Shamgar’s limits

If laws stipulating penalties for homicide can be breached, one would assume that so can committee recommendations.

Schalit with Hamas 311 R (photo credit: Reuters)
Schalit with Hamas 311 R
(photo credit: Reuters)
The exceptionally disproportionate swap for Gilad Schalit has aroused – even among its outspoken proponents – profound misgivings and attempts to find ways of preventing more of the same in the future.
Of course, the very fact that on either side of the political divide Israelis take it for granted that another Schalit-like scenario is probable can only constitute a sobering wake-up call from the euphoric exhilaration that accompanied the captive’s homecoming.
Regrettably, it’s unlikely that Schalit’s case is Israel’s last extortion predicament, just as the Jibril and Tannenbaum deals weren’t the last of their sort.
Officialdom sought antidotes already after the July 2008 barter of Haran family murderer Samir Kuntar, four Hezbollah fighters, and the bodies of nearly 200 Lebanese and Palestinians, in exchange for the remains of IDF soldiers Ehud Goldwasser and Eldad Regev.
The Shamgar Committee, headed by former Supreme Court Justice Meir Shamgar, was established by Defense Minister Ehud Barak to draw up policy guidelines to delimit the price of the next swap.
The committee’s recommendations weren’t publicized so as not to hamper the Schalit negotiations, which made these recommendations irrelevant in real time.
They are expected to be submitted to the prime minister soon, and then be subject to cabinet and perhaps Knesset approval. Concurrently, there are moves in the Knesset to legislate binding ransom limitations.
Knesset Speaker Reuven Rivlin opposes these on the grounds that the legislative branch would infringe on the executive branch’s powers. Yet the executive, in approving wholesale releases of convicts, had already stepped hard on the judiciary branch’s toes, pro forma judicial rubber-stamps notwithstanding.
However, let’s assume that the Shamgar Committee had formulated iron-clad swap restrictions and that the Knesset turned its own restrictions into law. What then? Will future abductors lower their asking price because of their abiding respect for the Knesset or for Shamgar? Clearly not.
The terrorists will aim to demolish whatever price-ceilings are fixed by whichever Israeli forum. Once negotiations open, regardless of constraints the Israeli negotiators announce, the die is irrevocably cast. At that point it becomes a haggling process in which the side with the stronger nerves wins.
When the next set of anguished Israeli parents launch an emotional campaign, underpinned by the media and political opportunists, the rules drafted in Jerusalem will mean nothing.
Israel’s enemies, barbaric enough to hold a helpless individual hostage for over five years, won’t minimize their demands because we now have guidelines and new laws. The whole idea of kidnapping is to force the extorted party to deviate from its laws.
Laws were broken in the Schalit episode and in those preceding it. The convicts set loose were tried and sentenced by some of the most autonomous and liberal courts on earth. Judicial verdicts are binding, according to the laws of this land. Yet legal convictions and sentences were all summarily set aside.
If laws stipulating penalties for homicide can be breached, one would assume that so can laws precluding asymmetrical deals, to say nothing of committee recommendations.
Our executive branch regularly indicates that our laws can be overridden under pressure. Hence legal constraints, intended to tie any government’s hands in future hostage standoffs, are insubstantial.
The only antidote is a mindset switch and a return to the kind of resolve that characterized Golda Meir’s administration and which was steadfastly adhered to despite the heavy cost.
Some of the most heinous hostage plots were unleashed on Israel in the 1970s – from plane hijackings to the Munich Olympics attack. Israel unwaveringly refused to pay ransom, not even under the most harrowing of circumstances such as the Ma’alot school siege, the baby crèche at Kibbutz Misgav Am, Tel Aviv’s Savoy Hotel, Kiryat Shmona home invasions and numerous others.
This is a matter of dogged determination – not merely more words on our law books.