Prosecution sought 3-5 years • Appeal expected
The Jaffa Military Court on Tuesday sentenced Sgt. Elor Azaria to 18 months in prison for manslaughter, after convicting him of shooting to death Palestinian terrorist Abdel Fatah al-Sharif on March 24, 2016, as he lay wounded and immobile on a Hebron street.
Azaria’s defense team immediately said it would appeal the conviction and the sentence. His family was uncharacteristically calm despite the result and surprised the court at the end of the hearing by standing in unison to sing an impassioned rendition of Hatikva.
Azaria’s shooting of Sharif, around 10 minutes after the Palestinian was wounded while attacking an IDF checkpoint, was filmed by a volunteer of the B’Tselem civil rights organization. The video went viral and led countries around the world and the International Criminal Court to follow the criminal proceedings.
Ultimately, a majority of the judges decided that – although when they convicted Azaria, they ignored that he shot Sharif during his first time in a tense, post-terrorist attack scene – this special circumstance should set his sentence at 18 months.
Azaria remained calm or smiling throughout the sentencing, even as his parents were visibly tense. In addition to his prison term, he was also demoted to private and given an additional suspended sentence.
If the Military Court of Appeals does not delay his imprisonment pending an appeal, Azaria could start serving his sentence as early as March 5.
In a case where the IDF prosecution and the defense team have fought about nearly every issue, Tuesday’s hearing was double in length, with the IDF prosecution demanding Azaria start his prison sentence no later than Sunday.
The court eventually ruled in favor of the defense’s request for an approximate two-week delay, so it can file an appeal. Once the appeal is filed, the Military Court of Appeals can suspend the sentence pending a decision on the appeal or send Azaria to prison even as his appeal is litigated.
Notably, the court did not take off time from the 18-month month sentence for the months of open detention on an army base, deducting only the nine days he actually spent in jail.
The court also ignored the defense’s argument that Azaria’s Kfir Brigade battalion commander, Col. Guy Hazot, had tampered with the proceedings and tried to pressure Azaria’s father into dropping the expected appeal.
While defense lawyers Ilan Katz and Eyal Besserglick had said that Hazot’s actions violated the law by meeting with a defendant’s family member without the defense lawyers present, the court ruled that Hazot had been well-intentioned, if misguided.
They said Hazot genuinely thought he could get less prison time for Azaria if he publicly expressed regret, than if Azaria continued to fight the prosecution and filed an appeal.
Further, the court explained its leniency in light of Azaria’s excellent military record prior to the incident and the consideration that he might return to a normal life after a short prison term.
At the same time, the court said that the IDF must directly confront when its soldiers violate the rules of engagement and purity of arms that lie at the core of the army’s values.
Also, the court said it recognized that a failure to punish its own could reduce the IDF’s operational options in the future due to international criticism.
Lead IDF Prosecutor Lt. Col. Nadav Weissman echoed these sentiments, saying that sentencing a soldier to prison is a sad day for the state, but that it is also important that the court sent a clear message about the IDF’s uncompromising commitment to it values.
The Human Rights Watch NGO issued a reserved applause for Azaria’s sentence. The group’s Israel and Palestinian advocacy director, Sari Bashi, said the sentence serves as an “important message about reining in excessive use of force. But senior Israeli officials should also repudiate the shoot-to-kill rhetoric that too many of them have promoted, even when there is no imminent threat of death. Pardoning Azaria or reducing his punishment would only encourage impunity for unlawfully taking the life of another person,” she added.
Azaria’s defense lawyers accused the IDF prosecution of being after Azaria’s blood from day one. They noted that their appeal would attack the idea that Azaria confessed to having shot Sharif out of revenge. They said they would raise the issue that the IDF prosecution kept referring to the video to prove everything, but that the video does not show Azaria speaking at all, let alone confessing.
Azaria would face an uphill battle on appeal, after IDF Judge Col. Maya Heller’s verdict carefully addressed and discarded each of the defense’s arguments.
If an appeal does not succeed, Azaria could ask IDF Chief-of-Staff Lt.-Gen. Gadi Eisenkot for a pardon. If Eisenkot refuses, Azaria’s last shot at avoiding prison would be to ask Defense Minister Avigdor Liberman to recommend to President Reuven Rivlin that he pardon him.
Domestically, a pardon would be popular. Internationally, it could create a new scandal.
In the Hebron incident, Sharif stabbed another soldier and a friend of Azaria’s, but was then shot several times and fell to the ground.
By the time Azaria arrived on the scene around 10 minutes later, other IDF personnel in the area did not view Sharif as a threat. If he was not a threat, Azaria’s job as a medic would have been to attend to the wounded. Instead, he was seen across the globe on a video shooting Sharif in the head, killing him in a seemingly execution-style manner.
Azaria claimed self-defense, saying he was concerned Sharif would attack again with a knife or that he was wearing a concealed explosive vest. However, the Jaffa Military Court rejected all his defenses as being invented after the fact and convicted him based on his original explanations that he shot Sharif out of revenge.
They pointed to testimony by his officers and, critically, of his fellow soldier T.M., who was at the scene and testified that Azaria originally said Sharif needed to be killed out of revenge for stabbing his friend.
Azaria’s spontaneous admission that he killed out of revenge is uniquely, objectively credible, the court said, adding that he did not mention fear of an explosive device on the spot, but only after the fact. Sharif would have blown himself up if he did wear an explosive vest and not attack a soldier with a knife.
The court also accepted the prosecution’s argument that Azaria changed his story five times, and found that his final story lacked credibility. •