Military court upholds conviction, 18-month sentence for Hebron shooter

A military appellate court on Sunday upheld the manslaughter conviction and 18-month prison sentence for an IDF soldier, Elor Azaria, who shot dead a disarmed and seriously injured Palestinian attacker last year.

Handing down the 158-page ruling, which was read in its entirety in a marathon 4-hour session, the panel of five judges rejected nearly all the defense attorneys’ claims, upholding the initial guilty verdict, and denying their request for a lighter sentence. In addition, the court rejected a separate appeal by the prosecution for a stiffer sentence, keeping the punishment to 18 months in prison and a demotion to private.

On January 4, a district-level military court found Azaria, who recently completed his military service, guilty of manslaughter for killing an incapacitated Palestinian stabber, Abdel Fattah al-Sharif, who had attacked two soldiers with a knife 11 minutes earlier, in the West Bank city of Hebron, on March 24, 2016.

A Palestinian activist for the Israeli human rights group B’Tselem filmed the March 24, 2016, incident. The graphic video (below) shocked the country and the world, and it later became a key piece of evidence in the trial, along with other cellphone videos from the scene.

The decision to uphold that conviction and sentence was made by a panel of five judges, made up of three military judges — lead judge Maj. Gen. Doron Feiles, the president of the army’s appellate court; Col. Tzvi Segal, a district-level judge; and Col. Yigal Flitman, who ordinarily serves as the head of the national labor court — and two senior officers — Brig. Gen. Avi Peled, the former head of the Golani Brigade; and Maj. Gen. Eyal Eisenberg, the former head of the Home Front Command.

“This was a forbidden, grave and immoral act,” Feiles said in the verdict, for which Azaria has yet to express any regret. The panel of five justices said that Azaria’s actions had gone against IDF values, specifically that of “purity of arms,” which requires soldiers to only use their guns when necessary. The verdict also quoted Israel’s first prime minister, David Ben-Gurion, who said the IDF’s most important asset was its “morality.”

Azaria shot the terrorist in the head “out of a desire for revenge, and not because of any true feeling of danger,” the judges said. “This is not the way of the state of Israel, this is not the IDF’s way… This was an action that stains [Azaria] and stains the IDF.”

“The appellant polluted the notion of purity of arms. We do not carry out our accounting with our injured enemies by ‘Wild West-style’ gunfire carried out by ‘brave’ sheriffs cutting corners,” the judges added. “The sanctity of life, the value of life above all else, is a fundamental aspect of our society and of the IDF. By his actions, the appellant trampled that value.”

One judge, who called for a longer prison sentence, but was overruled, also offered harsh criticism of the other soldiers on the scene, saying they showed no leadership.

“Are we permitted to lose our character and our honor just because that is how our enemy prefers to act toward us?” the unnamed dissenting judge asked. “Our answer is overwhelmingly: No!! (sic)” the judge said.

The divisive case had revealed deep rifts in Israeli society, with some seeing Azaria as a victim or scapegoat, while to others, he is a criminal.

Azaria defended his actions, claiming he shot at al-Sharif in a snap decision, believing the attacker, who he claimed was slightly moving, may have been armed with a hidden explosives vest or could have lunged for his knife. Prosecutors claimed there was no obvious danger from the critically injured attacker, who had been shot by another soldier and whose knife was over 80 centimeters (2.5 feet) away. The judges said that Azaria shot Sharif in the head to avenge his comrades, one of whom was injured in the attack.

Feiles quoted one of the witnesses as saying that Azaria said, “How is it that a terrorist stabs my friend and remains alive?”

The judges noted that in videos from the scene, Azaria could be seen calmly taking off his helmet and handing it to another soldier before shooting al-Sharif, which they said it inconsistent with his claims of being scared of a bomb or sudden knife attack. “His behavior was more suitable for a shooting range than the scene of a terror attack,” Feiles said.

Azaria arrived at the Kirya military base in Tel Aviv on Sunday morning wearing civilian clothing, a white T-shirt and dark pants, in contrast to the military uniform he had worn at all previous hearings.

His mother, Oshrat, walked alongside him, an Israeli flag draped on her shoulders.

At one point during the reading of the verdict, Oshrat, in a loud whisper, commented that her son had been “framed.”

Azaria’s father Charlie appealed to the media and supporters who crowded into the courtroom to maintain decorum and noted the family would respect the court decision and then take steps accordingly.

Speaking before the hearing, Azaria’s attorney, Yoram Sheftel, showed reporters a photograph apparently taken following a deadly 1972 terror attack that saw two IDF soldiers killed, and in which security forces were apparently seen pinning down the body of a terrorist, and then shooting at him from point blank range to ensure he was dead.

