Much has been written and said about the risks posed by the lopsided Gilad Schalit deal. Some arguments focus primarily on the threat posed by potential recidivism among the newly-released prisoners, which stands at 60 percent based on previous deals. Others touch upon the encouragement presumed to be drawn by Palestinian organizations to kidnap additional Israelis for bargaining purposes. Still others address the implicit message to the prospective perpetrators of future attacks: your sentence is likely to be commuted, the punishment will almost certainly not fit the crime.
The risks are all very real and, regrettably, are likely to have a personal and painful impact on Israeli individuals in the future, either in the form of violent attacks or kidnappings.
Beyond that, however, another danger lurks beneath the surface, a danger that is posed to Israeli society as a whole and which threatens its democratic and law abiding nature.
It should be eminently clear that a recurring decision by the political
echelon to circumvent due legal process and to grant clemency to
murderers and other convicted terrorists will necessarily produce a loss
of public faith in the justice system, which is a pillar of any
Without popular confidence in the justice system, anarchy and
vigilantism are sure to reign. After all, one of the central purposes of
the criminal justice system is for the state to wrest responsibility
for serving justice out of the hands of the injured party. But if the
state repeatedly demonstrates that it cannot be trusted to mete out
justice, individuals are liable to begin to do so themselves.
The erosion of public confidence in the criminal justice system is not
caused by inherent flaws in that system, as would be the case in the
event of corrupt judges, for example. Rather, it stems from the
intervention by external forces, the executive branch in this case, that
override the decisions made by the criminal justice system.
As a rule, Israelis take pride in their justice system and have faith in
it. They are right to do so. It is to the Israeli justice system’s
credit that a former president was convicted this year of rape and was
sentenced to seven years imprisonment, that a former prime minister is
currently on trial for charges of corruption and that a former finance
minister is now in prison for corruption. A justice system that is
courageous enough to prosecute the most powerful is praiseworthy.
THE DANGER to public confidence stems from the excessive use the
executive branch has made of its prerogative to circumvent due legal
process in the 26 years that have elapsed since the 1985 Jibril deal.
Because repeated political intervention in the legal system – and that
is precisely what a government decision to grant clemency en masse in a
prisoner exchange deal is – renders the legal process a farce. If used
sparingly, this intervention can be tolerated by the public. But the
more frequently it recurs the more inescapable it becomes to all the
parties involved – the state, the accused and the citizens – that they
are participating in a sham.
Take the example of Said Ibrahim Shalaldeh, who up until yesterday was
serving two life sentences, one of which was for brutally stabbing to
death the 51-year-old Sasson Nuriel in 2005. He was released yesterday,
less than a decade after his arrest.
What is the Israeli public supposed to think about the next such arrest
and trial, in which someone of Shalaldeh’s ilk is prosecuted and
sentenced to one, two or ten lifeterms in prison? How is the defendant
going to view those proceedings as anything but a farce, given the
lessons of Shalaldeh’s commuted sentence and release, one among
hundreds? Serial government-sanctioned miscarriages of justice undermine
the integrity of the criminal justice system and violate the confidence
that every citizen must have in the state’s commitment to ensuring that
justice is served. Without that confidence, Israel will most certainly
devolve into a regressive society like its scorned neighbors’, in which
individuals who want justice will resort to revenge and other forms of
How can this situation be remedied? How can Israel forestall the loss of
public confidence in the sentences that are meted out to terrorists
upon the completion of due process? One obvious option is to introduce,
in the most extreme cases, the use of the death penalty. Particularly
heinous crimes can and perhaps ought to be punished by death, a
punishment that cannot be reversed as a result of political pressure.
The death penalty ensures that the worst of all criminals are fully and
irrevocably punished by the state and that justice has been publicly
To date, the use of the death penalty in Israel has been reserved for
Nazis, and was carried out only in the case of Adolf Eichmann.
It could be that the time has arrived to reconsider those restrictions,
which are anachronistic in more than one way at the close of 2011.
For better and for worse, Israeli society and Israeli governments have
been unable in the past 25 years to withstand the pressure to release
convicted murderers and others in exchange for kidnapped soldiers.
Ultimately, the lengths to which the state and society are prepared to
go to save each individual Israeli is something to take pride in. That
said, this comes with a cost that is borne by individual Israelis who
are the victims of pursuant attacks, and to democratic Israeli society
as a whole. One way of mitigating this cumulative damage caused is to
begin to instate the death penalty for the most heinous and
The writer is a veteran Israeli writer and translator.