A life sentence in prison is actually close to a death sentence. The grimness, monotony, lack of privacy and regimentation of a living human being can hardly be visualized by those of us who live in freedom.
For that reason, the approach of Supreme Court Justice Yoram Danziger struck me as worthy of serious consideration. The principle underlying Justice Danziger’s statement is that the presumption of innocence is the fundamental principle of criminal law.
Therefore in murder cases (in which the sentence may be life imprisonment), the judges must be unanimous. If one judge dissents from the majority opinion – a single voice for acquittal – Judge Danziger says presumed innocence takes precedence; the accused should be set free.
There is something attractive in this approach.
As a non-expert in law, to me the attraction is the expression of the quality of mercy. For the record, “mercy” was not the judge’s motivation, but a basic facet of criminal law.
This creates a great moral dilemma. On the one hand, majority decisions are ignored; the deterrent effect of severe sentences is put in question.
A murderer who can afford a very good advocate competent in creating reasonable doubt has excellent chances of escaping punishment. Let’s let the experts argue this out.
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This inevitably brings us to the Kfir Brigade soldier who soon will probably be charged with the crime of killing: manslaughter or perhaps murder.
The minister of defense, Moshe Ya’alon – who surely knows of more “borderline” shooting cases than any other cabinet minister – condemned the shooting immediately. Acting out of fear that the IDF may be swept by populist trends and lose sight of its moral compass, he spoke out firmly and decisively.
He was echoed in no uncertain terms by the prime minister. Both men though should have added one phrase, something like: “This soldier will be brought to court with the utmost speed, in accordance with the law. Meanwhile we must reassert the morality of the IDF....” In spite of what our eyes saw in the video, certainly before a trial there is a resumption of innocence.
The killing has been justified by many politicians and large segments of our population. The reason for such support is a basic difference in how we view the conflict, and hinges on a single word. Are we in battle with Arabs or with the Arabs? Considering the number of wars we have waged, the wild rhetoric of the Palestinian and Arab leadership in the past, and the unbridled incitement by Islamists, it has become an accepted usage: “The Arabs don’t want a Jewish state to exist” or words of that ilk. Encouraged by the inanities of some Orthodox rabbis, the crudities of cheap politicians, the misinterpretation of both Judaism and Zionism, generations of children have been brought up in a reality which lends credence to these teachings.
After all, they/we are not being attacked by Hottentot warriors. Iroquois horsemen or Mongolian hordes.
There is though a strong “on the other hand.”
We are at peace – officially – with two Arab states.
Israel has even conducted joint maneuvers with both and exchanges intelligence extensively.
Beyond this, unofficially, we have covert and not-so-covert relations with a number of Arab and Islamic countries. These ties range from military to commercial.
On the personal level, those of us who have Arab friends know a different story. We see gentle people, caring human beings and devoted women and men.
It takes only a few visits to hospitals, to health clinics, to stores and services here in Jerusalem to see respectful integration and warm relations between Jews and Arabs. Frequently Orthodox nurses with their distinctive headgear work side by side with Muslim nurses or technicians with their distinctive kerchiefs. Our universities and hospitals have Arab heads of departments. I hope for the day that I will not have to point that out.
In the best schools in Israel, ranging from hesder (joint Torah study and military service) yeshivot and religious high schools to secular, the students can distinguish between the enemy they may have to fight, and the fellow citizens who also range from young hotheads to those who do military or national service.
Returning to the shooting in Hebron, I asked a serving company staff-sergeant, and a former commando officer, for their reaction to the killing of a supine out-of-commission attacker.
Both were horrified. In an article in this newspaper, one columnist described our soldiers as “kids.” From close observation of both female and male soldiers who have been under fire and seen action, these young people are no longer kids. The responsibility they show toward their military roles, and toward their fellow soldiers, tells me a different story. From their conversations and from their silences, I learned that once in uniform they are men and women.
Defense Minister Ya’alon spoke out clearly in the Knesset for the moral behavior we expect from our soldiers. This was not an act of a politician, since many members of his Likud party reportedly feel the killing was justified. A national figure is also an educator, something a leader such as David Ben-Gurion well understood.
Ya’alon knows how much the irresponsible voices in the Knesset do harm. In my mind, to condone crimes in order to capture a headline is about as vile as a politician can become.
And it is time for ministers to act responsibly in their role. If the minister of justice wishes to criticize the Supreme Court, she should know that there is a way of speaking and criticizing that will not disgrace her.
Once or twice, this column has stressed the dictum from the Mishna, “Wise men, heed what you say.” The catch to this is the presumption of wisdom. Perhaps an Arab researcher or head of department in one of our universities or hospitals can discover a wisdom chip which every politician should have implanted before taking the Oath of Allegiance in the Knesset.
Or maybe politicians are just guilty until proven innocent.
Avraham Avi-hai served in the offices of prime ministers David Ben-Gurion and Levi Eshkol and as world chairman of Keren Hayesod-United Israel Appeal. He is the author of fiction and of academic firstname.lastname@example.org
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