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Analysis: Will lower sentence cost Israel on legitimacy and at ICC? – Israel News

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SGT. ELOR AZARIA, convicted of manslaughter for killing a terrorist, arrives for a sentencing hearing at the Jaffa Military Court in Tel Aviv on January 24.
(photo credit:REUTERS)


In Israel, many will see the 18 month jail sentence to Hebron shooter Elor Azaria as too long and severe.

But for much of the rest of the world, including the International Criminal Court, who mainly relate to the case based on the B’Tselem video which seemed to show Azaria shooting Abdel Fatah al-Sharif in cold blood, the sentence will be seen as short.

Critics will ask: Palestinian minors have been sentenced to many more years in prison for attempted murder, yet an Israeli soldier like Azaria gets only 18 months?

In the world of global legitimacy and public opinion, the manslaughter conviction and 18 month sentence is a mixed bag regarding whether Israel sufficiently prosecutes its own.

On one hand, Azaria was indicted and convicted for shooting a Palestinian. Not only was he convicted for shooting a Palestinian, but a Palestinian who had just attacked Israeli soldiers and for manslaughter, not mere negligent homicide.

That cannot be called a whitewash. A whitewash is no indictment or an acquittal.

On the other hand, critics will say Palestinians still get harsher sentences.

To this, Israel will respond that a Palestinian attacking or killing an Israeli civilian is not the same as an Israeli soldier killing a Palestinian attacker in a situation with a mix of fear in the air.

That will not satisfy critics who are focused on the video.

But Israel will say that many critics only saw the one damning video, not the other videos which the IDF prosecution had to contend with and which helped Azaria’s case, and other evidence he brought including medical reports that his shot may not have even been the kill-shot.

In that sense, the main issue of global critics will not be with the IDF court’s decision, but the original IDF prosecution decision to indict for manslaughter as opposed to murder. That early decision meant the punishment was never going to be more than 5-10 years based on Israeli case law trends.

The ICC Prosecution will also likely view the 18 months as low, but will probably not focus much attention on it.

Although technically, the ICC Prosecution can second-guess not only decisions not to indict, but also jail sentences, this is not its general focus.

Also, for the ICC Prosecution, this case is one incident that was not connected to the big issues: the settlement enterprise and the 2014 Gaza war.

The ICC Prosecution may not have grounds to second-guess Israel on those issues either, but it certainly will have stronger arguments there with cases where no indictment is filed, than with the Hebron shooter which had an indictment and a jail sentence.

Further, the ICC Prosecution, unlike some media critics, looks at evidence.

Even if it concludes that it might have indicted for murder or that the Israeli military court could have given a longer sentence, it will be hard to ignore that in the case record there was some stronger counterevidence for Azaria, including dozens of witnesses who set they felt in danger at the scene of the incident, once you go beyond the main video.

Those sorts of judgment calls are not the sort of calls that the ICC Prosecution likely wants to get into a debate about. All of this is without even getting into that different countries have very different punishment schemes for manslaughter, making it hard to argue there is a standard universal punishment,

Finally, the overall impact of the Azaria conviction and jail sentence is to give the Israeli justice system some credibility.

If before, Israel told the ICC Prosecution that it will prosecute its own where the evidence justifies it, but there was no example to point to, now Israel has an example. And an example where the ICC Prosecution knows that the Israeli legal system went after Azaria despite heavy domestic public support in his favor.

This does not mean that the ICC Prosecution will not go after Israeli soldiers for alleged war crimes from the 2014 Gaza war. But, along with the Settlements Law and the UN Resolution condemning the settlements, it moves the dial of the ICC Prosecution’s spectrum of choices closer to non-intervention or focusing on the settlements as opposed to saying Israeli soldiers have not been properly investigated for killing Palestinians in operational situations.

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