The IDF Court of Appeals on Wednesday largely refused a request by the attorneys of Sgt. Elor Azaria, the so-called Hebron shooter, to allow the admission of evidence from other cases of security personnel who killed people against orders or protocol but were not tried.
The judges rejected 16 of the 17 cases the defense wanted to include in the appeal, allowing only a case in which a volunteer police officer shot dead a Palestinian terrorist after a stabbing attack in Jaffa last year.
According to defense attorney Yoram Sheftel, the 17 cases show that the army arbitrarily applied the law against his client, who was convicted in January of manslaughter for fatally shooting a disarmed and incapacitated Palestinian attacker last year.
The prosecution argued that the cases are not comparable as the case involving Azaria is sui generis, unlike any other. Prosecutor Nadav Weissman said the majority of the cases were thrown out for legitimate reasons, namely that the soldiers had adhered to the rules of engagement.
The appellate court, led by Maj. Gen. Doron Feiles, also refused a request by the defense to enter into evidence emails by the prosecution, in which the army attorneys threatened to appeal Azaria’s sentence in favor of a harsher one. Sheftel had argued that the emails constituted a breach of ethics.
Azaria’s defense team is demanding that the entire verdict and sentence — 18 months behind bars, a suspended term and demotion to the rank of private — be thrown out.
Prosecution lawyers, meanwhile, were set to argue that the sentence handed down to Azaria was too lenient. They planned to demand that it be increased to anywhere from 30 months to five years.
A Palestinian activist for the Israeli human rights group B’Tselem had filmed Azaria, 21, shooting dead Abed al-Fattah al-Sharif, minutes after Sharif and another man carried out a stabbing attack on troops in the West Bank city of Hebron, and as Sharif lay on the ground disarmed and bleeding, having been shot during the attack. The incident occurred on March 24, 2016.
The footage made international headlines at the time, and the case opened deep fissures in Israeli society, with some on the left seeing it as a test case for the army’s commitment to law and order and those on the right seeing Azaria as a victim of his circumstances who should not be punished. Following the verdict, many right-wing politicians, including Prime Minister Benjamin Netanyahu, called for him to be pardoned.
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During the hearing, Sheftel called for his client to be acquitted “on behalf of the millions” who believe in his innocence. He said it was “extremely out of character” for the military court to bring Azaria to trial, considering its history.
“We will show 17 cases that are far worse” than that of his client, he promised, some of which included the killings, not of “murderous, jihadist fascistic terrorists, but of noncombatant Arab residents of Judea and Samaria [the West Bank].”
Judge Col. Tzvi Segal was the most vocal of the five-member panel, made up of three military judges, Brig. Gen. (res.) Avi Peled and a Maj. Gen. (res.) Eyal Eisenberg.
Segal, for instance, took issue with one of those cases, in which a Border Police officer, Ziad Jilani, shot dead a Palestinian attacker who was already on the ground. He asserted that in that case the officer followed the rules of engagement.
Segal also drew a distinction between cases in which there isn’t physical evidence and ones where there is — in Azaria’s case, the video footage.
The only case that the judges agreed to consider in the appeal was that of the attack in Jaffa, where a volunteer policeman shot the Palestinian stabber dead as a crowd of bystanders egged him on.
“Unlike the chief of staff and Defense Ministry,” who condemned Azaria for a supposedly lesser crime, Sheftel said, “the head of the Tel Aviv police, who has different ethics, wanted to give the volunteer police officer a citation.”
According to chief prosecutor Nadav Weissman, most of the cases that were cited by the defense were closed because the soldiers involved were found to have committed no wrongdoing. He said that Sheftel was arguing that the army had a “different policy” from the one it claimed to be acting on in the case of Azaria.
“That’s a grave allegation,” he added.
“There is no case of a soldier — it could also be a police officer but we’re military prosecution — coming 11 minutes [after an attack] and shooting an incapacitated terrorist and then saying afterward that he did it because he was a terrorist who deserved to die,” Weissman said.
Times of Israel staff contributed to this report.