This case, Sheftel said, was the “spirit of the IDF,” the name of the army’s code of ethics.

The defense’s appeal was based on three main contentions:

One, that over the years there have been other instances of soldiers and police officers killing assailants who no longer presented threats and who were nevertheless not indicted, in an attempt to show that the military was practicing “selective enforcement” of the law.

Two, that the most damning testimonies, in which the witnesses said Azaria told them that he killed al-Sharif because the Palestinian had “stabbed my friend,” were false and did not appear on any of the ample video footage from the day in question.

And three, that Azaria was not given a fair trial due to public statements made by top IDF officers and then-defense minister Moshe Ya’alon.

The court did not accept any of these claims in their entirety.

Regarding the first, the judges noted significant differences in most of the cases presented by the defense, including one from last year from in Jaffa, in which a volunteer policeman shot dead an already wounded terrorist after a stabbing attack. According to the judges, those cases were “unfolding events,” in which the officers or soldiers acted “instinctively,” while in Azaria’s case, he arrived on the scene after the attack had ended and waited several more minutes before opening fire.

At the start of the session, the court also rejected a request by the defense to add into evidence the case of a terror attack at the Temple Mount in Jerusalem on July 14, in which one of the three gunmen, who was apparently incapacitated, got up and tried to stab police officers who were apprehending him. An officer then shot the terrorist dead. This presumably would have been used by the defense to show that apparently incapacitated people can still present a threat.

The court accepted the defense’s claims against the testimony given by Azaria’s company commander, Maj. Tom Naaman, citing “significant inconsistencies” in the officer’s remarks during his interrogation by Military Police and his courtroom testimony.

However, the judges upheld the testimonies of Azaria’s comrades, noting that any differences were minor and that the significant aspects were consistent. They also dismissed the defense claims about Azaria’s comments not being caught on tape as proof that he never said them.

The panel of five judges also acknowledged that some officials “crossed a line” in discussing the case; however, Feiles said that there was pressure from both sides and that ultimately the remarks by public figures did not affect the results of the case.

Feiles also dedicated nearly half an hour on the issue of Azaria’s testimony, which he said “developed over the course of the trial,” changing in order to fit other witnesses’ statements.

The inconsistencies, the judges said, could not be attributed to “post-trauma” as was claimed by the defense.

The judge also noted that some witnesses tried to assist the former soldier by “bending the truth” in their testimonies.

As the judges read through the reasoning behind their decision, the family looked increasingly dejected.

The five judges split on the issue of giving Azaria a harsher punishment, with three ruling against and two ruling in favor. Going with the majority ruling, the verdict noted there were mitigating factors, specifically that this was the scene of a terror attack, during a period of increased violence and that it was Azaria’s first time in such a situation.

In his dissenting opinion, one of the two judges discussed the severity of Azaria’s actions, which he said was arguably murder, not manslaughter, as there was “initial intent to kill a person.”

That unnamed judge also took to task the officers and soldiers at the scene, who scarcely reacted to Azaria shooting al-Sharif.

“No leadership or personal example could be seen, but indifference and laxity,” the judge said.

The judge also disagreed with the lower court’s 18-month sentence for Azaria, saying it should have been between 30 to 60 months.

The second dissenting judge made a similar pronouncement, saying the former soldier deserved “a sentence of 30 months in prison at least.”

These two were overruled and the sentence stayed at 18 months. However, if Azaria ultimately enters prison, he would only have to serve half his sentence, or nine months, before being eligible for parole, though there is no guarantee that he would receive it. This is different than in civilian criminal law, where a prisoner has to complete two-thirds of his or her sentence before they have a chance at early release.

After a month in prison, he would also be eligible for a pardon from either IDF Chief of Staff Gadi Eisenkot or President Reuven Rivlin (though Rivlin would not likely make such a decision without Eisenkot’s approval).

Earlier this month, Azaria, at the end of his mandatory army service, was released to house arrest at his parents’ home, as he could no longer be kept on an IDF base.

Azaria had spent the bulk of the past year and three months — from the time of his arrest through the trial and during the appeal process — on a closed army base in a form of military house arrest.

Likud MK Oren Hazan, who has backed Azaria and called for him to be exonerated, was at the court for the decision, along with Likud colleague MK Nava Boker and former MK Sharon Gal.

Outside the courtroom dozens of supporters waved flags and called Azaria a hero.

The ruling came after a court-ordered mediation between the prosecution and defense failed.

While this is not the first time an IDF soldier has been convicted of manslaughter, it is an exceedingly rare occurrence, as most cases are settled through a plea deal in order to avoid a trial.

The few cases in which IDF soldiers have been found guilty were under completely different circumstances, giving judges little in the way of precedent to determine sentencing.

Times of Israel staff contributed to this report.