you’re dead.” The judges: Azaria acted with equanimity throughout the incident.

Between hearing the warning about the possibility of a bomb and shooting Sharif, Azaria collected his helmet on the other side of the street at the Gilbert checkpoint and gave it to one of his comrades. Only then he cocked his weapon, called out “move, move” to those milling about, including Maj. Ne’eman, and shot the assailant in the head. The judges said the accused acted in a calculated fashion and that his behavior “was not consistent with a sense of danger that required an immediate and urgent response.” The judges further note that it isn’t clear why he chose not to wear his helmet if he thought the terrorist had a bomb on him.

* Azaria claimed that he fired “to save the lives of people at the scene.” The judges: If so, why didn’t he warn the forces at the scene of a bomb after the shooting?

The judges devoted a section of the verdict to Azaria’s behavior after the shooting, and concluded that it was not consistent with a sense of danger from explosives. Videos that were first posted by Haaretz showed Azaria smiling and shaking hands with anti-Arab militant Baruch Marzel as other soldiers were dealing with Sharif’s body. Azaria did not warn the soldiers from the battalion’s medical aid station of the danger that led him to shoot. The judges said since the shooting did not eliminate the risk from an explosive on the terrorist’s person, he should have warned them.

* Azaria testified: “I was concerned because the terrorist was dressed strangely, in a furry, big, thick black coat.” The judges: Others in the area were also wearing coats.

A meteorologist’s data showed the temperature at the scene ranged from 17.4 to 19.4 degrees Celsius. The judges said that even if Sharif’s coat may have aroused suspicion, “At the actual event a large number of those present at the scene were wearing warm clothing, including coats.” The judges also refuted the claim that the coat was furry or thick, based on photos taken at the Institute of Forensic Medicine.

* Azaria said he fired because the terrorist was moving and within reach of a knife. The judges: The knife was several meters from the assailant.

A screenshot from one of the new videos from the incident in Hebron, presented in court on Wednesday, June 1, 2016.Credit: Screenshot/B'Tselem and Physicians for Human Rights

The judges said there was a “direct contradiction” between Azaria’s claim about the location of the knife and what’s visible in the video, as well as from others’ testimony.

* Azaria maintained he acted in accordance with the rules of engagement: “When in doubt, there is no doubt.” The judges: There’s no justification for deadly fire that’s totally based on a suspicion that was not checked or confirmed.

The judges ruled that Azaria wrongly interpreted the principle of “When in doubt, there is no doubt,” which wasn’t meant to permit all gunfire. “The doubt justifies, not to mention requires, taking all possible steps to clarify the suspicions and not leave them vague but such a doubt doesn’t justify fire aimed at taking life,” they wrote, stressing, “From now it should be said that allowing gunfire meant to kill solely on the basis of a suspicion is forbidden. Such an act will undermine the army’s moral strength and the strength of its soldiers, and even harm their professionalism.”

Wild claims by defense lawyers

But aside from Azaria’s own testimony, which the court called unreliable four times in its ruling, the judges criticized several other arguments made by Azaria’s defense team, attorneys Ilan Katz and Eyal Besserglick, particularly their decision to portray Azaria as having been persecuted by former Defense Minister Moshe Ya’alon and the senior defense echelons, and to claim that that’s why Military Advocate-General Sharon Afek filed charges against him.

The judges also noted that a decision to investigate the Hebron shooting had been made before the B’Tselem video of the incident was posted and went viral.

Azaria’s attorneys said repeatedly in media interviews, in court, and on innumerable statuses on social media that the legal proceedings against Azaria were “polluted” by comments about the case made by senior officials, ranging from Ya’alon and Chief of Staff Gadi Eisenkot to a brigade commander who spoke to reservists. “The commanders brainwash the soldiers,” the lawyers wrote in their summary argument.

But the judges thought differently. In their ruling they wrote that commanders cannot brush the issue aside, but “were careful to speak about the incident and not the person who caused the incident they worked to carry out their command responsibility in the framework of their obligations as commanders.”

The judges also noted that in practice, it didn’t seem as if the comments by the commanders had influenced the witnesses, even though some testified that the remarks had a “general” impact on the soldiers.

Another defense argument was that Azaria was the victim of selective enforcement. Azaria, they argued, was discriminated against compared to soldiers involved in similar incidents, such as Col. Yisrael Shomer, who shot and killed a fleeing Palestinian teenager who’d thrown a rock at his car. Military prosecutors decided in the end not to charge Shomer.

Azaria’s defense team obtained sections of the opinion written by the military advocate-general on why Shomer wasn’t prosecuted, but apparently did not submit it to the court as evidence. The judges criticized this move. “The defense dithered on its watch,” the judges wrote. “It has no one to blame but itself.”

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