IDF Sgt. Elor Azaria arrives to hear the military court decision on his appeal, July 30, 2017.
When Major General Doron Piles, head of the military appeals court, on Sunday morning read the court’s decision regarding Sgt. Elor Azaria’s appeal of his manslaughter conviction, it was clear from the start that the court did not overturn the lower court’s decision. That’s because, had the court decided to overturn, this would have been disclosed in the first paragraph of the ruling.
Piles began with the court’s decision to refuse additional evidence from defense counsel, celebrity attorney Yoram Sheftel, since appeals courts by definition do not entertain testimony that had not been heard by the lower court. Piles then dismissed the defense’s other cases in which soldiers who shot Arabs did not receive a similar punishment, finding all of them, save one, illegitimate.
“The defense had the option in the earlier stage to pursue further the argument about selective enforcement,” said Piles, noting, “This was not done, even though these are cases from the past.” Of course, Piles chose to ignore the fact that the appealing attorney had not been part of the original defense team.
The court continued to dismiss every single supporting evidence submitted by Sheftel, including a video of the attack on the Temple Mount (where a terrorist whose death had not been verified ended up shooting an Israeli medic) – on the grounds that it is irrelevant.
Judge Piles then dealt with the appeal himself, stating that “there is no longer any dispute as to the existence of a causal connection between the shooting by the appellant and the death of the terrorist,” accepting the prosecution’s position in the original trial.
Regarding the testimony Corporal T., who testified that Azaria had said, “He shot my friend, and therefore deserves to die,” the court examined it critically, and does not accept Sheftel’s claim that T. was forced by the interrogators to deliver this statement. “He confirmed that he had heard it for sure,” Piles said, and criticized Azaria’s former lawyers for not summoning Corporal T.’s interrogators to testify, if they wanted to build a case of coercion.
“After carefully examining the entire testimony of Corporal T., we found nothing wrong with the court’s decision regarding its reliability,” Piles stated, demolishing one of Sheftel’s central arguments. “Even the Appellant himself, despite the fact that he did not hesitate to cast doubt on a series of witnesses, did not say that Corporal T. did not tell the truth.”
However, according to Piles, “After careful examination of the evidence and the protocols, we found that the testimony of Major Naaman is problematic and it is difficult to assign full weight to it.” The testimony by Company Commander Major Tom Naaman turned out to be very helpful to Azaria’s version of the events, revealing a long list of failures in the handling of the affair by the army and the political echelon.
“Clearly, according to the Company Commander’s initial version, Azaria explained the reason for the shooting because the terrorist had moved, but then [Naaman] changed this version,” Piles said. Piles also mentioned the Company Commander’s evolving testimony about the knife’s distance from the terrorist (“a few centimeters” at first, and in a later hearing about 32 inches). According to Piles, this is a substantive change in the testimony, with no satisfactory explanation.
However, according to Piles, the full version of Azaria’s testimony also evolved with a succession of variants, indicating its own lack of credibility, strengthening the prosecution’s evidence.
“At the beginning of his first interrogation, the appellant noted that the commander’s question was that he had fired because the terrorist had moved his hand,” said Piles. However, “before the court he presented another version, according to which he spoke with the battalion commander and told him about the two dangers – the knife, and the explosive charge.”
Piles suggested that said that the claim made by Azaria in mid-trial that the company commander had slapped him “shows that this is an unreliable testimony.”
Piles completely accepted the Battalion Commander’s testimony against Azaria, asking why would he lie about the fear of an explosive charge on the terrorist’s person. “We did not see fit to question the findings regarding the reliability of the Battalion Commander,” the judge said. On the other hand, “the appellant’s version continued to develop during the trial, to the claim he made that he had told a female paramedic about the existence of an explosive charge.”
“During his interrogation in the MPCID, Azaria was asked to point to those he had told about his fear of an explosive charge. He was asked, ‘[Did you tell] your father? Anyone on the scene? But appellant chose to keep mum.”
“According to Sheftel, the explanation for the development in the version lies in Azaria’s mental state following the incident,” said Pile, commenting, “We did not find in the testimonies about his mental condition an explanation of the developments that took place.”
“The appellant’s post-traumatic symptoms do not cause memory problems,” Piles said.
“After watching all the videos describing the course of events in the arena, we concluded that the appellant’s versions are contradicted by the data that emerges from them. According to the evidence, the Platoon Commander kicked the knife at a few meters away, and the video showed that the knife was away from the terrorist, making it impossible for him to grasp it with his extended hand,” Piles said.
“We found no basis for the defense’s argument that the terrorist moved his hand a few seconds before the [Azaria] shooting. Watching the video shows that it was six minutes before the shooting,” said Piles, adding, “After examining the evidence, we came to the conclusion that the Appellant raised the explosive charge claim only after consulting with his attorney.”
