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Israel: Sentencing of Soldier Convicted of Killing Neutralized Palestinian Assailant

(Mar. 13, 2017) On February 21, 2017, the Military Court Central District issued a sentence in the case of an Israel Defense Forces  sergeant who had been convicted of manslaughter and of “unbecoming conduct” for shooting and killing an injured Palestinian assailant without justification and in violation of military rules of engagement.  (File 182/16, Military Prosecutor v. Sergeant Elor Azaria (Feb. 21, 2017), NEVO LEGAL DATABASE (by subscription) (in Hebrew).)  The verdict was published on January 4, 2017.  (Id.; for a summary, see Ruth Levush, Israel: Military Court Decision on Killing Neutralized Palestinian Assailant, LAW LIBRARY OF CONGRESS (Jan. 2017); Ruth Levush, Israel: Military Court Decision on Killing Neutralized Palestinian Assailant, GLOBAL LEGAL MONITOR (Jan. 26, 2017).)

Sentencing Guideline

In reaching its decision, the Court applied established rules on sentencing, which dictate that it choose the “appropriate range of punishment.”  (File 182/16, ¶¶ 50-51.)  This range is selected in consideration of the harm that was caused to social values as a result of the offense, the ongoing relevant sentencing policy for the offense, and the circumstances in which the offense was perpetrated, including the level of guilt of the defendant.  (Id.)  Circumstances related to the defendant himself and circumstances not related to perpetration of the offense may also be considered for determination of the punishment within the appropriate range of punishment, or as a consideration to deviate from it.  (Id.)

Views of the Three Judges on the Range of Punishment

Having reviewed prior sentencing decisions presented by both the prosecution and the defense as examples to be followed, the judges were in disagreement regarding the appropriate range of punishment that should apply to the defendant.  Two of the three judges opined that the range should be 18 to 48 months of actual imprisonment (with additional periods of imprisonment imposed under conditions specified in the sentencing decision); the third judge, however, was of the opinion that the applicable range should be 30 to 60 months’ imprisonment.  (Id. ¶¶ 65-75.)

While all three judges agreed that the defendant’s act caused serious harm to the values of the sanctity of life and the “purity of arms” (military rules governing use of weapons), the majority stated that they could not disregard the unique circumstances of the case.  These include the fact that it was the first military operation in which the defendant took part and that he had been required, shortly prior to the shooting, to provide care to his friend who had been injured as a result of a stabbing attack.  Other relevant circumstances include the hostile and complex scene of the shooting and shouting by both civilians and emergency medical personnel regarding the danger posed by the assailant.  (Id. ¶ 72.)  While agreeing that these unique circumstances should be considered, the dissenting judge opined that in determining the appropriate range for punishment a more significant weight should be given to the protected values that were harmed by the defendant’s actions.  (Id. ¶ 73.)

The three judges agreed that the overwhelming amount of evidence regarding circumstances unrelated to the offense justified a substantial reduction in the defendant’s sentence within the determined appropriate range of punishment.  Such circumstances include the defendant’s significant contribution to the military and to the state as a combat soldier, his positive character, and the fact he had behaved according to societal norms until the event in which the shooting occurred.  The Court also considered the long period in which he had stayed under conditions of open imprisonment, the impact of the trial on the defendant and his family, and the impact of the criminal record that accompanies a conviction on his future life as a civilian.  Considering the severity of the offense, the Court rejected the claim that there were reasons to justify deviation from the appropriate range of punishment itself.  (Id. ¶¶ 89-91.)

Determination of Sentence

The Court sentenced the defendant to imprisonment for a period of 18 months (minus nine days in which he was placed in closed confinement and  not including the long period in which he was in open confinement), to an additional period of 12 months’ imprisonment if he committed another manslaughter offense within three years, and to an additional six months of imprisonment if he unlawfully used a weapon within two years.  The Court also ordered the demotion of the defendant from the rank of sergeant to private.  (Id. ¶¶ 93-94.)

Both the defendant and the prosecution filed appeals on the decision, which are currently pending.  (Yoav Ziton, Elor Azaria Appealed, Most of His Attorneys Resigned, YNET (Mar. 1, 2017); The Trial of Elor Azaria: The Prosecution Appealed the Sentence, YNET (Mar. 6, 2017); Appeal 17, Chief Military Prosecution v. Sergeant Elor Azaria (Mar. 7, 2017), available at YNET (all in Hebrew).)