The war Israel launched against the Palestinian terror organizations following the Oct. 7 massacre has many fronts. Part of the war is being waged in the Gaza Strip, part in Judea and Samaria (a.k.a. “the West Bank”) and other parts in other areas of Israel. Part is waged, and will keep being waged, in the courtrooms. Wherever the battle is fought, Israel’s goal must be a total victory over the terror groups.
Although the general perception is that the Israel Defense Forces are winning on the physical battlefield, both in Gaza and in Judea and Samaria, there is a quieter issue that, if not dealt with promptly, could cause Israel to lose the campaign as a whole: the general prosecution and military prosecution, including the civilian and the military courts in the West Bank.
Although the IDF forces in Gaza are killing most of the terrorists, many are being arrested. In Judea and Samaria, few of the terrorists are being killed, most are arrested. According to announcements by the IDF Spokesperson’s Unit, since the war began, more than 2,450 terrorists have been arrested in Judea and Samaria, half of them Hamas members. While the exact numbers of terrorists detained on the day of the massacre or during the fighting in Gaza have not yet been published, it appears that hundreds of terrorists have been apprehended.
Arresting the terrorists poses a particular problem: Whereas a terrorist who has been killed cannot return to terror activity, a terrorist who has been temporarily detained does not lose his murderous ideology, and once released, he returns to action in the terror group.
Since the subject of arrest, detention and prosecution of the terrorists is a subject encompassing many and varied issues, this article will focus on one specific topic, namely, the sentencing of the terrorists who have been arrested in Judea and Samaria since the beginning of the war.
The article makes a basic assumption that in Gaza, most of the terrorists will be killed, and the infrastructure of the terror groups operating there will be destroyed.
Palestinian terror groups operate in both Gaza and Judea and Samaria. Eliminating them requires a far-reaching effort on both fronts. If the terror operatives and infrastructure are destroyed in Gaza, but the terror operatives are not killed or arrested, and the terror infrastructure is not dismantled, in Judea and Samaria, Israel will fail in its task of toppling these organizations.
Therefore, because many terrorists in Judea and Samaria are arrested and not killed, the question is, what must be done to ensure that these terrorists do not go back to business as usual and rebuild the terror infrastructure?
Bringing terrorists to justice: The criminal process
The unit responsible for prosecuting terrorists in Judea and Samaria is the Military Prosecution for Judea and Samaria, a division of the Military Prosecution within the IDF Military Advocate General Corps. Daily, officers and soldiers of the Military Prosecution for Judea and Samaria (consisting of about 40 to 45 prosecutors, reinforced by reservists) carry a weighty burden. In ordinary times, the young officers and soldiers who serve in the unit prosecute the majority—more than 95%—of the terrorists who are arrested in Israel as a whole. This unit acts as the “last leg” of the IDF forces’ activity on the ground, and if the team does not deal with terrorists who have been apprehended, they are released within a short time.
To prevent a revolving-door phenomenon, the unit’s soldiers and officers work day and night and prepare thousands of indictments per year. In an average year, the unit files between 3,000 and 3,500 indictments, two-thirds for offenses involving “terror activity.” The level of the unit’s activity can be considered the security pulse of Judea and Samaria in particular, and of Israel in general. The quieter the security situation, the fewer terrorists are arrested and fewer indictments submitted. When the security situation is less stable, more terrorists are arrested, and more charges are presented.
The root of the problem
The problem that needs to be addressed concerns how terrorists are sentenced in the current Israeli legal system, including in the military courts.
Israeli criminal law is among the most advanced in the world. As such, sentencing does not usually entail severe and painful punishment. Instead, broader considerations prevail, including the rehabilitation of offenders. The legislative body defines the offenses and sets the maximum penalties. The system is tailored to a developed civil society, which, only for lack of an alternative, has to use criminal justice to deal with marginal social elements.
Accordingly, the judges are granted many tools and, most notably, full discretion in fitting the offender’s punishment to the offense he has committed and to his personal circumstances.
However, affording very wide discretion to the judges leads to a situation where the maximum punishments set by the laws are rarely imposed. Occasionally, an offender’s sentence sparks a public outcry. Members of the Knesset, and sometimes ministers, protest vehemently in TV studios and on radio interviews, but the storm quickly passes, and all the actors very quickly revert to their usual behavior.
Unfortunately, this method of sentencing is also applied to terror offenses and terrorists. Whereas the punishments for terror offenses stipulated by the legislation are generally severe, in practice, the punishments handed down to the terrorists are very light. For example, the law—in Israel and in Judea and Samaria—authorizes the judges to hand down a 20-year prison sentence to a terrorist convicted of stone-throwing. In actuality, if the terrorist gets a one-year term, it is a considerable achievement. This, of course, is just one of numerous examples.
The problem is that the judges have not distinguished, and do not distinguish, between cases in which it is appropriate to let the offender be rehabilitated and cases in which the offender, or more precisely the enemy terrorist, is not interested in “rehabilitation” because he does not see his terror activity as morally, ethically, or educationally flawed. Nevertheless, in the judges’ approach, as it has developed over the years, how terrorists are sentenced does not essentially differ from how ordinary offenders are sentenced. And so, for decades, thousands of terrorists have benefited from light punishments that are designed for common offenders and not for terrorists.
