IDF court rules to uphold Hebron shooter conviction

In lengthy ruling, panel of five judges decimate Azaria's defense case.

JULY 30, 2017 15:20

Updated: JULY 30, 2017 18:14

Former Israeli soldier Elor Azaria and his family await a ruling on the appeal of his manslaughter conviction (photo credit: REUTERS/DAN BALILTY) — Former Israeli soldier Elor Azaria and his family await a ruling on the appeal of his manslaughter conviction

(photo credit: REUTERS/DAN BALILTY)

The IDF Appeals Court ruled on Sunday to uphold Hebron shooter Elor Azaria’s conviction and 18-month jail sentence.

Azaria was sentenced in February by an IDF trial court to 18 months in prison for manslaughter when he shot and killed an already wounded and “neutralized” Palestinian attacker, Abdel Fatah al-Sharif, in Hebron on March 24, 2016.

In a lengthy ruling, the judges who heard the appeal rejected the presentation of all new evidence and also rejected Azaria's attorney's arguments for overturning the original decision.

The judges held the testimony of Azaria's fellow soldiers to be trustworthy and described in detail the inconsistencies in Azaria's testimony in court, holding it to be unbelievable and unreliable.

Among the motions rejected was the argument that the wounded assailant presented a clear and present danger which could justify Azaria opening fire. The judges made clear that Azaria went against military regulations of treating incapacitated assailants, backing the lower court's ruling.

In their ruling, the judges again relied heavily on the video evidence from the scene. The shooting was captured on camera and published widely by human rights group B'Tselem. They analyzed Azaria's and others' body language, indicating that there was no sign the soldier felt under threat and was acting to protect himself and the rest of the people on the scene, as he had claimed in his defense.

IDF soldier shoots dead subdued Palestinian terrorist in Hebron, part of Elor Azaria case

The judges rejected Azaria's lawyer's claim that he was subject to selective or differential treatment by the military, or that the army treated him worse than suspects in previous similar incidents.

As part of their ruling, the judges criticized politicians, including then defense minister Moshe Ya'alon, who addressed the incident immediately after it took place, claiming it was unprecedented and improper to publicly discuss the affair before it went to court. That said, the judges said it was not enough to sway the lower court's rulings.

IDF Court President Maj. Gen. Doron Filis, head of the military appeals court, stated after the ruling, "It is no secret that this trial caused a lot controversy in Israeli society. Those serving in combat roles expected tough and demanding service. IDF combat soldiers put their lives at risk with integrity. All of Israel's heart goes out to them. When we consider the punishment of a soldier, we examine the moral ethos of the soldiers."

Filis added, "The IDF is not a wild militia. The ethos and moral values of the IDF, the values of the fighting spirit and the purity of arms constitute the backbone of the army that differentiates it from its enemies."

Following the ruling, Azaria's mother, through tears, challenged the court. "Why, why, why don't you understand this?" She screamed, adding that they did not appear to comprehend that Azaria shot a terrorist.

Human Rights Watch cautiously welcomed Sunday's ruling.

"Upholding the conviction of a soldier convicted of fatally shooting a man who posed no threat sends an important message about restrictions on lethal use of force," said Sari Bashi, Israel and Palestine advocacy director for the rights group.

Azaria entered the IDF court wearing civilian clothes, accompanied by his father and mother, who donned an Israeli flag around her shoulders.

Before the decision was announced, Azaria's father Charlie said the family would accept whatever decision was made with restraint. The family was greeted by politicians, including Sharon Gal, Nava Boker and Oren Hazan, who showered the accused and his parents with hugs. Hazan spent the lengthy hearing on his phone, tweeting his comments on the proceedings.

Elor Azaria is embraced by his mother as his father stands nearby, at the start of is sentencing hearing at a military court in Tel Aviv, Israel February 21, 2017 (Reuters)

The case shook up Prime Minister Benjamin Netanyahu’s coalition by leading to Moshe Ya’alon’s firing as defense minister and Avigdor Liberman’s replacing him, after Ya’alon condemned Azaria while Netanyahu voiced partial support for the shooter.

Some have said this major change had a decisive impact on the recent Temple Mount crisis in which Liberman voted against the IDF recommendation and with Netanyahu to install metal detectors, as police recommended, where Ya’alon likely would have sided with the army. Some say Netanyahu might have removed or not installed the metal detectors if he had faced Ya’alon united with the IDF.

Liberman discussed the impending ruling on Channel 2 on Saturday night.

"This tragedy has gone on for too long. I call on the family, whether satisfied with the decision or not, to remain within the military judicial process," said Liberman. "I would not recommend continuing to appeal to the Supreme Court and the president."

