Rule of Law: Verdict time for Azaria

A three-judge panel of the IDF court in Jaffa will on Wednesday hand down its verdict.

December 30, 2016 22:01
The father of Israeli soldier Elor Azaria, who is charged with manslaughter

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)

At around 8:00 a.m. on March 24, 2016, two Palestinians attacked two Israeli soldiers at the Tel Rumeida checkpoint in Hebron. One of the soldiers was stabbed by Abdel Fatah al-Sharif, who was wounded and fell to the ground eventually virtually motionless, while the other Palestinian, Ramzi al-Kasrawi, was killed on the spot (according to most accounts.)

In some ways this was not an unusual event in the latest stage of the hundred-year old Israeli-Arab conflict, the Third Intifada, or the Knife Intifada as some Israelis prefer to call it.

What was unusual was that around 10 minutes after the incident appeared to be over, Israeli army medic Elor Azaria who arrived on the scene, pulled out his gun and appeared to execution-style shoot Sharif in the head as he lay nearly motionless on the ground.

A three judge panel of the IDF Court in Jaffa will hand down its verdict on whether he is guilty or innocent of manslaughter charges this coming Wednesday.

The case has already shaken up Israel’s political arena and reverberated with impacts on the global diplomatic arena and on the International Criminal Court Prosecutor’s decision of whether to dive deeper into the Israeli-Palestinian conflict.

But first, back to the incident and the manslaughter charges.

What was even more unusual about the entire incident than what has already been stated, was that it was caught on an extended video that showed so much detail leading up to the incident that it was impossible for the Israeli army to claim Azaria, had been lunged at or was otherwise exercising any traditional notion of self-defense as is usually claimed in such controversial incidents.

The video went viral drawing international condemnation, and unusually, immediate condemnation as specifically murder by then-defense minister Moshe Ya’alon and IDF Chief-of-Staff Lt. Gen. Gadi Eisenkot. Prime Minister Benjamin Netanyahu also condemned Azaria, though he did not use the word “murder.”

Azaria was arrested and brought to court in handcuffs. In nearly all previous incidents where Palestinians were killed in controversial circumstances, there was no arrest and investigations took weeks or months before anything got to court or an indictment was filed.

It was the shot heard round the world.

But within a few days, other videos and information emerged showing that others on the scene had suspected and yelled that Sharif might be wearing a concealed explosive vest under his black jacket, potentially creating a self-defense argument for Azaria.

Suddenly, according to a social media expert at a Jerusalem Center for Ethics conference in June, the general public swung from condemnation and embarrassment to overwhelmingly backing “one of its own,” with many even calling Azaria a hero. Politicians, including Netanyahu and a top then-opposition Knesset member, Avigdor Liberman, started to go neutral or openly support Azaria, with Liberman showing up at his side in court.

Eventually, IDF Magistrate Advocate General Brig. Gen. Sharon Afek, who personally intervened in the case, would decide to file an indictment for manslaughter instead of murder (as some demanded) or negligence (as Azaria’s supporters urged.)

Manslaughter not only carries a far greater stigma than negligent homicide, it also can increase jail time from weeks to years in the event of a conviction.

Several months down the road, the shot heard round the world would have several monumental impacts.

It would turn the Israeli political map upside down by poisoning Netanyahu and Ya’alon’s relationship, lead to Ya’alon quitting the Likud party, lead to Liberman bringing his Yisrael Beytenu party into the governing coalition and lead to Liberman replacing Ya’alon as defense minister.

Incidentally, since Liberman became defense minister he has said less about the case and has not sided as openly with Azaria, but his statements have still left little doubt that that is where his sympathies lie.

The Azaria case would lead to a culture war over control of the IDF, pitting its chief of staff, Eisenkot, his deputy Yair Golan, and the legal establishment against the political Right and a wide swath of run-of-the-mill Israelis over how fast soldiers should pull the trigger when there is a potential, but not certain danger from a Palestinian.

These same sides would also enter a war of words about whether Israeli democracy was going down the tubes with quasi-fascists undermining Israel’s purity of arms, or whether government and military was starting to be run  too much by lawyers, with too little concern for soldiers’ safety.

