IDF Court Upholds Azaria’s Sentence; Soldier to Remain in Jail

YERUSHALAYIM -
IDF Sgt. Elor Azaria arrives to hear the decision on his appeal at the Kirya military base in Tel Aviv, on Sunday. (Avshalom Sasoni/Pool)

A military court on Sunday rejected an appeal by defense attorneys for former IDF soldier Elor Azaria. Currently home under house arrest, Azaria is likely to be remanded to a military prison to serve out the rest of his 18-month sentence. He was convicted on charges of manslaughter for eliminating an Arab terrorist who had been neutralized and who he believed was planning to set off a bomb. Azaria is under house arrest because he has officially been discharged from the IDF, but officials said he could still remain in military custody.

The appeal by Azaria’s defense team was one of two that the court is considering. The second appeal was filed by prosecutors, who are seeking a harsher sentence for the soldier. The court will soon announce its decision in that appeal as well, it said.

In its decision, the court reviewed much of what it said in its original decision on the soldier’s act. The court said that Azaria’s testimony “was contradictory and tended to drift,” and that he had not presented a solid version of the events that occurred in Chevron on the day he shot a terrorist in the head. What he had said was not “believable.” They said he had apparently not shared his thoughts about the downed terrorist setting off a bomb while he was on the ground, as Azaria claimed. “He did not act in a manner that a man who was afraid for his life would have behaved,” and in fact, “he acted against the specific orders of when and how IDF soldiers are supposed to shoot,” and that he had acted “the way one would operate at a firing range, not at the scene of a terror attack.” His motivation for shooting the terrorist, the court said, was to “take revenge on the terrorist” who had attacked his fellow soldiers.

Azaria was convicted on charges of manslaughter and conduct unbecoming an IDF soldier, after shooting at a terrorist in Chevron last Purim morning when he was neutralized and on the ground, after he had been shot when he tried to stab soldiers. At his trial, defense attorneys stressed Azaria’s sterling record as a soldier, and the fact that the possibility of a further terror attack — in which the terrorist who was on the ground might set off a bomb he could have been carrying on his person — justified the shooting, or at least provided reasonable grounds for Azaria’s having acted the way he did. He was sentenced in February to 18 months in prison. In addition, he was sentenced to a suspended sentence of one year, and was also demoted from corporal to private. The court said it had gone “very easy” on the soldier, as the standard penalty for manslaughter was 20 years in prison. Prosecutors had sought sentences between 3 and 5 years.

At the opening of the hearing, the court said it had not seen any new evidence that would lead it to change its decision. “We authorized the defense to file an appeal, as we have in previous similar cases. It does not appear that any of the evidence presented would be sufficient to change the decision, and it appears to have no direct bearing on the case.”

The soldiers who testified in the trial “had no reason to lie,” but the testimony of his commander, Tom Naaman, was problematic. Naaman testified against Azaria, saying that the soldier had not told him he feared the terrorist would set off a bomb. Later, he testified that Azaria had told him “the terrorist needed to die.” The court said the testimony was “shallow and without substance.” The prosecution had sought to extend Azaria’s sentence largely based on Naaman’s testimony. On the other hand, the court said there was no reason to doubt the testimony of Naaman’s commander, David Shapira, who also spoke with Azaria, and who testified that Azaria had not mentioned any of the suspicions he claimed to have in their conversation.

Before the court announced its decision, Azaria’s attorney Yoram Sheftel attempted one last argument to convince the court to free his client. Sheftel said he had received footage from a 2002 incident in which soldiers were shown carrying out a “confirmation of death,” which he said was accepted in the IDF and was standard procedure for terrorists. The footage shows two soldiers standing over a terrorist who had just killed two soldiers and wounded six others. In a photo presented in the court, the soldiers are seen shooting the prone terrorist in the head. Neither of the soldiers in the photo was prosecuted, and in fact Azaria’s conduct was much more restrained, Sheftel said. Refusing to reduce the charges against Azaria “would be a terrible miscarriage of justice. The court has an opportunity now to correct the injustice that has already been perpetrated against my client.” The court said the evidence was not relevant to its decision.

Commenting after the decision, Deputy Foreign Minister Tzipi Hotovely said that Azaria deserved to get a pardon from the president. “I sent President Rivlin a letter with a request that he grant a pardon. The soldier did his duty and protected civilians and soldiers in the midst of a terror attack. At this time, while Israelis are still mourning the losses in Chalamish,” in which three Israelis were murdered as they finished Shabbos dinner last weekend, “it is important to remember who the bad guys are and who the good guys are, and that a soldier who kills terrorists is not a criminal.”

Prime Minister Binyamin Netanyahu and Defense Minister Avigdor Liberman said Azaria should be pardoned.

Liberman issued a statement urging the soldier’s family not to continue appealing. “It’s a difficult day,” he said, adding the ruling must be respected. He said the IDF Chief of Staff should be asked to pardon him. “I have no doubt he will take into consideration the difficult circumstances,” he said.

Other ministers also called for Azaria to be pardoned.