If his goal is to make Israel look bad while further restricting our defense forces? freedom of action to prevent terror, he is doing a pretty good job. Supreme Court Justice Aharon Barak?s decision to allow the transfer to Gaza of two members of the family of a suicide bomber (while denying the transfer of a third individual) will certainly appear like a harsh new step in the mistreatment of Palestinians. In fact, it is a new setback for the war on terror.
Already criticisms are flying. One could expect Palestinians to react with the usual ?extravagance?. According to the Jerusalem Post on Wednesday, Palestinian Authority Minister Saeb Erekat called the decision a "black day for human rights." He pretends that Israel has approved the concept of collective punishment, and promises to fight in international arenas. No one will be surprised either, that Amnesty International called the transfer a war crime under the Geneva Convention, possibly even a crime against humanity.
But what was most disappointing is that even the US State Department got into the wrong side of the fray, claiming, "Punishing the innocent will not help Israel's security." That of course is a truism. But did Israel?s Supreme Court really permit the punishment of the innocent?
What the court actually decided was that those family members who personally assisted in the terrorist murder, may be transferred to Gaza since there is a real danger that they will participate in further terrorist activity. Oh, one more point: it would not be permitted to actually deport them, but only to transfer them within a single geographic region, from the West Bank to Gaza. (I can't wait to hear Palestinians tell us that Gaza is not part of Palestine.)
These fine points of the decision may never be noticed outside the army, which is now obligated to follow these ever-stricter guidelines. The rest of the world will conclude that Israel has adopted a policy of deportations of the innocent, sanctioned by its own Supreme Court.
But what has Shemita to do with Mount Sinai? The family members that are to be transferred are not just family members; they are human beings in their own right, with their own free will and responsibility for their own actions. As the court made clear, the temporary transfer is permitted only because they were directly involved in a terrorist act themselves, and because there is a likelihood that they will do so again. The family connection is, in this case, irrelevant. On the contrary, it seems to have hurt the army s case. If these terrorist assistants had not been members of the same family, would anyone have objected to punishing them?
Accessories to mass-murder can be jailed for life when brought to civilian courts; their prisons can be located anywhere in the country, including Gaza. A two-year transfer without even house arrest is a relatively light punishment. They have received a hero?s welcome in Gaza and will enjoy freedom of movement there. Given the crimes they were involved in, and the danger they represent, there is no reason why the army cannot impose a punishment of this sort on them.
The court concluded that the army could also take account of the possible deterrent effect of its punishments. This again creates the impression that Israel has somehow taken a new harsh step for deterrent purposes rather than for the sake of justice. However, the court has said that deterrence can only be considered in cases where the individuals have already participated in terrorist activities. It cannot stand on its own as a justification for punishment by the army. So where is the innovation?
For those who believe that deterrence does justify punishment, the decision is a complete disaster. According to this ruling the army cannot act for the sake of deterrence without strong evidence of actual participation in terrorist activities. But deterrence is one of the major purposes of armed forces; it was deterrence that prevented disaster during the Cold War; without deterrence, it is impossible to maintain the balance of forces that maintains peace in strained relations.
What exactly is the deterrent effect of Barak?s ruling? If I am not mistaken, the result is that from now on terrorists will be careful not to allow their family members to be directly involved in assisting their murder efforts. As long as they do that, terrorists are free to continue without fear that anything will happen to their families.
One potentially significant part of the decision concerned the determination that transfer of family members does in fact provide a deterrent effect and save innocent lives. This has been documented by careful army research and it ought to provide a decisive turning point in the battle against terror. Now that we know the effectiveness of punishing family members, we have a pretty reliable way to put an end to the terrible tragedy of bloodshed that has plagued our region. It is therefore all the more unfortunate that Barak has come out so clearly against deterrence.
Despite all of the above, defense lawyers were incensed. Leah Tzemel of Moked argued that even these light sentences were too heavy. She argued on principle that cases such as this should be brought directly to a court of law, and not administered by the army. She should know better. When brought to a court of law, the defendants can expect to receive the punishments that courts generally hand down in such cases. The army, however, has determined that temporarily transferring these individuals will provide a valuable deterrence to further murders. They are not interested in other punishments, however severe and deserved. They have the responsibility for protecting our citizens by determining what punishment is appropriate, and implementing it, so long as it is not done in an illegal manner. Leah Tzemel apparently wants to the army to surrender this power.
On the other hand, what was little noticed was that the court denied the army the right to temporarily transfer one of the Palestinians in question. This is Abdel Nasser Assida, the brother of Nasseradin Assida, wanted on suspicion of killing two residents of Yitzhar and organizing the ambushes near Emmanuel on December 12, 2001, in which 10 were killed and 30 wounded, and on July 16, in which nine were killed and 20 wounded. The court decided that although he knew of his brother s intentions, and gave him personal material assistance including rides in his automobile, there was not conclusive proof that he had taken part directly in a terrorist action, and therefore no possibility of punishment.
