I’ve put in italics the strangest part of the strangest part of the Judges’ conclusion regarding the manslaughter conviction delivered without a reasonable doubt by a Tel Aviv military court in the trial of Sergeant Elor Azaria. It has to do with the possibility suggested by the defense that the Palestinian man who was wounded and incapacitated in the course of an earlier attack against soldiers in occupied Hebron was actually dead before being shot in the head by the sergeant.
“While initially it was claimed that the terrorist’s death was caused by “tension pneumothorax” caused by the initial shots fired by other soldiers, at a later stage the defense proffered a new theory to the effect that the terrorist died of “cardiac embolism,” even before anyone had shot him. On the issue of the causal connection, three witnesses testified: On behalf of the military prosecution Dr. Gips testified and on behalf of the defense Prof. Hiss and Prof. Shimon testified. After hearing their testimony, and after examining their opinions in light of the overall factual infrastructure, we preferred Dr. Gips’ reasoned professional opinion. That opinion, the reasons for our adoption of which we have laid out in detail, finds that the terrorist’s death was caused as a result of the shooting to his head, whilst negating the possibility that the terrorist had died as a result of “tension pneumothorax” or “cardiac embolism.” That opinion also negates outright the factual possibility, for which the defense experts offered no basis at all, that a dead person is able to move.”
In this post-truth era, statements of fact and counter-factuals are funny things. The claim by the defense that the attacker was already dead before being shot by the sergeant conflicted with the video clip showing the downed terrorist moving, which was also claimed by the defense as having given cause for the sergeant’s fear that the wounded attacker continued to present a danger. While appreciating that facts have a different and attenuated status in legal settings, one is struck by the need forcing the judges to confirm that there is no factual basis supporting the notion that a dead person is able to move.
You can read the entire ruling here.