As Azaria case roils politicians, IDF ethicist slams soft sentence
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As Azaria case roils politicians, IDF ethicist slams soft sentence

Army ethics code drafter Asa Kasher says only 18 months for Hebron shooter sends 'terrible message'; opposition party leaders say politicians should butt out

IDF Sgt. Elor Azaria, a soldier convicted of manslaughter for shooting an injured, disarmed Palestinian attacker in Hebron, seen during an appeal hearing at the Kirya military base in Tel Aviv,  July 30, 2017. (FLASH90)
IDF Sgt. Elor Azaria, a soldier convicted of manslaughter for shooting an injured, disarmed Palestinian attacker in Hebron, seen during an appeal hearing at the Kirya military base in Tel Aviv, July 30, 2017. (FLASH90)

The author of the Israeli military’s ethics code declared his opposition Monday to what he said was a too-short prison term for a soldier convicted of manslaughter after killing a wounded Palestinian assailant, as lawmakers took conflicting positions on the highly charged issue.

Prof. Asa Kasher told Israel Radio on Monday that Ezor Azaria’s 18-month sentence would have a chilling effect on the Israel Defense Forces’ “purity of arms” doctrine.

On Sunday, a military court rejected an appeal by attorneys for Elor Azaria aiming to overturn his conviction, as well as an appeal by the prosecution that sought to stiffen his punishment.

Ultimately, the judges upheld a district court’s manslaughter conviction and 18-month prison sentence for Azaria, who, in March 2016, shot dead Abdel Fattah al-Sharif, an incapacitated and wounded Palestinian who had stabbed one soldier and tried to stab another 11 minutes previously. Sharif was shot by soldiers as they defended themselves during the attack, and Azaria only arrived at the scene later.

Barring a pardon or appeal, Azaria would begin his prison time on August 9. Azaria, who has already spent over a year confined to base during the trial and appeal period, would then spend at least nine months behind bars, becoming eligible for parole after serving half his sentence.

But Kasher said that even the 18-month sentence was too soft and warned that it sends “a terrible message.”

Asa Kasher attends a conference at the Bar-Ilan University near Tel Aviv, June 11, 2017. (Flash90)
Asa Kasher attends a conference at Bar-Ilan University near Tel Aviv, June 11, 2017. (Flash90)

“I don’t like the punishment,” Kasher said. “It is a too light punishment. The theoretical structure the law speaks about in punishment for manslaughter can go to 20 years. Everything has been left at the lowest level of punishment. That is an apologetic attitude and damages the ethical code and values of human life and purity of arms. It sends a terrible message.”

Azaria, as a medic, should have concerned himself with assisting the already injured attacker, Kasher noted.

“He added insult to injury because he is a medic, and by the rules he should have treated that man, even if he is a despicable terrorist,” he said.

Immediately following the court’s announcement Sunday, politicians and public figures, including Prime Minister Benjamin Netanyahu and Defense Minister Avigdor Liberman, called for Azaria to be pardoned, while others urged that his sentence be served out.

As a soldier, such a pardon could only come from IDF chief Gadi Eisenkot or President Reuven Rivlin, who would only make such a decision with Eisenkot’s approval. Eisenkot said he would weigh clemency if Azaria admitted wrongdoing.

Interior Minister Aryeh Deri told Army Radio in an interview that a pardon should have been given a long time ago.

“In the framework of a pardon, or mercy, this matter should have been closed a long time ago,” Deri said. “It was a tragic incident and it should have been closed immediately one way or another.”

Deri advised the Azaria family to appeal to Eisenkot for a pardon, a point of view shared by Regional Cooperation Minister Tzachi Hanegbi and deputy Foreign Minister Tzipi Hotovely.

Hotovely wrote on her Facebook page that the former soldier should not appeal to the Supreme Court against the sentence but rather should approach Eisenkot immediately.

Interior Minister Aryeh Deri speaks during a conference of the Shas Party in Jerusalem, July 30, 2017. (Yonatan Sindel/Flash90)
Interior Minister Aryeh Deri speaks during a conference of the Shas party in Jerusalem, July 30, 2017. (Yonatan Sindel/Flash90)

“There is no doubt that the case of Elor Azaria is the most justified in Israel for a pardon,” she wrote “The whole nation understands that when you are fighting terror you can’t make a combat soldier who killed a terrorist into a criminal.”

