(November 12, 2018 / JNS) Two years before the end of the war and the opening of the Nuremberg Trials, the USSR, Britain and the United States issued their Declaration on German Atrocities in Occupied Europe, which stated that when the Nazis were defeated, the Allies would “pursue them to the uttermost ends of the earth … in order that justice may be done.”
For the Allies, it was clear that victory and justice come hand in hand. Even when the war would be over, those who performed atrocities on their people should receive their requisite punishment. This was the essence of the Nuremberg Trials, when 10 senior Nazi leaders were hanged.
As these trials and executions were held after the armistice agreements and a cessation of hostilities, few argued about the merits of deterrence and requisite punishment.
Today, the Jewish people face threats from many quarters, especially those terrorist organizations on our borders which openly state their genocidal intentions. This is not a pleasant war, and many unpleasant steps have to be made to ensure that Israel is victorious against our enemies—and not the other way around.
One of these steps is to pursue our enemies, especially those who have been involved in the mass murder of innocent civilians, to the uttermost ends of the earth in order that justice may be done.
This is the purpose behind the new law on the death penalty, which will be presented shortly before the Knesset at the behest of Defense Minister Avigdor Lieberman.
While at base, this is a question of justice, some ask the legitimate question as to whether this legislation is intended to punish or deter, and whether it can deter anyone who has already decided that they will attack in order to kill Jews and understand that there is a good chance that they will not survive.
The position of some in the defense establishment is that the death penalty will not deter and prevent the next murder, but on the contrary, it will only harm and turn every terrorist into a martyr.
However, I do not find this argument convincing.
In the past, we have seen dozens of opinions from the defense establishment that house demolitions deter terrorists. Therefore, to say that demolishing homes is a deterrent yet the death penalty is not is confusing.
In 1994, Said Badarneh, a Hamas member, was sentenced to death by an Israeli military court for planning two suicide-bombings. One of the presiding judges, Col. (res.) Oded Pesenzon, explained a few years later: “I believed that a death sentence would deter other terrorists. We never tried it before … There is a difference between organizations such as Hamas, whose goal is to kill Jews, and individual terrorists, people who are willing to plan a detailed murder, and tell themselves that they will not get caught. Today, it is possible to deter terrorists.”
Even if we accept the argument that the potential terrorist is aware that there is a reasonable chance that he or she will die at the time of the terrorist attack, it is impossible to rule out the fact that he or she is willing to take a risk in the hope of succeeding in escaping or going to prison, or in the hope of being released in a future prisoner trade deal.
The motivation for terrorists to try to release their comrades from prison remains a very real and ongoing issue. Attempts to kidnap Israeli soldiers or civilians for bargaining chips to free terrorists from prison are ongoing.
From the first Jibril deal in 1983 until the Shalit deal, the State of Israel released 7,578 terrorists, including the vilest murderers such as Samir Kuntar, who smashed the skull of a 4-year-old Israeli girl with his own hands in 1979. Already, several Israelis have been murdered by those released in the Shalit deal.
Other arguments question whether Israel, an enlightened and liberal nation that respects human rights, can afford to impose the death penalty in cases of particularly cruel terrorist acts.
However, in 2013, the Boston bomber, Dzhokhar Tsarnaev, who was responsible for the attack during the city’s marathon was unanimously given the capital punishment by a jury in Massachusetts, considered the capital of academia and science not only in the United States, but in the world.
Moreover, only in the past two years more than 40 people have been executed in the United States and 70 have been sentenced to death.
Furthermore, there are those who argue that there is no need for further legislation because the law as it stands contains a possibility of the death sentence. The problem is that the general policy of Israel’s prosecution is not to demand the death penalty under any circumstances, even in the most shocking cases of mass murder.
In four different cases in the past, however, the courts ruled differently and sentenced terrorists to death. Nevertheless, all were commuted to prison terms and some were even subsequently released in prisoner-swap deals.
Since the existing law requires a unanimous decision, it is never used.
In 2003, Raed Sheik, a Palestinian policeman convicted of murdering two Israeli reservists during a lynching in Ramallah, was sentenced to death by a majority of two judges against one. The two judges who asked for the death sentence wrote in their verdict: “We found that the responsibility of our job is to stand by and shout that Jewish blood is not cheap.”
This is the essence of the law. It is about justice. It is about pursuing our enemies and being victorious over them.
As can be seen in history, those who seek victory mete out justice against their enemies. If Israel wants to end victorious over its enemies, then the death penalty must remain an option against those who commit atrocities against us.
The writer is the CEO of the World Yisrael Beytenu Movement and a former adviser to Israeli Prime Minister Benjamin Netanyahu.