Hebron Shooting Legal Battle to Focus on Soldier's Subjective Feelings

The battle between the prosecution and the defense in the case of Sgt. E., who shot a subdued terrorist in the head, will focus on what he sensed at the time.

Scene from a video released on March 24, 2016 by B'Tselem showing IDF Sgt. Elor Azaria  aiming his weapon before shooting in the head and killing a wounded Palestinian assailant in Hebron.
AFP

The autopsy of the Palestinian terrorist from Hebron, Abdel Fattah al-Sharif, which took place Sunday after prolonged discussion between his family and the government, is expected to advance the proceedings against the Israel Defense Forces soldier who shot Al-Sharif in the head after he was lying on the ground wounded, on March 24.

The Israeli pathologists determined that Al-Sharif had died from the bullet fired by the soldier, Sgt. E., rather than by the bullets that hit him earlier, he when stabbed and wounded another soldier. A Palestinian pathological was present at the autopsy as an observer on behalf of the family.

Determination of the causal relation between the death of the terrorist and the final, fatal shot will apparently enable the IDF military advocate general to try the soldier for the crime of manslaughter. The charge of murder, which aroused harsh reactions among the public, has been abandoned. Apparently it was presented from the start as the worst-case scenario, as a warning for the soldier during his investigation, and did not reflect a practical intention on the part of the prosecution. The question now is whether Sgt. E. really will be charged with manslaughter, or even a lesser charge.

When the indictment is served the focus of the dispute will be the two contradictory explanations of the events, which the prosecution and the defense already began to reveal in their four separate discussions about extending the soldier's detention.

The prosecution’s version, which also matches the details leaked from the IDF’s operational investigation, is based on the testimony of soldiers and commanders from the Shimshon infantry battalion who were at the site of the incident.

According to the testimony, the other soldiers present did not deem that the terrorist, who had been subdued by then, posed a danger; moreover, immediately after the shooting Sgt. E. apparently explained his act as a need to settle accounts with the person who had shot their comrade-in-arms, rather than due to a sense of danger.

The video footage taken by a fieldworker from the B'Tselem human rights organization that shows the soldier after the shooting, smiling and shaking hands with ultra-nationalist Hebron resident Baruch Marzel and another settler, does not reflect any emotional turmoil.

The defense, on the other hand, will argue that the shooter felt he was in danger and fired because he believed that the terrorist could be wearing an explosive device under his jacket and was liable to activate it. The defense will base its case, among other things, on a video clip distributed by the Hatzalah Shai emergency rescue organization, whose civilian paramedics are heard prior to the shooting warning of the possibility that the terrorist was booby-trapped.

Paradoxically, those who may be responsible for getting the soldier into trouble are now likely to be those who will help save him from prosecution. It emerges that the defense will argue that the soldier was influenced by the thinking of the Hatzalah paramedics. As a company paramedic, Sgt. E was in regular contact with them, and together they had evacuated his wounded friend a few moments before he opened fire on the wounded terrorist on the ground.

Indeed, it looks now as though there will be a major legal dispute over the subjective feelings of the soldier in the moments prior to the shooting.

Meanwhile, the political furor aroused by the incident is interfering with efforts by the IDF brass to fight the infiltration into its units of alternative fighting norms and rules for opening fire.

Almost from the moment the current intifada erupted last October, senior members of the General Staff and the Central Command have been engaged in clarifying procedures to the forces, and they have often expressed the fear that the demand by politicians, rabbis and media people that “not a single terrorist will emerge alive from an attack” will encourage unacceptable behavior.

These efforts are now encountering increasing obstacles, especially in light of the appearance last week of politicians at the military court dealing with the case in Kastina, and the U-turn by Prime Minister Benjamin Netanyahu, who within a week switched from public condemnation of Sgt. E. to holding a conversation with his father expressing support.

The IDF must refrain from addressing the political aspects of this story. It is thus interesting to note the declaration by previous Military Advocate General Maj. Gen. (res.) Danny Efroni, who recently concluded his post-discharge vacation and was interviewed Sunday on Army Radio. Efroni, who said that the politicians’ declarations “cause serious harm to the army and to the sensitive fabric of relations between commanders and subordinates,” estimated that the arrival in the courtroom – of MKs Avigdor Lieberman (Yisrael Beitenu) and Oren Hazan (Likud), among others – was an attempt “to influence or threaten investigators and judges.”

Efroni added that such pressures will affect the public’s feeling that justice was done in the case. “If the State Prosecutor’s Office reaches the conclusion that there is insufficient evidence for a trial, which is a possible outcome – will anyone really believe that they reached this conclusion after a professional and objective process? I doubt it,” he said.

While the turmoil continues, at least one foolish claim was removed from the agenda Sunday. Some on the right had tried to attribute the quiet on the West Bank in the past week to restored Israeli deterrence, as a result of the documentation of the act of the soldier in Hebron. But this intifada doesn’t behave according to logic, and in the past year there have already been short lulls that the intelligence services found hard to explain.

In addition, the Palestinians have been accusing Israel for months of executing young people who perpetrate attacks (and sometimes even of shooting and killing for no reason), so that it is doubtful that a video clip of one incident had such resounding influence.

In any case, the debate on this point apparently ended on Sunday, after a stabbing attack by an Israeli Arab woman in Rosh Ha’ayin and the arrest of a young Palestinian man with a knife in his possession at the Tapuah Junction checkpoint on the West Bank.