Elor Azaria – The Trial and Tribulation

There is a story about former Israeli Chief of Staff, Raful Eitan z”l, that during a meeting between him and a paratrooper battalion in the field, during the 1978 Litani Operation, one junior officer stood up and reported to him that he had witnessed another officer shoot and kill some five terrorists after they had raised their hands in surrender. It is said that Raful then proceeded to berate the officer accused of shooting the terrorists right in front of his soldiers, asking him why he waited long enough for them to raise their hands before he shot them.

Raful Eitan z”l was no stranger to controversies of this kind. In 1956 he was accused of executing thirty five Egyptian soldiers and civilians during the Sinai campaign, because he did not have enough manpower to guard the prisoners and he had received orders to move on. Again, in 1967, during the Six Day War, his name was connected to another execution of about fifty Egyptian prisoners of war. However, ironically, in this specific incident, Raful managed to capture the very essence of what is at the heart of the Elor Azaria Affair, and how we, as a democratic society which respects the rule of law should relate to it.

However, first a little recap of the facts. Elor Azaria is a sergeant in the Kfir Birgade, a battlefield medic by training. He has been in the army for about a year and a half, so he knows how the army works, its standing orders and what military and operational discipline is about. He also received an award for being an exemplary soldier for a course in which he participated. On 24th March 2016, soldiers from his unit were attacked by two terrorists, wielding knives. One of the terrorists managed to stab one of the soldiers before being killed by them. The other was gravely wounded (as it transpires, mortally) and was left incapacitated, lying on the ground under guard, bleeding out, while emergency services were called to treat and evacuate the wounded soldier. Azaria was called to the scene in his capacity as the unit medic, arriving eleven minutes after the incident had occurred. There, he coolly handed his helmet to a comrade, approached the prostrate body of the terrorist, and from two meters away, shot him in the head. This, without receiving permission to open fire, and without signaling his intent to his fellow soldiers and officers. Azaria was arrested and the incident was investigated by the military police. After the results of the investigation, the military prosecutor decided to charge him with manslaughter. The trial lasted about nine months, when the judges returned with a guilty verdict.

There has been a lot of confusion with regard to the circumstances surrounding the incident, as well as Azaria’s motives for doing what he did. At first, during the initial investigation, he said he shot the terrorist, because he believed the terrorist deserved to die for attacking his comrades. Later, after consulting with his lawyers, he claimed that he acted out of self-defense and to protect his comrades on the scene, in belief that the terrorist was wearing a bomb belt under his jacket and he was about to set it off. In truth, he may have heard that from an ambulance driver who was taking his wounded comrade to the hospital. Whether this influenced his actions is debatable. If one were to watch the tape, it is unlikely he heard this from the ambulance driver, as he was just pulling up in his jeep, and the motor of those things are pretty loud. He tried to strengthen his argument by saying that the terrorist was wearing a jacket in a “hamsin”. The court showed that the temperature was 17 degrees Celsius, and others at the scene, Hebron Jewish settlers, were also wearing jackets. According to the court’s verdict, this second, later explanation was held no credibility, seeing as Azaria changed his version of the events three times. So, why did he claim that this was the reason for him deciding to shoot a neutralized, prostrate terrorist? I will get back to that later.

Further confusion exists with regards to the IDF code of conduct and military ethics. On the one hand, there was a breach of discipline. He should never have fired his weapon without express permission or an order to do so – and his commanding officers were on the scene, one standing only meters away from the body of the terrorist. Furthermore, the IDF code of ethics is very clear with regard to the execution of prisoners and shooting enemy combatants after they have been neutralized. On the other hand, the IDF has a strong ethic not to abandon its soldiers on a field of battle and many claim that the IDF abandoned Azaria, giving him no support after he shot the terrorist. Add to that the fact that many soldiers feel that the rules for opening fire are unclear (my son included), and we have here a recipe for a moral quagmire.

In my opinion, the issue is actually very simple, and if the whole incident had not been politicized to the point of it causing the arguably the best Defense Minister Israel has ever had, and definitely the best since Moshe Arens being fired, I believe the public would actually see that the issue is far more clear-cut than Azaria’s advocates would have us believe. I will explain. When you kill a terrorist who is attacking you, the responsibility for his death is entirely his. This would clearly be self defense. I will go even further. We were taught in the army that when you have to use lethal force, you don’t pussyfoot around. You use extreme prejudice and even perform what is called in Hebrew “vidu hariga” (an extra bullet to make sure he is dead). If the soldiers who initially shot the terrorist and done this, there would be no argument, neither legal, nor ethical. However, as soon as the terrorist is captured, and/or is in our custody and under guard, he then becomes OUR responsibility, as is everything that happens to him afterwards. As a moral and democratic society, as soon as he is in our custody, OUR legal system applies as do all the rules regarding the treatment of prisoners as set out in the Geneva Conventions, which Israel has adopted. It matters not how despicable and murderous he is. It doesn’t matter if “they” would behave differently if it was the other way around. In Israel there is rule of law and we are all expected to respect it and abide by it. THAT is why Raful berated the officer, as I described in my first paragraph. If the officer had shot the terrorists BEFORE they raised their hands, they will not yet have become our responsibility and our soldier’s actions would have been covered by rules of war. So, yes, ironically, Raful got it right!

