Elor Azaria was sentenced, but the army was the one on trial

Last month, the three-judge panel presiding over the trial of Elor Azaria, the so-called Hebron soldier, picked apart his defense team’s arguments in a two-and-a-half-hour marathon reading of the guilty verdict.

No stone was left unturned as head judge Maya Heller went point by point, claim by claim, in order to show why Azaria had no justification for shooting Abdel Fattah al-Sharif approximately 11 minutes after the Palestinian man stabbed an IDF soldier in the West Bank city of Hebron.

Tuesday’s sentencing, however, was an exercise in mitigation featuring a series of “yes, but…”

Yes, Azaria’s actions were wrong, but so were his commanders’.

Yes, Azaria wrongly shot a disarmed Palestinian assailant, but it was during a “wave of terror.”

Yes, Azaria needs to be punished, but his family has already suffered and been threatened.

IDF soldier Elor Azaria, who was convicted of manslaughter for shooting dead a prone and wounded Palestinian assailant, in a case that has deeply divided Israel, sits with his parents during sentence hearing at a military court in Tel Aviv on January 24, 2017. (Flash90)

It was Azaria’s sentencing, but some of the harshest criticism from the sentencing decision was directed not at him but at the chain of command, up to and including the defense minister at the time, Moshe Ya’alon.

The French-Israeli Azaria was sentenced to 18 months in prison beginning March 5, half of the minimum three to five years requested by the prosecution. The judges said his actions caused damage to Israel’s societal values and the army’s belief in “purity of the weapon,” when he used his rifle to kill an assailant who no longer posed a threat.

But the army, and its commanders, were also said to have made errors — during the incident itself, immediately afterwards and throughout the 10-month trial.

‘A command vacuum’

On March 24, 2016, Sharif and another Palestinian man, Ramzi Aziz al-Qasrawi, stabbed an IDF soldier and tried to attack another. The troops opened fire, killing Qasrawi and severely wounding Sharif.

The scene that unfolded was, by all accounts, a mess, and it was in this fog of confusion that Azaria shot Sharif in the head, killing him.

In their guilty verdict, the judges insisted that the Kfir Brigade soldier acted out of a desire for revenge, citing comments he made afterward that Sharif “stabbed my friend” and “deserved to die.”

An IDF soldier loading his weapon before he appears to shoot an unarmed, prone Palestinian assailant in the head following a stabbing attack in Hebron on March 24, 2016. (Screen capture: B’Tselem)

In sentencing him, the judges did not back down from that claim, but also emphasized the failures of the platoon and company commanders to maintain order at the scene.

“At the critical moments, the scene of the attack was managed unprofessionally, leaving a command vacuum,” the judges said.

“The accused did not receive orders or directions from his commanders and at the same time heard the calls of Magen David Adom [ambulance service] personnel and residents of the Jewish settlement in Hebron… about the threat posed by the terrorist,” according to the sentencing decision.

After the shooting, an order from the regional brigade commander to clear the scene of civilians was not carried out. Videos from the scene showed residents walking around the area, taking pictures of the goings-on and talking to soldiers.

Within the army, and Israeli society in general, the shooting brought up the issue of the interactions between IDF soldiers and West Bank settlers.

Soldiers serve for months in the same locations and naturally develop relationships with local Jewish residents, who often provide the troops with food and drinks as a way of thanking them. But, as evidenced in the Hebron case, those ties can result in a breakdown of the military-civilian divide during operational activities, unless commanders in the field make a point of maintaining it.

Those failures of Azaria’s commanders following the attack were a mitigating factor for determining his prison term, the judges said.

Senior command failures

The army’s neglect of Azaria’s family during the 10-month trial, and statements made against his conduct by senior officials, also influenced the court’s decision, according to the judgment.

During earlier sentencing hearings, Azaria’s father, Charlie, mentioned his own deteriorating health condition, which included a stroke, as well as his wife’s “dramatic” weight loss and his brother’s two cardiovascular incidents.

The judges noted that “for 10 months, not a single military official contacted the family to help it.”

