Judges Take Issue With Azaria Defense, Saying Testimony Unreliable

Panel appears to reject the defense's central claims that assailant was already dead and that Azaria felt threatened at time of shooting, saying, 'you can't have it both ways.'

Elor Azaria in court, Tel Aviv, January 4, 2017.
Avshalom Sassoni

While reading the decision in the trial of Sgt. Elor Azaria, who was found guilty of manslaughter after shooting to death a wounded and immobilized Palestinian assailant, the Israeli army judges seemed to reject the soldier's defense.

Azaria shot and killed a wounded terrorist without reason, the judges said Wednesday.

Colonel Maya Heller, head of the three-judge panel, said that Azaria's testimony was unreliable. The judge appeared to accept the prosecution's case and rejected the defense's two central claims that the Palestinian assailant was already dead and that Azaria felt threatened at the time of the shooting, saying "you can't have it both ways." She also noted that his statement after the shooting, that the terrorist "deserves to die," saying that it carried "serious significance."

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"He was aware" he was taking a life, she said, adding that it was Azaria's bullet that killed the wounded Palestinian. "The terrorist did not pose a threat," Heller said ahead of the verdict, adding that Azaria failed to act in accordance with Israeli army protocols. She said that there was no justification for the claim that the soldier felt threatened during the incident.

The military judge seemed to dismiss Azaria's testimony that he thought the wounded assailant might be strapped with a bomb or could reach his knife, saying it contradicted his own statements and those of other soldiers who were present at the scene.

The judges also adopted the testimony of the company commander, Captain N. "We found much support for it in the evidentiary basis before us," said Heller.

She added, “Even if questions might be raised about the inconsistencies we cited, we have decided to accept Captain N.’s explanations regarding the location of the knife. Video was presented showing that the knife was not in fact within the terrorist’s reach. We have decided to give Captain N.’s testimony full weight in light of the defendant’s problematic testimony.”

The court previously ruled that the videos filmed at the scene by human rights group B'Tselem are authentic and admissible. 

The manslaughter conviction carries a maximum prison sentence of 20 years. Azaria can appeal both the conviction and the sentence to the Military Appeals Court.

Elor Azaria: Day of the incident-Court to make its decision.
B'Tselem, Ofer Vaknin, Ilan Assayag, Moti Milrod, David Bachar and REUTERS/Heidi Levine/Pool

Azaria’s defense attorneys expressed doubt over the ability of 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, 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