The Military Court of Appeals bench which is hearing two appeals related to the conviction of soldier Elor Azaria has made an unusual recommendation to the military prosecutor: Reach a compromise with the defense. The judges said that any judicial decision would be “problematic,” due to the defense’s request that the judges also consider the prosecution’s lack of uniformity with regard to indicting soldiers for excessive use of force.
Azaria’s lawyers argued that his indictment represented selective enforcement of the law. They presented case after case – many of them documented by human rights organizations like Human Rights Watch – in which members of the security forces prima facie used excessive and deadly force against Palestinians without being subjected to criminal proceedings. The prosecution, in contrast, appealed the leniency of Azaria’s sentence.
To prove its claim of selective enforcement, the defense team also referred to the video footage, filmed by a B’Tselem volunteer in real time, of the shooting for which Azaria was convicted. The footage shows that in the aftermath of the Palestinian knife attack, the scene of the incident was relatively orderly. Members of the security forces and medical personnel are putting the wounded soldier, who is sitting up and seems alert, into an ambulance, while others are going about their own business, and Abdel Fattah al-Sharif is lying on the ground, wounded. Azaria then approaches and shoots Al-Sharif at close range. This shot, it seems, elicits almost no response from the other security personnel present.
“What’s not in dispute,” Judge Zvi Segal told the military prosecutor, “is one very troubling fact. We watched the video footage. We saw the shooting. But we didn’t see the pillars of the earth trembling for anyone at the scene following the shooting.”
And indeed, Human Rights Watch has repeatedly documented the fact that the problem is not the conduct of a single soldier, but an atmosphere of immunity from punishment for illegally killing Palestinians. This atmosphere has been encouraged by statements made by senior officials, who advocate a policy of shoot to kill.
International humanitarian law allows security service personnel to intentionally use lethal force only when it is absolutely necessary to protect human life. Israel’s rules of engagement allow the army and police to shoot a suspect in the head or upper body only to prevent an immediate danger of death or serious physical injury.
Nevertheless, since October 2015, the Israeli security forces have killed more than 160 Palestinians suspected of committing attacks in Israel and the West Bank. Among these incidents were many in which – based on video footage, eyewitness testimony and forensic evidence – it seems that deadly force was used in the absence of any danger of the type defined above.
During this same period, Palestinian assailants have killed 38 Israelis, both civilians and security service personnel, in Israel and the West Bank. Human Rights Watch has repeatedly denounced Palestinian attacks on Israeli civilians.
The military court judges gave the prosecutor one week to consult with the military advocate general and inform the court as to whether he is willing to reach a compromise with the defense.
However, the issue isn’t confined to Azaria’s case alone. It also involves security service personnel and politicians who are responsible for incidents and statements that deviate from norms far more than the event that took place in Hebron on March 24, 2016.
Responsibility for upholding ethical and legal norms doesn’t rest solely on the shoulders of a single 20-year-old soldier, but also on the senior officials who sent him – and too many others – the wrong message regarding the use of deadly force.
The writer is the Israel/Palestine Advocacy Director at Human Rights Watch.
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