In the 2016 terrorist attack in Hebron’s Tel Rumeida neighborhood, Sharif stabbed another soldier and friend of Azaria’s, and was then shot several times and fell to the ground, nearly motionless.

By the time Azaria arrived around 10 minutes later, other IDF personnel in the area did not view Sharif as a concrete threat, even though some soldiers and many civilians saw him as a potential threat.

If he was not a threat, Azaria’s job as a medic would have been to merely attend to the wounded.

Instead, he was seen in a video that went viral across social media, shooting Sharif in the head, killing him in a seemingly execution- style manner.

IDF Sgt. Elor Azaria was filmed shooting a seemingly incapacitated Palestinian assailant on March 24 2016 in Hebron (Reuters)

Azaria claimed self-defense, saying he was concerned Sharif would attack again with a knife or that he was wearing a concealed explosive vest. However, the IDF trial court rejected all his defenses as being invented after the fact and convicted him based on his original explanations to IDF officers on the ground that he shot Sharif out of revenge.

They pointed to testimony of his commander Maj. Tom Na’aman and, critically, of his soldier friend T.M., who were on the scene and testified that Azaria originally said Sharif needed to be killed out of revenge for stabbing a fellow soldier.

Azaria’s admission, spontaneously, that he killed out of revenge, was uniquely, objectively credible, the court said, adding that he did not mention fear of an explosive device on the spot, but only after the fact.

The court also took the prosecution’s side that Azaria changed his story five times, and found that the final story lacked credibility.

On appeal, Azaria switched his legal defense team from wellknown defense lawyer Ilan Katz and Eyal Besserglick to another well-known defense lawyer, Yoram Sheftel.

Azaria's attorney, Yoram Sheftel holding up a sign depicting a similar incident to his client's (credit: Anna Ahronheim)

Katz and Besserglick, who fought tooth and nail at trial, had advocated accepting the 18-month sentence or cutting a deal with the prosecution, and not to appeal for a possibly slightly reduced sentence.

The Azaria family and Sheftel flat-out rejected any deal with jail time.

SUPPORTERS OF Elor Azaria take part in a protest. (Reuters)

During the appeal, Sheftel went on the warpath attacking the Military Police as having manufactured Azaria’s confession and as coaching Na’aman into lying and supporting the idea that Azaria had confessed. The defense lawyer supported his allegations regarding Na’aman, noting that in his first interrogation with police, he did not incriminate Azaria – only mentioning Azaria’s confession when prompted by police.

The IDF responded to this that confronting witnesses with other testimonies is standard practice.

Sheftel argued that even if Azaria changed his story five times, that Na’aman and T.M., whose testimony the verdict was based on, had changed their stories nine and 14 times, respectively.

Also, Sheftel argued that Azaria’s confession that he shot Sharif out of revenge never happened because there is no indication of this confession in the many videos of the incident.

Retired District Court judge Col. (res.) Zvi Segel continuously warned Sheftel to move off of most of these arguments, stating that they were attempts to overrule the lower trial court verdict on its factual conclusions, whereas appeals should address only legal misinterpretations of a lower court.

Segel also yelled at Sheftel, “Why didn’t he [Azaria] mention the bomb” to many friends and IDF officers when he spoke to them immediately after the incident.

The judge continued “there is no logic” that Azaria would not talk on the telephone about the bomb with “someone who wants to help him.”

Moreover, Segel said it was meaningless that the video did not pick up Azaria’s confession when it did not pick up many other things, such as when Azaria asked a fellow soldier to take his helmet.

The appeals judges repeatedly interrupted Sheftel, saying he was misquoting the lower court testimony and record to his advantage.

Most strongly, Segel said Azaria had a problem falling on the mercy of the court for a lighter sentence when he “never uttered the simple words ‘I made a mistake.’” IDF Courts President Maj.-Gen. Doron Filis, who presided over the appeal, also struck down Sheftel several times for trying to raise Filis’s own 2016 pretrial decision to free Azaria from closed detention.

Sheftel repeatedly tried to insert Filis’s comments in that 2016 decision that the evidence in the case was inconclusive.

The chief IDF judge rejected these attempts, saying there was no significance to what he wrote at the early pretrial detention stage when he was only presented with a fraction of the evidence that the trial court saw in the full trial.

The IDF prosecution kept its final statements shorter, mostly presenting its win in the lower court and highlighting precedents that could argue for a longer jail sentence.

Although the overall feel from the questions of the five-judge appeals panel signaled that Azaria’s appeal has a weak chance, three of the judges did not say as much and could still vote in his favor.

Still, one never knows when an appeals court will view a trial court as having gone too far in a high profile case.

Yonah Jeremy Bob contributed to this report.