Sunday, May 28, 2017

Sgt Azariya should not be judged guilty of manslaughter

(A different version of this essay was published May 10, 2017. This new version revises and updates the conclusion of that original essay)

An IDF Military court meets on May 28, 2017 (Shlomo Piotrokovsky, “Last session is Azariya appeal case”, arutzsheva. May 28, 2017). It’s sitting for what looks like the end of a case involving an Israeli soldier.

Here’s what that case is about:

On March 24, 2016, two Arab terrorists attacked Israel Defense Force (IDF) soldiers at a checkpoint in Hevron, Israel. That attack led to a manslaughter conviction—against an IDF soldier.

During the approximately 160 days between mid-October 2015 and this March 2016 incident, Arabs in Israel committed more than 210 attacks against Israeli soldiers and civilians—more than one attack a day, every day. Israel was under siege.

This particular Hevron attack wasn’t much different from other attacks. Two Arabs approached soldiers at the checkpoint, drew knives and attacked. One was shot dead immediately. The other was shot and, wounded, fell to the ground. Perhaps 3, 5 or 10 minutes later (depending on whom you ask), the wounded Arab was still on the ground. He was surrounded by IDF soldiers. The soldiers stood quietly, waiting.  While they waited, IDF Sgt Elor Azariya walked up to the wounded Arab and shot him once in the head, killing him.

The entire scene was filmed by a volunteer for a Jewish anti-Israel NGO, B’Tselem. 

The video went viral. The world screamed, “murderer!”
Sgt Azariya was arrested.

Initially, prosecutors wanted a murder charge against Azariya. But they changed their minds. Given how often soldiers were being attacked at that time by Arabs, most Israelis didn’t see Azariya as a murderer. They saw him as a hero (Dan Williams, “Just 5 percent of Israelis say soldier who shot helpless Palestinian committed murder”, forward, April 6, 2016).

Azariya was charged with manslaughter.

Almost 10 months later, in January, 2017, he was found guilty of manslaughter. He was sentenced to 18  months imprisonment. 

Earlier this month, new arguments were presented to an Appeals court. Azariya’s lawyers want his conviction reversed. The prosecution wants to see Azariya spend more time in prison. The Appeals Court creeps cautiously closer to a decision.

On May 10, 2017, Brig. General Sharon Afek, the Chief Military Prosecutor (equal to a civilian Attorney General) gave an interview in which he restated the case against Azariya (Judah Ari Gross, “Israel’s military advocate general defends trial of Hebron shooter”, timesofisrael). He said the major component of this case is, the soldier Azariya “shot the neutralized terrorist without operational justification” (ibid).

Like many in Israel, I find this case problematic. I don’t believe the State’s main conclusion—unjustifiable killing—is correct. The key to my concern is something I believe the trial didn’t properly explore: the word, ‘neutralized’.

The IDF Code of Ethics of is clear. A soldier cannot kill someone who no longer endangers someone’s life (Asa Kasher, “I wrote the IDF Code of Ethics. Here’s my take on Hebron shooting”, forward, April 6, 2017). 

Everyone agrees. If you kill someone who is no longer a danger, you commit murder. The IDF has asserted that the assailant in this case was no longer a danger. He’d been ‘neutralized’. This is why Kasher (ibid) believes Azariya was guilty.

But was the Arab indeed ‘neutralized’, as the IDF contends? Was that terrorist truly ‘no longer a danger’?

The commonplace military definition of ‘neutralize’ means to render something or someone incapable of further action. That definition appears to be understood in the code of International War Ethics published by the International Red Cross (ICRC), under the title, Customary IHL (International Humanitarian Law). Under the headings, ICRC-Customary IHL—Practice—Israel—Practice relating to Rule 8-Section A-VI (other national practices), ‘neutralized’ appears in a list of military options in combat, all of which clearly suggest a state of ‘incapacity to continue’.

To neutralize someone is to render him/her incapable of further action. The key phrase here is, ‘incapable of’.

Look at the terrorist of the Azariya case. He was on the ground. He was wounded. But he was not dead. Was he capable of moving?

Consider the scene. The terrorist was observed by witnesses to be wearing a larger-than-normal jacket, one capable of hiding a suicide bomb. Yet, no IDF bomb-personnel had cleared him to be ‘bomb-free’.

You’re a soldier at the scene. The man on the ground in front of you could be wearing a bomb. He’s alive. You could die in an instant. Your pulse is over 200. The terrorist’s hands are free enough to detonate a hidden device. Are you thinking he’s ‘incapable of further action’? (“There was justification to open fire”, arutzsheva, August 22, 2016).

The fact that Azariya supposedly said, at the time of the incident, ‘he deserves to die’ is irrelevant (the Prosecution made a big deal about these words). What’s relevant is, the condition of the assailant—and the risk he poses. If witnesses feared the assailant was wearing a bomb--and was still capable of moving his fingers, he was capable of ‘further action’ (“Platoon commander: I also feared terrorist had a bomb”, arutzsheva, August 29, 2016).

At trial, IDF judges rejected these fears. They dismissed all suggestion that the assailant might indeed have been ‘capable of further action’. They rejected evidence that could render the verdict of manslaughter inappropriate.

 The Army investigated (and convicted) Sgt Azariya when it should have scrutinized the definition of ‘neutralized’. The judges didn’t properly investigate the question, ‘was the assailant truly ‘incapable’ of further action. They relied instead on opinion, not analysis, to answer that question.

That failure to scrutinize ‘neutralize’--in theory and in the field—undermines the validity of the verdict.  

The Army’s original judgment against Sgt Azaryia was flawed. There is too much reasonable doubt here. Sgt Azariya cannot be judged guilty of manslaughter. 

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