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Response to Kidnapping of Israeli Soldier Gilad Shalit:

Israel is poised to launch a major military operation in Gaza, which threatens to undo its withdrawal from that territory, and cause major civilian casualties (which, in fact, would serve the interests of the factions involved in the kidnapping), not to mention further casualties among IDF forces. What if, instead, Israel informed the kidnappers that if harm comes to Shalit, Prime Minister Olmert will call on the Knesset to immediately institute the death penalty for terrorist murders, and apply it retroactively? Instead of securing the release of terrorist prisoners, several dozen murderers in Israeli prisons (who richly deserve it, anyway), connected by political or family ties to the kidnappers will be executed. I'd much rather see the lives of guilty terrorists threatened than IDF soldiers and Palestinian civilians.

Relatedly, Israel should institute the death penalty for terrorism, as keeping leading terrorists in jail has for decades given their compatriots an incentive to hold hostages in the hopes of securing their release, and Israel has frequently capitulated to such demands, with some of the released terrorists later committing further atrocities. I fail to understand what purpose is served by the consistent repetition of this scenario.

Mackey:
I could be wrong, but weren't these kidnappers seeking the release of women and children and not every day "terrorist murder[er]s...richly deserv[ing death]....connected by political and family ties"? I'm no fan of terrorism, or anti-Semiticism, or any combination of the two that exists in the Palestinian or other communities. But this is little more than an opportunistic moment to institute the death penalty for a series of offenses now (and, in Israeli law, not heretofore) deemed worthy of that final punishment. Really, little more than a defense of the wonders of capital punishment in general. Suffice it to say, I see no reason this event should warrant this change over other events and see this therefore as little more than an ode to death (may it sustain us forevermore.)
6.27.2006 10:50am
Pitman (mail) (www):
The kidnappers were demanding the release of under-18 year-old and female detainees as a condition for receiving INFORMATION on the status of the soldier, and not his release.
6.27.2006 10:56am
Lawyer J:
Aside from the obvious moral problems with ex post facto punishment, it's not clear to me how your proposed solution would be an improvement over the current Israeli strategy. The Arabs recognize no distinction between civilians and the military -- a martyr is a martyr is a martyr -- so whether we launch an offensive or start executing prisoners, it's all of a piece to them. If we executed all Palestinians now in Israeli prisons and thereafter instituted a "take no prisoners" policy, do you really think it would alter Arab behavior for the good? Or improve Israel's public image?
6.27.2006 10:57am
billb:
Does tIsraeli law not have a provision against ex post facto laws? (My limited Googling for this was unhelpful.)
6.27.2006 10:58am
Anon Y. Mous:
Why stop there? How about if any time the Israelis get their hands on a Palestinian that they believe is up to no good, but there is no clear cut law that covers what they can prove, they should just make up a new law that fits the circumstances and find him guilty on that. Then, later, using your retroactive sentencing approach, if they decide he needs to be punished some more; they can make up a new sentence to cover it.
6.27.2006 11:04am
Mooki (mail):
Rather than a death penalty for terrorists, why not tie terrorism to settlement: for every Israeli civilian killed, Israel should annex some land and build a "memorial settlement." If, as the current logic goes, terrorism is a response to settlements (as opposed to the existence of a non-Muslim state in the midst of dar al-Islam), then making settlements a response to terror would unhinge the logic of terrorism.
6.27.2006 11:12am
Yosef Ibrahimi:
David,

I hope you are being hyperbolic when you call on Olmert to essentially ask for retroactive executions. Regardless of one's views on the correct way to deal with the problems of terrorism, a retrospective "solution" seems ill-advised.

We are frequently reminded that Israel is the sole bastion of liberal democracy in the Middle East. It would be a shame to abandon those liberal principles for the sake of political expediency.

Whether future convicts should face the death penalty is an entirely different policy matter, and I would have no problem with the Knesset enacting such laws.

P.S. Thanks for enabling comments on this post. I know that you are often reluctant to do so on Israel related topics, and I hope that everyone behaving as rational adults will persuade you to alter your policy.
6.27.2006 11:17am
Houston Lawyer:
I've never understood the logic of allowing targeted assassinations but not allowing executions. In many of the assassination attempts, bystanders are accidentally killed.
6.27.2006 11:31am
J..:
Moral qualms with the death penalty in general aside, treating an individual's life as a political tool is about as anti-Kantian as you can get -- but I'm stuggling to find any moral theory under which this would be acceptable.

