Sgt Azariya is not guilty of manslaughter

On March 24, 2016, two Arab terrorists attacked Israel Defense Force (IDF) soldiers at a checkpoint in Hevron. That attack led to a manslaughter conviction—against an IDF soldier.

During the approximately 160 days between mid-October 2015-March 24, 2016, Arabs in Israel committed at least 210 attacks against Israeli soldiers and civilians—more than one a day, every day. Israel was under siege.

Hevron was a particular target. IDF soldiers there protecting the Jewish community were—as now--constantly on alert, often attacked.

This particular Hevron attack wasn’t much different from others. Two Arabs approached soldiers at the checkpoint, drew knives and attacked. One was shot dead immediately. The other was shot and, wounded, fell to the ground. Perhaps fifteen minutes later, the wounded Arab was still on the ground, surrounded by IDF soldiers who stood next to him, apparently waiting for orders.  While the small group of soldiers waited, IDF Sgt Elor Azariya walked up to the wounded Arab and shot him once in the head, killing him.

The entire scene was filmed by a volunteer for a Jewish anti-Israel NGO, B’Tselem.  The video went viral. Sgt Azariya was arrested.

Initially, prosecutors wanted a murder charge against him. But that didn’t go over very well. Given how often soldiers were being attacked at that time by Arabs, most Israelis didn’t see Azariya as a murderer. They saw him as a hero (Dan Williams, “Just 5 percent of Israelis say soldier who shot helpless Palestinian committed murder”, forward, April 6, 2016). So Azariya was charged with manslaughter.

In January, 2017, he was found guilty of manslaughter. He was sentenced to 3 years imprisonment. 

Arguments are now being presented in an appeals court. The case is back in the news.

On May 10, 2017, Brig. General Sharon Afek, the Chief Military Prosecutor (equal to a civilian Attorney General) gave an interview in which he restated the case against Azariya (Judah Ari Gross, “Israel’s military advocate general defends trial of Hebron shooter”, timesofisrael, May 10, 2017). He said the major component of that case is, the soldier Azariya “shot the neutralized terrorist without operational justification” (ibid).

Like many in Israel, I find this case problematic. I don’t believe the State’s main conclusion—unjustifiable killing—is correct. The key to my concern is the word, ‘neutralized’.

The IDF Code of Ethics of is clear. A soldier cannot kill someone who no longer endangers someone’s life (Asa Kasher, “I wrote the IDF Code of Ethics. Here’s my take on Hebron shooting”, forward, April 6, 2017).  

Everyone agrees. If you kill someone who is no longer a danger, you commit murder. The IDF has asserted that the assailant in this case was no longer a danger. He’d been ‘neutralized’. This is why Kasher (ibid) believes Azariya was guilty.

But was the Arab indeed ‘neutralized’, as the IDF contends? Was that terrorist truly ‘no longer a danger’?

The commonplace military definition of ‘neutralize’ means to render something or someone incapable of further action. That definition appears to be understood in the code of International War Ethics published by the International Red Cross (ICRC), under the title, Customary IHL (International Humanitarian Law). Under the headings, ICRC-Customary IHL—Practice—Israel—Practice relating to Rule 8-Section A-VI (other national practices), ‘neutralized’ appears in a list of military options in combat, all of which clearly suggest a state of ‘incapacity’.

To neutralize someone is to render him/her incapable of further action. The key phrase here is, ‘incapable of’.

Look at the terrorist of the Azariya case. He was on the ground. He was wounded. But he was not dead. At least one witness believed he moved. 

Consider the scene. The terrorist was observed by witnesses to be wearing a larger-than-normal jacket, one capable of hiding a suicide bomb. No soldiers had examined him. No IDF personnel had cleared him to be ‘bomb-free’.

You’re a witness. The man in front of you could be wearing a bomb. He's alive. You could die in an instant. Your pulse is over 200. The terrorist’s hands are free enough to detonate a hidden device. Are you thinking he’s ‘incapable of further action’? (“There was justification to open fire”, arutzsheva, August 22, 2016).

The fact that Azariya supposedly said at the time of the incident, ‘he deserves to die’ is irrelevant (the Prosecution made a big deal about these words). What’s relevant is, the condition of the assailant. If witnesses feared the assailant was wearing a bomb and could move his fingers, he was capable of ‘further action’ (“Platoon commander: I also feared terrorist had a bomb”, arutzsheva, August 29, 2016).

At trial, IDF judges rejected these fears. They dismissed all suggestion that the assailant might not have been ‘neutralized’. They rejected evidence that could absolve the accused.    

Their judgment against Sgt Azaryia was flawed. He is not guilty of manslaughter.