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Is death ever the proper penalty?

As Israel moves closer to sentencing terrorists to death, Daniel Sugarman thinks it's a bad idea

    Nazi leader Adolf Eichmann on trial in 1961. He was executed in 1962.
    Nazi leader Adolf Eichmann on trial in 1961. He was executed in 1962.

    In its 70 year history, the State of Israel’s judicial process has only executed two people.

    The first was during the War of Independence. An Israeli army officer, Meir Tobianski, was found guilty of espionage by a drumhead court martial, and was executed by firing squad. It later turned out he was innocent and he was exonerated posthumously. The second time was the Nazi, Adolf Eichmann, hanged in 1962.

    Every other time the death sentence has been passed since then, it has been commuted, mainly because since the 1990s, the IDF policy has been not to seek the death penalty.

    Earlier this month, however, the Israeli government introduced a bill making it much easier for civil authorities to press for the death penalty. It passed in the Knesset by 52 votes to 49.

    It’s no surprise that the public mood has hardened. Many Israelis see the Palestinian thought process as celebrating martyrdom. If a terrorist is not killed as they attack but only wounded, they are likely to be treated in an Israeli hospital, where they will receive the same medical care as their victims. They will then be jailed. While in prison, their families will receive generous stipends from Palestinian Authority.

    Eventually, as part of an agreement to return to a negotiating table, the Palestinian leadership will demand the release of hundreds of such terrorists as a “gesture of goodwill”. The murderers return home to a hero’s welcome.

    Recently, the case of Sergeant Elor Azaria divided the country. Azaria was jailed after he was videoed shooting a disarmed Palestinian terrorist in the head.

    Many deplored the action but just as many protested against Sergeant Azaria’s punishment. “If we do not defend our soldiers, who will defend us”, read a popular sign at rallies supporting the imprisoned soldier.

    The frustration and anger is understandable. But the death penalty is not and cannot be the way forward.

    In a conflict against a group of people whose leadership, over the last few decades, has worked hard to propagate a cult of martyrdom, killing such terrorists will do little more than act as a recruitment drive for thousands more.

    The head of the Shin Bet, Israel’s internal security service, has warned that using the new powers could lead to retaliatory abductions of Jews both in Muslim and Western countries.

    But there is another compelling reason to stand against the death penalty.

    In an early episode of the political drama The West Wing, the US president grapples over the issue of whether to commute a death sentence.

    His communications director tells him that while the death penalty was handed down by the Torah for certain transgressions, “even two thousand years ago, the rabbis of the Talmud couldn’t stomach it. They weren’t about to rewrite the Torah, but they came up with another way.

    “They came up with legal restrictions… they made it impossible for the state to punish someone by killing them.”

    The show’s Jewish writer, Aaron Sorkin, knew what he was talking about.

    The rabbis constructed a legal obstacle course so convoluted that it was practically impossible for anyone to be put to death as the result of a trial, to the extent that, in the event of a unanimous vote by the Sanhedrin to condemn a person to death, the guilty party was immediately exonerated.

    Almost a thousand years later, Maimonides would say, “It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death.”

    And now, in 2018, the current Sephardi Chief Rabbi, Rabbi Yitzchak Yosef, a man not exactly known for left-wing views, has said that this new death penalty bill has no support in Jewish law.

    Israel has flourished, and will hopefully continue to flourish, despite the attempts to destroy it. Adopting the death penalty, even for terrorists, lessens the humanity of a country which, despite the constant efforts to vilify it, has managed to maintain its morality to a remarkable degree in the face of constant attack.

    It would be extremely foolish to jeopardise this morality, especially when it could be argued that to carry out the death penalty would give Israel’s enemies exactly what they want.

    The Jewish state often takes into account Jewish law and Jewish tradition. It would be a grave error to start ignoring it now.

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