Even before the conclusion of the Elor Azaria trial, there were calls for the "Hebron Shooter" to be pardoned. Under such circumstances, what does a pardon entail and how can an IDF soldier who had been sentenced in a military court of law be granted one?
There are two possibilities for a soldier seeking a pardon (or a mitigation of sentence): a special path, as defined in the Military Justice Law,Military Justice Law 5715-1955, section 442 and the standard route of requesting a pardon from the President of Israel.
1. Commutation of Sentences under Military Justice Law
According to Military Justice Law, the head of the Regional Command of the relevant court, an officer with the rank of Lieutenant-General,In the case of Elor Azaria, who was tried at the IDF Central Command Regional Military Court, this is the Head of IDF Central Command. has the power to commute a soldier’s sentence, including a punishment of prison, into a conditional sentence. In the case of a sentence handed down by the Military Appeals Court or by a Special Military Court, the authority resides with the Chief of General Staff.In the case of a death sentence, whether handed down by a regional military court or the Military Appeals Court, this power passes to the minister of defense. See Military Justice Law, section 442(b)(1). In practice, since military courts have never delivered a death sentence, this scenario has never been realized. In the past, any sentence handed down by a military court required the authorization of the “Confirmationsauthority,” which could commute the sentence. In 2003, the Military Justice Law was amended so as to limit the authority of commanders to intervene in legal proceedings, in order to reinforce the independence and status of the military justice system, and to put it on an equal footing with the civilian justice system (as far as possible, and with necessary adjustments made). Among other changes, the requirement that every sentence be confirmed was annulled. However, the power of the relevant commander to commute sentences remains intact. See: Military Justice Law Bill (Amendment 43—Withdrawal of the powers of heads of regional jurisdictions) 5763-2003, Government Bill 508.
However, this authority is subject to the following conditions:
1. It may only be employed once the court proceedings have fully concluded and the court ruling is no longer open to appeal; or if an appeal has been lodged, only after a ruling has been made on the appeal. The power to commute a sentence is limited to a period of thirty days following the conclusion of court proceedings.
2. The ruling of the Military Appeals Court is open to an appeal with leave to the Supreme Court, if it gives rise to a particularly important, complex, or unprecedented legal issue.Military Justice Law, section 440 (9), as amended in Amendment no. 17 to the Law, 5746-1986, Book of Laws 172. Although the text is similar to that contained in the law regarding additional hearings, this section rules that the criteria for permission to appeal to the Supreme Court are similar to those defined by the Courts Law, which are slightly less demanding but still require the existence of a broad legal or public question that exceeds the interests of the parties directly involved in the case, or the existence of unique considerations of justice. For a recent example, see Cohen vs. State of Israel, Request for Criminal Appeal 4247/16, para. 11 (published on Judicial Authority website, August 14, 2016). If the Supreme Court grants a request to appeal, and an appeal is duly submitted, then the relevant IDF commander is not entitled to commute the sentence. However, if the request to appeal is refused, or if it is granted but no appeal is submitted to the Supreme Court, then the commander retains this right.
3. The power granted to the commander is solely that of commuting the sentence given by the court, and no powers are granted regarding intervening in the verdict itself—annulling the verdict, altering it, or exerting influence on the record in the Criminal Information Registry.
4. Before employing the right to commute a sentence, the commander is required to study the legal opinion provided by the Military Advocate. If the commander’s decision contradicts the opinion of the Military Advocate, their reasoning must be provided in writing.Military Justice Law, section 443
A well-known case in which use was made of this power of commutation, and which provoked fierce public debate, was that of Lieutenant Daniel Pinto, an officer in the Paratrooper Brigade who was found guilty of the murder of Lebanese residents during the Litani Operation, and was sentenced in a military court to eight years in prison. His sentence was reduced to two years by the then Chief of General Staff, Major General Rafael Eitan.See: Davar, “Public Outcry Follows Foreign Publication of the ‘Litani Officer’ Affair,” September 16, 1979 [Hebrew] http://jpress.org.il/Olive/APA/NLI_heb/SharedView.Article.aspx?parm=cP7sRhE4UAQbjLAzXpb3ELymb5sitGjupb%2BduiRBs9SRZUkZ6ALC4BGIazCWuA%2F6Yw%3D%3D&mode=image&href=DAV/1979/09/16&page=1&rtl=true ; Interview with Colonel (ret.) Daniel Beeri, IDF Military Advocate General website, May 3, 2012 [Hebrew] http://www.law.idf.il/961-5085-he/Patzar.aspx; and the High Court of Justice discussion of the disciplinary steps taken against an IDF computer programmer accused of changing the name of the Chief of General Staff on a military computer to “pardoner of murderers,” Greenstein vs. IDF Military Advocate General, High Court of Justice 118/80, 84 35(1), 239, 1980.
In addition to the above, according to Military Justice Law, the IDF’s Sentence Review Committee is authorized to reduce by up to half the length of time a jail sentence imposed by a military court in its final sentencing.Military Justice Law, sections 509–513 This power is similar to that granted to the Parole Board, which deliberates on cases of civilian prisoners. However, the Parole Board body can reduce sentences by no more than a third, and even then, this will be a conditional release. On the other hand, commutations granted by the Sentence Review Committee, entirely annul the period of sentence reduced, with no conditions attached.