While clearly that is what terrorists-bombers do, I'd prefer to not think of myself along the same lines. I'm not sure how this would be at all morally justified.

Perhaps it is this: perhaps one thinks that the DP is morally justifiable and, therefore, the justification proposed here (to avenge the death of an unrelated individual) is of no consequance. In other words, if the underlying action is justified, the intent to bring about that action is unimportant. But that seems a rather weak argument at first glace: individual's intent matters a great deal in most things we care about; I'd have a hard time accepting a moral theory that negates intent. But, I suppose I can see the justification.

Whether or not the ex post application of the DP is legally justified doesn't seem to be the issue; legal rules are always changeable. The question is if it is morally justifiable (or if changing the legal restraint on ex post facto law [if it exists here] is itself morally justifiable).
6.27.2006 11:38am
MDJD2B (mail):
I could be wrong, but weren't these kidnappers seeking the release of women and children and not every day "terrorist murder[er]s...richly deserv[ing death]

Mackey,

Can't adolescents and women engage in terrorism and politically motivated murder? If so, do they deserve more leniency than adult men?
6.27.2006 11:57am
MDJD2B (mail):
[T]reating an individual's life as a political tool is about as anti-Kantian as you can get -- but I'm stuggling to find any moral theory under which this would be acceptable.

J,

Utilitarianism and rule utilitarianism both serve as a potential moral justification. I'm not saying that Prof. Bernstein's proposals are justified in this case.

At the political level, utilitarian considerations seem to become more important and deontologic considerations less important than at the personal level. Few government leaders want to go down in history as allowing their country's population became extinct-- or even allowing their country to became extinct with survival of the inhabitants under unenviable circumstances-- because of their moral qualms.
6.27.2006 12:06pm
Pete Freans (mail):
What evidence is there that killing a captured terrorist (whether in the field or by decree) will deter Hamas, et al? Instituting the death penalty, in my view, will not only fail to deter further terrorist activity, but it will incite even more revenge attacks, ie, you kill one of ours, we'll kill one of yours, and so on. And what do you suppose will happen on the day of execution (which presumably will be scheduled well in advance after a number of appeals)? Hamas would declare a national day of mourning (before the bombings resume), the terrorists will be seen as martyrs in the eyes of Palestinians and the world, and the anti-capital punishment/anti-USA/anti-Israel lobby will be on full alert.

A major offensive on the other hand threatens to destabilize the Hamas government and lose what advances they have gained via negotiations. Hamas must comprehend what the world has been saying since its election: they must sever their ties from terrorism, eliminate terrorists from their ranks, and resume peace talks. Israel is merely strongly encouraging this goal by other means.
6.27.2006 12:21pm
NYSofMind:
Call me soft-headed, but I think there's something elegant and profound about the fact that the Jewish state only applies the death penalty for genocide.

intermediate solutions, like feeding them nothing but pork, are a different story...
6.27.2006 12:24pm
Anderson (mail) (www):
DB appears not to realize that in any effort to out-terrorist the terrorists (and I can't think how else to describe "retroactive executions," as threat or practice), Israel will lose. The terrorists will always be more wicked than Israel can be. So why play that game?

Grimly enough, the best solution to a hostage situation is to behave as if the person in question were dead. As it is, invading the Palestinian territories would give the terrorists exactly what they are seeking. (Cf. "al-Qaeda," "Iraq.")
6.27.2006 12:24pm
Brennan:
Yikes.

Prof. Bernstein suggests applying the death penalty "retroactively" to group of Palestinians A (alreadly, I assume, charged, convicted, and sentenced of crimes they committed) unless group of Palestians B refrains from harming the capturing Israeli soldier. Stripped of rhetoric, this would be no more and no less than executing some human beings to punish the behavior of other human beings. This suggestion therefore amounts to threatening to murder hostages. (It is irrelevant that the hostages in question have previously been convicted and sentenced for crimes that they committed themselves.) This is flatly indefensible.
6.27.2006 12:28pm
Pete Freans (mail):
A yet another reason why a major offensive (or the threat of one) is a good idea.
6.27.2006 12:37pm
Gabriel Malor (mail):
"treating an individual's life as a political tool is about as anti-Kantian as you can get -- but I'm stuggling to find any moral theory under which this would be acceptable."