IDF Kfir Brigade commander Col. Guy Hazut arrives to testify at a sentencing hearing for Sgt. Elior Azaria, who was convicted of manslaughter for shooting dead a disarmed and wounded Palestinian assailant, at a military court in Tel Aviv on January 31, 2017. (Roy Alima/FLASH90)

When Kfir Brigade commander Col. Guy Hazut did visit the family, it did not go particularly well. Hazut arrived with a former subordinate officer, Ofri Supar, and they breached legal protocol during their conversation with Charlie Azaria by encouraging him to both meet directly with senior IDF officials and seek new legal counsel.

The judges found Hazut’s actions to be innocent, as they were done of his own volition and not under official instruction, but still troubling. These, too, were taken into consideration by the judges in their decision.

The court also singled out then-defense minister Moshe Ya’alon, IDF Chief of Staff Lt. Gen. Gadi Eisenkot and IDF Spokesperson Maj. Gen. Moti Almoz, who has since also been appointed head of the army’s Manpower Directorate.

In the hours following the attack, Ya’alon and Almoz released statements criticizing Azaria’s actions, which the defense attorneys claimed had caused damage to their client. Eisenkot made statements a few days later.

Though the judges recognized the need for top officials to comment on events, they chastised Ya’alon, Eisenkot and Almoz for making remarks before a “factual picture emerged from the investigation.”

IDF Spokesperson Moti Almoz speaks to the press on June 15, 2014. (Flash90)

The court said such statements can have a “vast impact on the positions of the public and the public’s trust in the judicial authorities.”

Soon after the attack, Almoz distanced the army from the shooting, saying, “This is not the IDF, these are not the values of the IDF and these are not the values of the Jewish people.”

Around the same time, Ya’alon said Azaria’s actions were “in utter breach of IDF values and our code of ethics in combat.”

He later said Azaria was “corrupted” and had to “be held accountable.”

Defense Minister Moshe Ya’alon delivers a speech on Monday, February 21, 2017 (screen capture)

Eisenkot and Almoz have yet to respond to the criticism, but Ya’alon said on Tuesday night that his statements were necessary to defend Israel against claims that “IDF soldiers carry out extrajudicial executions.”

The reactions of the Israeli public, however, seem to back up the judges’ claim.

A poll released last month by the Institute for National Security Studies think tank showed that nearly three-quarters of Israelis believe that the defense officials convicted Azaria in the press before the trial actually began.

To appeal or not to appeal?

While the first chapter of the Azaria affair has come to a close with the soldier’s sentencing, his lawyers have indicated it could also be the beginning of a new chapter.

Outside the courthouse in the army’s central Tel Aviv headquarters, attorney Yoram Sheftel laid out the defense team’s case for the appeal.

Sheftel, cutting a striking figure with meticulously groomed facial hair and an oversized Jewish star necklace, told reporters that the judges’ guilty verdict “stood on chicken legs,” a Hebrew phrase meaning flimsy.

Attorney Yoram Sheftel speaks during a press conference in Tel Aviv on March 3, 2016. (Flash90)

The legal team said there was no evidence besides personal testimony that Azaria said Sharif “deserved to die.”

“There were 13 cameras there! And none of them have footage of that,” Sheftel said.

However, members of the defense team have also noted that the 18-month sentence is fairly light “in comparison to the draconian verdict.”

Under military law, Azaria could be eligible for early release after serving half his sentence, or nine months, if he behaves well in prison. This is different from civilian law, in which prisoners are only eligible to have their sentenced reduced by one-third for good behavior.

If the army were to come to an agreement about the soldier’s release, his attorneys have indicated they might be willing to forgo their appeal.

Politicians including government ministers have called for Azaria to be pardoned immediately. Education Minister Naftali Bennett said that sending him to prison would harm Israel’s security. A number of surveys have shown that a majority of Israelis say they support clemency for the soldier.

Under Israeli law, a pardon could come from President Reuven Rivlin, Eisenkot, or Central Command head Roni Numa. However, legal experts have argued that issuing an immediate pardon could cast doubt on Israel’s ability to judge itself and potentially open Israel up to investigation by international criminal courts.