There’s a big noise in Israel these days – once again, the discussion of the death penalty for Palestinian ‘terrorists’ has come to the fore. One has to put that word, ‘terrorists’, in quotation marks, because the Israeli Peace Index survey published yesterday, asked the question not only concerning applying the death penalty for Palestinians killing civilians, but also, specifically, concerning Palestinian killings of Israeli soldiers. The rate of Jewish Israelis supporting the former was 70%, the latter nearly the same: 66%.
Indeed, this result betrays the view adopted by most Israeli Jews – as the survey itself notes:
“[I]n the view of a majority of the Jewish public, it makes no difference whether the victims of terror attacks are civilians or soldiers.”
This view is also reflected by the courts. As I noted in my analysis of the Elor Azarya ‘manslaughter’ case (both of conviction and verdict) , the court unequivocally and unquestioningly referred to the Palestinian Abdel Fattah Al Sharif (who was shot in the head at close range by Azarya) as “the terrorist Al-Sharif” – even though he was, (allegedly and disputably, as I noted here), attacking an armed occupation soldier as an occupied person in occupied territory.
The right to resist occupation, even and particularly through armed struggle, is internationally recognized, as in United Nations General Assembly Resolution A/RES/33/24 of 29 November 1978:
“2. Reaffirms the legitimacy of the struggle of peoples for independence, territorial integrity, national unity and liberation from colonial and foreign domination and foreign occupation by all available means, particularly armed struggle;”
So, what this is saying is, that about 2/3 of the Israeli public sees Palestinian resistance as criminal, deserving of death.
Now, how did this recent discussion come about? The Peace Index (a monthly survey published by the Israel Democracy Institute) noted the immediate backdrop in its introduction:
“Against the backdrop of the investigations of associates of the prime minister in the submarine affair, and also of the security and diplomatic events involving the Temple Mount, this time we focused on these two issues specifically”.
It is worth noting, that although the poll included 500 Jewish Israelis and 100 Palestinian citizens of Israel (‘Arab-Israeli’) respondents, the question mentioned above was not even presented to the Palestinians. As the Times of Israel noted on this matter:
“[A]n IDI spokesperson said Arabs were not polled regarding the death penalty due to sensitivities surrounding the question.”
But the ‘Temple mount’, which is actually called Haram Al-Sharif by its Arabic, Muslim and Palestinian designation (which the IDI didn’t even bother to mention), is that not a ‘sensitive issue’ too?
Well, let us bravely tread where angels fear to go, and address that ‘sensitive issue’ concerning the recent talks about the death penalty – because they have arisen precisely within the context of the protests over the Haram Al-Sharif, or Al-Aqsa compound some weeks ago. A week after the initial shootings and killings at the compound (July 14th), a Palestinian had attacked a settler family killing three (July 21st).
The calls for capital punishment for the perpetrator came from various government officials. As the Jerusalem Post noted:
Defense Minister Avigdor Liberman said in an interview with Ynet that “in such an extreme case as this, there is certainly a place for the death sentence, and that is in the authority of the military court of Judea and Samaria.”
“The option of the death penalty exists in military courts,” Education Minister Naftali Bennett said. “There is no need for legislation; just to ask. I call on the military prosecution to demand the death penalty for the terrorist that killed the Salomon family.”
Justice Minister Ayelet Shaked, also of Bayit Yehudi, took to Twitter to say, “The murderers of children and families deserve the death penalty. This punishment exists in the military courts if there is consensus among the judges. This is a case that requires the death penalty for the murderer.”
Transportation and Intelligence Minister Israel Katz made similar comments on Saturday night. He said he plans to raise the demand in the cabinet meeting and that the attorney-general said the death penalty was a possibility if it was the Security Cabinet’s position.
“The beastly man who murdered three family members should get the death penalty. If it weren’t for the resourcefulness of the soldier who shot him, he would have murdered more… It’s time to implement the policy,” of allowing death sentences in a military court, Katz stated.
At that point (July 23rd), the Jerusalem Post still noted Prime Minister Netanyahu as advocating caution:
“Prime Minister Benjamin Netanyahu said in a meeting of Likud ministers that they should behave responsibly”, the Post summated.
Yet a few days later, in his condolence visit to the settler family, Netanyahu suggested that the death penalty be applied, as seen in a video which he posted on his twitter account.
“It’s anchored in the law. You need the judges to rule unanimously on it, but if you want to know the government’s position and my position as prime minister –- in a case like this, of a base murderer like this -– he should be executed. He should simply not smile anymore”, Netanyahu said.
