The IDF soldier suspected of shooting an imobilized Palestinian attacker in Hebron.
(photo credit: AVSHALOM SASSONI)
Despite taking a surprising beating about the quality of its evidence at both the trial court and appeals court levels in the pre-indictment hearings, the IDF Prosecution stuck to its guns and indicted “Hebron shooter” Sgt. Elor Azaria for manslaughter of Palestinian terrorist Abdel Fatah al-Sharif, and not the lesser charge of negligent homicide.
Though such a serious charge for shooting a Palestinian as part of the conflict is not a first, it is extremely rare, with even the negligent homicide charge being rare.
At this stage, it appears the trial will not be determined by one single witness or piece of evidence, but by what the trial court judge decides is the key question.
The judge may view the incident on March 24 as occurring in a dangerous operational situation in which the courts view the reasonability of soldiers’ actions “from the perspective of the special conditions” and give them “extra space to err” as referenced in an earlier military appeals court opinion.
In that case, he will likely look for almost any alternative explanation for Azaria’s conduct other than one that will lead to a manslaughter conviction, as long as there is serious evidence to back it up and to serve as a basis for reasonable doubt.
If that is the prism with which the judge views the case, then Azaria will at most be convicted of negligent homicide and not manslaughter, which carries much heavier jail time.
As the appeals court wrote in its earlier opinion, Azaria’s story that he shot Sharif out of concern he was wearing an explosive vest is not merely supported by the video produced by the defense lawyers and the Magen David Adom personnel.
Much more important, Azaria’s platoon commander on the ground and some other soldiers had some suspicions about an explosive vest.
This was evidence that did not come out in the opening weeks of the case. Or the judge may view the whole context of the case similarly to the IDF Prosecution.
In that view, even as there had been danger before Azaria came on the scene, by the time he did, the danger was clearly gone and there was no operational situation to speak of. He was a medic who had no business taking any action aside from medical action, and enough time passed even between his attending to a wounded soldier and when he shot Sharif that it was a cold and calculated act of revenge.
In that case, the judge will not look for any possible alternative explanation for Azaria’s actions other than revenge.
Rather, he will focus on a question asked to the defense by the pretrial judge: Why was Azaria the only soldier to feel in intense enough danger to even consider firing on the essentially motionless Sharif.
The platoon commander may have had some vague suspicion of an explosive vest, but neither he nor the other two officers involved nor any of the soldiers of Azaria’s rank thought that what Azaria did could possibly be justified, or be anything other than criminal.
If that is the way the judge approaches the case, he will find it easy to convict Azaria as he made many statements to other soldiers which are classic evidence of motive for revenge and he changed his story at least three times about why he shot Sharif, arriving at the explosive vest only after speaking to his lawyers.
If Azaria is treated as a special-case combat soldier, the appeals court has already explained how his vindictive statements and changed stories could be merely the result of confusion. But if the case is about Azaria’s credibility against that of all of his commanders, he will likely be convicted in spite of some notable exonerating evidence.