Former Israeli soldier Elor Azaria and his family await a ruling on the appeal of his manslaughter conviction.
(photo credit: REUTERS/DAN BALILTY)
It is hard to see a legal basis for commuting the sentence of Hebron shooter Elor Azaria, former IDF chief prosecutor Liron Libman has told The Jerusalem Post.
Thursday is the first time that Chief of Staff Lt.-Gen. Gadi Eisenkot can issue a decision whether to commute Azaria’s 18-month prison sentence for a manslaughter conviction.
Libman, also a researcher at the Israel Democracy Institute, said on Sunday that commuting sentences in the IDF are only given “in exceptional situations,” usually “where time has passed or circumstances have changed.”
He said the IDF’s top lawyer would likely “have doubts about whether there was any reason to intervene regarding the punishment since there is nothing new.”
Eisenkot makes his own decision, but generally the IDF chief seriously considers the opinion of the IDF’s top lawyer, currently Brig.-Gen. Sharon Afek.
Azaria entered prison
on August 9, so technically he is not eligible for an outright pardon, which means no jail time, but for reducing or commuting his sentence.
On July 30, the IDF Military Appeals Court denied Azaria’s appeal of his manslaughter conviction and sentence for killing Palestinian terrorist Abdel Fatah al-Sharif on March 24, 2016, after Sharif was already neutralized.
Discussing the place of pardons in modern democracies, Libman said: “We know the history. The king can do anything. If he can order death sentences, so he can also” show unqualified mercy by pardoning even undeserving persons from punishment – “but what is the place of pardons in modern democracies?” He said once you add into the picture the idea of “the rule of law, there is a problem with the broader application” of pardons and that their use should be narrowed to “only the most exceptional situations.”
“Remember it is not another level of appeal. The appeal here was rejected,” said Libman criticizing the view implicitly expressed by many politicians that requesting a pardon is just another tool in the box for avoiding jail time even if you lose an appeal.
Crowd protests as Elor Azaria enters prison (credit: AVSHALOM SASSONI/MAARIV)
Libman emphasized that Azaria had going against him not just that no significant amount of time had passed and no new evidence had been revealed, but that all of the legal reasons for leniency were already considered by the trial and appeals courts.
That he was kept in open detention throughout the trial, the negative emotional impact on his family and his sterling prior record as a soldier “all were before the prior courts” and Azaria also has no claim to have become too sick to serve jail time, Libman said.
If Azaria “had taken responsibility” for making a mistake and “admitted he shot out of vengeance” for Sharif having stabbed his co-soldier, that might have helped his case for a pardon, he said.
But Azaria’s written admission to Eisenkot that he would not have shot Sharif had he known he was alive was just doubling down, according to Libman.
Moreover, there is little precedent for such a pardon. The main precedent that Libman cited was the almost 40-year-old affair of Lt. Daniel Pinto. Pinto was convicted of murdering Lebanese residents during the Litani Operation.
An IDF court sentenced him to eight years, but then IDF chief Rafael Eitan reduced the sentence to two years. Libman said that in addition to being an old decision, Eitan’s decision was considered highly controversial at the time, and not a model to follow.
After all of that, Libman was pressed on why Eisenkot issued a statement that he “would weigh” leniency for Azaria if the Hebron shooter dropped a potential appeal to the High Court of Justice.
Implying that it might have been better not to issue such a statement, Libman said that a careful analysis of Eisenkot’s statement showed he made no guarantees to Azaria and possibly even hinted there would be no leniency.
He said the fact that Eisenkot did not make a concrete promise along with the IDF chief’s noting that he would ignore political considerations and only focus on the IDF’s concerns, could indicate that Eisenkot would not be budging for Azaria.
Although Libman knows and worked with Eisenkot when they were both still in the IDF, he said that this was prior to Eisenkot becoming IDF chief and that he did not want to try to psychoanalyze him.
He did point out that if Eisenkot chose to reduce Azaria’s sentence overriding Afek’s recommendation he would need to justify his decision in writing.
Of course, Eisenkot is not necessarily Azaria’s last stop. While he has dropped any appeal to the High Court, Azaria can seek a pardon from President Reuben Rivlin if Eisenkot does not grant one.