Getting away with murder: the Elor Azarya ‘manslaughter’ case
This case has caused waves of emotion throughout Israeli society. In the aftermath of the verdict (still without sentence), which Defense Minister Lieberman called ‘harsh’, politicians from right and left have already called for pardon (notably including not only Netanyahu, less surprising, but also Zionist Union Shelly Yechimovitch, slightly more surprising). Hundreds of Azarya’s supporters clashed with police outside the courthouse, threatened to ‘turn the country upside down’ and called for the murder of Chief of Staff Gadi Eisenkot and judge Maya Heller.
With all this hysteria and hyperbole, it can become difficult to see what the case actually is.
When a video came out the day after the shooting, showing Azarya shooting the unarmed, already shot and immobile Abdel Fattah Al-Sharif in the head at point blank, Azarya was first charged with murder, but only a few days later the charge was changed to manslaughter. Netanyahu, who initially went with the ‘responsible’ line of calling for moderation, could not resist the pull of his own mantra that “IDF soldiers are not murderers”, and almost immediately called the family to show sympathy.
Thus within days, the court case was rigged to be within the limits of mainstream Israeli feeling about what is permissible to even contemplate. Israeli soldiers cannot be murderers, no matter what they do, because, as Netanyahu formulates it, they themselves “act against murderers”, so when all is said and done, it must be regarded as self-defense.
This is an axiom that was apparently accepted by the wide Israeli public. No question there – even the political left sees the very conviction, before any sentence is meted out, as worthy of pardon. Azarya is not a murderer, no way – and even if he’s a mere ‘killer’, he deserves pardon.
Another axiom that is not being questioned at all in Israeli legal opinion and mainstream media including Haaretz, is whether Al-Sharif is at all a terrorist. In the reading out of the court decision to convict, Judge Heller said, “We have adopted the conclusion that the terrorist’s death was caused by the shooting by Azaria.”
She repeatedly regarded Al-Sharif as “the terrorist”, although if he indeed was one of the stabbers of the Israeli soldier who was moderately wounded, then he would have been attacking an armed occupying force. By common international legal perception, this act falls under legitimate struggle for “liberation from colonial and foreign domination”. To quote United Nations General Assembly Resolution A/RES/33/24 of 29 November 1978:
“2. Reaffirms the legitimacy of the struggle of peoples for independence, territorial integrity, national unity and liberation from colonial and foreign domination and foreign occupation by all available means, particularly armed struggle;”
But in Israel, this is meaningless. Al-Sharif is considered a ‘terrorist’, no question about it.
Let us look at the actual verdict, which notes that “the terrorist did not pose a threat” and that “there is no grounds for the claim of self-defense”, noting the weight it put on Azarya’s commander’s testimony (Major Tom Neeman) who testified that Azarya said that “this terrorist was alive and he needs to die”.
So, the question has to be asked in retrospect: why is it, if these indeed are the findings which confirm the first prima facie evidence of murder, that the charge is manslaughter, and not murder? Israel does, after all have an elaborate four-part murder definition (criminal law article 300(a)), where Azarya’s case clearly seems to fall into the second clause, of premeditated murder. But this discussion is not being aired in Israeli society.
Indeed, Abdel Fattah’s uncle, Fathi al-Sharif, said following the verdict: “The fact that the soldier is convicted of manslaughter isn’t such an important development from our standpoint. From the beginning, we stated that he had committed murder and needed to be convicted of murder. The fact that they changed the count of the indictment to manslaughter from our standpoint is a perversion of justice and of the court.”
Ironically, coming from the other side, deputy foreign minister Tzipi Hotovely had a real point, when she said that the whole thing was merely “a show-trial with a predetermined conclusion.” She just didn’t realize it.
According to testimonies of Azarya’s own company comrades, such ‘incidents’ happen “tons of times”. But they are hardly ever investigated. The last case of conviction in manslaughter in IDF was in 2004, in the case of the British peace activist Tom Hurndall, who was shot in the head by an IDF sniper whilst he was protecting Palestinian children in Gaza. Initially, the army internal investigation offered the standard conclusion, that Hurndall was shot by accident. But since Hurndall was not Palestinian, and since pressure was mounted also by British government, a more comprehensive trial took place, and the shooter was convicted both on charge of manslaughter as well as obstruction of justice (for false testimony). He got 8 years but came out within 6.5. In 2006, a UK Inquest Jury found that Hurndall had been ‘unlawfully killed’, where lawyer Michael Mansfield QC, who represented the family at the inquest, said: “Make no mistake about it, the Israeli defence force have today been found culpable by this jury of murder.”
These cases are clearly aberrations. It cannot surprise us that the video of the murder by Azarya, probably one of the clearest IDF ‘snuff-clips’ to be seen, was an issue that could not be brushed away and whitewashed in some standard investigation. Whilst it is difficult to take Azarya’s contradicting testimonies and defense seriously (his defense claimed that Al-Sharif was both thought dead and posed a threat at the same time), Azarya noted that his commander (Neeman) slapped him a few times after the shooting, and said that this should “remain between us”. Regardless of how true that is, it is clear that societally, Israelis would rather have all this dirty laundry ‘remain between us Israelis’. The video catapulted the bloody laundry to the whole world, and it had to be dealt with. The ‘dealing’ was thus to whitewash ‘murder’ into ‘manslaughter’.
The military echelon at the time of the murder, including Defense Minister Moshe Ya’alon and Chief of Staff Gadi Eisenkot were of the view that the soldier had ‘erred’, and that his actions did not represent IDF values.
