Trial of Soldier Who Shot Dead Wounded Palestinian Assailant in Hebron Opens

Elor Azaria's lawyer claims his client, who is charged with manslaughter, is being singled out, but the prosecution says there are no comparable cases; the court suggests mediation in the case.

Elor Azaria in military court in May, April 9, 2016.
Ilan Assayag

At the opening session on Monday of the trial of Elor Azaria, the soldier charged with manslaughter for shooting a incapacitated Palestinian assailant dead in Hebron, the head of the judicial panel proposed that the parties consider mediation of the case.  

Azaria's lawyers agreed to the suggestion, but members of the prosecution appeared inclined to reject the idea, calling the soldier "not reliable," although they said they would consider it. 

The trial opened with the panel of judges at the Jaffa military court reading out the indictment against Azaria. According to the charge sheet, Azaria shot terrorist Abdel Fattah al-Sharif contrary to the rules of engagement and with no operative justification, when Sharif was lying wounded on the ground and did not pose a clear and immediate danger. The prosecution is also charging Azaria with unbecoming conduct.

On Monday morning, Azaria's lawyer said that his client was unfairly being singled out for prosecution, claiming that in the past cases of this nature were dealt with in disciplinary hearings and not criminal proceedings. The prosecution responded by saying that the defense asked for information on comparable cases, but none could be found. "If my friends want to make claims regarding other cases, they have no bearing on the facts of this case," the prosecution added.

Haaretz exclusive: Shooting of wounded Palestinian assailant - as seen from every angle

The court denied the soldier's request to be released for Independence Day, which will be celebrated on Thursday.  "We believe that there were no reasons to justify another vacation at this time," they said. The prosecution objected to the defense's motion and argued that he was only last month granted a furlough for Passover.

The defense attorneys petitioned the court for a month-long extension on the submitting of the statement of defense. The prosecution objected to this motion: "Everything that needed to be done was done. No extension should be given, not even a minute." 

Azaria is being held in open detention, which is similar to military confinement, until the conclusion of the legal proceedings in his case. He is prohibited from carrying a weapon and from having contact with any of the witnesses in the case.

In the previous hearing on his case, the judge, Lt. Col. Ronen Shor, wrote, “There is ostensibly a certain evidentiary basis for a manslaughter charge, but the strength of the evidence is weak and the degree of criminality in the defendant’s actions may be lower than what the prosecution attributes to him.”

The soldier originally faced a potential murder charge after a video emerged in March in which he could be seen cocking his rifle and shooting a prone and subdued Palestinian who, moments before, had tried to stab another Israeli soldier. An autopsy later revealed that the shot to the head had resulted in the Palestinian's death. Just a few days prior to the autopsy, a military tribunal ruled that charges against the soldier would be reduced to manslaughter.

Monday's panel is likely to be the same panel that will conduct the entire trial. Usually, when cases are brought before the military courts the head of the panel is a professional judge with legal training, while the two other judges are officers affiliated with the court’s area of jurisdiction. The expectation is that in this case the panel will include two judges who are professional jurists and one additional judge who does not have that same legal background.

This is the first time since 2004 that an IDF soldier stands accused of manslaughter committed during active duty. In 2004, Taysir al-Heib, from the Bedouin reconnaissance battalion, was accused of killing left-wing British activist Tom Hurndall during a demonstration in Rafah. The military court sentenced him to eight years in prison.

After the trial, in 2006, the IDF issued an informational booklet about the matter that said, “Beyond the grave outcome of the incident [the loss of human life], the accused’s actions also caused severe damage to the IDF’s image and to the credibility of its investigations and reports Even during a time in which Israel is being subjected to murderous terror, IDF soldiers are required to maintain their weapon and employ its lethal power to the extent required to fulfill their mission and not beyond that, and to ensure that they do everything in their power to avoid harming the lives, physical wellbeing and dignity of people outside the sphere of combat.”