Additionally, while cases are brought to the Parole Board at the request of the prisoner, military sentences greater than a year must be brought before the Sentence Review Committee by the IDF Military Advocate General every sixth months, regardless of whether any request is submitted by the soldier in question.Military Justice Law, section 512(a)
2. Presidential Pardons
The President of the State of Israel has the power to “pardon offenders and to commute their sentences by reducing them or transmuting them.”Basic Law: President of the State, section 11(b) This power extends to offenders serving in the IDF. The president has the power not only to commute an offender’s sentence but also to expunge any record of the conviction.Barzilay vs. Government of Israel, High Court of Justice 428/86, verdict 505(3) m, paragraph 22 of the verdict of President Shamgar, 1986.
This authority is available to the president even before a guilty verdict is given.Ibid. The verdict in Barzilay vs. Government of Israel confirmed a pardon granted to members of the General Security Service involved in the Bus 300 incident before they were brought to trial. However, it is accepted practice not to consider pardon requests prior to a guilty verdict and before all legal proceedings have been concluded.“Policy on Dealing with Pardon Requests,” Attorney General Guidelines 4.4000, sections 5, 7(b), 5763-2003. See also: “Guide to Submitting Pardon Requests,” President of Israel Website www.president.gov.il/About/Departments/Pages/AmnestyApplications.aspx. Moreover, the policy regarding requests from soldiers is that the president will not consider them unless all steps have been exhausted to seek a commuted sentence, according to Military Justice Law.“Requests for Commutation of Sentence,” IDF Military Attorney General Website, www.law.idf.il/1078-6095-he/Patzar.aspx.
The president is also authorized to shorten the period of limitations or bring forward the expungement of a conviction from the Criminal Information Registry, so that information about it is not made available to bodies that would normally have the right to know (such as licensing boards).Criminal Record Law, section 18, 5741-1981. This regulation is used to support an arrangement whereby, in most cases, soldiers who complete their military service in an exemplary fashion will have the period of limitations or erasure reduced for any prior convictions.See: Ministry of Justice Website, www.justice.gov.il/Units/Pardons/Topics/Pages/InformationSoldiers.aspx.
The policy on presidential review of pardon requests requires that the request be submitted by the offender, or by their legal representative or an immediate family member, with the offender’s knowledge and agreement.Policy on Dealing with Pardon Requests,” Attorney General Guidelines 4.4000, section 7, note 14, 5763-2003. The request cannot be submitted by a member of Knesset or by any individual other than those listed above, although anyone may contact the president to express support for, or opposition to, a pardon request, and such messages will be considered together with all the material brought before the president.Ibid.
The Pardons Department in the Ministry of Justice gathers all the relevant material, and prepares a recommendation for the Minister of Justice, who then presents a written opinion to the president.Ibid., sections 8-9.
See related article: "After the Elor Azaria Trial: Will Our Politicians Actually Fight for Israel's Moral Values?
Pardon requests relating to soldiers tried in a military court are passed on by the President’s Office to the Minister of Defense, in order to receive the latter’s formal opinion.Ibid., section 9. Within the defense system, the procedure is as follows: a written opinion is produced by the Military Attorney General; the head of the IDF Manpower Directorate contributes comments and a recommendation; and a recommendation is issued by the Chief of General Staff.Order 33.0314, “Policy on Dealing with Requests for Pardon, Clemency, or Commutation of Sentence Relating to Rulings by Military Courts.” All of these opinions and recommendations are submitted to the president by the Minister of Defense, who also adds his or her own recommendation. It should be emphasized that the power to grant a pardon is exclusively that of the president, whose decision is entirely independent of the opinions of any of the offices and individuals mentioned above.
It should also be noted that, according to the Rights of Victims of Crimes Law, an immediate family of a victim whose death was caused by the offense has the right to request that the Ministry of Justice Pardons Department will inform them about any request from the offender for a pardon or commutation of sentence from the president. Should that family member choose to do so, they have the right to present their case in writing, via the Pardons Department, before the president reaches a decision.Rights of Victims of Crimes Law, sections 10, 20, 5761-2001. This law does not apply to proceedings according to the Military Justice Law.See the definitions of “offense,” “investigating body,” and “prosecutor” in section 2 of the Rights of Victims of Crimes Law.
The implementation team for the Turkel Commission Report regarding Israel’s Mechanisms for Examining and Investigating Complaints and Claims of Violations of the Laws of Armed Conflict According to International Law recommended that victims should be informed in accordance with this law, and that this should be made explicit in the guidelines of the IDF Chief Prosecutor.
Moreover, the IDF Military Attorney General Corps has announced that it is already acting in this manner,Report of the Implementation Team—Report of the team for examining and implementing the second report of the Public Commission to Examine the Maritime Incident on May 31, 2010, regarding Israel’s investigation of claims of infringements of international law, 25, August 2015, www.pmo.gov.il/Documents/ReportHeb.pdf. and in practice it would seem that in certain cases the military justice system is indeed conforming to the spirit of the law. For example, when a plea bargain was prepared in the recent case of Brigadier-General Ofek Buchris, the complainant against him was informed, and she was allowed to present her opinion on the matter to the military prosecution, as would be required in the civilian system.Rights of Victims of Crimes Law, section 17. See: Guy Peleg, “Complainant Against Buchris Agrees to Plea Bargain,” Mako News website, November 30, 2016, www.mako.co.il/news-law/legal-q4_2016/Article-e6715a20154b851004.htm.