Nonetheless, in the wake of the stabbing attacks in October 2015, mostly by young Palestinians, there were calls across the board from the political and security establishment for a shoot-to-kill policy:
– Interior Minister Gilad Erdan declared that “every terrorist should know that he will not survive the attack he is about to commit”
– Jerusalem police chief Moshe Edri said, “Anyone who stabs Jews or hurts innocent people is due to be killed.”
– Yair Lapid, MK and Chairman of the Yesh Atid Party, “Whoever takes out a knife or a screwdriver, or whatever it may be, the directive needs to be shoot in order to kill. Not to hesitate. There will be full legal backing. The state gives full legal backing.”
– Prime Minister Benjamin Netanyahu told paramilitary Border Police units: “I know that it requires your discretion, but have no doubt: You have complete backing – complete! – from me, from the Israeli government, and in my opinion from the nation in Israel.”
– Benti Sau, Israeli Police Acting Commissioner, said “From my personal experience, I can tell you that at this time, we have received backing from the political level, full backing from the legal system.”
And indeed, the two ‘moderates’, Yaalon and Eisenkot added to the choir:
– Ya’alon announced at a press conference, “Right now is it required to respond quickly to any local attack to eliminate the terrorist stabber or the perpetrator stone thrower and the like, immediately, on the spot.”
– Eisenkot said, “Our policy of use of force is very clear. The IDF has complete freedom of action in order to fulfill the mission to restore security.”
Eisenkot now tries to appear the ‘responsible’ and ‘moderate’, ‘educating’ the ‘erring’ public that waxes emotionally about Azarya being ‘our son’: “An 18-year-old who enlists in the IDF isn’t everyone’s child, he isn’t a baby who was taken prisoner”, he says, and adds that “we demand that our soldiers follow the IDF’s set of values: to defend the country with loyalty and love, to treat people with respect, to persevere in the mission. These aren’t just slogans, this is a set of values”. Then he said something which deserves special attention when it comes to Eisenkot: “The fact that we haven’t seen a third intifada develop is a result of concentrated force that distinguishes between the general population and the terrorists,” he said.
Now this last phrase deserves special attention, because Eisenkot is the man who coined the ‘Dahiya Doctrine’. This doctrine is named after the civilian neighborhood of Dahiya in Beirut, where many families of Hizbollah members resided. In 2006, Israel levelled the neighborhood. This collective punishment, blatant disregard for the principle of distinction and deliberately disproportionate violence is a prima facie war crime. Eisenkot not only supervised the actions as chief of Northern Command at the time – he later (2008) even declared it policy for future warfare:
“We will wield disproportionate power against every village from which shots are fired on Israel, and cause immense damage and destruction. From our perspective, these are military bases…This isn’t a suggestion. This is a plan that has already been authorized.”
So now the big-time war criminals who have escaped all criminal prosecution are calling for responsibility and moderation from all sides. Lieberman, who has earlier called for the decapitation of disloyal Palestinians with axes and drowning them in the Dead Sea, is calling to respect the ‘difficult’ and ‘harsh’ verdict. In a bizarre twist, whilst Lieberman is saying that talk of pardon reflects ‘ignorance’ and is just ‘slogans’, both Netanyahu and Yechimovitch overtake him in populism.
Now – a little reality check.
Compare all this, to another conviction two days ago, of two East-Jerusalemite Palestinian boys aged 13, Shadi Anwar Farah and Ahmad Raed Zatari, for attempted murder. Exactly a year ago, Farah and Zaatari were charged with attempted murder and possession of knives, after Israeli forces allegedly found them carrying knives during a stop-and-search in Jerusalem. As is the routine with Palestinian children, they were interrogated in the absence of adult family members and lawyers, “which is a serious violation of Israeli law and international law”, as Amjad Abu Asab, who heads a Jerusalem committee for prisoners’ families, said.
It should be added, that whilst the two were initially detained over a year ago on 12 December 2015, the period they have already spent in detention would NOT be counted in the sentence. Thus, effectively, a three-year prison sentence.
Here, but due to the mere presence of a knife, and on the basis of illegal interrogations, the word ‘murder’ is a non-issue. We are not likely to hear of these boys in much of mainstream media and their names will certainly not be nearly as known as Elor Azarya’s.
Thus, the Israeli reality reveals itself. A murder by a heavily armed adult filmed closely is not a murder. But a Palestinian child carrying a knife, with the alleged (and most likely coerced) ‘confession’ of a wish to use it, is ‘attempted murder’.
We must remember that in some of Israel’s most egregious and admitted massacre cases, such as the Kafr Qasim massacre in 1956 (49 civilians killed and scores wounded by Israeli Border Police), even though several junior officers were convicted of murder (yes, apparently possible then, but it hasn’t happened in the past three decades as Shir Hevernotes), they all ended up free after maximum 1.5 years due to various pardons. The case became public despite David Ben-Gurion’s attempts to hush it up and whitewash it through military censorship, and a trial ensued. The case is sometimes taught in Israeli schools, in Civility lessons, as a seminal one in which an Israeli court for the first time coined the term “illegal order”. But this is a highly misleading narrative, because the ‘illegal order’ came from Col. Issachar Shadmi, who was first charged with murder and deviation from authority, but then acquitted of murder and merely ‘reprimanded’, with an iconic punishment: one-tenth of a lira. That’s how much those lives were worth. Several of the junior officers were later promoted and continued in military careers. Col. Shadmi also continued his military career.
It is therefore doubtful that Israeli justice and societal pressure will allow Azarya, who is now a national hero for so many, to stay in prison for very long. To begin with, he wasn’t even charged with his actual crime – murder.
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