Analysis: Why the IDF Hebron shooter doesn’t stand a chance

Unlike other situations in which there were arguments about whether an attacker was retreating or attacking, the video leaves absolutely no doubt.

By YONAH JEREMY BOB
Updated: MARCH 28, 2016 09:05
IDF soldier shoots dead subdued Palestinian terrorist in Hebron, part of Elor Azaria case
No matter how many rallies are held for him, the soldier who on Thursday shot a completely immobilized Palestinian after the man had attacked other security personnel several minutes before, is in hot water.
He is absolutely innocent until proven guilty, and there have been many instances in the past in which videos were manipulatively edited to try to frame IDF soldiers for crimes.
But this case is different.
If his primary defense is what has leaked to the media – that he thought he saw the Palestinian move and was worried he had an explosive vest – that argument will not fly in court and the only real question is whether he’s charged with manslaughter or murder.
Unlike other situations in which there were arguments about whether an attacker was retreating or attacking, was already “neutralized” or still a danger, the video leaves absolutely no doubt.
Over nearly two minutes, as seconds tick off in slow motion, the Palestinian is 100 percent motionless and, from the viewer’s perspective, it appears he may already be dead. (The shooter’s best defense actually may be that his shot just sped up the death of a mortally wounded person – not that that is legal either.) Far more important than the video, however, is that none of the other soldiers shot the Palestinian and the video shows a large number of them with equally good vantage points if he really was starting to move.
Even if the shooter did not make the damning admissions leaked to the media, his quick arrest appears to confirm that the other soldiers on the spot did not view the Palestinian as a threat. As a separate issue, they also did not appear to react to his shooting of the Palestinian with any immediacy – but that is an issue for those who did not react, not the shooter.
And now we come to the most crucial point: what in the US is sometimes referred to as the objective reasonable person test, largely credited to Bernhard Goetz.
In 1984, Goetz shot several alleged robbers on a New York City subway train, though the group of adolescents had not started to clearly attack or rob him and one of them eventually made a clear show of wanting to leave him alone.
One had said, “Give me $5,” while the others, according to Goetz, had moved into position to attack him if he refused. Also, he had been attacked before in similar circumstances and the city was under a relative siege with violent crime rampant.
Goetz was acquitted because the test for self-defense for murder and attempted murder at the time was about the subjective mindset of the person claiming self-defense – did he feel his life was in danger? The jury said that Goetz, in the environment of New York at the time, as a past victim and given the adolescents’ suspicious actions, did feel in danger.
Subsequently, so many legal scholars were disturbed by Goetz’s acquittal that the test was formally changed and now places a much greater burden for claiming self-defense.
To successfully do so now, most courts worldwide tend to look at it as whether an objective, reasonable person would have felt his life would be in danger if confronted by the same situation.
Since it appears that none of the other soldiers felt threatened on Thursday, it means that the shooter’s argument that he subjectively felt his life was threatened was unreasonable, thereby invalidating his self-defense argument.
If that is true, it does not matter, at least for the conviction stage, that the Palestinian was an attacker, that the attack was recent or that the incident took place in Hebron – one of the most dangerous spots in the current wave of violence.
The other soldiers, and an objective, reasonable person, did not and would not feel in danger after the Palestinian had been motionless for so long a period.
What is the logic behind an objective, reasonable person test here? It would be that even if the threshold for IDF soldiers was low so as to protect them from terrorists’ tricks and suicide bombers, a particularly anxious soldier still could not shoot to kill a completely motionless attacker just because he thinks he suddenly twitched.
Based on the evidence that has emerged so far, the court likely will find that the shooter unambiguously crossed the line in terms of his perceptions of the Palestinian and his decision to use lethal force.
At that point, all the other facts, some political support and the concern to avoid exposing IDF soldiers to undue scrutiny, which could make them hesitate from even legitimately defending themselves, probably will not save the soldier from a guilty verdict.
The only question left would be other technical issues of intent, which would decide whether the guilty verdict is for manslaughter or for full-scale murder.