The judges are not alone in this ongoing failure. Israeli governments and lawmakers, both civilian and military, are well aware of the phenomenon but have done nothing to counteract it. Apart from one instance in 2015, neither the governments nor the lawmakers have sought a change in the situation. Committees that dealt with “defining judicial discretion” came and went, and nothing changed.
In other words, the problem is the current method of sentencing offenders. If we do not act, this method will lead to a catastrophe and could cause the State of Israel and the public to lose the battle against the terror groups.
Past failure as an omen for the future
In January 2006, elections were held in the Palestinian Authority. Hamas not only participated but won by a landslide. In light of the victory, P.A. chairman Mahmoud Abbas invited Hamas leader Ismail Haniyeh to form a government. And so he did, appointing ministers both in the Judea and Samaria and the Gaza Strip.
Alongside the establishment of the Hamas government, the group continued its terror activity. On June 25, 2006, terrorists from Gaza infiltrated Israel, attacked a tank crew, murdered Lt. Hanan Barak and Sgt. Pavel Slutsky, and abducted Cpl. Gilad Shalit.
In response to the ongoing terror activity, and all the more so to the infiltration, murder, and abduction, within a few days, hundreds of Hamas terrorists were arrested, including all the ministers of the Hamas government who lived in Judea and Samaria. Naturally, the government ministers were the most senior Hamas officials.
Within a short time, indictments were filed. They stated that the top Hamas officials were not only members of a terror group—an offense punishable by 10 years in prison—but also held positions in a terror group—also punishable by a 10-year term. In other words, theoretically, the terrorists could have been handed 20-year sentences.
Indeed, after an appeal to the Military Court of Appeals, the terrorists were detained until the end of the legal proceedings, and their trials began. Lamentably, however, the treatment of these senior Hamas officials was no different than usual—relatively lenient. After their trials ended in convictions, the system proceeded to sentence them.
Whereas the law, as noted, permitted sentencing terrorists to 20 years in prison, the actual outcome was very different. At that time, just as today, the punishment the judges met for the offense of membership in a terror group usually ranged from only one to two years in prison. In this case, because the terrorists were no less than senior Hamas officials, the judges adjusted, giving the terrorists sentences ranging from three to four and a half years.
In other words, amid the ongoing failure of the system, the senior Hamas officials who were arrested following the kidnapping of Gilad Shalit were released from prison after serving their sentences and returned to terror activity as Hamas members, even before the freeing of Shalit himself in October 2011.
No more repeating the same errors
The situation described above has not changed to this day. Daily, thousands of terrorists benefit from lenient punishments, which defeats the whole purpose. This situation is not an edict of fate.
Essentially, all that is needed to change the situation is a different approach by the State Prosecutor and the Military Prosecution for Judea and Samaria.
During the sentencing procedure, the prosecution and the defense present their positions on the “appropriate” punishment for the offender. Today, the systemic failure begins with the fact that the prosecution petitions for a sentence in accordance with the regular “levels of sentencing.” These levels, as noted, are very far from exacting justice on the terrorists and very far from the maximum punishments set by the law.
To begin the process of repairing the system, what is required, first and foremost, is a change in prosecutorial approach. For terror offenses, the prosecution’s demand for punishment must differ from its demands for ordinary offenses. The prosecution’s point of departure must be a petition to sentence the convicted terrorist to the maximum sentence that the legislator has determined. Instead of beginning with punishment at the lowest level for terror offenses and then ascending level by level according to the severity of the offense, the prosecution must begin by petitioning for the highest penalty, requesting lower penalties only in exceptional circumstances. If this change does not start with the prosecution, it will not begin at all, as it will certainly not change on the initiative of the judges.
The courts, too, must change their approach. When sentencing terrorists, the point of departure for the judges, too, must be the maximum punishment. The Israeli public has had its fill of lenient sentences that enable the revolving door and subvert deterrence. The equation of punishments for ordinary offenses to punishments for terror offenses reveals a resounding failure, and the time has come for a change.
And suppose the prosecution and the judges, together and separately, do not make the vital changes quickly. In that case, legislators can act alone, stipulating in law that apart from very exceptional cases, a conviction for a terror offense entails, mandatorily, the maximum punishment set for the offense.
There is no time to wait
When making the necessary change, there is no time to wait. It does not involve any need to revise legislation, only to make a policy change that can be carried out immediately. If this change does not occur, then the prosecution, the judges and the legislators are sentencing the Israeli public to the fate of being perpetual victims of terror.
To make it clear, once and for all, that the days in which Israel’s legal system behaves forgivingly toward terrorists have ended, and to give a voice to the 1,200 people who were murdered in the Oct. 7 massacre, a deep and thorough change in the sentencing of terrorists is essential.
Originally published by The Jerusalem Center for Public Affairs.