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Killer Israeli Soldier Deserves Prison Not Pardon — Democracy Depends on It

For decades now I have been active in shaping the moral face of Israel, the democratic nation-state of the Jewish people. I have been involved in writing the codes of ethics for the IDF, the Knesset, the government, several ministries as well as numerous major organizations and professions.

I am, therefore, immediately attracted to every public debate that seems to be related to the fundamental values of the state, to the norms I would like to see observed by citizens and institutions under all circumstances. Recently, I have been much involved in the current public debates concerning what one soldier did in Hebron last March.

Since so many in Israel have ignored the background facts, it is worthwhile to briefly set the record straight. I will, then, show that the major arguments in favor of the soldier are utterly wrong and that they have traction only because Israel is in the peculiar situation of always anticipating an imminent general election.

About a year ago, the Samson Battalion of the IDF was deployed in the Hebron area. One of its companies protected a certain Jewish neighborhood. Lieutenant M. and Sergeant Elor Azaria were in charge of a checkpoint. While they were manning it two Palestinian terrorists assaulted them, trying to stab each of them. Azaria was injured, but both he and the officer fired on the terrorists. One of the latter was killed and the other was injured. Both remained lying on the road. Eleven minutes later, Azaria shot a single shot directly into the head of the injured terrorist and killed him. Some of his comrades heard him say that the terrorist deserved to die because he had stabbed a comrade in an attempt to kill him.

Azaria’s commanders were surprised by the shooting and immediately started a debriefing process, in which commanders and their subordinates establish the facts of the incident, analyze it and draw lessons to be immediately implemented. Debriefing was first performed by the battalion and brigade commanders and soon reached the Chief of General Staff, Lieutenant General Gadi Eisenkot. He approved the findings and emphasized the ethical conclusion that emerged from the briefings, namely that the shooting was utterly unjustifiable, and violated central values of the IDF such as Human Dignity, Purity of Arms (restraint of force) and Human Life. These values appear in the IDF Code of Ethics and in no other military code. I am very proud about having introduced them into the IDF code, when I proposed them to the IDF general staff during the early 1990s.

Debriefing processes are confined to the professional and ethical aspects of the military activity under consideration. They are performed solely by professional commanders. The law requires that details of debriefing be kept confidential, to enable everyone to cooperate with the commanders, even if it requires admitting mistakes and failures.

Lawyers are not involved in the process, but the Judge Advocate General can read the minutes of debriefing and instruct military police to investigate an incident, if there are reasonable grounds to suspect that a law was disobeyed. In this case, Azaria and others were investigated and he was court-martialed.

Not a single defense argument was accepted by the military court. It rejected, for example, the possibility that the terrorist had been dead before being shot by the soldier and any of the reasons to consider the the injured terrorist lying on the street a threat. Moreover, the judges showed that the defendant lied about major aspects of the incident. Accordingly, Azaria was found guilty of manslaughter and improper behavior.

Simply speaking, two independent processes, quite different in nature from each other, were in full agreement. The ethical conclusions of the commanders debriefing process coincided exactly with the ethical aspects of the legal conclusions of the judges. The judgment is clear and the public should be cheered that commanders and judges agree.

However, the incident itself, the court proceedings and the verdict have attracted a lot of public attention, including that of politicians and numerous participants in social media who voiced their views on what they turned into an affair.

Usually, politicians are expected to serve — in this order — the public, the party and themselves. However, during the periods leading up to elections priorities change and everything becomes an opportunity to win public support. In recent years, though, Israeli political culture has taken on a peculiar form. Proceeding from the working assumption that elections are always behind the corner, politicians feel a constant need to promote themselves and their party. So, a single shot of a single soldier has become the topic of a stormy public debate, a horse to be flogged by many politicians and their supporters.

To show how this affair — nurtured by politicians in the shadow of a potential general election — is hurting the state of Israel, let us briefly consider the two main public calls for clemency.

First, a prevalent argument in favor of Azaria rests on an ancient slogan: “If someone comes to kill you, kill him first.” Neither I, nor any significant legal code, accepts this slogan as grounds for morally and ethically proper rules of engagement. It was first used (in an ancient Midrash — it appears in neither the Bible nor the Talmud) in circumstances where a person will unjustifiably kill me if I don’t kill him. It does not fit circumstances in which there is a third possibility, where I can effectively defend myself without killing him. Obviously, I am not permitted to kill a person who has just been released from jail and says he intends to kill me because I was his prosecutor. I will simply call the police and they will defend me without killing him. The principle is very clear: You don’t kill a person if it is not evidently necessary for your self-defense. Azaria violated this principle and sadly many of his supporters are not concerned.

Second, many people who agree that his action was wrong have endorsed the idea of immediately pardoning Azaria. They are interested in a pardon because they understand how he felt in the moment and would like the public event to include that compassion. Their mistake is profound. The price to be paid for the introduction of such sentiments into the formal, historical event is to radically downplay the significant roles that ought to be played by professionals such as judges and commanders.

The rule of law is undermined when professional ethics and legal justice are overruled by pandering to the street. And democracy itself is undermined when politicians are constantly self-promotional election mode. Any effective defense of Israel as a genuine democratic nation-state of the Jews ought not to be based on a fleeting bid for popularity, but rather based on a defense of the moral principles of justice, sanctity of human life and restraint of force, as expressed in the IDF Code of Ethics.

Asa Kasher is Laura Schwarz-Kipp Professor Emeritus of Professional Ethics and Philosophy of Practice at Tel Aviv University, and Professor of Philosophy at Shalem Academic Center in Jerusalem. He led the writing of the IDF’s code of ethics, and won the Israel Prize in General Philosophy in 2000.


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