Only if you think that the lives being taken are merely means to a greater end (like deterring future kidnappings). If killing murderers is the desired end rather than solely a means to something else, then there's nothing anti-Kant about it.

But I'm confused. You hear something like that proposed above and think: "Can I justify this under Kant's theory of morality?" What makes you think that anyone around here cares about the categorical imperative?
6.27.2006 12:56pm
Stryker:
There has always been a question about how to balance making a martyr with eliminating the troublemaker. Excepting the Ex-post-facto portion of the arguement, the real arguemnt should be that these terrorist attacks are an act of war. If they are not owned by the Palestinian government, the terrorists should be treated as the equivelent of pirates (engaging in war without protections of a government). If the actions ARE owned, then the Israelis need to remove the PA, and ask the UN to install peace-keepers. In the interim, the terrorists should be treated as non-uniformed partisans.


Brennan, you are assuming that the jailed terrorists have no connection to the free terrorists.
6.27.2006 1:32pm
David in DC:
What if, instead, Israel informed the kidnappers that if harm comes to Shalit, Prime Minister Olmert will call on the Knesset to immediately institute the death penalty for terrorist murders, and apply it retroactively?

I think it would be ineffective in this particular situation and morally questionable. Adopting the death penalty going forward (and not applied retroactively) would be a huge negative in the long run both with regard to future relations with the Palestinians and with regard to relations with the rest of the world.

IMO it is an awful idea.
6.27.2006 2:17pm
Meryl Yourish (www):
First, I question your contention that the attack on Gaza will "cause major civilian casualties." The Gazans are heading for the hills; any casualties caused in an attack will be the terrorists vs. the IDF. Let us not forget that the "youths" described in most wire service reports are generally 18 and above, and solid members of Fatah, Hamas, or other groups. Please don't defame the IDF so.

Secondly, the one thing proven to destroy terrorism is destroying the terrorists. Several years ago, when the IDF and intelligence services went after Hamas' leadership, they succeeded in defanging Hamas. After Yassin was killed, the threatened torrent of suicide attacks did not happen--because Hamas did not have the ability to make it happen. Much of their leadership was dead or rotting in jail.

The frequency of this sort of thing is actually quite infrequent. Terrorists rarely succeed in kidnapping IDF soldiers. The problem is that in the past, Israel has allowed hugely disproportionate exchanges of prisoners, even just for the return of an Israeli's body. The terrorists know this, and take advantage of it--if they can.

The problem is that because of the pretend truce, Israel stopped targeting Hamas. PIJ has always been in Israel's sights, and anyone known as a "ticking bomb" (on his way to commit a terror attack) is fair game. But the pretend truce works to Israel's disadvantage. The terrorists have used the last year to resupply their weapons, bring more into the terrortories[sic], and plan more attacks on Israel--all from their safe haven in Gaza.

And since the world insists on not holding the palestinians up to any kind of international standard, this will continue until they are utterly defeated, something that Israel seems unwilling to do right now.

Retroactively instating the death penalty on those already imprisoned won't do anything. Sending a Hellfire missile down Ismail Haniyeh's throat--now that's a different story altogether. Notice how fast he was to assure Olmert that Cpl. Shalit is okay once the word went out that the Hamas leadership would be targeted.

That's what works. Nothing else.
6.27.2006 2:38pm
Steve P. (mail):
Excellent post, Brennan.
6.27.2006 3:00pm
Observer (mail):
Hillel Halkin in the NY Sun today made an excellent point - what the Hamas soldiers did - attacking Israeli soldiers and capturing one - isn't terrorism at all but war. Terrorism is attacking civilians. War is attacking soldiers. The proper Israeli response is not to label the attack "terrorism," but to say (1) congratulations, Hamas, at last you are fighting like men, not girls, and (2) in response to this open act of war, we are declaring war on the Palestinian Authority, and henceforth will blockade its borders, bomb its industrial and strategic infrastructure into rubble and try to kill, by whatever means possible, as many members of the PA administration and Hamas, and their military units, as possible, and although we will try not to kill civilians, if you hide behind or near them their deaths are your problem.
6.27.2006 4:18pm
Seamus (mail):

I hope you are being hyperbolic when you call on Olmert to essentially ask for retroactive executions. Regardless of one's views on the correct way to deal with the problems of terrorism, a retrospective "solution" seems ill-advised.



