Analysis: Why it matters that there are generals on Hebron shooter’s side

We will only know the full impact of the generals’ testimony when we hear the verdict.

By YONAH JEREMY BOB
Updated: SEPTEMBER 21, 2016 09:57
The father of Israeli soldier Elor Azaria, who is charged with manslaughter after he shot a wounded Palestinian assailant as he lay on the ground in Hebron on March 24, kisses his head in a military court (photo credit: REUTERS)
The father of Israeli soldier Elor Azaria, who is charged with manslaughter after he shot a wounded Palestinian assailant as he lay on the ground in Hebron on March 24, kisses his head in a military court
(photo credit: REUTERS)
If there is one thing that matters in the Israeli army, it’s rank, and everything else follows far behind.
With that in mind, it was quite an accomplishment for Sgt. Elor Azaria to produce both Maj.-Gen. (res) Uzi Dayan and Maj.-Gen. (res) Dan Biton to testify on his behalf on Monday.
The question is, how big of an achievement was it, and does it change just the media narrative of the case or the legal narrative as well? All of the above might be a bit exaggerated when it comes to the IDF’s judicial sphere, which is far more independent than other parts of the army, but rank still has an impact.
This explains why the IDF is taking the unusual step of temporarily promoting some of the judges in the case to brigadier-general in the upcoming rape trial against Brig.-Gen. Ofek Buchris, so they will not be of lower rank that the officer they are judging.
In terms of the media narrative, the Hebron shooter trial was built up as high-ranking officers versus the little guys.
Officers with the ranks of colonel, lieutenant-colonel and major are involved in the case, and they all agree that Azaria committed a crime.
Obviously, IDF Chief-of- Staff Gadi Eisenkot and former defense minister Moshe Ya’alon also spoke out against Azaria when the incident was reported, and the indictment was approved by Military Advocate-General Brig.-Gen. Sharon Afek.
Most of the rank-and-file soldiers turned on their commanders and stood by Azaria, their brother-in-arms, and accused the senior field officers of worrying more about politics and image than their soldiers’ safety.
While the public has been on Azaria’s since almost since the beginning, the atmosphere in the Jaffa courtroom has been somber, with the judges deferring to the officers accusing Azaria and being less attentive to opinions of the lower ranks. It left the impression that the army, as an institution, was against Azaria.
Lead prosecutor Lt.-Col. Nadav Weissman has mostly had his way with lower- ranked soldiers on cross-examination, but all of that changed on Monday. The former major-generals said what they wanted to say, and Weissman, despite his best efforts, could not control the flow of questioning.
After refusing other witnesses the chance to make closing statements, the judges deferred to the former major-generals, allowing them to make closing statements to the court, an opportunity they took to lecture it about the damage that could be done to the entire army if the case was not handled carefully.
The media narrative now portrays Azaria, who is supported by generals, at odds with mid-ranked officers who support the IDF prosecution.
The impression has changed, and now it seems that the army as an institution is divided over Azaria, even at the highest levels.
What about on the legal level? Even as the judges have shown that they don’t answer to anyone, no military judge can avoid thinking twice about ruling against a soldier when there is a group of generals on that soldier’s side.
It would be nice if all defendants and witnesses were treated the same. But as we saw in the first Ehud Olmert verdict, when he was given only community service on a conviction because the court found stepping down as prime minister to be a huge punishment in and of itself, the ideal of all people being treated equally only goes so far. Defendants with friends in high places, or with high ranks, are often treated differently.
Even if that doesn’t affect the verdict, the former major-generals raised policy issues which the judges must now seriously consider, simply by virtue of their being raised by generals.
Dayan, in particular, questioned whether the Military Police and the military advocate- general had the authority to get involved in reviewing an operational matters case before a full operational investigation was performed by commanders to confirm the factual background.
The entire judicial process was tainted because it, and the facts it was based on, came in place of a comprehensive operational investigation, he said.
Both Dayan and Biton said that even if Azaria went beyond the rules of engagement, as long as he was involved in accomplishing the overall mission, his shooting of Palestinian attacker Abdel Fatah al-Sharif on March 24 could be justified, especially considering the high potential for danger in Hebron.
The judges may disregard these concerns and accept Weissman’s argument that the generals aren’t aware of all key evidence, which he says proves that even if another soldier could have gotten off for the shooting, Azaria cannot because he confessed, in his real-time statements, to killing Sharif in revenge for his friend being stabbed.
We will only know the full impact of the generals’ testimony when we hear the verdict. Yet in a high-stakes drama with many shifts in momentum, the defense has seized the initiative.