The prosecution rests, Hebron shooter takes the stand

Can Azaria save his case after six weeks of being hammered by the IDF prosecution and every officer over him and his unit in the chain of command?

By YONAH JEREMY BOB
Updated: JULY 24, 2016 08:59
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)
It’s time for the main event.
On Sunday, the Hebron shooter, Elor Azaria himself, takes the stand.
Can Azaria save his case after six weeks of being hammered by the IDF prosecution and every officer over him and his unit in the chain of command? To answer that we need to explore the formidable case that IDF lead prosecutor Lt.-Col. Nadav Weissman has assembled against him since testimony opened on June 1 in the Jaffa Military Court manslaughter trial for Azaria’s shooting of Abdel Fatah al-Sharif.
Sharif and another Palestinian attacked two soldiers in Hebron’s Tel Rumeida neighborhood on March 24, wounding one of them. Sharif had already been shot and “neutralized” when Azaria showed up around 10 minutes later and shot him in what the IDF prosecution has called a cold-blooded execution.
All of the lawyers on both sides of the case agree that what Azaria did was wrong in a moral sense, following orders sense and even in a being negligent sense.
However, Azaria’s lawyers, Ilan Katz and Eyal Besserglick, have argued that he thought he was acting in self-defense, either because he thought Sharif was reaching for a knife, or because he thought the terrorist was about to activate an explosive vest.
After the fact it was clarified that Sharif had no explosive vest and it appears he could not have reached the knife. But Azaria’s lawyers have said that his mistake was within a reasonable spectrum of actions that a young soldier unprepared for the situation might take under the circumstances.
The IDF prosecution has said that the self-defense argument was concocted after the fact, that it has proven that the narrative behind it is bogus, that Azaria’s story changed as he realized he was in trouble and that no reasonable person would have shot Sharif, even if they had some vague feeling of danger.
So does Azaria’s self-defense defense have a chance? One problem Azaria has here is that his first explanation to Maj. Tom Naaman and co-soldier T.M. after the shooting indicates that he killed Sharif in revenge for his stabbing of a friend.
There are a few versions of what Azaria said to Naaman and T.M., and Azaria’s lawyers tried on cross-examination to make it look like Naaman and T.M. were both unsure of what was really said and relying on each other about what was said.
The problem is that even with their different accounts wording-wise, both of them say Azaria said that Sharif deserved to die as a terrorist.
Azaria saying he was going to kill helpless Sharif because he is a terrorist is enough for a manslaughter conviction and to blow up his self-defense story.
Weissman has also brought the testimony of Lt.-Col. David Shapira that even in Azaria’s second telling of why he shot Sharif, he only mentioned the knife and nothing about a bomb.
To account for Azaria’s many statements in which he did not mention a bomb, his lawyers have claimed that initially he was confused and in shock and that when he gave his later answers he was already calmer and able to give a more accurate account.
However, Weissman says that there is a general legal principle that a person’s in real-time first reaction is usually the most genuine, because it is before he has had time to think through what answer best fits his interests – which could include lying.
Even if Azaria is telling the truth, Weissman says he has proven that at most Azaria can claim there was a potential danger, not any confirmed serious and imminent danger.
Only a confirmed, serious and imminent danger could possibly allow shooting to kill as Azaria did, says Weissman.
But Weissman goes far beyond that. He has said the IDF prosecution has proven that Azaria’s two self-defense narratives: that Sharif was reaching for a knife right next to him or had an explosive vest, are smoke and mirrors.
What is his evidence? The IDF prosecution has not merely used the several videos of the incident to show the shooting, it has used them to portray the lack of danger the soldiers in the area felt.
Over and over again IDF commanders and soldiers have testified confirming what the videos show, that they all walked right next to Sharif, that there were no calls to stay back and that everyone was acting calmly as if there were no threat, let alone a bomb.
True, one of the videos has audio of one person yelling out that there could be a bomb, and some of the Magen David Adom rescuers in the area and soldiers had some vague concerns about a bomb.
But none of them were seriously concerned or they would not have acted so calmly, Weissman has argued. Certainly, none of them viewed Sharif as enough of a serious and imminent risk to shoot him. T.M., Azaria’s friend who tried to help him when he could, even grudgingly admitted that he would have stopped Azaria from shooting if he had known that was his plan.
Also, Azaria’s explanation that Sharif’s coat was suspicious in the hot weather has been contradicted by a weather expert who testified that when the incident occurred in the early morning of March 24 in Hebron, it was relatively mild and not hot as in some other parts of the country. That leaves Azaria only being able to claim self-defense out of concern that Sharif would make a grab for a knife.
But the testimony and the videos clearly show that the knife was 3 to 4 meters away from the wounded Sharif – not right near his hand as Azaria told military police.
This not only invalidates his narrative, but it makes him look like a liar once again.
That is not Azaria’s only problem regarding the knife.
The IDF prosecution also, after granting him immunity from a separate prosecution, got ambulance driver and right-wing activist Ofer Ohana to admit that he moved the knife closer to Sharif’s body after the Palestinian had been shot dead.
Further, Azaria told military police that Ohana, after moving the knife, told him to claim he shot Sharif in self-defense because of the knife.
This makes Azaria look like he lied as part of a cover-up hatched by Ohana, who also withheld from police parts of video footage he filmed and a telephone call he recorded to Azaria’s father.
Another problem with the knife explanation is Shapira’s testimony that he could tell that Azaria was lying. His testimony along with that of Col. Yariv Ben-Ezra and Naaman makes a triumvirate of highly decorated and high ranking officers all saying that Azaria had no basis for shooting Sharif.
The three said that Azaria had been trained in the rules of engagement and that if he was worried about the knife he should have kicked it aside.
In any event, they said he should have known that a mere potential danger, absent seeing evidence of an actual bomb, does not allow for shooting to kill, and killing under the circumstances was far more than mere negligence.
Katz and Besserglick tried to portray Ben-Ezra as just testifying about the video with no firsthand knowledge of the event, and Shapira as ignorant of how dangerous his rank and file troops thought the situation was. They tried to portray Naaman as leaving open the door to the argument that even if he did not feel danger, less experienced soldiers like Azaria might feel differently.
But at the end of the day, it is hard to see a panel of military judges rejecting the uniform views of all three commanders based on the testimony of Azaria and less experienced soldiers.
That essentially is what Azaria and some of the soldiers supporting him will need to do starting Sunday. If they cannot sell the military court on why it should reject the commanders’ objective judgment that there was no danger over their subjective sense of danger, Azaria is likely going to prison for some years.
This is even more true because of a visible shift in momentum going the prosecution’s way in how the three IDF judges led by Col. Maya Heller have related to the sides.
Going into the trial, both Judge Lt.- Col. Ronen Shor and Appeals Court Judge Brig.-Gen. Doron Files had ruled against the IDF prosecution and in favor of Azaria being released from police custody. They had suggested to the prosecution that it should think twice about going to trial in light of the case’s weaknesses.
But since the trial kicked in, Heller has taken Weissman’s side over Katz’s far more often than not on disputes of law and objections about questions and treatment of witnesses.
This means that Azaria’s testimony on Sunday is make or break time for his case.