“It was determined – and rightly so – that under these circumstances there was no justification for the shooting,” said Piles, and attacked the defense argument that the fact that the terrorist was wearing a heavy coat could mean he was carrying a suicide-bomb on his person. Piles pointed to several individuals seen in the tapes who also wore heavy coats (the event took place on March 14, 016).
“Other than the warnings issued in the area earlier, no one acted as if they were afraid of an explosive charge, in reality,” said Piles. “Even after careful examination, we did not identify any necessity for the appellant’s action to carry out the shooting. We were not impressed by the existence of any immediate physical danger that was posed and justified the shooting in the head. The Appellant prepared himself for shooting. This is behavior typical of a shooting range rather than a terrorist attack that is about to take another blow via an explosive charge.”
“It was properly proven that in real-time, at the scene of the incident, the defendant spoke the truth – and the truth is that he had shot the terrorist to death because the latter had stabbed his friends,” said Piles, essentially removing any validity from Azaria’s claim of self-defense.
“Witnesses tried to assist the Appellant, including at the cost of deflecting the truth,” said Judge Piles, stressing that the truth was that “the Appellant acted in complete violation of the rules of engagement.”
“The Penal Law establishes conditions for the existence of self-defense – such as the threat should be tangible, requiring immediate and necessary action,” Piles said, adding, “We did not find the existence of the defense of self-defense. It was not proven that the sight of the terrorist was so suspicious that one might have thought that he was carrying a bomb. The videos also show that the terrorist who was wounded was lying on the ground for several minutes with his hands spread out and his eyes closed. The terrorist did not pose a tangible danger.”
“Although the shouting on the scene about the fear of an explosive were heard a few minutes before the shooting, [Azaria] chose to tarry (11 minutes) until he fired,” said Piles, noting that “he could not explain when he felt immediate danger. The Appellant did not act out of a sense of urgency, but acted in a calculated manner. The appellant had less harmful options for action, other than shooting at the terrorist, such as warning his commanders. Therefore, the conditions of reasonableness were not satisfied.”
“The guiding principles of the rules of engagement are derived from the value of the purity of the weapon, and stipulate that live fire must be used only against a real threat,” Piles began the educational portion of the ruling. “It was known to the Appellant that it is forbidden to fire at a terrorist who poses no danger. The rules of engagement are intended to prevent a situation in which every man did what was right in his own eyes.”
“Regarding the claim by the defense of abuse of process,” said Judge Piles, “It was argued that selective enforcement was used against [the appellant], and that the public statements made by the Chief of Staff and the Defense Minister contaminated the trial.” However, Piles said, “Even if statements were made by the Chief of Staff and the Defense Minister, this does not mean any outside influence and considerations.”
That last one was not the happiest point made by the court, which did not invest much energy in backing up its statement by anything other than “Because we say so,” deciding that “We do not have here a case of the supreme commander’s spirit radiating on the criminal process.” Again, why? Because.
As to the conversations of the battalion commanders with the soldiers who were about to testify in the case, according to Piles, “the purpose of the talks was legitimate and even necessary. As soon as the incident occurs, the commanders must complete the investigation.” Whether or not this investigation also includes indoctrination – the court would not say.
Meanwhile, the judges were critical of public officials who voiced their own opinions, especially those who objected to the Azaria prosecution. “Utilizing one’s public status to influence legal proceedings undermines the foundations of the law,” Piles rebuked, accusing those politicians of crossing the line. Nevertheless, Piles concluded, “We did not believe that the statements made caused damage to the appellant in a manner that would have affected the outcome. We found no bias in the decision, only a careful and honest examination of the testimonies.”
Finally, Piles stated: “We found no interest in interfering with assessing the reliability of the lower court, except for the reliability of Major Naaman. The appellant’s conviction rests solidly on its foundations. The shooting of the terrorist was done out of vengeance, not out of a sense of real danger from a knife or an explosive device. The defense’s appeal of the conviction is summarily dismissed. The appellant’s perception of ‘the children of all of us’ is understandable. It is no wonder, therefore, that the soldier’s entanglement evokes empathy, but this is not what this case is about.”
“In examining the soldier’s punishment, we must examine his injury to the ethos of morality and warfare,” Piles was approaching the real moment of truth, Sgt. Azaria’s sentence. “Unnecessary use or use beyond the required need i prohibited, immoral, and is not beneficial, rather it is harmful. The IDF is an organized defense army of a state of laws. Soldiers should not settle accounts with terrorists after the danger has passed. This is the role of the law enforcement system.”
At last, due to a disagreement among the three judges, two of whom wanted to slap Azaria with a much heavier sentence, out of a need to produce a unanimous opinion the court will keep the existing punishment of 18 months in place.