The Elor Azaria case and the implications for the IDF

Elor Azaria with his mother in court on the day of his conviction

In my previous post reference was made to the Elor Azaria case (you can read about the original incident in this article), in that some of the soldiers hesitated to shoot at the attacker for fear of becoming “Azaria II”. This was refuted by other soldiers on the scene but the accusation still hangs in the air.

In short, Elor Azaria is an IDF soldier who last year shot dead a wounded Palestinian terrorist at point blank range after the terrorist was already disabled and on the ground. Azaria claimed the terrorist moved and he thought he might have a bomb strapped to him. The incident was filmed by that treacherous group B’tselem, and Israeli politicians could not restrain themselves from jumping into the fray, expressing opinions with little thought to the consequences of their big mouths.  I have little doubt their importune condemnations influenced the judges in Azaria’s case to a certain extent. Last week the verdict was handed down: guilty.

I have only written in passing about the Elor Azaria case because I couldn’t make up my mind who was in the wrong and who in the right.  Did Azaria take the law into his own hands? Yes. Was he justified? Maybe. Did the politicians speak out of turn? Many of them did. Did the IDF brass have verbal diarrhea? In many cases, yes again. In the end I think the reality is a lot more complex than the simplistic and bombastic headlines make out, and everyone is partly right and partly wrong.

For some excellent reading on the case, see Abu Yehuda on the Elor Azaria Verdict:

It’s important in this connection to note why the incident became a media circus. The shooting was videotaped by an activist for the left-wing NGO B’tselem and the tape shown over and over by the media. What would probably have been a simple matter – one way or the other – became a national affair….

Elor Azaria was found guilty of manslaughter and conduct unbecoming of an IDF soldier.

The judges did not believe him, and the judgment was unrelievedly harsh. They rejected every one of his points of defense. They did not accept his explanation that he was afraid the terrorist had an explosive vest or that he was reaching for a knife. They found contradictions between various versions of Azaria’s story, and said that he appeared to be changing his story as he went along in order to improve his case. They gave significant weight to testimony that Azaria said “he stabbed my friend, he deserves to die” to another soldier immediately before the shooting. They did not accept arguments from a psychiatric panel that he suffered from PTSD or that he was significantly impaired by lack of sleep or other factors. They accepted the autopsy data that it was Azaria’s bullet that caused the terrorist’s death (and rejected the opposing view of former chief pathologist Yehuda Hiss, who did not examine the body). They did not credit the statements of several reserve generals who testified on Azaria’s behalf. Finally, they decided that the shooting was not merely an error,  but demonstrated “criminal intent.” Criminal intent!

I didn’t hear a word of excuse or understanding. The judges agreed with Chief of Staff Eisenkot and former Minister of Defense Ya’alon that the shooting was entirely unjustified. Had he been accused of murder, I believe that Azaria would have been convicted of that as well.

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Among the most troubling aspects of this case were the statements condemning Azaria’s act made by Eisenkot, Ya’alon, other officers, and even PM Netanyahu (who later changed his tune) immediately after the B’tselem video was made public. Eisenkot and Ya’alon later said that it wasn’t the video that convinced them, that they already had received evidence from the chain of command – but surely it had something to do with their making public statements of this sort (in the US, this would be grounds for appeal).

Indeed, this is where everything went off the rails. Elor Azaria should have had a hearing with his commanding officer, and maybe gotten a weekend of guard duty and an explanation of the rules. Instead, thanks to a video camera probably bought with European money, another kind of soldier, one fighting the cognitive war against Israel, threw the nation into chaos. As usual, we walked right into this.

The distinction between law enforcement and war becomes blurred when terrorists are stalking us – and especially our soldiers and police – in the streets, with every day bringing reports of stabbings and vehicular attacks, as was the case when Azaria killed his terrorist. No, Azaria’s wasn’t a split-second decision where hesitation could be fatal, as the court noted, but our soldiers and police do face such decisions on a daily basis. Could not this verdict deter them from taking action in a situation that isn’t so clear-cut?

Soldiers don’t make good policemen anyway. They are trained to kill the enemy, not to detain suspects who have rights. Enemy soldiers in a firefight don’t have rights.

And we mustn’t forget that in the eyes of our enemies in today’s asymmetric war, no Jew in the Land of Israel, from a baby to an 80-year old grandmother, has a right to live. Possibly if the nation had an official death penalty for terrorism, soldiers wouldn’t feel the need to take the law into their own hands.

In this kind of war, is the principle that a terrorist deserves to die a bad one?

Caroline Glick drew some chillingly prescient conclusions from the trial and verdict in her column The IDF’s new social contract:

Over the years, the public’s growing awareness of B’Tselem’s unwavering hostility went hand in hand with its growing distress over what was perceived as the IDF’s willingness to sacrifice the safety of troops to prevent it from receiving bad press.

