Thursday, January 5, 2017

Excerpt from judgment in the Azaria case

Following is an excerpt from the judgment of the court-martial in the case of Sgt. Elor Azaria, as provided here by Haaretz:

292. Under paragraph 298 of the Penal Code, a person who causes the death of another person through an unlawful act commits manslaughter. The ruling holds that an unlawful act is any act that endangers the life of another, which is carried out from within criminal thinking, causing a fatal outcome. In the case before us, it is undisputed that the accused fired at the head of the terrorist al-Sharif at short range, after having aimed the weapon at his head and there can be no dispute that such shooting can “endanger the other person’s life.” The defendant was also well aware that the shooting he carried out “neutralizes the system” and “kills with high probability.” A dispute emerged between the sides on the question of the causal connection between the shooting performed by the accused and the terrorist’s death, as did a dispute regarding the justification for the shooting in question. Whereas the prosecution argued that there was no justification for the shooting by the accused, the claim of the accused was that he suspected that the terrorist had an explosive device on his body and in light of that suspicion – the shooting was in accordance with the rules of engagement. Alternatively, it was claimed, that even if the suspicion was imagined, in light of the circumstances at the scene of the incident, there were extenuating circumstances.

293. In light of the above, we first examined the causal connection between the accused’s shooting and the terrorist’s death. We showed that the defense’s argument in the matter of the causal connection changed during the hearing of the evidence in the case. While initially it was claimed that the terrorist’s death was caused by “tension pneumothorax” caused by the initial shots fired by other soldiers, at a later stage the defense proffered a new theory to the effect that the terrorist died of “cardiac embolism,” even before anyone had shot him. On the issue of the causal connection, three witnesses testified: On behalf of the military prosecution Dr. Gips testified and on behalf of the defense Prof. Hiss and Prof. Shimon testified. After hearing their testimony, and after examining their opinions in light of the overall factual infrastructure, we preferred Dr. Gips’ reasoned professional opinion. That opinion, the reasons for our adoption of which we have laid out in detail, finds that the terrorist’s death was caused as a result of the shooting to his head, whilst negating the possibility that the terrorist had died as a result of “tension pneumothorax” or “cardiac embolism.” That opinion also negates outright the factual possibility, for which the defense experts offered no basis at all, that a dead person is able to move. With respect to this last issue, we find that it must be given great importance, as the defendant’s claim is that the terrorist was moving before he shot him. In the absence of a factual basis for the possibility of movement by dead people, in any case the ground is knocked out from under the claim that the terrorist was already dead when the defendant shot him. In light of all this, we have determined, as a factual matter, that the terrorist’s death was caused by the bullet fired at him by the defendant.

294. It is a legal precedent that in the circumstances of the case in question, a person who fires a weapon at the head of another person at short range, it is the case that he intended to bring about the other person’s death, expecting that his behavior would cause a fatal outcome as a near certainty (see: the Subah case; as well Feller’s “Elements of Criminal Law”, Part 1, Ruling 717). This being so, we next turned to examining the version the defendant presented at the Criminal Investigation Division and in this court, and this with the aim of arriving at a determination in the dispute concerning justification for the shooting. Examination of the evidentiary infrastructure in full led us to the conclusion that the version the defendant presented at the CID and afterwards before the court, with regard to the existence of two dangers, supposedly because of which he shot the terrorist, is not in keeping with the details he gave spontaneously prior to firing the bullet and immediately thereafter. Those statements were testified to before us by a number of witnesses whose testimonies agreed, supported one another and were also congruent with external evidence. Moreover, we reached the conclusion that the versions given by the defendant later changed and developed, including during the course of his testimony in court and we were not presented with any satisfactory explanation as to the changes in the defendant’s versions and the withholding of them at the outset. Furthermore, examination of the evidentiary infrastructure has proven that the defendant’s testimony was contradicted by objective evidence, with respect to a number of items upon which he insisted. We saw that the defendant’s withheld version does not concord with the videos that documented the incident, including the distance between the knife and the terrorist, the timing of the shout that according to the defendant led to the shooting, the issue of the terrorist’s clothing and the weather conditions on the day of the incident, as well as the defendant’s conduct and that of the others present at the scene before and after the shooting. Moreover, we learned that the defendant’s version does not conform to the rules of engagement, nor is it congruent with the professional assessments of his commanders as to justification for the shooting from the professional perspective.