Netanyahu was no doubt noticing the ‘unity’ effect that such ‘wars on terror’ tend to have. After all, Centrist leader MK Yair Lapid posted on his twitter already on the 23rd:
“We pulled our no-confidence motion in the government. There will be time for criticism, but today, we need to be united against terrorism”, Lapid wrote.
Aye, there was some feeble dissent from the Zionist left, but God forbid, not because they are ‘Arab lovers’. Zionist Union’s Shelly Yachimovitch said:
“Any reasonable person knows that it’s not a punishment, because death is exactly what this heinous terrorist hoped for, and that the call will not be implemented and will remain a populist call for revenge,” she stated.
The new Labor leader Avi Gabbay also weighed in with a typical Zionist leftist approach:
“Death penalty is not the kind of threat that villainous suicidal terrorists care about before committing one of their despicable acts of suicide,” he stated.
Aye, that’s like what General (ret.) Amiram Levin said about Gazans:
“You have to understand, most of these people were born to die – we just have to help them.” Other times Levin portrays his more humane face and defends Breaking the Silence. But not because he is an ‘Arab lover’.
The death penalty is something that Israel took on from the British Mandate legal code. Although it was abolished in 1954 as a penalty for murder, it remained in law as a possible punishment for crimes committed by the Nazis or in complicity with the Nazis, as well as certain crimes under military law and for crimes against the state. Let us remember, that the Palestinians who were citizens of Israel were under the mentioned military law from 1949 to 1966, and that Palestinians under Israeli occupation from 1967 have been under it for half a century.
Since the Eichmann trial and execution in 1962, the penalty was not enacted.
The potential enactment of the death penalty, especially in the case of Palestinian attackers, would be a grave matter, in view of the Israeli definitions of ‘terror’. One could ask the question, as to whether Jewish terrorists would also be subject to such punishment. But it would be doubtful, for at least two reasons:
1) Even Jewish settlers on occupied territory are not subject to military court, they are considered Israeli citizens under Israeli sovereignty. The military jurisdiction would not apply to the Jewish terrorist, only to the Palestinian one, hence the capital punishment would principally not apply to the Israeli.
2) The Israeli security and judicial system have a propensity to view Jewish terror as an aberration, and thus downplay the ostensible need for ‘deterrence’. A month ago, the Israeli Supreme Court rejected an appeal by the family of Muhammed Abu Khdeir, the 16-year-old Jerusalem boy who was burned alive by Israeli Jewish terrorists in 2014, to have the homes of those terrorists demolished. The Israeli Defense Ministry told them in a letter that there was no need to demolish the homes of Jewish terrorists at this stage, as such attacks are too infrequent to warrant the deterrent action.
Finally, we must consider what enacting of capital punishment for Palestinian attackers would mean for Palestinians.
Since Israel generalizes any Palestinian killing of Israelis as ‘terror’ (be it unarmed civilian or armed occupation soldier), enactment of the death penalty would effectively mean that Israel considers resistance – also the legitimate resistance to occupation – to be a crime worthy of death. If Palestinians are not permitted to exercise their internationally recognized right to resist, if the price of it is death, wouldn’t the logic mean that the occupiers, exercising an internationally widely condemned act, be worthy of at least the same fate – that is, death?
Yet when all this is said, we must note that these discussions are about a legalization of a policy that Israel already enacts rather systematically, a policy of extrajudicial executions. Indeed, Chief Sephardic Rabbi Yitzhak Yosef weighed in concerning the mentioned recent killings in the Halamish settlement, and said:
“Too bad they did not kill this terrorist. They should have killed him.”
Indeed, killing a Palestinian ‘terrorist’ on the spot could be so much simpler, even if it is by letting them bleed to death, rather than shooting them in the head. As Haaretz journalist Gideon Levy wrote in June: “This is the lesson learnt by soldiers of the Israel Defense Forces from the Azaria trial: Instead of shooting a ‘terrorist,’ let the person bleed to death while cursing them.”
But that doesn’t always work out. Israeli security forces don’t always manage to kill the ‘terrorists’, nor do they always manage to kidnap their corpses (as they tried to in the recent attack on Al Makassed hospital in East Jerusalem). So sometimes there are survivors – aye, even live ones, who escape the Israeli net of ‘deterrence’. These people “should not smile anymore”, as Netanyahu puts it. And what better way to wipe a smile off a ‘terrorist’ than to kill them.
Meanwhile, Netanyahu can smile, because we’ve got a ‘state of emergency’, and we’re talking about death, that’s very serious, and we’ve all got to unite for that, under Netanyahu. Even Yair Lapid says so.