From life in prison to 1.5 years – the Elor Azarya ‘manslaughter’ sentence

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The Israeli soldier-medic Sgt. Elor Azarya, who shot an incapacitated, wounded alleged Palestinian stabber Abdel Fatah Al Sharif at close range with a bullet to the head, was sentenced this week to 1.5 years in prison.

It can be astonishing to witness how a cold-blooded murder captured on full screen can end up entailing a mere 1.5-years prison sentence when it involves an Israeli soldier.

In order to understand how this amazing result was achieved, we must look at the whole case from the outset, and reflect it against Israeli law. All references to the verdict and sentence are taken from the original 97-page, 40,000-word verdict document in Hebrew (published by Haaretz) as well asthe  full 30-page sentence document (published by Walla) (my translation).

First, we must recognize the overall possible paradigms in which this case has operated, and their related penalties:

Originally, the case was regarded as ‘murder’. But after outcry from highest political levels (Netanyahu: “our soldiers are not murderers”), the charge was ‘toned down’ to manslaughter.

Murder would have entailed a life sentence.

Manslaughter entails a maximum 20-year sentence.

We should now remember that the prosecution is the Israeli military (IDF).

As it is written in the verdict: “Paragraph 298 of the punitive law states: ‘He who causes in action or in negligence to the death of a person, will be charged with manslaughter, and his conviction – 20 years imprisonment.’”

But before we continue, the question must be asked: Why not murder? Beyond Netanyahu’s meaningless repeated mantra that “our soldiers are not murderers” because “They act against murderers”, what is it that disturbs such a prima facie extrajudicial execution (which in itself is murder), to be prosecuted as such?

There appears to be no good explanation for this. Israeli soldiers have not been charged with manslaughter for the last three decades. If the Azarya case is to be an indication of why that is the case, we should assume that it’s simply because the whole society cannot accept that possibility, and that influences the military-judicial system from the outset. Nonetheless, when we do look at cases far back, where egregious massacres such as the 1956 Kafr Qasim massacre of 1956 involved murder verdicts (the longest penalties 17 and 15 years), the series of penalty reductions and pardons meant that everyone got out within 1.5 years. Several continued on into high level security posts. Battalion Commander Major Shmuel Malinki, who got the highest sentence (17 years), was returned his rank by Ben Gurion (who said that “justice will prevail”), and was shortly after put in charge of security for the top-secret Negev Nuclear Research Center, ending his military career in 1964 as Colonel.

There are also cases of murder by Israeli security personnel which entailed absolutely no legal consequence whatsoever, such as the Bus 300 affair in 1984. The execution of two of the four Palestinians who had hijacked the bus was committed by Israeli Shin Bet (internal security) agents, smashing their heads with metal bars and stones, after they were arrested (the other two hijackers were killed during the rescue operation). The execution was ordered by the highest levels, which is probably why it involved the highest level of cover up. This is the ‘justice that never happened’, in a clear case of murder.

But let us now return to the Azarya trial.

In the cited prosecution charge (verdict, item 2.6), it says that the defendant shot

“without operational justification, whilst the terrorist Al-Sharif was laying on the ground, hadn’t committed another attack and did not pose any immediate or tangible danger to civilians and soldiers who were on location. According to the prosecution, in these acts the defendant caused the death of the terrorist Al-Sharif unlawfully”. (emphasis in original).

The court does not dispute this. In itself, this ‘unlawful killing’ should once again cause us to reflect against the original reduced charge of ‘manslaughter’ as opposed to murder. Was it not murder? But the whole case excludes this paradigm. In the “summation of the felony of manslaughter” (segment 5.6, item 295), the court affirms that

“in light of this, and leaning upon expressions of the defendant at and just after the shooting, which have been proven to us beyond reasonable doubt, we have concluded as a matter of fact, that the reason for shooting by the defendant was not rooted in a sense of danger, but in the explanation which he offered right after the shooting, according to which ‘the terrorist deserved to die’ because he had stabbed his friend earlier”.

In point 298 the court notes that

“thus, we state that it has been proven by the required degree of certainty in criminal law, that the shooting perpetrated by the defendant to the head of the terrorist fulfils a correlation of intent according to paragraph 20(A)(1) of penal law.”

So, let’s summarize here: unlawful killing, with intent.

If you don’t call it murder, and you decide to call it ‘manslaughter’, then all this certainly points to the high end for a conviction. But the military prosecution, from the outset, recommended only a 3-5 year sentence on that charge. That is, it only suggested a sentence that was tops 25% of the maximum sentence for manslaughter.

In the verdict (item 2, page 10), the prosecution justified its lenient suggestion by referring to

circumstances in which the felony was committed [emphasis in original], which ought to entail leniency in the sentencing of the defendant, including: lack of premeditation, which were committed within a complex operational situation, in which he had participated in authority of his military position, and after he was required to nurse his good friend, who was hurt earlier in a stabbing attack.”