For instance, in 2012, a film went viral on social media that showed a platoon of combat engineers fleeing from a mob of Palestinians attacking with rocks, Molotov cocktails and slingshots.

When questioned by reporters, the soldiers said that they had repeatedly asked their battalion commander for permission to use force to disperse the crowd and they were repeatedly denied permission.

Retreat was their only option.

In 2015, another film went viral showing a group of Palestinian women hitting and screaming at a soldier trying to arrest one of them for throwing rocks at his platoon. He did nothing as he absorbed the blows. And no harm came to the women who assaulted him.

Along with the films, came stories that soldiers on leave told their friends and family about the IDF’s rules of engagement. The tales were always the same. The rules of engagement are so restrictive that all initiative is placed in the hands of the enemy. Not only can terrorists attack at will. They can flee afterward and expect that no harm will come to them, because what is most important, the soldiers explain, is to ensure that IDF maintains its reputation as the most moral army in the world.

This was the context in which Azaria killed the wounded terrorist.

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The films of fleeing soldiers and the rules of engagement weren’t the only signs of our military leadership’s estrangement.

There were also the promotions given to radical lawyers to serve in key positions in the Military Advocate-General’s unit, and the red carpet treatment given to radical leftist groups like B’Tselem that were dedicated to criminalizing soldiers and commanders.

Since the shooting in Hebron, the General Staff’s treatment of the public has become even more disdainful.

Ya’alon and Eisenkot and his generals have repeatedly offended the public with comparisons of “IDF values” with alleged processes of barbarization, Nazification and ISIS-ization of the public by the likes of Azaria and his supporters.

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Azaria is the first victim of a General Staff that has decided to cease serving as the people’s army and serve instead as B’Tselem’s army. The call now spreading through the Knesset for Azaria to receive a presidential pardon, while certainly reasonable and desirable, will likely fail to bring about his freedom. For a pardon request to reach President Reuven Rivlin’s desk, it first needs to be stamped by Eisenkot.

A pardon for Azaria would go some way toward repairing the damage the General Staff has done to its relationship with the public. But from Eisenkot’s behavior this week, it is apparent that he feels no need and has no interest in repairing that damage.

As a result, it is likely that Azaria will spend years behind bars for killing the enemy.

Moreover, if nothing forces Eisenkot and his generals to their senses, Azaria will neither be the last nor the greatest victim of their betrayal of the public’s trust.

And for clarity you can’t do better than Evelyn Gordon who wrote of the IDF’s self-inflicted wound:

In conversations with friends shortly after the incident, it was this that most infuriated them and aroused their sympathy for Azaria: They felt that the men in charge of the army, whose job was to ensure that any soldier suspected of wrongdoing receives a fair hearing, had instead rushed to judgment against him in order to appease a hostile world after B’Tselem made its video public. Moreover, they wondered whether Azaria could even receive a fair trial when the two men who must sign off on promotions for every senior military police officer, prosecutor and judge had already made it clear that they expected a conviction. Under those circumstances, would military justice officials risk their careers by exonerating Azaria if the evidence justified it?

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But by immediately and publicly condemning Azaria – instead of saying, as the army usually does, that his conduct must be deemed unacceptable if proven, but meanwhile, the case is under investigation and the military justice system should be allowed to work without interference–they created an appearance that the deck had been stacked against the soldier. And since most Israelis weren’t following the minutia of the court hearings, that initial impression is what remained: In response to a video released by an irredeemably hostile organization, and whose authenticity had yet to be proven, the two men who headed the army had declared Azaria guilty even before the investigation began.

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Based on the evidence, I see no reason to think Azaria was in fact convicted unjustly. But from the start, Eisenkot and Ya’alon created the appearance of injustice by routinely speaking out against Azaria when they should simply have kept silent and let the military justice system do its work. The result is that now, many Israelis still aren’t certain Azaria was convicted fairly, and that has translated into overwhelming support for an early pardon.

This case has sowed devastating distrust of both the army’s leadership and its justice system among a large section of the Israeli public. Yet much of that distrust could have been avoided had Ya’alon and Eisenkot simply kept their mouths shut. That neither man proved capable of doing so is a damning indictment of them, and a tragedy for Israel.

And on Sunday we saw the results of this betrayal of trust.  At least from certain angles of the CCTV videos of the truck-ramming attack in Jerusalem, armed IDF soldiers were afraid to shoot at a terrorist in the act of committing his act of murder for fear of being accused and taken to trial like Elor Azaria.

Something is really rotten in the State of Israel, at least at the political level of the military brass.