The role of the IDF in Israeli life cannot be overstated, past and present. But the country, and the army, are changing. So are the missions Israel undertakes and the nature of warfare. Why is the famous people’s army seeing fewer and fewer Israelis turn up for the draft? What are the demographic characteristics of those who do serve, is the army a melting pot or a social hierarchy and what about the “P” word – a professional army? Yuval Shany & Amichai Cohen of the Israel Democracy Institute discuss their research.
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The interview in part discusses the now infamous case of an IDF soldier prosecuted for killing a downed assailant without immediate cause, even though leaders of several in the ruling coalition urged the soldier go free. That the IDF refused to forego prosecution, coupled with overwhelming poll numbers agreeing with these politicians, is taken as evidence that the IDF has become stalwart in the rule of law within the occupation, tempering understandable calls to immunize young soldiers from criminality against Palestinians. Unless one is a logician of a kind I suppose rationality is relative. In this case, I believe the rationality lies not over treatment of Palestinians but in retaining command/control to prevent flares of resistance among the occupied, flares which could expose young conscripts in aggregate to more jeopardy than that experienced by this prosecuted soldier. Indeed, the nature of his prosecution suggests the rule of law as such was not the court’s primary goal.
The soldier was charged with manslaughter. But the three judge panel stated in their decision that video of the event showed clear intent to kill. Manslaughter is restricted to either accidental death through negligence or a heat of the moment killing. Clearly the video of the soldier calmly rising from his seat, taking a step, lifting his gun and shooting the downed, already possibly dying, assailant in the head fails negligence. But nor does the video show heat of the moment, as the judges noted. Such a killing is a possible consequence of ongoing events which, absent struggle, would not occur. One is involved in a bar fight, causing a death. There is no intent to kill as such, but ongoing action can plausibly lead to death, the mind flooded with adrenalin. If someone pulls you off the victim saying “stop it, you’ll kill him!,” a pivot occurs. The warning, with extraction from immediate struggle, allows the actor to consider his action. If he shrugs off restraint and returns, intent to murder has an evidential basis. Thus the same event without third party intervention could be manslaughter, but with (failing) intervention rises to second degree murder–a killing without forethought (murder in the first degree) but with intent.
There is not, in the case at hand, an event in the throws of passion; the soldier sits, decides, rises, walks a step or two, raises his gun and aims, no one in jeopardy from the downed assailant at the time. This cannot be manslaughter, as noted. But the prosecution brought a charge of manslaughter, not second degree murder. In my view, then, by the judges’ own finding of intent the soldier could not be convicted of manslaughter. The only option would be to dismiss the case as malformed. By accepting manslaughter, the judges have degraded the rule of law.
The nationalism driving political call to not try the soldier is evident in lesser degree both in prosecution choice of manslaughter and the military court’s affirmation. Manslaughter has a kind of relative innocence; murder was not in the mind, events played the charged in such a way that a death resulted. And this actually is true if one views this killing in larger context. A soldier had just been knifed by the assailant. The soldiers were on occupation patrol, among a population they considered unfriendly. And quite likely both in conversation and internet soldiers have developed a mind set in which Palestinians are untrustworthy and dangerous. Conscripts are under constant psychological pressure in performing occupying duties; there is, then, passion underneath which surfaced in this soldiers decision to shoot.
The defense is not without attraction in other instances. Consider a wife sometimes raped by a drunk husband. It happens yet again; shortly afterwards, she kills him. Her mental state developed through repeated instances, triggered by the last, could reduce the case to either manslaughter or self defense, as the husband could be expected to do the same later. But such a defense used in the present case would risk socially indicting service in the occupation itself, for the State has placed this soldier in the very condition generating the released passion. Such recovery of manslaughter here would jeopardize the political mission of the IDF. Even though manslaughter is charged, the actual basis of that charge is ignored; rather, intent to kill is affirmed by the panel as an issue of IDF command and control. The IDF refuses discharge for the accused because it needs to regulate shocks onto the occupied population; too much caprice in death or harm (especially when videoed and placed on the internet) could yield riot, jeopardizing more conscripts later. Thus the parental protective attitude of the IDF to its soldiers shifts from the individual charged to the class of similarly placed individuals later, and even in this soldier’s case conviction of manslaughter absolves any evil intent: implicitly, the “situation” is blamed.
There is no justice possible here. The original assailant was a suicide knifer, defined as crazed by hate. The trigger soldier is under stress by patrolling, seeing a compatriot downed, then recalling the thought processes he has absorbed in his brief adult life and a bit before. The law is very often not about real justice, but it does demand applied legal reason. Here, that is impossible politically. I conclude that the IDF is not so much concerned with regular application of the law but controlling response to soldier actions, and will use the notion of rule of law only when it seems to fit this goal.
An impartial panel should have thrown the charges out as malformed to the evidence, letting politics deal with the result. This military court did not, because, being military, it has a vested interest in limiting military exposure, exposure to harm, exposure to politics, exposure to command and control. Nationalism quietly trumps the law even as the politicians fume.
“Let justice be done though the heavens fall” depends on who is in heaven, who in hell. I submit the demarcation is not as tidily clear as many want. But need so often makes a clarity, doesn’t it?