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When The Law Of The Land Appears Blurred
Israeli soldier Elor Azaria, is comforted by his mother during a hearing at a military court in Tel Aviv on May 9, 2016. (Photo: JACK GUEZ/AFP/Getty Images)

When The Law Of The Land Appears Blurred

Elite Israeli soldier “Nun” receives same sentence as Elor Azaria for accidentally killing fellow IDF troop

An Israeli military court on Sunday sentenced a soldier from the IDF’s Duvdevan unit to eighteen months in prison for inadvertently shooting dead a fellow member of the elite division. An internal army investigation found that the individual—identified only by the first letter of his Hebrew name “Nun”—killed Staff Sgt. Shahar Strug by accidentally discharging his weapon in barracks ahead of a training session.

Notably, the IDF Central Command’s probe highlighted Duvdevan’s history of gun safety violations and concluded that those in charge had not done enough to prevent repeated occurrences. As such, a planned promotion for the commander of the unit reportedly was nixed and the head and sergeant of Strug’s team were dismissed from their positions.

For his part, Nun’s jail term was determined through a process of mediation that took into account the Strug family’s support for the defendant, as well as his stellar record of service. Accordingly, Nun’s lawyers were able to downgrade the charge against him to causing death by negligence, which carries a maximum sentence of three years, as opposed to murder, which obviously comes with a much stiffer penalty.

The outcome raises significant questions about the manner in which the IDF’s legal system operates when viewed against the backdrop of the now-infamous Elor Azaria ordeal.

In March 2016, the so-called “Hebron shooter” fired at and killed an incapacitated Palestinian who minutes earlier had perpetrated a stabbing attack against Israeli soldiers. The Azaria case divided the nation, primarily along ideological lines, and is considered by many Israel’s equivalent to the O.J. Simpson trial in the United States.

In brief, Azaria’s claim that Abdel Fattah al-Sharif might have been wearing an explosive vest and thus posed an ongoing threat was rejected by a military court, whose judges, furthermore, made explicit their belief that he had a vindictive motive. Nevertheless, he was convicted only of manslaughter and given a prison sentence of eighteen months, the same length as Nun’s, even though the latter’s actions were unintentional.

Subsequently, amid massive pressure from the political echelon and sectors of the public, Azaria’s term was twice reduced, including once by IDF Chief of Staff Gadi Eizenkot. He ended up being released this past May after serving only nine months behind bars.

“I don’t have a logical or legal explanation for it,” Kobi Sudri, a former officer in the IDF Criminal Investigation Department, told The Media Line. “The court in the Azaria case concluded that although there was deliberate intent to kill, it happened a short time after a terrorist attack. The atmosphere at the scene was chaotic and Azaria was a young soldier with a good record. I imagine this was taken into account.

“In addition,” Sudri conceded, “political pressure and public opinion influenced the justices even if [both were transmitted] indirectly.”

Given that Israeli teenagers are conscripted into the army—thereby dedicating at least two or three of their most formative years in service of the state—there is an unwritten rule that the government will, reciprocally, support those who risk their lives on a daily basis. This is, at its core, the argument Azaria’s proponents used to justify his relatively short sentence: namely, that he acted against a terrorist in defense of Israel in a hostile environment and therefore should be given the benefit of the doubt or, at the very least, be shown leniency.

Many people did not believe that Azaria should have been prosecuted—and even feted him as a hero—and immediately began calling for the commutation of his sentence once he was convicted. A fair portion of this cohort, including high-ranking government ministers, are generally not associated with the fringes of Israeli society although in this instance they appeared willing to throw the legal system by the way side.

According to Lt. Col. (ret.) Maurice Hirsch, who served for two decades in the IDF Military Advocate General—his last position being the Head of Military Prosecution for Judea and Samaria (West Bank)—”in the Azaria judgment there is not a short discussion of previous sentences handed down in similar circumstances. These have ranged from a requirement to do community service to three years in prison.

“In the case of Nun,” he expounded to The Media Line, “it might have been found that [the accidental discharging of one’s weapon] is a big problem [which appears to be true—Ed.] that necessitated ‘a message’ be sent as a deterrent. However, with Azaria this need was perhaps more limited because there are few soldiers that have acted in this manner.

“Also, once Azaria was charged only of manslaughter, the issue of intent is marginalized because this [crime] does not specifically require a [resolve] to kill. Had he been charged with murder, things may have been different.”

Nevertheless, the ambiguity in the sentencing process within the Israeli military legal framework seemingly is reinforced when considering the penalties handed down to Palestinians, the most prominent recent example being the eight-month jail term received by Ahed Tamimi, which was approved by an IDF court following a plea bargain deal.

Tamimi, a notorious anti-Israel inciter with a lengthy history of abusing IDF soldiers, presumably would have received a harsher sentence had she gone to trial. It is also worthwhile noting that the military court reportedly dropped several of its initial charges for which Tamimi faced up to 10 years in prison, as well as the fact that she is a minor. That said, in her case the issue of deterrence factors in significantly, given that similar confrontations can, and have, resulted in severe consequences.

According to Ada Ravon, a lawyer and rights activist who has represented numerous Palestinians in Israeli courts as well as monitored cases for non-profit legal organizations in military courts, “there are no deliberations and judges do not arrive at decisions; rather, they receive wishes or orders, whatever you want to call it, from the security authorities and then abide by what they are told.

“In the case of Tamimi,” she elaborated to The Media Line, “it was not a ‘plea bargain’—it was a dictate. From my experience, the Israelis that handle the negotiating process pressure the detainees. They say things like ‘you will spend either eight months in jail, as is being offered, or the next five years in prison if you refuse.’ And they will find the pretext to do it.”

In 2015, the Israeli parliament passed a new law to crack-down on the incidence of Palestinian stone-throwing. As evidenced by the recent killing of IDF Staff Sergeant Ronen Lubarsky, who was hit in the head by a slab of marble dropped from the roof of a building during a raid in the Am’ari refugee camp near Ramallah, a rock can be no less a weapon than a gun. Numerous Israelis have been killed by Palestinian rock-throwers, notably Asher and Yonatan Palmer, the father and son who in 2011 died in a car-crash after a rock was tossed through their vehicles window; and four-year-old Adele Biton, who in 2015 succumbed to wounds sustained two years earlier in a similar incident.

In less severe instances, the Israeli law prescribes sentences for rock-throwers as long as 10 years if prosecutors are unable to prove harmful intent, and as many as 20 years if it is clear that the attacker desired to cause injury (not necessarily death). As a result, after Azaria’s sentencing, many pro-Palestinian groups highlighted the fact that five Palestinian minors had received longer terms for rock-throwing: namely, Saleh Ashraf Ishtayya, who was given three years and three months in prison; Muhammad Ahmad Jaber and Murad Raed Alqam, each handed down three-year sentences; and Muhammad Na’el Tayeh and Zaid Ayed al-Taweel, who each got two years and four months in jail.

It may be that the need to create deterrence is, in some cases, a more important mitigating factor than the intent of the action and its result. If so, this would, at times, justify seemingly disproportionate prison sentences. However, a problem arises when a system is construed by many as too often blurring the differentiation between a willful and accidental killing, for example, as well as employing double-standards in relation to prison terms, especially in cases involving Palestinians.

This is of particular concern in a country that repeatedly touts its commitment to the rule law as one of its defining, if not redeeming, qualities.

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