Capital Punishment For Terrorists \u2013
\nTheoretically Defensible But Not Wise<\/strong><\/p>\n\u00a9 2023 Eric S. Sherby<\/p>\n
The major legislative initiative that has garnered less attention than that of the revamping of the Israeli judicial system is the proposal of capital punishment for convicted terrorists.<\/p>\n
Such a legislative proposal is not a wise one.<\/p>\n
Few topics in the field of criminal justice generate more controversy than that of capital punishment.\u00a0 One of the main reasons for the controversy is that it is very difficult to prove that capital punishment deters crime.<\/p>\n
In the 74 years of Israel\u2019s existence, only one person has ever been executed by the Israeli judicial system \u2013 Adolf Eichmann, the architect of Hitler\u2019s Final Solution.<\/p>\n
Supporters of capital punishment for terrorists believe that, although Israeli society generally does not favor capital punishment \u2013 even for murderers \u2013 an exception should be made for terrorists.<\/p>\n
It is not necessary for Israeli society or the Knesset to engage in a quantitative comparison of the horrors of the Holocaust with the horrors of anti-Israel terrorism. \u00a0Both were\/are based on anti-Semitism and a wanton disregard for the sanctity of human life.\u00a0 And although it is unpleasant to find mitigating circumstances regarding the typical murderer, differences in crimes need to be taken into consideration when determining the appropriate punishment.\u00a0 Every day in western society, premeditated murders take place. \u00a0The motive for those crimes could be greed, jealousy, or revenge.\u00a0 All such murders are deplorable and should be punished harshly.<\/p>\n
But those acts of murder are not acts of terrorism or genocide.\u00a0 What distinguishes the Nazis and anti-Israeli terrorists (on the one hand) from many \u201ctypical\u201d murderers in society (on the other hand) is that the former saw\/see no reason to refrain from killing innocent people with whom they had\/have no relationship \u2013 other than the fact that the victim falls within a group hated by the perpetrator of the murder.<\/p>\n
Both Nazis and anti-Israel terrorists defend their actions based on a warped sense of a \u201ccause\u201d \u2013 in the case of Nazis, Aryan supremacy, and in the case of anti-Israel terrorists, anti-Zionism.\u00a0 It is the \u201ccause\u201d that distinguishes Nazis and anti-Israel terrorists from the typical murderer, and it is legitimate for the Israeli penal system to take into consideration the evils of a murderer\u2019s \u201ccause.\u201d<\/p>\n
The reason that the State of Israel has de facto<\/em> done away with capital punishment can be summarized as follows: \u00a0(a) Jewish tradition has (for at least 2,000 years) frowned upon carrying out capital punishment, and (b) the modern State of Israel has long recognized the fallacy of human judges, who might mistakenly sentence to death an innocent person. \u00a0There is obviously a great deal of overlap<\/em> between those two phenomena.<\/p>\nPresumably even opponents of capital punishment recognize that, in connection with Eichmann, there was no concern about possibly putting to death the wrong person.\u00a0 Similarly, capital punishment for terrorists (if enacted) would presumably only be applied when the level of certainty as to the defendant\u2019s guilt is not merely the standard of \u201cbeyond a reasonable doubt\u201d but \u201cbeyond any doubt.\u201d<\/p>\n
The reason that capital punishment for terrorists is not<\/em> a wise idea is not<\/em> that executing terrorists (adults, with no mental illness) would be \u201cimmoral.\u201d<\/p>\nThe reason that capital punishment for terrorists is not wise is that it would not<\/em> be efficient<\/em>.\u00a0 If enacted, such a law would likely be counterproductive<\/em>.<\/p>\nTake (for example) the case of the terrorist who fires shots at civilians sitting at an outdoor Israeli restaurant and then flees the scene, taking refuge in a nearby residential building that houses civilians.\u00a0 One of the victims of the shooting at the restaurant dies of his wounds \u2013 which would (under the proposed legislation) trigger the death penalty.<\/p>\n
The above scenario should remind readers of a real attack that took place outside the Ilka Bar in Tel Aviv in April 2022.\u00a0 In that case, the terrorist did not actually take refuge in a residential building in Tel Aviv \u2013 rather, he escaped to Jaffa. \u00a0(While trying to flee the next morning, he was shot dead.)<\/p>\n
But the concerns that the security forces immediately expressed \u2013 namely, that the terrorist might take hostages in a residential building in Tel Aviv and then kill them \u2013 were not far-fetched.<\/p>\n
