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Former IDF soldier Elor Azaria, who shot and killed an incapacitated terrorist in Hebron in 2016, is not a murderer. His case should have boiled down to a disciplinary hearing, at worst, but he and his family ended up shouldering the burden of a heated public debate.
This affair surfaced again this week following Israel Hayom's exclusive interview with Azaria, pushing us to deal with fundamental issues of which we have grown accustomed to thinking one-sidedly, namely the struggle for this land and the war against our enemies, as well as other issues such as the ("substantive") nature of democracy, settlement on state land disputed long after by alleged previous owners, the nation-state law and more.
The military judiciary determined that Azaria's actions caused "grave harm to the value of the sanctity of life and the value of the purity of arms." But who determines what constitutes the "sanctity of life" and "purity of arms"? What advantage does military Judge Col. Maya Heller have on others in interpreting these values?
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In a normal world, a judge is supposed to review whether a certain act conforms to or violates the law. We, however, have become accustomed to the fact that judges sit on the bench not only in their capacity as magistrates but also in the role of legislators, who understand the spirit of the law better than those who authored it, as well as in the role of philosophers responsible for formulating the values by which us mere mortals must abide.
On March 24, 2016, 11 minutes went by between the first soldier shooting and injuring terrorist Abdel Fattah al-Sharif and Azaria shooting and killing him. How do those 11 minutes change the moral decision regarding the terrorist? At what exact moment does eliminating a terrorist who sought to murder Israeli soldiers become an "immoral act"?
By all means, let paramedics strive to save the terrorist's life, then rush him to the hospital, where the finest Israeli surgical teams make sure he makes a full recovery. He will then serve a prison sentence, during which the wardens will accommodate his demands for which female guards to assign to his prison block (to "maintain industrial calm," as reported by Channel 20), until such time where he is released in prisoner exchange deal, at which point he will resume, God forbid, murdering Jews.
Experience has taught us that these are not speculations, but facts. The dreadful statistics show that hundreds of Israelis have been murdered by terrorists we released. Is this scenario morally preferable?
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The military judiciary has been greatly influenced by the High Court of Justice, which has long foregone focusing on the letter of the law and the facts at hand in favor of weighing in on values, and speaking of "purposeful objective interpretation" that pertains to a subjective determination by its justices on the purpose of laws as they understand them – even if said interpretation sometimes contradicts the legislature's intention.
Under the auspices of Justice Aharon Barak's judicial revolution, the High Court has placed itself above the democratic decision of the public with respect to the values that guided it and has determined that it alone has the authority to interpret these values and how they should be understood.
But High Court justices are no greater experts than we are with respect to ethics or issues of security or economy. Opinions tend to differ and they can sometimes be conflicting and contradictory. So how are we to determine our path? We can name a philosopher to rule us, a man wiser than all others, and rely on his wisdom to guide us and navigate our way through complex issues. This was what Plato suggested in his theory of state. But a single ruler – however wise – is a dictator. It was not for nothing that the late polymath Professor Yeshayahu Leibowitz used to say that Plato was the forefather of fascism.
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On the other hand, it is possible to gather the representatives of the various public opinions into one place and decide, by means of public debate, persuasion and voting on how to proceed. This is called democracy.
But democracy means allowing masses of ignorant people to have their say on fundamental moral issues. As long as the representatives of the "enlightened man" ruled the country, their judgment could be trusted, but once the "malicious" savages – as Israeli legal scholar Professor Mordechai Kremnitzer arrogantly put it – seized power, one must expropriate the power of decision from them and vest it in the representatives of the enlightened who remained in court. This is how we have ended up with the rule of the High Court – a contemporary version of Plato's philosopher king: a judge who is king in the sense that he places the judiciary above the legislative and executive branches.
A healthy democracy requires a balance between the authorities, and once one attempts to supersede the other this balance is upset. This is what has been happening over the past 25 years, courtesy of Barak's "constitutional revolution."
In the name of individual rights, the court has increasingly eroded the rights of the majority and the public's right to decide its values and its right to national self-determination. The nation-state law is one answer to this imbalance, so it is not for nothing that the advocates of judicial dictatorship rile against the law – it has spoiled their nondemocratic celebration.
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When we emerged back on the pages of history as the nation of Israel, our spirit revived, and we established a state, we were required to use force and hold the sword – the work of Esau. This does not come easily to us. Many Jewish intellectuals and rabbis scorned the attempt to leave scholarly life and engage in matters of state. Even today, the New York Times' Jewry is ashamed of us. It is easier to live in exile and leave the preoccupation with state power to the "goyim," while they write fiery articles about the moral deterioration of the Jews in Israel, who dare enshrine in law their exclusive right to define their own nation-state. Jewish nationalism is "racism," some click their tongues. Fine. So noted. Thank God, we do not live by their word, nor should we.
Every year, we repeat the words of our sages, "For not only one arose and tried to destroy us, rather in every generation they try to destroy us, and God saves us from them." The emphasis is placed on the latter – we are moved by this deliverance, especially those who live in an independent Jewish state after thousands of years of exile.
But why do we accept the former as a natural occurrence? To our shame, we have become accustomed to the fact that "they try to destroy us."
One might wake up in the morning and decide he seeks to murder Jews, and we treat it as a nuisance, something as constant as stormy weather or a car accident. It is "natural" for an Arab to want to murder Jews. Add to this the persistent erosion of our just claim to this land and you have the (im)moral platform on which the media and legal debate that convicted Azaria is based.
Dozens of terrorist groups operating under the guise of human rights organizations (preaching that all human beings have rights, except for when it comes to the Jews' right to their country), and decades of unilateral public discussion over the alleged illegitimacy of our claim to this land, have castrated our basic approach to the murder of Jews.
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One must remember, however, that it is not natural that Jews are murdered and we cannot simply accept it. A terrorist who seeks to kill soldiers or civilians is doomed to die. Azaria is neither a philosopher nor an academic, but rather a soldier who did what every man should do, including his commanders: eliminate a heinous murderer who sought to kill Jews, even if he was already wounded.
Who determines when a battle is over? And if this is an ongoing campaign of daily stabbings and murders, as was the case at the time, why do these 11 minutes change the moral issue as a whole?
If Azaria violated military rules and orders, his commanders should have had him face disciplinary proceedings. There was no room to try him for manslaughter – unless we have lost our minds.
We need to rebel, to fight with all our might against the tendency to resign ourselves to being the subjects of attempted murder. Enough with "trying to understand the murderer" because of the "occupation." In every generation, they try to destroy us? No more. Now we will destroy them.