It would also draw the attention of the global media and of the International Criminal Court, which is looking at the possibility of criminally investigating Israelis and Palestinians for war crimes during the 2014 Gaza war and any problematic conduct since then.

In the trial itself, IDF officer faced off against IDF officer exposing classified rules of engagement, past IDF blunders that all Israelis would have liked to be kept quiet, and a former deputy head of the IDF’s legal division would prove a thorn in the side of his former employer as lead defense attorney for Azaria.

The human drama between the defense lawyer, IDF Col. (res.) Ilan Katz (who co-lead the case with lawyer Eyal Besserglick), the head judge IDF Col. Maya Heller and the reservist lead IDF prosecutor Lt. Col. (res.) Nadav Weissman drafted specially from the private sector for the case, all of who knew each other in their prior lives in the IDF legal division, was also spell-binding and as personal as it gets.

What were the key issues and moments at trial and what will the verdict be?

From May through early July, Weissman and the IDF prosecution pummeled Azaria’s with accusations from his three senior IDF commanders: Col. Yariv Ben-Ezra, Lt. Col. David Shapira and Maj. Tom Na’aman, including taking apart

They accused Azaria of shooting Sharif in cold-blood and out of revenge for Sharif’s stabbing of Azaria’s fellow soldier.

Weissman showed second-by-second video footage of everyone on the scene slowly and calmly walking right next to Sharif as opposed to showing any concern or distancing themselves from a potential bomb threat.

Even many witnesses who tried to take Azaria’s side that they had also worried about a concealed explosive vest, were shown walking next to Sharif calmly and with no indications of anxiety – seemingly disproving his ‘I shot in self-defense to eliminate the bomb threat’ argument.

Weissman similarly deconstructed Azaria’s argument that he shot Sharif in self-defense out of concern that he would attack with a knife lying right next to his body.

Video footage proved that the knife was three to four meters away both before and after Azaria shot Sharif and that it was only close to him at an even later point when right-wing activist Ofer Ohana moved the knife closer – tampering with evidence to protect Azaria (which Ohana essentially admitted to.)

But the defense unleashed a fierce counterattack from late July through October.

To match Azaria’s current commanders’ testimony that he shot Sharif in cold-blood, the defense called forth three former generals, including former Deputy Chief-of-Staff Uzi Dayan, Maj. Gen. (res.) Dan Biton and Brig. Gen. (res.) Shmuel Zachai.

If Azaria’s commanding officers said at worst Sharif presented a vague potential danger, the three generals said the possibility of a concealed explosive vest was a concrete danger.

If his commanders said that B’Tselem’s video encapsulated how unafraid Azaria and others in the area were when he suddenly shot Sharif, the generals and many rank and file soldiers who were present on the scene said the video did not capture the tense atmosphere at the time.

But, can three ex-generals who were not there and low ranked soldiers who were there outweigh three current commanders who were there plus the extensive video footage? Azaria’s best shot at winning is his lawyers’ argument that blurs the difference between a potential and concrete danger.

Next, though their argument that Ya’alon and Eisenkot unduly influenced the commanders, legal division and military police by condemning Azaria for murder before he was even arraigned for a lesser manslaughter charge is not actually a defense, it  may add to a list of reasons to create enough doubt for an acquittal.

Azaria’s defense team created more doubt in proving that Maj. Tom Na’aman mismanaged the scene of the terrorist incident, which all sides agree was disorganized and failed to comprehensively check if Sharif had weapons or a bomb.

At certain points, it seemed that cumulatively these list of doubts might win the day for Azaria.

However, the overall tone of the three-judge panel indicating that the B’Tselem video is authentic and powerful evidence and disregarding Azaria’s subjective feelings when it came to how hot it was in Hebron during the incident, signal they may drop these doubts from their calculations.

The judges did not seem impressed by claims that it felt more dangerous in the field than the calm expressions seen on the faces of Azaria and others shown in the video.

After all of the low-ranking soldier-witnesses from the incident who took Azaria’s side, the fact is that none of them felt enough of a danger to shoot Sharif.

