Verdict time for Azaria

The Jaffa Military Court ruling next week in the ‘Hebron shooter’ case will reverberate far beyond whether he is jailed or not

IDF SOLDIER Elor Azaria appears in Jaffa Military court earlier this year. Supporters of conviction say it will reaffirm the country’s commitment to purity of arms and the rule of law.

At around 8 a.m. on March 24, 2016, two Palestinians attacked two soldiers at the Tel Rumeida checkpoint in Hebron. One of the soldiers was stabbed by Abdel Fatah al-Sharif, who was wounded and fell to the ground, eventually virtually motionless, while the other Palestinian, Ramzi al-Kasrawi, was, according to most accounts, killed on the spot.

In its progression, the incident was not an unusual one, in the latest stage of the Israeli-Palestinian conflict, called by some the third intifada or the “knife intifada.”

What was unusual was that around 10 minutes after the incident appeared to be over, army medic Elor Azaria arrived, pulled out his gun and appeared to, execution style, shoot Sharif in the head as he lay nearly motionless on the ground.

A three-judge panel of the IDF court in Jaffa will on Wednesday hand down its verdict on whether the soldier – who has become known as the ‘Hebron shooter’ – is guilty or innocent of manslaughter charges.

The case has already shaken up Israel’s political arena and had an impact in the diplomatic arena and on the International Criminal Court prosecutor’s decision on whether to dive deeper into the Israeli-Palestinian conflict. WHAT WAS even more unusual about the entire incident was that it was caught on an extended video that showed so much detail leading up to the incident that it was impossible for the army to claim Azaria had been lunged at or was otherwise exercising any traditional notion of self-defense, as is usually claimed in such controversial incidents.

The video went viral, drawing international condemnation and, unusually, immediate condemnation as specifically murder by then-defense minister Moshe Ya’alon and IDF Chief-of-Staff Lt.-Gen. Gadi Eisenkot. Prime Minister Benjamin Netanyahu also condemned Azaria, though he did not use the word “murder.”

Azaria was arrested and brought to court in handcuffs. In nearly all previous incidents where Palestinians were killed in controversial circumstances, there had been no arrests, and investigations took weeks or months before anything got to court or an indictment was filed.

But within a few days, other videos and information emerged, showing that others on the scene had suspected and yelled that Sharif might be wearing a concealed explosive vest under his black jacket, creating a possible self-defense argument for Azaria.

Suddenly, according to a social media expert at a Jerusalem Center for Ethics conference in June, the general public swung from condemnation and embarrassment to overwhelmingly backing “one of its own,” with many even calling Azaria a hero. Politicians, including Netanyahu and a top then-opposition Knesset member, Avigdor Liberman, started to go neutral or openly support Azaria, with Liberman showing up at his side in court.

Eventually, Military Advocate-General Brig.-Gen. Sharon Afek, who personally intervened in the case, would decide to file an indictment for manslaughter, instead of murder (as some demanded) or negligence (as Azaria’s supporters urged).

Several months down the road, the shot heard round the world would have several monumental impacts.

It would turn the political map upside down by poisoning Netanyahu and Ya’alon’s relationship, lead to Ya’alon quitting the Likud Party, lead to Liberman bringing his Yisrael Beytenu Party into the governing coalition and lead to Liberman replacing Ya’alon as defense minister.

The Azaria case would lead to a culture war over control of the IDF, pitting its chief of staff, Eisenkot, his deputy, Maj.Gen. Yair Golan, and the legal establishment against the political Right and a wide swath of run-of-the-mill Israelis over how fast soldiers should pull the trigger when there is a possible but not certain danger from a terrorist.

These same sides would also enter a war of words about whether democracy was going down the tubes, with quasi-fascists undermining Israel’s purity of arms, or whether the government and military were starting to be run too much by lawyers, with too little concern for soldiers’ safety.

It would also draw the attention of the global media and of the ICC, which is looking at the possibility of criminally investigating Israelis and Palestinians for war crimes during the 2014 Gaza war (Operation Protective Edge) and any problematic conduct since then.

In the trial itself, IDF officer faced off against IDF officer, exposing classified rules of engagement, past IDF blunders that all Israelis would have liked to be kept quiet, and a former deputy head of the IDF’s legal division would prove a thorn in the side of his former employer as lead defense attorney for Azaria.

The human drama between defense lawyer Col. (res.) Ilan Katz (who co-led the case with lawyer Eyal Besserglick), head judge Col. Maya Heller and lead IDF Prosecutor Lt.-Col. (res.) Nadav Weissman, who was drafted from the private sector for the case, all of whom know one another from their prior service in the IDF legal division, was also spellbinding and as personal as it gets. WHAT WERE the key issues and moments at the trial and what will the verdict be?

From May through early July, Weissman and the IDF Prosecution pummeled Azaria with accusations from his three senior IDF commanders: Col. Yariv Ben-Ezra, Lt.-Col. David Shapira and Maj. Tom Na’aman. They accused Azaria of shooting Sharif in cold blood, out of revenge for Sharif’s stabbing of Azaria’s fellow soldier.

Weissman showed second-by-second video footage of everyone on the scene slowly and calmly walking right next to Sharif, not showing any concern or distancing themselves from a potential bomb threat.

Weissman similarly deconstructed Azaria’s argument that he shot Sharif in self-defense, out of concern that he might attack with a knife lying right next to his body.

