There are two common responses to Elor Azaria’s manslaughter conviction by the military court today for fatally shooting an incapacitated terrorist in Hebron. One common response is that Azaria is a victim of the system; if you place 18 year old soldiers in a crucible where they must make split-second life and death decisions while facing down terrorists, you should not hold them responsible when things go wrong. Another common response is that Azaria is representative of the system; if you have militarily occupied a territory for five decades while suppressing the occupied population’s nationalist aspirations, then criminal abuses are a feature rather than a bug. There are elements of truth to both of these positions, but the obvious feature that they both share is that they fall back on “the system” to explain what has happened and to argue for their preferred outcome. The focus on the system is important, but it cannot and should not be the sum total of the story in the Azaria saga.
From one perspective, the Azaria conviction shows that the system works. When Azaria was first arrested after the shooting, there was widespread fear on the left that a whitewash would occur. Given the rush of nationalist politicians to defend his actions and visit his family to reassure them that he would not be abandoned – including Prime Minister Netanyahu, who famously called Azaria’s parents to promise them that their son would be treated fairly – the fear was not unfounded. This fear was magnified when Azaria was charged with manslaughter rather than murder despite plenty of evidence that his killing of Abdel Fattah al-Sharif was plotted as an act of revenge rather than an act of misperceived self-defense. Azaria’s lawyers mounted his defense by indicting Azaria’s commanders and the entire military apparatus as part of a conspiracy to cover up the fact that he actually acted properly, and they were bolstered by a public campaign to turn Azaria into a hero. While IDF Chief of Staff Gadi Eisenkot and former Defense Minister Moshe Ya’alon strongly cautioned against treating Azaria as a model soldier and decried viewing him as a scapegoat or martyr, the amount of pressure going the other way was overwhelming. Nonetheless, the court today not only unanimously convicted Azaria of the manslaughter charge, but also delivered a forceful statement in spending three hours reading out the verdict and emphasizing that this was not a close or borderline case. One cannot maintain in the face of the Azaria trial that the rule of law does not exist in Israel.
From another perspective, the Azaria conviction shows just how broken the system is. Azaria was captured on tape fatally shooting a wounded and unarmed Palestinian terrorist fifteen minutes after he was first taken down by another soldier – about as open and shut a case with documentary evidence that exists – and yet the outcry surrounding his arrest and trial was monumental. According to the Israeli NGO Yesh Din, there have been 262 investigations of Palestinian fatalities caused by the IDF in the West Bank and East Jerusalem since 2000, and only 17 of those have resulted indictments. It is easy to understand why after observing the uproar surrounding this particular case. More disturbingly, that Azaria has not only been defended so vigorously in the court of public (and ministerial) opinion but has been lionized as a symbol of what is right with Israel points to dark days ahead. Earlier today, demonstrators outside of military headquarters where the verdict was delivered chanted, “Gadi be careful, Rabin is looking for a friend,” implying that Eisenkot would be deserving of assassination should Azaria be convicted. That a soldier in an emotionally tough situation who shoots and kills an unarmed assailant is worthy of praise – not sympathy, but praise – and that his supporters view him as a paragon of virtue is bad enough. That he is a vehicle by which the IDF chief of staff and the judges who tried him are threatened with death is reprehensible and a sign that part of Israel has seriously lost its way. Judge Maya Heller, who delivered the verdict today, appears more like someone with her finger in the dike unsuccessfully trying to hold back a tidal wave of overwhelming floodwaters than like Joseph Welch shocking a country back to its senses.
What the Azaria trial says about the system, however, cannot be the last word. Making this solely a story about the success or failure of a system of Israeli policy in the West Bank or a system of Israeli rule of law is a path to disaster. There is no doubt in my mind that what Israel asks of its 18 and 19 year olds is an impossible task. There is equally no doubt in my mind that a heavy Israeli military presence in a place like Hebron – a place that must be visited in person to understand just how soul-crushing the situation there is – guarantees that even the best 18 and 19 year olds will act in reprehensible ways. Neither of these observations should be used to absolve anyone of individual responsibility for his or her actions. Once you take this tack, then chaos and anarchy reign supreme. If every soldier who encounters a violent Palestinian knows that he can wrongfully shoot and claim being a victim of “the system,” it will unleash unspeakable violence while also rending Israeli society in two to an irreparable degree. If every incident of wrongful killing or abuse of Palestinians in the West Bank is met with a larger demand to investigate why Israel is in the West Bank at all, it will similarly create an environment in which there is no incentive for individuals to act with caution or compassion.
This is why the effort already underway to pardon Azaria, championed not only by the prime minister and other government ministers such as Naftali Bennett, Miri Regev, Aryeh Deri, and Yisrael Katz, but also by opposition figures such as Shelley Yachimovich, is a dangerous development. It sends the wrong message about the obligations of soldiers to act legally and humanely and creates a terrible set of incentives through institutionalizing moral hazard. It also validates those who have been treating Azaria as a soldier who acted appropriately but has been scapegoated by the system, while tarnishing the part of the system – the rule of law – that actually worked and has come out of this incident unscathed. But more importantly, it makes this all about the system itself. Do not discount what Elor Azaria did himself, no matter how bad or unfair the situation was in which he found himself. It turns Elor Azaria into a black and white proxy for whether Israel can do no right or Israel can do no wrong, when the reality is far grayer.