Israel’s military advocate general defended the army’s decision to indict Elor Azaria, the so-called Hebron shooter, calling the case a “legal and moral landmark in the history of military law,” in an interview with the Israeli Bar Association, published Wednesday.
In addition to the Azaria trial, which is currently in the appeal stage, Brig. Gen. Sharon Afek discussed the decision to reach a plea deal with Col. Ofek Buchris, who was suspected of rape, in his first interview since taking his position a year and a half ago.
As military advocate general, Afek functions as both a legal adviser to the military and as an attorney general, responsible for prosecuting cases. The 47-year-old brigadier general, who’s served in the military for 24 years, oversees a unit of some 300 soldiers, as well as hundreds more in the reserves, who operate in units throughout the military.
The Azaria and Buchris cases are by far the most controversial issues Afek has dealt with in his tenure thus far.
In January, a military court found Azaria guilty of manslaughter for shooting dead a disarmed, incapacitated Palestinian assailant 11 minutes after he stabbed an IDF soldier in the West Bank city of Hebron on March 24, 2016.
The case is now in the appeal stage, with Azaria’s attorneys arguing: that the army is arbitrarily applying the law, as evidenced by the fact that similar cases were not brought to trial; that the linchpin in the prosecution’s case — that Azaria said he killed the assailant out of revenge — was a lie; and that their client believed at the time that the assailant presented a threat.
The trial revealed deep divisions in Israel society, with large swaths of the public calling for the case against Azaria to be thrown out.
According to Afek, this was impossible as it became clear the Kfir Brigade soldier shot the “neutralized terrorist without operational justification and not out of a fear for his life, but rather in response to the fact that the terrorist had earlier stabbed his friend.”
Azaria’s actions were almost immediately denounced by the IDF spokesperson and by then-defense minister Moshe Ya’alon, which the soldier’s supporters argue forced the case to trial.
The brigadier general dismissed those assertions, saying his decision to indict Azaria was made purely out of legal considerations.
“I want to clarify unequivocally that the comments did not influence me. Moreover, nobody from the defense establishment came to me and said, I want you to act this way or that,” Afek told the interviewers from the bar association’s magazine.
Afek said the comments made by the army spokesperson were, in fact, directed more toward soldiers than the general public, telling troops “what’s acceptable and what’s forbidden in the IDF.”
According to Afek, that message was received. “I got the impression [from soldiers] that they know how to differentiate between a case where a soldier made a professional mistake… and one where a soldier shoots without justification or operational necessity.”
The indictment of an active-duty soldier for manslaughter is exceedingly rare in the IDF and in most militaries around the world. Similar incidents are generally resolved in plea deals, leading many to question why the same was not true of the Azaria case.
“We thought that the appropriate crime [with which to charge Azaria] was the crime of manslaughter, and we understood that for the defense, there was no chance of a confession to anything by a far lesser crime that in our view did not represent the severity of the act,” Afek said.
‘Azaria was indeed convicted of manslaughter and has yet to take responsibility for it’
“Therefore, there was no point in going to arbitration,” he said.
“And at the end of the day, Azaria was indeed convicted of manslaughter and has yet to take responsibility for it,” Afek said.
The general said he believes the case will go down in history as a landmark case.
“The statement that even against the worst enemy, including against a terrorist who tried to murder soldiers, there’s not place for someone to use a weapon when the terrorist no longer presents a threat, is an important and meaningful statement,” he said.
“Even in retrospect, a year after the incident, I am sure that it was the right decision,” Afek added.
The Buchris controversy
Unlike in the Azaria case, the military was able to reach a plea deal with then-Brig. Gen. Ofek Buchris, who was accused of rape and sexual assault by two female subordinates.
As part of the agreement, the rape and assault charges against Buchris were dropped, and in exchange he pled guilty to having prohibited sexual relations. He was demoted to the rank of colonel and received a suspended sentence, but no prison time.
The plea deal was heavily criticized at the time, even sparking a social media campaign of soldiers sharing the humorous and innocuous infractions that got them harsher punishments, with the hashtag “More than Buchris.”
Afek defended the agreement, saying it was “reasonable and took into account all the relevant considerations.”
Before the rape accusations, Buchris was seen as a rising star in the military. He was set to become the head of the Operations Department of the Operations Directorate, a steppingstone to a position on the General Staff.
“Following the affair, he was suspended and his nomination to a central position was canceled. He left the army, was found guilty of a sex crime, which carries with it a criminal record, and was demoted,” Afek said.
The military advocate general said the entire process was carried out in coordination with Buchris’s victims.
“They agreed to [the plea deal], supported it and expressed their appreciation to the lead prosecutor and the officers who worked with her,” he said.
Following the trial, Afek said a number of soldiers have come forward about being the victims of sexual harassment “and noted that they did so in light of the publications about the Buchris case and the way it was handled.”
Being a role model
Afek took office three weeks into a wave of terror attacks emanating from the West Bank, which continues — sometimes waxing, sometimes waning — until today.
While some of the cases have been tried in Israeli civilian courts, many of the attackers have been indicted in military courts in the West Bank.
Afek’s office has handled “35 murder trials and hundreds of attempted murder trials,” since the uptick in violence began on October 1, 2015, he said.
In the interview, the brigadier general also noted that under his direction the army changed its rules regarding soldiers caught using marijuana or breaking some other specific laws for the first time, allowing them to forgo jail time.
“This new approach puts an emphasis on giving soldiers a second chance, increasing the powers of commanders and encouraging soldiers to complete proper military service and to get rehabilitated,” he said.
When Afek took his position as military advocate general on October 22, 2015, he became the first member of the LGBT community to serve on the army’s General Staff.
‘It’s important to me that young men and women know that there are no glass ceilings in the IDF that limit them’
In Israel, the army is seen in many ways as more progressive than the rest of the state, specifically as it relates to the rights of partners and recognizing the children of same-sex parents.
Afek said that when he was a young officer, he feared his sexual orientation would be an issue during his military service, but found that it wasn’t an issue “at all” and didn’t prevent him from rising the ranks to his current position.
“It’s important for me to act as a role model,” he said. “Even today, in the year 2017, we still encounter manifestations of ignorance and hatred of others. It’s important to me that young men and women know that there are no glass ceilings in the IDF that limit them.”