Palestinian prisoners in Hamas jail 370.
(photo credit: REUTERS/Suhaib Salem )
On January 3, 2018, by a small minority, the Knesset approved the passage of preliminary legislation that would, in theory, provide the basis for a court to hand down the death sentence for terrorists in certain cases. In reality, the suggested legislation alone will change nothing, but rather appears to be no more than irrelevant populist political posturing.
Israel’s civilian Penal Law from 1977 already provides that in certain circumstances a court can hand down the death sentence. Similarly, the Military Law applied in Judea and Samaria already provides that in certain cases a three-judge panel, all holding at least the rank of lieutenant-colonel, can hand down a death sentence.
The suggested legislation seeks to change very little.
The first paragraph attempts to broaden the circumstances in which the death sentence can be handed down in the civilian courts, while the second merely seeks to change the Military Law to allow the decision to be taken by a majority of the three-judge panel instead of requiring a unanimous ruling, and also to nullify the option of a pardon.
Even if enacted, the suggested legislation will have almost no effect.
Most people are unaware that the vast majority of Palestinian terrorists, even those who carried out terrorist attacks in Israel (within the 1949 armistice lines), are tried before military courts in Judea and Samaria.
In these courts, Israel, via its Military Commander, is represented by the Military Prosecution for Judea and Samaria. I spent seven of my 19 years of IDF service in this unit, including three as head of the prosecution. I am also the last prosecutor to have appeared in a case where the subject of the death penalty even arose in court.
Every prosecutor in the unit knows that it is prohibited, without prior approval, to even hint that the prosecution is planning to request the death sentence.
Accordingly, without prior permission the prosecution cannot even ask that the indictment against a specified terrorist be adjudicated before a three-judge panel all holding the rank of lieutenant-colonel. In the absence of such a request, the court, which comprises mainly judges holding the lower rank of major, have complete discretion to appoint a panel that is not authorized to hand down the death sentence, even to the most heinous of terrorist murders.
The obvious question, then, is who approves a prosecution request for the death sentence? While it appears to have been important for the government of Israel, the Knesset and the Military Commander in Judea and Samaria to lay down the legislative foundations for the death sentence, in practical terms the last time a representative of the prosecution requested, with approval, that a court hand down the death sentence was in the early 1960s, in the case of Adolf Eichman.
The death sentence is not just another punitive option that the prosecution is free to request at will.
Whether Israel is a country where the death sentence is not just a theoretical option but an imminent reality is not something that a military prosecutor, no matter his rank, or even the attorney general, can decided alone. It is a policy decision of the highest order, with potentially far-reaching ramifications, that has to be made by the political echelon.
If the political echelon has decided to change the decades-long policy of not allowing prosecutors to request the death sentence, then those same people should instruct the prosecution accordingly.
To avoid even the semblance of illegitimate interference of politicians in the day-to-day workings of Israel’s prosecution, which rightly enjoys substantial qualitative and material independence, the instruction should be based on identifying the circumstances that would warrant a request for the death sentence – for example, terrorist attacks that lead to the death of multiple victims. To the extent possible, ad-hoc decisions every time there is sufficient public outcry in the wake of any particular terrorist attack should be avoided.
On the morning of the sentencing pleadings for the murderer of the Solomon family, Defense Minister Avigdor Liberman tweeted that the judges should “show courage” and hand down the death sentence.
Is the defense minister unaware of the fact that according to precedent, unless the prosecution specifically requests the death sentence the judges will not give it, and that even if the judges of first instance do hand down the death sentence, it will be overturned on appeal? Twitter is not an alternative to making real decisions.
Instead of making the difficult and emotionally charged policy decision, Israel’s political echelon chose a different path, one that will have no real impact.
Even if the questionable legislation passes, unless the prosecution is given clear instructions it is irrelevant whether the judges’ decision needs to be made unanimously or by a simple majority. To make real change, real decisions must be made.The author served for 19 years in the IDF Military Advocate General Corps, including as director of the Military Prosecution in Judea and Samaria.