Others who supported a pardon were MKs Avi Dichter (Likud), Moti Yogev (Jewish Home), Ofir Akunis (Likud) and Gila Gamliel (Likud), who called on Rivlin to pardon the soldier.

Jewish Home MK Shuli Moalem-Refaeli advised Azaria to seek a pardon from Eisenkot as well as asking Rivlin to void the criminal conviction.

Likud MK Oren Hazan, who was a constant supporter of Azaria and attended the Sunday hearing at the Kirya military base in Tel Aviv, posted a self-made video of himself on his Facebook page under the title “The Azaria trial — a chronicle of predetermined outcomes.”

In the short clip Hazan declared his belief that Azaria was justified in shooting Sharif. Hazan then appealed directly to Eisenkot.

“Gadi, Gadi, the time has come to set Azaria free,” he said and called for a public campaign to secure a pardon.

‘Causing damage to the IDF’

In the opposition, though, many came out against a pardon or called for politicians to stay out of the decision.

Yair Lapid, who leads the Yesh Atid party, said that the decision should be left to Eisenkot or Rivlin.

“The decision on a pardon is entrusted by law to the chief of staff or the president and is in their hands alone,” he wrote on his Facebook page. “Politicians should refrain from attempts to become involved in the matter.”

Zionist Union MK Tzipi Livni also said the political haymaking would have a deleterious effect.

“The politicians perhaps help themselves politically with their declarations — but are only causing damage to the IDF, to the political system, and to Elor himself — this must stop. Let the chief of staff decide without political interference,” she said.

MK Erel Margalit of the Zionist Union wrote “without any regret — there must not be a pardon.”

MK Michal Rozin attends a Constitution, Law, and Justice, Committee meeting in the Knesset, July 25, 2017. (Yonatan Sindel/Flash90)
MK Michal Rozin attends a Constitution, Law, and Justice, Committee meeting in the Knesset, July 25, 2017. (Yonatan Sindel/Flash90)

Opposition MK Michal Rozin opined that the appeal court had done the right thing by upholding the conviction and sentence. The Meretz party lawmaker scolded fellow MKs for weighing in on the debate over whether or not to grant a pardon.

“There are too many politicians and publicity seekers who are hitching a ride on Azaria. They are using claims of defending the IDF and combat soldiers but in fact they are seeking to weaken the IDF values and its commanders and take the law into their hands. The calls for a pardon are a contempt of the court decision, since there is no regret in his heart and no request for forgiveness has come from his mouth.”

MK Omer Barlev of the opposition Zionist Union agreed, saying Azaria’s refusal to show regret barred him from a pardon.

“The calls by right-wing politicians to pardon the shooting soldier, and likewise the advice by the defense minister to appeal to the chief of staff — are an embarrassment and a disgrace,” he wrote. “At no point did the soldier express regret for his actions — therefore he is not eligible for a pardon.”

Coalition secretary MK David Bitan declared Sunday evening that Azaria’s trial “should not have been held at all and has created “a rift in the people and that is why I initially asked for a pardon a year and a half ago. For the sake of the soldier and his family we need to put this story behind and take care of Elor’s future.”

During a studio panel discussion on Channel 20 together with Azaria’s defense counsel Yoram Sheftel, Bitan asked the attorney to not proceed with a further appeal process, given that Eisenkot said he would consider lightening the sentence.

IDF Chief of Staff Gadi Eisenkot addresses the Knesset's Foreign Affairs and Defense Committee on July 5, 2017. (Isaac Harari/Flash90)
IDF Chief of Staff Gadi Eisenkot addresses the Knesset’s Foreign Affairs and Defense Committee on July 5, 2017. (Isaac Harari/Flash90)

In a statement Sunday Eisenkot said the court made its decision “loud and clear,” and had reached its verdict after a “moral, professional and impartial [legal] process.”

In his statement, Eisenkot said “if Sgt. (res.) Azaria decides to file a request for a reduced sentence, it will be seriously considered, along with a review of the other considerations related to this case and from my commitment to the values of the IDF, its soldiers and its service members.”

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