The Ilka Bar attack was not an unusual one.\u00a0 Over the years, we have seen many situations in which a terrorist committed an act of violence and then fled to a place where he was not apprehended and had the opportunity to commit further acts of violence.<\/p>\n
In order to understand the potential danger of legislation that would make murder by a terrorist a capital offense, it is necessary to focus on the state of mind of the terrorist in a situation like the one that existed after (for example) the shooting at the Ilka Bar \u2013 namely, a situation in which the terrorist has an opportunity to take hostages after he committed a murder.<\/p>\n
If that terrorist knows that he will be sentenced to death for having (already) murdered someone, then he sees no upside to releasing any of the hostages safely.\u00a0 Rather, that terrorist will see himself as essentially a dead man walking.\u00a0 He knows that he will die either in a fight with security forces or at the hands of the Israeli legal system. \u00a0Because he is a terrorist, as soon as he sees himself as a dead man walking, he can be expected to maximize<\/em> the number of people that he tries to kill.<\/p>\nTherefore changing the law to allow capital punishment for terrorists would have a very detrimental effect.<\/p>\n
It is likely that some who support capital punishment for terrorists would argue that \u201cterrorists don\u2019t work that way\u201d \u2013 in other words, once a terrorist goes out on a terrorist mission, he does not think about his own survival.\u00a0 If that is the case, then the argument that capital punishment is in any way a \u201cdeterrent\u201d to terrorism self-destructs.<\/p>\n
If capital punishment is not a deterrent, why use it?<\/p>\n
Even if we assume that the argument \u201cterrorists don\u2019t work that way\u201d generally has merit, there remains a serious danger in ignoring even a small percentage of exceptions to that rule.\u00a0 Specifically, even assuming that, for 99.9% of terrorists, their own physical survival is not a concern when deciding whether to kill as many innocent people as possible, there is still a danger in ignoring that 0.1 percent.\u00a0 Let\u2019s focus on the state of mind of that one in 1,000 terrorists.\u00a0 Assume that, after he kills one innocent person, he still wants to live.\u00a0 If he knows that he will be put to death for the murder that he already committed, then he sees no upside to surrendering when surrounded by security forces.\u00a0 Rather, under such circumstances, even the terrorist who wants to live is likely to try to kill more victims.<\/p>\n
A society that values the life of every innocent civilian wants to give the terrorist who is holding hostages an incentive to live.<\/p>\n
Like it or not, the only<\/em> way to incentivize the terrorist to live (in an Ilka Bar-like situation) is to ensure that the judicial system will not sentence him to death.<\/p>\nOur society does not want a terrorist who has murdered to think \u201cI have nothing to lose\u201d by killing more innocent people.\u00a0 If the possibility of remaining alive is enough to prevent that terrorist from taking more lives, and even if<\/em> such a \u201cprofile\u201d applies to only 0.1% of all terrorists, then the price of enacting capital punishment for other terrorists would be too high a price to pay.<\/p>\nNo law should ever cause \u2013 even inadvertently \u2013 consequences that are contrary to the main purpose of that law.\u00a0 The Ilka Bar situation occurred less than a year ago, and it should not be far from the memory of most Israelis.\u00a0 And, as indicated above, such a \u201cshoot & flee\u201d type of attack is far from unusual.<\/p>\n
That attack and the police warnings immediately thereafter show that it is more than just theoretical that capital punishment for terrorists could have consequences contrary to the purpose of preventing terrorism.<\/p>\n
The legislative process should not be used primarily to afford MKs the opportunity to \u201ccheck a box\u201d from their campaign promises.\u00a0 Lawmaking has consequences, and when there is a possibility that an act of the Knesset could inadvertently lead to the death of innocent civilians, prudence cautions against<\/em> taking that action.<\/p>\n <\/p>\n
<\/p>\n","protected":false},"excerpt":{"rendered":"
\u00a9 2023 The text below was published as an Op-Ed on February 22, 2023, by The Jerusalem Post,\u00a0 https:\/\/www.jpost.com\/opinion\/article-732304\u00a0 Because the Post’s online version\u00a0was a bit different from the print version,\u00a0we\u00a0reprint below the text as it was provided to the Post. Capital Punishment For Terrorists \u2013 Theoretically Defensible But Not Wise \u00a9 2023 Eric S.<\/p>\n
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