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Leniency But No Pardon - An Israeli Case That Can Guide A British Court Martial

27/02/2017 12:35 GMT | Updated 27/02/2017 12:36 GMT

The prison sentence handed down this week to an Israeli soldier, Elor Azaria, has divided Israeli opinion but offers a way forward for the British authorities in a similar case.

Azaria was on duty in the West Bank city of Hebron when two Palestinians stabbed an Israel soldier. One of the attackers was shot dead, the other was wounded. Azaria arrived six minutes after the attack. The wounded Palestinian, Abdul Fatah al-Sharif was lying on the ground in a pool of blood and unable to move. After briefly talking with fellow solders, Azaria shot al-Sharif in the head, killing him.

The army arrested Azaria on the grounds of murder and violating the rules of engagement. Al-Sharif was immobile, no threat and should have been taken away for treatment, detention and trial.

There was an outcry among some Israelis, who lambasted the army for demonising one of its soldiers, while others felt he should be punished both for breaking military ethics and for the death itself.

Azaria's defence was that he thought al-Sharif might have a bomb on him and detonated it - although this was rubbished by the prosecution who pointed out that he had no evidence for this and certainly had not shouted out any warning to his fellow soldiers.

But there are plenty of situations where it is hard to make a judgement. Troops of all armies have to decide instantly about someone approaching them: what is in their pockets? a mobile phone, a knife, a gun, a detonator? Is a speeding car about to brake or plough into a crowd of people?

Do the soldiers shoot, with the result that an innocent person may lose their life? Or not shoot and innocent civilians may die? Split second decisions need to be made that then have massive consequences.

A similar case concerns the Royal Marine, Alexander Blackman, who is currently appealing against his lengthy prison sentence for killing a wounded Taliban fighter in Afghanistan.

In Israel, the military tribunal decided that Azaria had acted maliciously rather than defensively, shooting al-Sharif because he felt terrorists should die, rather than because he thought he was a threat.

The military did recognise the highly charged complexity of the situation, reduced the charge from murder to manslaughter, and sentenced him to 18 months in prison. His supporters are now suggesting that Azaria recieve an official pardon, but that would make a mockery of the strict legal process that took place and which considered the case in minute detail.

A pardon would also undermine the moral underpinning of the Israeli army, which tries to act as decently as one can in conflict situations, protect civilians and abide by the rule of law. It may not always succeed, but it is important to maintain the ideal and the punishment of those that deviate from it deliberately.

Given that the current prime Minister, Benjamin Netanyahu is being investigated for possible bribery charges, and that former Prime Minister Ehud Olmert was indited for financial misdeeds and a previous President, Moshe Katsav, was imprisoned for sexual offences, it means that Israel may have villains, but it also abides by the rule of the law and even those in power are forced by the judicial system to obey it. Not all countries can make the same claim.

Meanwhile, as President Trump found out in the United States over immigration bans, and as Theresa May discovered over Parliament having a say about the Brexit Bill, a healthy society is where judges can call politicians to order when they are deemed to have overstepped the law. Soldiers too.