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Military and judiciary: What India can learn from Israel

On March 24, 2016, two Palestinian assailants stabbed an Israeli soldier in the Tel Rumeida. They were subsequently shot and incapacitated by the Israeli Defence Forces (IDF). Several minutes later, IDF soldier Sergeant Elor Azaria, a medic, shot one of the assailants, Abdel Fattah al-Sharif, in the head. The incident was caught on camera by a Palestinian volunteer working for the Israeli human rights group and the IDF subsequently launched an investigation into the incident.

Sgt Azaria was tried by Israel’s Military Court on charges of ‘manslaughter’ and ‘unbecoming conduct’ for shooting and killing Sharif. Azaria pleaded not guilty. He argued that he believed Sharif was hiding an explosive belt under his jacket and still posed a danger.

However, no explosive was found later. The Military Court found Azaria guilty of manslaughter. The Court said that taking the life of a person (even a terrorist) after he has been subdued was prohibited and violated military ethical rules, and as such, did not comport with the behaviour expected from a soldier of Azaria’s seniority. The Court then sentenced him to imprisonment for a period of 18 months and demotion from the rank of a sergeant to a private.

The episode came amid a wave of stabbing, shooting and car-ramming assaults by Palestinians, and the military was battling criticism from rights groups accusing Israeli security forces of being too quick to pull the trigger. Incidentally, in the last two years, Palestinian assailants have killed nearly 45 Israelis in stabbing, shooting and car-ramming attacks.

Sgt Azaria appealed against the conviction, alleging that the Military Court had disregarded evidence submitted at the trial and that the investigation against him was unfair. The prosecution also filed an appeal, requesting the court to impose a harsher imprisonment of 30-60 months to send a clear message regarding the sanctity of life, and emphasised that unnecessary deprivation of life, even of a terrorist, is unlawful, immoral and contrary to IDF values. The Court reduced Azaria’s sentence to 14 months, citing compassion and consideration for his combat service.

The case created a rift in Israel between those who supported Azaria’s trial on manslaughter charges and those who thought that he should never have been tried. Israeli and Palestinian human rights NGOs, international organisations, the UN and foreign government representatives, including members of the US Congress, condemned Israel’s extrajudicial killing of Palestinians.

Reacting to the national controversy over the trial of Azaria, the President of Israel said, ‘My grandchildren in the Army don’t know whether to obey their officers or the masses.’ Before taking up his assignment, Israeli Defence Minister Avigdor Lieberman had denounced the prosecution of Sgt Azaria and demonstrated his support by showing up at a hearing at the military court. Lieberman later said, ‘We cannot reach a situation where a soldier must ask for a lawyer before going on a mission.’ Some called the sentence a judicial attack on the military, Israel’s most revered institution.

From a legal perspective, military rules of engagement (a classified IDF document) applicable in attacks of this kind dictate that lethal force may be used only when the suspect poses a real and imminent danger to other civilians or security personnel. Israeli soldiers are trained to identify an imminent threat using a ‘means, intent and capability’ analysis, according to which the absence of any one of the three elements renders lethal force unjustifiable. According to a poll conducted by the Israel Democracy Institute in August 2016, nearly half of the Jewish population in Israel supports a ‘shoot-to-kill’ policy while handling suspected Palestinian assailants, ‘even if [they have] been apprehended and clearly [do] not [pose] a threat.’ In reality, the soldiers and police officers in the field are told that their duty, first and foremost, is to protect Israel and Israelis.

Azaria was released on May 8 this year after serving nine months in prison. This case has many things in common with what the Indian military is facing today. Human rights organisations and activists have often accused the military of using excessive force. A few judicial panels, which have investigated cases of encounter-killings, have accused the military of using disproportionate force, in particular when there were no casualties from the military during the operation. An acquittal by the military court or the release of a military convict on bail by the Armed Forces Tribunal (AFT) is always seen with skeptical eyes by certain sections of the civil society.

Even the Supreme Court, in a 2016 case, commented that a person carrying weapons in violation of prohibitory orders in a disturbed area cannot be considered an ‘enemy’ by the armed forces. In such a situation, the US Supreme Court decision in Orloff v. Willoughby (1953) is quite relevant: ‘Judges are not given the task of running the Army….. The military constitutes a specialised community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous, not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.’

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