"Azaria’s legal defence team changes its strategy and contends selective enforcement worked against him" by John Brown

Haaretz 4 May 2017.

Elor Azaria and Yoram Sheftel in court.
Elor Azaria and his attorney, Yoram Sheftel, in court. Image found here.

Last week, Sgt Elor Azaria’s defence team, headed by Attorney Yoram Sheftel, submitted an application to present new evidence in their appeal against Azaria’s manslaughter conviction. The application details 14 incidents in which IDF soldiers shot and killed innocent people and did not stand trial. The application is part of a new defence strategy based on a contention of a denial of natural justice, due to selective enforcement. The aim of the defence team is to show that in actual fact, others were not charged for the same offence, and therefore there was no reason to charge Azaria.

According to Sheftel, the new incidents are “at least as severe as in Azaria’s case, if not more so. In a significant number of cases there was no investigation, while in others an investigation was opened only years later, and in no cases, were charges pressed.” Most of the cases he mentions are based on the series “Licence to kill” that I had published previously with @Noam Rotem on Local Call [published 7 January 17 in 972mag.com].

During Azaria’s trial his defence team, then headed by lawyers Ilan Katz and Eyal Beserglick, had already made a failed attempt to argue that there was a denial of natural justice, but it was only based on Colonel Yisrael Shomer’s shooting incident, and while they lacked the necessary evidence (which we’ve meanwhile acquired). Colonel Maya Heller, the presiding judge in the trial, rejected the motion, claiming that the defence had failed its burden of proof, and mentioned that as opposed to Azaria, Shomer had carried out IDF protocol for arresting a suspect (a contention put in doubt given the evidence in the investigation’s files).

The focus on a single incident was one of the many hurdles for the defence team in Azaria’s trial, since when one discusses a sole case it is easy to dismiss the claim of selective enforcement. The force of such a legal claim increases the more you demonstrate that most of the cases involve Palestinians being killed and those responsible not being put on trial. Examining the list of cases now presented by the defence, some of which I’ll detail below, shows that this time a far more serious job has been done.

An officer killed two boys, forged documents, and didn’t stand trial

The defence team is correct in claiming that the various cases presented indicate the general rule, according to which when Palestinians are shot, investigations are closed without charges being pressed. That is how 97per cent of the IDF’s internal investigations end up on average. To this day no IDF soldier has ever stood trial for killing a Palestinian. Since September 2000, about 9,250 Palestinians have been killed by the IDF, and in total 262 cases have been investigated by the Military Criminal Investigation Division (CID)and prior to Azaria’s verdict only one soldier had ever been convicted of manslaughter: a Bedouin soldier convicted of killing a British citizen in the Gaza Strip in 2004.

One of the most severe cases mentioned by the defence took place in the Palestinian village of Irak Burin in 2014, when a major in the Kfir Brigade, in which Azaria also served, shot and killed two innocent boys. The following description is based entirely on the CID’s investigation file:

At midday on Saturday, 20h March 2010, the Kfir Brigade’s forces were located at the village of Irak Burin on the outskirts of Nablus. According to the brigade’s operational log, at 3:54pm forces began retreating. At the same time, Muhammed and Usaid Qadus, 15 and 17 years old, were returning home.

Major R, the deputy battalion commander, testified to the CID that during the soldiers’ retreat, he shot two rubber bullets at demonstrators standing at a distance of 70 metres, and he noticed one of them was injured in his hand. In fact, the first shot hit Usaid’s head and the bullet pierced his skull. The second shot hit Muhammed’s chest as he rushed towards Usaid, since they were not demonstrating but walking home, as already mentioned. About one and a half years after that day, and in contrast with the immediate investigation Azaria was subjected to, Major (today Lieutenant Colonel) R was in the interrogation room asked the following question: “The investigation report’s findings reveal many details that circumstantially attest that you were at fault in the deaths of the two Palestinians. Contradictions surrounding the time of entry and forging of documents, a polygraph test in which you were found to be lying, and plenty more repeating evidence against you in everything relating to your testimony at the CID. How do you respond?”

R. denied the claims, but the claim of firing a rubber bullet was immediately disproven by an x-ray of a live bullet in Usaid Qadus’ skull. R only admitted to forging armoury documents, which he did in order to replace his weapon with one that could fire rubber bullets which he claimed to have shot, that is, after the shooting incident. A border patrol police officer testified that a soldier present with R at the time of the incident had told him that there had been “a celebration” in Irak Burin – military slang for emptying rounds of live ammunition.

After a five-year-long investigation the case was closed due to There was insufficient evidence to conclude, with the level [of certainty] required in criminal law that live shots werefired during the incident, or that the shooting carried out by the officer had led to the death of the deceased.” Indeed, there wasn’t footage like B’Tselem’s film of Azaria’s shooting, but it is clear that if the case had involved Jewish fatalities rather than a double homicide of Palestinians, R would have been charged. In effect the case was closed, R was promoted, and today he is a Lieutenant Colonel in the IDF.

Another case examined by the defence’s appeal is the killing of the Qawarik cousins, which took place a day after the double homicide in Irak Burin, again by a soldier in the Kfir Brigade. At first the IDF claimed that the two had attempted a pitchfork attack, therefore one of the soldiers shot 10 bullets at one of them. Later, as he claimed, the other tried to injure him using a syringe, so he shot 19 bullets at him. No pitchfork was recovered from the scene, and the discarded syringe had no fingerprints on it. Three friends of the soldier that had opened fire, who stood within a 10 metre radius of him, claimed they’d seen none of the 29 shots. The case was closed for lack of evidence.

Out of the 14 cases of homicide presented by the defence team, the only case to have made it to court was the shooting of Sameer Awad in the village Budrus, who was injured and later died from shots to the back of his neck. In this case, the prosecution accused the soldiers of reckless opening of fire, and after the defence also threatened to claim selective enforcement, the prosecutor offered a compromise of six months of community service. The case is currently being referred to mediation.

The gambit of the occupation

All the cases are as least as severe as Azaria. In a few of the incidents that were investigated, the inquiries took many years, as opposed to one month in Azaria’s case. In none of the cases was there evidence collected at the scene, and in all of them the operational inquiry was hidden from the CID and the shooters took part in it while given the chance to become familiar with the various versions. In Azaria’s case the inquiry was leaked to the media, and Azaria himself was arrested before he could take part in it, so he was forced to change his version after the initial inquiry.

It’s clear that Azaria is guilty of homicide and more. But that does not invalidate his lawyers’ contention, that his actions are not unusual compared with dozens of others that are not documented as some which we have outlined. One could perceive of Leftist support for this contention as the gambit of the Occupation – sacrificing one indictment in exchange for a meaningful statement about the overall system, but even more so one must admit that it is simply unjust to accuse a single soldier in this situation. Any reasonable person would see that Azaria differs from the others only by the fact he was put on trial.

But it is actually because of the fact that selective enforcement in this case almost goes without saying, that is reasonable to assume that the defence’s appeal will be rejected outright. As the Azaria trial showed so well, the military regime in the West Bank can barely cope with a single soldier being put on trial for his actions. It is hard to imagine another such case, and even more so the public response to hundreds of such trials. The future of the military regime depends on the IDF’s ability to present a façade of due process on one hand, while on the other continuing to grant impunity in such acts of murder.

Hebrew original: http://www.haaretz.co.il/blogs/johnbrown/1.4002447

Translated by Keren Rubinstein for the Middle East News Service edited by Sol Salbe, Melbourne, Australia.

Read more from Just Voices #13, June 2017 – Israel/Palestine.

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