Well, the threat of reprisals tended to keep both sides relatively humane toward one another during the American Civil War. When the War first broke out, a Confederate ship was captured and taken into New York, where the government proposed to put her crew on trial for treason and piracy. The Confederate government let it be known that if any crew members were executed, the Confederates would execute a comparable number of Union POWs. The Union backed down, and later quietly exchanged the prisoners. Similarly, when the Confederate Congress passed a law providing for the execution of white officers of black Union soldiers (on the theory that the officers were accessories to the crime of slave insurrection), the U.S. government announced that if any such officers were executed, a comparable number of Confederate officers in Union custody would be executed. The Confederates backed down.
6.27.2006 5:18pm
DavidBernstein (mail):
Meryl, I don't think it's a slander to the IDF to say a major military action in Gaza would cause lots of civilian casualties. That's the nature of urban warfare; no matter how careful the IDF is, given the population density in Gaza and the propensity of Palestinian terrorists to hide behind civilians, it's hard to see how such casualties could be avoided. The moral responsibility for such casualties, would, in my view, be on the terrorists themselves, but that doesn't mean that Israel shouldn't consider the casualties in selecting form various options.
6.27.2006 5:38pm
Jeek:
Adopting the death penalty going forward (and not applied retroactively) would be a huge negative in the long run both with regard to future relations with the Palestinians and with regard to relations with the rest of the world.

It is hard to see how capturing, trying, and executing terrorists would be worse in the eyes of the PA and the world than killing terrorists with air strikes. Logically, it should be "better" - a legal process was followed, they weren't just killed out of hand.
6.27.2006 5:41pm
Seamus (mail):

Hillel Halkin in the NY Sun today made an excellent point - what the Hamas soldiers did - attacking Israeli soldiers and capturing one - isn't terrorism at all but war. Terrorism is attacking civilians. War is attacking soldiers. The proper Israeli response is not to label the attack "terrorism," but to say (1) congratulations, Hamas, at last you are fighting like men, not girls



But Prof. Bernstein's initial question was regarding what Israel should do "if harm comes to Shalit." If it was generally expected that Hamas would simply treat him as a POW, with all the protections and privileges accompanying that status, I don't think we would be asking the question.
6.27.2006 5:41pm
David in DC:
It is hard to see how capturing, trying, and executing terrorists would be worse in the eyes of the PA and the world than killing terrorists with air strikes.

Killing or capturing accomplishes the same goal, it gets people who are trying to kill Israelis out of action. There is no need for the added cruelty of needlessly executing people already captured, and I think it would be perceived as exactly that.

One can debate whether the targeted killings, which are miniscule in number compared to the total number captured, are necessary at all. Perhaps they could be captured also. I tend to doubt it given that they are basically in enemy territory and any attempt to mount the ground offensive necessary would lead to many more casualties on both sides than the targeted strikes do. The case for targeted killings was strengthened when Israel relinquished control of Gaza, and I don't recall the last time they did it in the West Bank where they still have a bit more control (although they still need to mount military style operations to get into some of the cities when push comes to shove).

Also, one thing people may not have noticed consciously, but will if you think about it - nobody, not even the Palestinians in the large number of cases, argues that the actual targets of these military strikes were not legitimate military targets. I am not referring to the (IMO outrageous) outcry over the killing the "spiritual leader" years ago, I am referring to the military operations since the so-called "truce" with Hamas and lack thereof with Islamic Jihad and the various Committees.

It's my feeling, with no hard evidence, that the Palestinians see themselves as waging a war, that those killed in action are casualties of war, and those captured should be treated as prisoners of war and not criminals. I tend to suspect that you will see this play out further when there is finally an agreement when many of these "prisoners of war" are released as part of the armistice or peace agreement.
6.27.2006 8:05pm
Jeek:
nobody, not even the Palestinians in the large number of cases, argues that the actual targets of these military strikes were not legitimate military targets.

With regard to a recent airstrike on two militants, Palestinian Prime Minister Ismail Haniya called it a "massacre of children... that is a continuation of the series of random killings being committed against the Palestinian people".

"What the Israeli occupation forces are doing in the Gaza Strip constitutes a war of extermination and bloody massacres against our people," Mahmoud Abbas said in a statement carried by the Palestinian official Wafa news agency.

So no, the Palestinians do not seem to view these strikes as legitimate in any way.

I guess one could argue that the Palestinians don't really believe their own propaganda, and secretly think the Israeli strikes are justified. I'm not buying that, though.
6.27.2006 9:19pm