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Elor Azaria and Alexander Blackman: Adjudication of Unlawful Military Shootings

What impact do prolonged periods of stress and fear have on a soldier’s behavior? Do the horrors of war and terrorist acts justify conduct that would otherwise be unlawful? While such circumstances do not seem to amount to justification for violating the law, it is notable that “exceptional stressors” and constant threats faced by soldiers were recently considered by courts in both Israel and in the UK in determining the nature of the offenses and sentencing that should apply in such situations.

On March 15, 2017, the Court Martial Appeal Court in London quashed a 2013 murder conviction and life sentence against Alexander Blackman, a British marine who killed a seriously wounded Taliban prisoner in Afghanistan. The Court replaced the conviction with one of manslaughter on the grounds of diminished responsibility.

The Court noted that, according to the evidence presented,

… about 20-25% of combat troops deployed to Iraq and Afghanistan at some point suffered from a mental health difficulty; those that had mental health problems were more likely to commit or at least condone morally reprehensible behavior. (R v. Blackman [2017] EWCA Crim 190, ¶ 70.)

Although the evidence indicated that all elite troops were trained to withstand stress and to be resilient, the Court accepted the assessment that everyone has a breaking point. As stated by Professor Greenberg, a psychiatrist who testified before the Court,

[t]here isn’t any such thing as a Rambo-type, Arnold Schwarzenegger soldier who can face all sorts of stressors and appear to be invulnerable. That sort of person only exists in the cinema. (Id. ¶ 71.)

Blackman will be re-sentenced and may soon be released.

A case involving the killing of an enemy attacker was also recently adjudicated by Israel’s Military Court Central District. The defendant, Elor Azaria, was a combat medic who shot an injured Palestinian assailant a few minutes after the assailant stabbed a member of Azaria’s unit. (File 182/16 Military Prosecutor v. Sergeant Elor Azaria (Jan. 4, 2017), available at Nevo Legal Database (in Hebrew, by subscription).)

The Military Court noted that Israel’s Supreme Court had previously determined that actions undertaken by security forces during combat situations where there was a real danger to their lives and well-being should not be evaluated under “laboratory conditions” removed from the special situation in which they acted. (Id. ¶ 61 (citing CA 5604/94 Osama Hamed v. State of Israel, 58(2) PD 498 (2004).)

The Court determined, however, that at that time of the shooting there was no longer any threat posed by the assailant, and the defendant knew this. Therefore, the Court convicted the defendant of manslaughter and of “unbecoming conduct” for shooting and killing the Palestinian assailant without justification and in violation of military rules of engagement.

While the Court rejected the evidence regarding the tense circumstances at the scene of the shooting, as well as the overall constant threats to which soldiers serving with the defendant were exposed as a justification for the shooting, it was willing to consider these circumstances in the sentencing phase. (Military Prosecutor v. Sergeant Elor Azaria (Feb. 21, 2017), available at Nevo Legal Database).)

The Court sentenced the defendant to imprisonment for a period of eighteen months, plus an additional twelve months of imprisonment if he commits another manslaughter offense within three years following the sentencing and an additional six months of imprisonment if he unlawfully uses a weapon within two years. The Court also ordered the demotion of the defendant from the rank of a sergeant to a private. Both the defendant and the prosecution have filed appeals; the defendant against the conviction, and the prosecution against the leniency of the sentence.

The military investigation and trial of Azaria have ignited strong reactions in the Israeli public. Some Israeli leaders, calling for the defendant to be pardoned, have voiced the sentiment that in a country where there is a military draft and most Israelis serve in the military, “[the defendant] could have been anyone’s son.” This view was rejected by the Israel Defense Forces’ Chief of Staff Gadi Eisenkot, who stated that “[a]n 18-year-old man is not everyone’s child or a baby who has been taken captive.”

Some public opinion polls in Israel indicate that 63% of Jewish Israelis support a reduction in the defendant’s sentence while 24% object to this.

The Law Library of Congress has recently published two articles on the trial and the sentencing of Elor Azaria in the Global Legal Monitor. Two additional comprehensive English language summaries of the verdict and the sentencing decision have also been added. We will continue to follow and report on legal developments in this case as they unfold.

If you are interested in different areas of law that apply to military forces in foreign countries, please review our Comprehensive Index of Legal Reports under the Armed Forces heading, where you can find links to a number of reports including Veterans’ Benefits for Noncitizens (France and Israel (October 2016)); Military Justice System (Australia, Canada, France, Germany, Israel, United Kingdom (July 2013)); Family and Medical Leave Benefits Provided by the Military (Denmark, Israel, Norway, Sweden (June 2014)); and Interpretations of Article 9 of the Constitution (Japan (September 2015)).

Additional useful resources can be found in the Global Legal Monitor. There are several interesting military law-related articles under different topic headings, including Military law; Military justice; Military personnel; and Military service.

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