Now, let us reflect upon this paragraph: The court already established intent to kill – that is in other words, premeditated. ‘Complex operational situation’? How complex? It was not as if the soldiers were being shot at. Azarya came to the scene after the alleged stabbing had already taken place (alleged, because eyewitnesses claimed that Al-Sharif wasn’t the stabber. Even if he was, he wouldn’t qualify as a terrorist as I had noted last year, but for the purposes of this article I am merely going with Israeli definitions and claims). The only other ‘shooting’ at the point of Azarya’s execution is by Imad Abu Shamsiya, the B’Tselem cameraman, who shot a video. The video shows soldiers and settlers surrounding the scene, several standing rather calmly, witnessing the execution with hardly any response. That Azarya nursed his ‘good friend’ doesn’t suggest any sort of permission to kill– just because he was upset.

Then the prosecution continues the paragraph, to say that

“concerning the practiced policy of penalty, the military prosecution opines that there exists a difficulty in studying a comparable sentence from a former ruling, both due to the wide array of acts included in the felony of manslaughter, differing from each other according to the mental element and the circumstances of the matter, as well as the scarcity of such cases, regarding meting punishment upon a soldier convicted of manslaughter in operational circumstances.”

Oh boy. That last sentence – I wonder how many people actually realized the bitter irony of it.

Nonetheless: there are cases to study. The actual precedence of soldier conviction in manslaughter takes us back to the sniper-killing of British photographer and peace activist Tom Hurndall in 2003. As journalist Gideon Levy wrote recently, “it’s been 13 years since the last time an Israel Defense Forces soldier was convicted of committing manslaughter during operational activity, and that time, it was a Bedouin soldier, who spent six years in prison solely due to international pressure (he killed a British photographer).”

Indeed, the IDF sniper who killed Hurndall, Taysir Hayb, was a Bedouin. He got sentenced to 8 years (7 for manslaughter and 1 for obstruction of justice) but got out in 6.5 years due to ‘good behavior’. Otherwise, the case is not that different. Could it be that Taysir’s Bedouin background had a lesser effect upon Israeli society’s sympathy? After all, describing a non-Jew as ‘everyone’s son’– as Azarya has been widely called– could have proved difficult for Jews.

The prosecution does refer to the Hurndall case, as noted in page 19, item 3 of the sentence:

“the defendant [Taysir Hayb], fighter in the desert patrol regiment, shot a British citizen who was located at Rafah [southern Gaza strip] close to the “Philadelphi” route, with no operational justification, and caused his death” [….]”The prosecution noted in its claims that the case of Hayb is more grave than that of the defendant [Azarya], as there was no attack preceding the shooting and there were no background operational circumstances”.

In other words, Hayb is cited as having killed Hurndall in cold blood – with no operational circumstances to justify it at all. This should cause us to reflect upon that case: why it wasn’t a murder case, and why the sentence was again so lenient. The closest Hurndall’s family could get to justice was through a UK Inquest trial in 2006, where the Jury found that Hurndall had been ‘unlawfully killed’. Lawyer Michael Mansfield QC, who represented the family at the inquest, said:

“Make no mistake about it, the Israeli defense force have today been found culpable by this jury of murder.” 

Thus, the prosecution recommended 3-5 years on the basis of its collection of past cases, its view of the ‘complexity’ of the situation, etc.

In its conclusion (point 46, page 28), the court concludes:

“After we have examined the collectivity of circumstances, including the substantial contribution of the soldier to the army and to the country as a combat soldier, his positive personality and his being a normative person until his current complication [sic], the extended period in which the defendant had already resided in open detention, the damages caused to the defendant and to his family members due to the whole affair, and the criminal registration accompanying his very conviction, all judges were convinced, that his penalty must be set within the lower end of the range of suitable penalty.”

Now that paragraph really deserves framing. The soldier contributed to the army and the country by being a combat soldier – therefore extrajudicial execution can be seen as mere collateral damage. After all, he’s a ‘good guy’, with a “positive personality” – how could such a person ever commit murder? When such a positive personality presses the trigger, the death must be sweeter than if it was a really mean sadist… This was all just a “complication”, and then he and his family suffered. Moreover, he suffers because he will be registered as a criminal and that may affect his future…

This is circular logic which basically suggests that all criminals should receive lenient sentences – simply because they are on trial. Their sentences should be reduced, because their registration as criminals may harm them in the future…

Is this a real court?

Finally, this “range of suitable penalty” is deemed by the judges to be lower than that which the prosecution itself recommended. The court defined the suitable range to be 14-48 months. This is despite the fact, that in the next point (47), the court states that “we have dealt with a case in which the committing of the felony and the level of guilt of the defendant are of excessive egregiousness”.

As Haaretz noted (Hebrew), even Azarya’s defense attorney Ilan Katz was rather positively surprised, and said that the sentence is light in relation to the conviction:

“The most draconian finding in the verdict determined excessively egregious behavior by Elor, and here in the sentence the court reveals full understanding for his actions, and rules a low penalty”.

Yes, that is how it’s done in Israel.

First you get away with murder, because you’re a soldier and that’s ‘good’. Then if it’s a really special case, you may even be tried for manslaughter. Then there will be all kinds of ‘mitigating circumstances’, including the very potential suffering that you may experience later, simply because you were convicted.

But if you happen to be a suspected Palestinian “terrorist”, then it’s death penalty, right there and then. Just make sure you’re not on camera.

Smile Azarya, you’re such a hero. “Keep the world safe”, said his mother Oshra whilst departing. “Keep the world safe child, with the smile of an angel”.

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