295. In light of the above, we reached the conclusion that it is necessary to reject the defendant’s version at the CID and in this court and to rule that it is not reliable and that there is no scope for accepting his belated explanations concerning the reason for the shooting. This conclusion of ours was based on our negative impression of the defendant’s testimony and in light of the contradictions in his version, as well as the contradictions between what he said and things other witnesses told us. We will come back to the defense’s choice to refrain from summonsing essential witnesses, in accordance with the defendant’s testimony, and to its having refrained from presenting substantial questions to key witnesses. In light of this, and based on the defendant’s statements immediately prior to and following the shooting, which were proven to us beyond all reasonable doubt, we have determined it to be a matter of fact that the reason for the shooting carried out by the defendant was not rooted in a sense of danger, but rather in the explanation he provided immediately upon completion of the shooting to the effect that “the terrorist deserved to die” because he had stabbed a friend of his prior to that.

296. Having rejected the version of the defendant before us and having determined that his version at the CID is not reliable, we have also ruled that the defendant did not make an honest mistake as to the conditions that led him to carry out the shooting and thus, in his case. there was no presence of the necessary conditions for establishing a basis of extenuating circumstances in the situation as it stood, with respect to which no reasonable doubt arose. In light of the defense’s position to the effect that said mistake “exists combined with justification, need and self-defense,” we have ruled that in these circumstances, the ground had in any case been knocked out from under the additional extenuating circumstances the defendant wished to apply, in a way that renders unnecessary the need to discuss them. Despite what has been said, we deliberated on the reservations and we showed that the defendant’s actions, even according to his own version, do not contain the element of palpability, the element of immediacy and the element of proportionality, in a way that knock the foundation out from under those extenuating circumstances.

297. After all this, we deliberated on claims raised by the defendant concerning the opening of the investigation,and found there were no flaws in the decision to order the taking of legal procedures on the way to filing the indictment. As for other claims raised by the defense – selective enforcement, pollution of the procedure as a result of leakage of the operational investigation, influencing of witnesses as a result of the position of the commanders and the highest level in the army, as well as evidentiary damage as a result of the return of the terrorist’s body – we reached the conclusion that we were not presented with any sufficient evidentiary infrastructure for basing those claims. In light of what has been said, we have seen fit to reject these claims of the defendant’s as well.

298. In summation, it was undisputed that the defendant shot the terrorist in the head. We have determined that the shooting was prohibited in the circumstances of the incident. Moreover, it was proven to us beyond all reasonable doubt that a causal relationship exists between the shooting carried out by the defendant and the death of the terrorist al-Sharif. These findings establish the factual element of the crime of manslaughter. Moreover, it was proven to us beyond all reasonable doubt that the shooting carried out by the defendant was not based on any inherent danger from the terrorist, but rather in the latter’s previous actions. With respect to this issue, we have found, as a matter of fact, that the reason for the shooting lies in the terrorist having attacked his buddies in the unit with a knife and having wounded one of them, and therefore “the terrorist deserved to die.” We have shown that the defendant was aware that shooting a person in the head causes death with reasonable certainty. Therefore, we rule that it has been proven with the degree of certainty required for criminal incrimination that the shooting of the terrorist in the head carried out by the defendant supports a material relationship of intention in accordance with Paragraph 20(A)1 of the Penal Code, if only because of the presence of the condition bearing on “seeing in advance the occurrence of the fatal outcome, as a nearly certain possibility” (see Paragraph 20(B) of the Penal Code).

299. Bearing in mind the area of dispute we detailed above, and since there do not exist any extenuating circumstances with regard to the defendant’s criminal culpability, we cannot but rule that the elements of the crime of manslaughter have been proven before us beyond all reasonable doubt.

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