That is also the reason why Azaria’s lawyers pushed the narrative of the bomb belt and claimed that the terrorist was not fully neutralized. If they could convince us that it was still an ongoing incident, then the responsibility for the terrorist’s life would not yet have shifted onto us. Except for two small details; he was under guard and already in our custody, and the shooting occurred ELEVEN MINUTES after he was neutralized.

This is why I believe the court’s decision to find him guilty is the right decision. It has nothing to do with politics, Right or Left, patriotism or not. It has to do with the nature of our society and the respect for the rule of law. It has to do with the very foundations of our democracy and our democratic institutions.

Having said that, that does not mean that there is not room for compassion. I believe there is. While the verdict of the court is to determine guilt or innocence, a simple, binary option, guilty or innocent, having determined his guilt, extenuating circumstances can now be considered in determining his sentence. Here I believe there is room for compassion, despite the fact that he was found guilty of manslaughter.

1. Azaria was exposed to a never ending barrage of irresponsible incitement, primarily in the social media like Facebook, but also by extremist politicians, who make sweeping and irresponsible statements, pandering to the public’s gut reaction for revenge and retribution. While this is understandable, for our soldiers to indulge in this can never be acceptable. As soon as we give in to it, we become no better than our enemies. Therefore, the courts have an obligation in my opinion to take into account that Azaria is an impressionable young man and he was influenced by what his so-called “leaders” have been saying for some time now. I will call that diminished responsibility.

2. Although he has been in the army for a year and a half, the atmosphere was fraught with tension and emotion, having seen his comrade stabbed and in danger of losing his life. Some soldiers can go through their entire military service and not experience a situation like this. So, although he has been in the army for a relatively long time, this may have been the first violent incident that he had to deal with that was so close to home, and therefore his reaction to it may have been as a result of some sort of trauma. I believe that his officers should have been more aware of the emotional turmoil their soldiers were experiencing and perhaps of their inexperience, and they should have exerted more control over them at the scene of the attack.

3. As I said before, the rules of engagement are not clear enough for the soldiers, who are given conflicting messages with regard to how to react in situations of intense conflict. They are not adequately prepared for it. They are trained  for battle situations, not lone terrorist attacks, where in a split second a quiet, and boring foot patrol explodes into a terrorist attack. More importantly, I believe the army does not make the distinction I have explained, clearly enough for the soldiers to be able to differentiate. Therefore, there is a case for a diminished sentence.

This case should have remained in the realm of an investigation into military misconduct, but as so often happens in Israel, the incident has been blown up into an emotionally charged, divisive and political tempest. It should never have become politicized. The conflicting stories about what actually happened, have rocked the country throughout the trial, exposing deep divisions within Israeli society. Venomous criticism of the IDF Chief of Staff, a decorated war hero and exemplary, charismatic leader, and incitement to violence reminiscent of the incitement that led to the assassination of Yitzhak Rabin, by extremists on the Israeli right has undermined the status of the IDF in the Israeli consensus, as the one institution that should remain outside the political debate. The IDF’s centrality is the most fundamental rallying point for Israeli unity during times of conflict.

Here in Israel we take pride in describing our army as the people’s army, society’s melting-pot. The role it plays integrate all strata of Israeli society, is far more important than the mere two or three years one actually spends in uniform. Now, we are witness to a process of this unravelling, and it scares the living daylights out of me, not only as a veteran who has served in a combat infantry unit in the army and as a citizen whose security depends upon its consistent success, but also as a parent whose son serves in an elite unit, and who is based in the West Bank. The consequences of Azaria’s actions and the trial, will have a deep influence on the army and on Israeli society in the near and more distant future.

However, we must remember that we live in a democracy. It not only has freedoms, it also has obligations. These obligations are not subject to whether you are right wing or left wing. The minute you begin to begin to place valued judgements on these obligations and choose to which you will adhere, and which you will choose to ignore, you eat away at the foundations of our democracy. Therefore, I beg you all to act responsibly and consider the implications, when you allow your emotions to control your perspective. Thank you.

About the Author
Paul Mirbach made aliya from South Africa to kibbutz Tuval in 1982 with a garin of Habonim members. Together they built a new kibbutz transforming rocks and mud to a green oasis in the Gallilee. He served in infantry during his army service, serving in both Lebanon and the West Bank, including on reserve duty during the first intifada. Paul still lives on Tuval with his wife and two sons.
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