Capital Crime. Capital Punishment?

By Aryeh Tepper
Tuesday, July 5, 2011

Since its founding, the only person ever to be executed by the state of Israel has been the notorious Nazi, Adolf Eichmann. But the brutal murders of Udi and Ruth Fogel and three of their young children this past March has the IDF weighing the possibility of seeking the death penalty for the Fogels' murderers, brothers Hakim and Amjad Awad. 

One wonders what punishment, aside from the most extreme one, can possibly be in order for the brutal slaughter of a mother, father, and three children. Still, such a sentence cannot be given, or even sought, without offering ample justification. If Israel were to sentence the Awad brothers to death, what would be the purpose: justice, vengeance, or deterrence? 

The history of capital punishment in the modern state of Israel begins with the British legal code inherited by the nascent state in 1948. Under that code, capital punishment was permitted for a variety of crimes, including some relatively minor offenses. The British law was abolished in 1954, under the influence, it is often claimed, of the Jewish legal tradition—specifically, the spirit embodied in one well-known talmudic passage:

The Sanhedrin (High Court) that executes one person in seven years is called murderous. Rabbi Elazar ben Azaria says this extends to one execution in seventy years. Rabbi Tarfon and Rabbi Akiva say, "If we had been among the Sanhedrin, no one would ever have been executed." (Makkot 7a)

Often, when this passage is evoked, people neglect to mention that Rabbi Simon ben Gamliel dissents, on grounds of deterrence: "such an attitude would increase bloodshed in Israel." 

But the mainstream argument endures to this day.  Accordingly, current Israeli law leans towards the talmudic scholars' abhorrence of the death penalty, but still allows for capital punishment in extreme cases: treason, incitement to war, aiding the enemy during wartime, crimes against the Jewish people, crimes against humanity, and war crimes. In addition, Israeli military courts have been given the freedom to demand the death penalty for particularly heinous acts of terrorism.  Until now, they've been extremely reluctant to do so—but that might soon change.

This prompts one to ask: why should the scales weigh differently for terrorist acts as opposed to "regular" crimes? The Israeli jurist and liberal thinker Amnon Rubinstein, an opponent of capital punishment under normal conditions, has argued that terrorists should be considered "racist murderers" who have reached such a level of brutality that their death constitutes a just response. One can easily argue that this is the case with the Awad brothers. But liberal politician and public intellectual Yossi Sarid argues against an investigation of motives, opposing the death penalty for terrorists on the grounds that, "every intentional act of murder, without exception, is incomparably cruel." 

As for the arguments that can be marshaled against capital punishment for terrorists, one claim is that the death penalty possesses little deterrent value but instead will create "martyrs" who will become heroes for Palestinian youth.  Likewise, calling for capital punishment is liable to invite international condemnation and pressure on Israel.

The calculus doesn't end there. It's possible that a death sentence for terrorists will be met by the murder of Israeli prisoners in enemy hands. What might happen to Gilad Shalit if the IDF openly presses for the death of the Awad brothers?  

But imprisoning the Awad brothers, even for a time, will likely create its own set of problems. Beginning with the "Jibril Deal" in 1985, the state of Israel has, again and again, released some of the vilest terrorists in prisoner exchanges. Practically, this means that there's little chance that a convicted terrorist sentenced to life in prison will actually serve his full term. This situation not only undermines the integrity of Israel's justice system, it also encourages terror organizations to kidnap more Israelis as bait for exchange. 

With all this at stake, why might capital punishment still be the appropriate response to the slaughter of the Fogel family? 

To answer that question, let's consider another abhorrent case, the murder of Dr. David Applebaum. Dr. Applebaum was the visionary founder of Terem, an organization of emergency care clinics that serve Jews and Arabs alike in the greater Jerusalem region. Thanks to Terem, countless lives have been saved and thousands of Israelis have received professional, convenient, and affordable emergency health care. In 2003, Dr. Applebaum and his daughter, who was to be married the next day, were murdered by a suicide bomber. The man who planned the attack, senior Hamas operative Maher Oudda, was finally arrested in 2010. In April of 2011, he was inexplicably exiled to Malaysia, where today he lives as a free man.

In asking for the death penalty for the Awad brothers, IDF prosecutors have an opportunity to let Israelis know that their confused system—the system that failed the Applebaums so grievously—stands unequivocally in the camp of the slaughtered innocent.

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