One serve of Judicial with extra …


For the last couple of weeks I have been feeling like the entire world (the Israel advocacy part, of course) disagreed with me. The only ones to agree with me seem to be nobodies like the Israeli Prime Minister Bibi Netanyahu, the Minister of Defence Moshe Ya’alon and the Chief of the General Staff Gadi Eisencort — and the IDF legal department – the Military Advocate General. The decision to charge Sgt. Elor Azar, the soldier from Hebron with manslaughter was not only the correct call — it was the only one.

This isn’t a discussion of the guilt or innocence of the IDF medic who shot a wounded prisoner. The decision about what he believed, when he believed it and equally importantly, if he believed it at the time, will be determined by a proper court. Israel, I’m proud to say is a country of law.

It is a discussion about some general principles and about the effect of the act that goes beyond the as yet undetermined fate of the soldier and the irreversible fate of the dead prisoner. Indeed it is a discussion that has implications far beyond the killing of a man who if he had the chance would try to kill again.


Wait I have to contact my lawyer

Despite the feelings generated in the cartoon on left nothing has really changed. A soldier who is attacked must defend him or herself. In fact, in the Hebron case the stabber was lying on the ground after being shot in accordance with the Rules of Engagement.

But does that response have to be with a bullet?

You don’t have to be a counter terrorism expert to realise that a high powered assault rifle is not the best tool for policing. If the soldier shoots the likelihood of the person on the other end being killed or severely injured is very high. Despite whatever you’ve seen coming out of Hollywood the precisely placed shot that only wings the criminal is a myth. Under pressure of a life or death situation the soldier doesn’t have time to do more than point the barrel at the centre of mass and press the trigger.

Yet Israeli soldiers are only armed, as a general rule, with such a weapon. Nor, unless things are really changed, are soldiers given instructions on how to differentiate between an eighteen year old youth with a sharp knife and a fifteen year old girl with the same weapon. Even wounded or surrounded they both can kill.

The Chief of the General Staff may be correct that a child shouldn’t have the full contents of a magazine emptied into her but who is in a better position than he to change the rules of engagement?

Here is my suggestion. The cheapest way is to arm the soldiers with clubs. Call them batons or truncheons or night sticks if the euphemism makes you feel better. Police all over the world use them as a generally non fatal alternative to a firearm.

During the Second Intifada soldiers, including myself, were issued with clubs and told to break bones. The international and might I add hypocritical outcry led to high officers and officials of the Defence Department falling over themselves to deny giving that order. As a consequence clubs were withdrawn and I believe many more guilty Palestinians ended in a grave rather than a hospital.

If clubs are unacceptable why not supply tasers, also used by police around the world. Some can be used at a distance and don’t require close contact. As with clubs the opportunity for abuse is there but almost all IDF soldiers will be responsible and those who are not will also be the ones irresponsible with firearms.

Army Legal

Military Advocate General M.A.G.

The Hebron incident also raises a question that applies in other instances. Whose judgement should be the standard of proof? Should the judgement be that of a professional soldier or should it be that of the individual who might have reacted incorrectly under intense pressure? In a somewhat similar incident six years ago a soldier was terminated from military service for acting unprofessionally. There was in that case no charge of manslaughter.

Maj. Gen. Mizrahi concluded that while the second soldier did feel threatened, he acted unprofessionally. Therefore, Maj. Gen. Mizrahi has ordered that the soldier’s military term be terminated.

In general terms I am far from convinced that concepts drawn from criminal law, such as murder, manslaughter and self defence, do more than muddy the waters in a military case.

Consider a sniper, or artillery offer or pilot who attacks a target. There is no issue of fear or self defence because the person who eventually is struck is not aware of the soldier’s presence. The attack is premeditated yet this is not murder. In fact, the soldier who literally or metaphorically refuses to pull the trigger is guilty of a crime. If a civilian did the same the charge would be murder.

Surely as the defences available to a soldier who kills while in the line of duty are unavailable a charge of murder or manslaughter is inappropriate?

Recently I have heard many comments, not just coming from the few thousands who attended a demonstration calling for Sgt. Elor Azari to be released, calling for Arabs who attempt to kill Israelis to be executed on the spot. To perform the extrajudicial executions that Israel has always denied.

This is of course, forbidden by Part I : General Provisions – Art. 2.the Convention relative to the Treatment of Prisoners of War. Geneva, 27 July 1929 which Israel ratified in 1951.

Red CrossArt. 2. Prisoners of war are in the power of the hostile Government, but not of the individuals or formation which captured them.
They shall at all times be humanely treated and protected, particularly against acts of violence, from insults and from public curiosity.
Measures of reprisal against them are forbidden.

That should be enough of an argument but I would like to discuss it further.

Would knowledge of certain death deter someone convinced that by dying he would end in Paradise with 72 virgins – or in the female case, be one of the virgins? Would knowledge of certain death deter a teen suicide who wanted to go out in style rather than disgrace? Would it deter a person given the choice of being murdered or going out a martyr with the benefits coming from that status?

I doubt it.

As always your comments are most welcome.

Extra Credit

About David Guy

B.A./B.C.A. (Communication and Media Arts) University of Wollongong, AUSTRALIA M.A. in Government (Diplomacy and Conflict Studies) Inter Disciplinary Center, Herzliya, ISRAEL Twitter @5MFI
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