Eisenkot’s mistake

Elor Azaria was convicted of manslaughter for shooting Abdel Fattah al-Sharif while he laid immobile, having already been shot while undertaking a stabbing attack against Israeli soldiers. More astonishing than the absurdity of Azaria’s defense is the failure of many of his detractors to see the issue at hand.

Many observers warn of the consequences of an outcome which could harm Israel in international bodies such as the International Criminal Court by undermining Israel’s standing, in the eyes of the world, as a moral country with a western style judiciary and rule of law. As a sovereign democracy, though, Israel’s government institutions must reflect its own character and values. Diplomatic considerations are not at issue.

Azaria arrived at the scene of al-Sharif’s attack after the incident had ended and joined a group of soldiers who were already treating the area as a crime scene rather than an active incident. Video footage shows emergency personnel operating without hesitation in close proximity to al-Sharif who was laying passively on the ground as Azaria, acting in a way that was calm and calculated, simply approached and shot him. Another soldier testified that after shooting, Azaria said that al-Sharif, “deserves to die.”

These facts have not dissuaded a following that has rallied behind Azaria, who says he would not have shot had he not mistakenly believed al-Sharif to have been concealing explosives and to have still posed a threat.

It has also become common to assert that Azaria’s conviction will deter others from life-saving actions in dangerous situations where they will fear being prosecuted. Azaria, furthermore, was a combat soldier who put his life at risk in defense against terrorism. Rather than supporting our troops and confronting our enemies this case turns the terrorist into a victim and the hero into a murderer.

By the time then Sergeant Azaria arrived, there were already officers, including Major Tom Naaman, on site commanding the situation. Azaria’s job at that point was to follow the lawful orders of his commanders. In shooting al-Sharif, Azaria stepped outside the chain of command.

Soldiers and civilians in immediate danger are allowed to defend themselves, but even if we take at face value Azaria’s claim that he perceived the situation to be dangerous, the Army has procedures for dealing with individuals suspected of concealing explosives. Simply shooting them is not in line with those procedures.

Not even Azaria’s defense absolves him. Even if al-Sharif had concealed explosives, Azaria broke the chain of command, and departed from Army procedure. He is guilty.

Eight Judges have now ruled against Azaria. At his original trial three judges unanimously voted to convict him. He appealed his sentence and three appellate judges voted to uphold it while two dissenting judges found it too light. He waved an opportunity to appeal to the Supreme Court, probably because having an additional panel of Supreme Court judges vote against him would make it harder to secure a pardon.

Regardless, in a pre-Yom Kippur decision IDF Chief of Staff Gadi Eisenkot commuted Azaria’s sentence by four months. That may seem in line with the spirit of the holiday, but while Yom Kippur and the entire current month of Tishrei is a time of forgiveness, it is also a time of apology – of asking for forgiveness – and a time of judgment.

Azaria has never expressed remorse, and maintaining a competently functioning judicial system is one of the most fundamental requirements of Judaism and one of the only Halachic principles expected even of non-Jews.

The matter before Eisenkot was never about Israel’s standing on the world stage, or fighting terrorism. Support for our armed forces permeate Israeli society. That does not mean that the use of force is blindly accepted in every situation.

The question before Eisenkot was whether concepts such as the chain of command and rules of engagement mean anything; whether apprehended suspects, even guilty ones like al-Sharif, should be processed through judicial procedures; or whether we will profess the ideals of democracy and then discard them, accepting in practice the unnecessary use of deadly force in a case where the shooter is Jewish and the deceased was Muslim. When we become unable to accept the possibility that a Jew could be guilty of a crime against a Muslim and administer justice accordingly, then we will have given up the legitimacy of our claim to democratic morality.

The four-month reduction in Azaria’s 18 month prison term is a miscarriage of justice, though not quite a total abdication of it. It is also an illustration that as a potential political contender, Eisenkot was unable to stand up to the pressure of a mob.