ANALYSIS: A Moment of Judgment That Should Never Have Come

Elor Azaria in a military court in Jaffa. (Flash90)

The three military judges who will convene in the Kirya Defense Ministry Headquarters in Tel Aviv on Wednesday will hand down their decision in the most publicized and most complex case in the history of the state — hat of Sgt. Elor Azaria, who is being tried on charges of manslaughter and conduct unbecoming an IDF soldier after shooting a terrorist in Chevron who was already on the ground. Whatever they decide will be bad. There will be ramifications for the military and the values that officers seek to instill in IDF soldiers.

Have those who preceded us noted the difference between a wise man and a fool?

The fool always gets entangled in troubles that the wise man knows how to avoid.

The entire military leadership in Israel conducted itself in this case in utter foolishness. Rather than avoiding this legal quagmire at all costs, they decided to go against 95 percent of the Israeli public, and 99 percent of the soldiers of the IDF.

It will matter very little what the judges decide. It is already clear that the big loser will be the IDF and the state of Israel. Unless, that is, the judges can find some compromise that will allow the state to exit the situation gracefully. But it won’t be easy.

The state of Israel lives in a time of cruel terrorism. However, there are laws and protocols. At the same time, there are circumstances in the field that are on the borderline as to what ethics demand and what public safety demands. For this very reason, the law allows the court to show leniency toward the accused.

Indeed, this should have been the approach with Elor Azaria from the outset. But the IDF senior officers did not take such an approach, and almost the entire Israeli public has been against them. If Azaria is sent to prison, public sentiment will only grow stronger in his support. The reaction will be not only in the street but in the army as well.

You can’t send 18-year-old children to war (yes, Army Chief, they are children, in spite of what you said on Tuesday in an academic conference) and then demand of them decisions that are made for generals.

The fight against terror has never been cut-and-dried. It is hard. There are fears on one side, emotions on the other. And caught in the middle is the child “warrior,” who sometimes errs in his decisions. But if soldiers are brought to trial for every error, there won’t be any soldiers and there won’t be an army. No one will be willing to pull the trigger, even when it is justified.

For years, the IDF built a system in which the officers gave orders and the soldiers were expected to carry them out. But at some point things changed. Aside from the commanders, others are involved in forming the soldier’s personality, his ideas, his values — including the soldier himself. This the IDF has so far failed to internalize, and nothing demonstrates that fact better than the trial of Elor Azaria.

The focus of this trial is the question of whether the military is the sole authority over the recruit. And the answer is no, no, no.

In the past, the recruit would leave his home, his family and friends and enter the world of the IDF, only to return home on occasional leave. Today, the soldier remains connected to home and family and friends even while he is serving. He receives advice from home and sometimes it contradicts what he hears from his commanding officers.

In the past, we would not have even heard of the incident. But we live in an era of instant communication and instant pictures in virtually every situation. Where the IDF doesn’t position cameras, the human rights organizations are there. If not them, then the Palestinians.

Yet, in Chevron, in the critical moment, there was no commanding officer to direct Azaria (without getting into the question of whether he acted correctly or not in shooting the terrorist lying on the ground).

How do we know that the officers did not conduct themselves fittingly? From the footage, of course. And if the officers failed to do their duty, why should we impose the responsibility on an 18-year-old boy, who has to read the situation as he sees it and act accordingly?

In the course of the trial, we saw the shifting testimonies of the officers and soldiers who were in the field. They said one thing in the beginning, then changed their testimony. This, in response to the social pressure brought to bear upon them from outside the military.

The Defense minister at the time of the incident, Moshe Yaalon, and army chief Gadi Eisenkott had already passed judgment on Azaria that same day. They determined, before any witnesses were examined, before any charges were brought, that the soldier was guilty.

But the overwhelming majority of Israelis rejected this approach from the start. Yaalon paid for it with having to resign, and Eisenkott, who has otherwise acquitted himself well as chief, may well come away from this seriously damaged.

A conviction will generate a tremendous furor. Acquittal will bring on a tsunami in the army, including resignations at the highest echelons.

On the shoulders of the judges rests a heavy burden. How can they extract the military leadership from the dilemma into which they have placed themselves, without undermining the command structure and the obedience to orders that is a necessary part of the military?