Video footage proved that the knife was three to four meters away, both before and after Azaria shot Sharif, and that it was close to him only at an even later point, when right-wing activist Ofer Ohana moved the knife closer – tampering with evidence to protect Azaria (which Ohana essentially admitted to).

But the defense unleashed a fierce counterattack, from late July through October.

To match Azaria’s current commanders’ testimony that he shot Sharif in cold blood, the defense called forth three former generals, including former deputy chief-of-staff Maj.-Gen. (res.) Uzi Dayan, Maj.-Gen. (res.) Dan Biton and Brig.Gen. (res.) Shmuel Zachai.

If Azaria’s commanding officers said that, at worst, Sharif presented a vague potential danger, the three generals said the possibility of a concealed explosive vest was a concrete danger.

If his commanders said that B’Tselem’s video encapsulated how unafraid Azaria and others in the area were when he suddenly shot Sharif, the generals and many rank-and-file soldiers who were present on the scene said the video did not capture the tense atmosphere at the time.

But can three ex-generals who were not there and low-ranking soldiers who were there outweigh three current commanders who were there plus the extensive video footage? Azaria’s best chance of winning is his lawyers’ argument that blurs the difference between a potential and concrete danger.

Although their argument that Ya’alon and Eisenkot unduly influenced the commanders, the legal division and military police by condemning Azaria for murder before he was even arraigned for a lesser manslaughter charge is not actually a defense, it may add to a list of reasons to create enough doubt for an acquittal.

Azaria’s defense team created more doubt in proving that Na’aman mismanaged the scene of the incident, which all sides agree was disorganized, and failed to comprehensively check whether Sharif had weapons or a bomb.

At certain points, it seemed that, cumulatively, the doubts might win the day for Azaria.

However, the overall tone of the threejudge panel, indicating that the B’Tselem video is authentic and powerful evidence and disregarding Azaria’s subjective feelings when it came to how hot it was in Hebron during the incident, signals it may drop these doubts from its calculations.

The judges did not seem impressed by claims that it actually felt more dangerous in the field than one might suppose from the calm expressions seen on the faces of Azaria and others shown in the video.

Also, Weissman jumped on Azaria’s five different versions of his story, including a shocking and radical change mid-trial when he suddenly claimed that he had told Na’aman about his concerns regarding the knife and a concealed bomb the first time he was asked why he shot Sharif. Until the trial, Azaria had said he did not mention his concerns about a concealed explosive until hours after the incident, when he was being questioned and had already spoken to a lawyer.

The defense also has tried to frame the trial as Azaria vs Na’aman, claiming that Na’aman hit Azaria and implying that all of this could be related to Na’aman’s tensions with Azaria. But the IDF prosecution’s case was never based just on Na’aman.

T.M., a friend of Azaria, admitted in court, practically against his will, that Azaria had talked to him about shooting Sharif as an act of revenge.

Also, IDF paramedic D.S., who was not

who was not a friend of Azaria but cannot be accused of having an agenda against him, testified that when asked about shooting Sharif, he tried to evade answering, saying he did not remember, and only later mentioned a fear of Sharif using the knife. Critically, she said he never mentioned fear of an explosive vest.

This confirms Na’aman’s story and discredits Azaria’s, since T.M., based on most of his statements and their embracing in court, is clearly rooting for Azaria, and Schwartz had no side.

None of this means that Na’aman did not mismanage the scene; that Sharif should not have been checked for a bomb; and that there were not fears of a bomb. Yet Azaria’s admission of a motive of revenge, combined with his ignoring the option of addressing any potential and vague threat from Sharif by shooting him in the hand so he could not trigger a bomb, kicking his hand or otherwise preventing any danger without using lethal force, may be viewed as damning.

HOW THE Jaffa Military Court rules in the case will reverberate far beyond whether he is jailed or not, and may have an impact on the next stage of the knife intifada, the Israeli political arena, the ICC and international perception of Israel’s legitimacy.

If Azaria is convicted, some positives for Israel could include the Palestinians and other international critics having to contend with a curveball thrown at their narrative that Israeli prosecutions of its soldiers are a whitewash.

It would also be the first time an Israeli soldier was convicted of a serious crime for shooting a Palestinian since the ICC started its January 2015 preliminary examination of alleged war crimes connected to the 2014 Gaza war.

In a dream scenario, the conviction might even build some goodwill in the broader Israeli-Arab diplomatic situation, where little currently exists.

On the flip side, it might not generate any positive moves and may merely avoid the negative attention that would likely be focused by the Palestinians, international critics and the ICC, if Azaria is acquitted.

Also, if he is convicted, there may be political convulsions and more hostility directed against the IDF and its lawyers from the Right – already a trending tactic.

An acquittal would risk all sorts of negative international consequences, possibly aiding the Boycott, Divestment and Sanctions movement with a trophy and viral video to attack Israel with. But it might also heal some of the divide in Israeli society that the incident and trial seem to have exacerbated.

Supporters of conviction say it would reaffirm the country’s commitment to purity of arms and the rule of law, while supporters of acquittal say it would reaffirm justice – that the little guy soldier not take a beating to satisfy international critics, when so many higher officers have gotten a “getout-of-prosecution-free card.”

Either way, the verdict will have untold impact going forward.