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Israel: Military Court Decision on Killing Neutralized Palestinian Assailant

(Jan. 26, 2017) On January 4, 2017, Israel’s Military Court for the Central District unanimously convicted an Israel Defense Forces (IDF) sergeant (the defendant) of manslaughter for lethally shooting a Palestinian assailant in violation of section 298 of the Penal Law. The Court further convicted the defendant of “unbecoming conduct” under section 130 of the Military Justice Law.  This offense applies to any “soldier of or above the rank of Sergeant who conducts himself in a manner unbecoming his rank or his status in the Army.”  (File 182/16, Military Prosecutor v. Sergeant Elor Azaria (Jan. 4, 2017) (Decision), NEVO LEGAL DATABASE (by subscription) (in Hebrew); Penal Law, 5737-1977, SEFER HAHUKIM [BOOK OF LAWS, the official gazette, SH] 5737 No. 864 p. 226, as amended; Military Justice Law, 5715-1955, SH 5715 No. 189 p. 171, as amended (both in Hebrew).)

The Court rejected as untrustworthy statements made by the defendant during the trial, holding that they contradicted prior statements made by the defendant immediately before and after the shooting, as well as the testimony of witnesses who were at the scene. The Court also rejected medical experts’ testimony on behalf of the defendant, which attempted to introduce doubt as to whether the defendant’s shot was the direct cause of the assailant’s death.  (Decision, ¶¶ 163-166.)

The Court also rejected the defendant’s request to quash the indictment “in the interest of justice,” based on alleged irregularities by military authorities in conducting the investigation and commencing criminal proceedings against him. The Court decided that the military’s handling of the investigation, the information sessions on rules of engagement it provided to soldiers after the event, and references to the defendant’s shooting made at those sessions were not improper and did not influence the testimony of soldiers who testified at the trial.  (Id. ¶¶ 204–290.)

The Court ruled that the defendant’s act was not intended for the performance of a defined mission. Taking a person’s life after he has been subdued  – even the life of a “terrorist,” as the assailant is referred to throughout the decision – is prohibited and violated military ethics rules, the Court said, and as such did not coincide with the behavior expected from a soldier at the rank of the defendant.  (Id. ¶¶ 306–307).

The sentence for the convicted soldier will be determined at a later date.