Also, Weissman jumped on Azaria’s five different versions of his story, including a shocking and radical change mid-trial when he suddenly claimed that he had told Naaman about his knife and concealed bomb concerns the first time he was asked why he shot Sharif. Until trial, Azaria had said he did not mention his concerns about a concealed explosive until hours after the incident when he was being questioned and had already spoken to a lawyer.

The defense also has tried to frame the trial as Azaria versus Naaman, claiming that Naaman hit Azaria and implying that all of this could be related to Naaman’s tensions with Azaria. They rightly pointed out that the IDF Prosecution did not bring Naaman back to testify a second time to rebut the allegations of hitting Azaria. But the IDF Prosecution’s case was never based just on Naaman.

Video footage appears to show that the yelling about a bomb that Azaria might have heard were about two minutes before he shot Sharif. If it was two minutes before as opposed to the few seconds Azaria claimed, he can hardly claim the danger was sudden and impending. Azaria’s defense team argued that the video did not pick up all of the yelling, but they also could not pinpoint a different yelling about a bomb that was a few seconds before the shooting.

T.M., a friend of Azaria’s, admitted in court, practically against his will, that Azaria had talked to him about shooting Sharif as an act of revenge.

Also, IDF paramedic Darya Schwartz, who was not a friend of Azaria but cannot be accused of having an agenda against him, testified that when asked about shooting Sharif he tried to evade answering saying he did not remember, and only later mentioned a fear of Sharif using the knife. Critically, she said he never mentioned fear of an explosive vest. On cross-examination, Azaria said he had told her about the explosive vest, but unlike his commanders, Schwartz had no motive to lie.

This confirms Naaman’s story and discredits Azaria’s since T.M. is clearly rooting for Azaria based on most of his statements and their embracing in court, and Schwartz had no side.

None of this means Naaman did not mismanage the scene, that Sharif should not have been checked for a bomb and that there were not fears of a bomb. Yet, Azaria’s admission of revenge, combined with his ignoring the option of addressing any potential and vague threat from Sharif by shooting him in the hand so he could not trigger a bomb, kicking his hand or otherwise preventing any danger without using lethal force, may be viewed as damning.

How the IDF Jaffa Military Court rules in the manslaughter charges against Azaria will reverberate far beyond whether he is jailed or not, with a potential broad impact on the next stage of the Knife Intifada, the Israeli political arena, the ICC and international perception of Israel’s legitimacy.  

If Azaria is convicted, some positives for Israel could include the Palestinians and other international critics having to contend with a curveball to their narrative that Israeli prosecutions of its soldiers are a whitewash.

It would also be the first conviction of an Israeli soldier for a serious crime for shooting a Palestinian since the ICC started its January 2015 preliminary examination of alleged war crimes connected to the 2014 Gaza war.

Whether Azaria is guilty or not, Sharif was not waiving a white-flag and many on the ground were concerned the danger was not over making the conviction of a serious crime a strong testament to the impartiality of Israel’s system for prosecuting its own soldiers’ errors.

In a dream scenario, the conviction might even build some good will in the broader Israeli-Arab diplomatic situation, where little currently exists.

On the flip side, it might not generate any positive moves and merely avoid negative attention that would likely be brought down by the Palestinians, international critics and the ICC if Azaria is acquitted.

Also, if he is convicted, there may be political convulsions and more hostility directed against the IDF and its lawyers from the Right – already a trending tactic.

An acquittal would risk all sorts of negative international consequences, possibly aiding BDS with a trophy and viral video to attack Israel with. Yaalon recently suggested that it would also drag IDF values downward toward looking more like ISIS. But it might also heal some of the divide in Israeli society that the incident and trial seem to have exacerbated.

Supporters of conviction say it will reaffirm the country’s commitment to purity of arms and the rule of law, while supporters of acquittal say it will reaffirm justice – that the little guy soldier not take a beating to satisfy international critics when so many higher officers have gotten a “get out of prosecution free card.”

Ultimately, the verdict will not decisively resolve any of the above major issues. But in a 50 or 100 year-old conflict, it will be a rare moment that will capture everyone’s attention and will have untold impacts going forward.

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