As Chaim Zissovitch of Reshet Beit radio pointed out in an interview with Leah shortly after the verdict, the decision to exempt him on the grounds that he may not have knowingly taken part in a terrorist act stands in contradiction with the famous decision regarding Margalit Har-Shefi. Readers will recall that she was convicted of not preventing the murder of former Prime Minister Yitzchak Rabin -- although the prosecution acknowledged that she did not assist in the murder or even provide shelter or material assistance to the murderer. The claim was that since she had heard him threatening to carry out the murder and failed to report him to authorities, she deserved punishment.
There are however several important differences between the two cases. Even if she did hear the assassin threatening to commit that terrible crime, Margalit had no reason to believe that he was serious: no one had ever even attempted to assassinate an Israeli Prime Minister before. Furthermore, the army had not asked for her to be punished as a deterrent to others or because she represented any real danger. So it is hard to see why a Court would have felt obligated to bend the rules against her. The present case merits greater severity on both grounds. Therefore, it is all the more surprising that the justices decided on greater leniency here.
In short, Barak has contributed to the decline of the Court?s standing in international opinion, while simultaneously contradicting his own rulings and weakening the army?s ability to stop terrorism. Some say that Barak is a brilliant tactician. This time, however, that brilliance is not easy to see.
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Dr. Gabriel Danzig teaches at the Department of Classics at Bar Ilan University
danzigg@mail.biu.ac.il
Already criticisms are flying. One could expect Palestinians to react with the usual ?extravagance?. According to the Jerusalem Post on Wednesday, Palestinian Authority Minister Saeb Erekat called the decision a "black day for human rights." He pretends that Israel has approved the concept of collective punishment, and promises to fight in international arenas. No one will be surprised either, that Amnesty International called the transfer a war crime under the Geneva Convention, possibly even a crime against humanity.
But what was most disappointing is that even the US State Department got into the wrong side of the fray, claiming, "Punishing the innocent will not help Israel's security." That of course is a truism. But did Israel?s Supreme Court really permit the punishment of the innocent?
What the court actually decided was that those family members who personally assisted in the terrorist murder, may be transferred to Gaza since there is a real danger that they will participate in further terrorist activity. Oh, one more point: it would not be permitted to actually deport them, but only to transfer them within a single geographic region, from the West Bank to Gaza. (I can't wait to hear Palestinians tell us that Gaza is not part of Palestine.)
These fine points of the decision may never be noticed outside the army, which is now obligated to follow these ever-stricter guidelines. The rest of the world will conclude that Israel has adopted a policy of deportations of the innocent, sanctioned by its own Supreme Court.
But what has Shemita to do with Mount Sinai? The family members that are to be transferred are not just family members; they are human beings in their own right, with their own free will and responsibility for their own actions. As the court made clear, the temporary transfer is permitted only because they were directly involved in a terrorist act themselves, and because there is a likelihood that they will do so again. The family connection is, in this case, irrelevant. On the contrary, it seems to have hurt the army s case. If these terrorist assistants had not been members of the same family, would anyone have objected to punishing them?
Accessories to mass-murder can be jailed for life when brought to civilian courts; their prisons can be located anywhere in the country, including Gaza. A two-year transfer without even house arrest is a relatively light punishment. They have received a hero?s welcome in Gaza and will enjoy freedom of movement there. Given the crimes they were involved in, and the danger they represent, there is no reason why the army cannot impose a punishment of this sort on them.
The court concluded that the army could also take account of the possible deterrent effect of its punishments. This again creates the impression that Israel has somehow taken a new harsh step for deterrent purposes rather than for the sake of justice. However, the court has said that deterrence can only be considered in cases where the individuals have already participated in terrorist activities. It cannot stand on its own as a justification for punishment by the army. So where is the innovation?
For those who believe that deterrence does justify punishment, the decision is a complete disaster. According to this ruling the army cannot act for the sake of deterrence without strong evidence of actual participation in terrorist activities. But deterrence is one of the major purposes of armed forces; it was deterrence that prevented disaster during the Cold War; without deterrence, it is impossible to maintain the balance of forces that maintains peace in strained relations.
What exactly is the deterrent effect of Barak?s ruling? If I am not mistaken, the result is that from now on terrorists will be careful not to allow their family members to be directly involved in assisting their murder efforts. As long as they do that, terrorists are free to continue without fear that anything will happen to their families.
One potentially significant part of the decision concerned the determination that transfer of family members does in fact provide a deterrent effect and save innocent lives. This has been documented by careful army research and it ought to provide a decisive turning point in the battle against terror. Now that we know the effectiveness of punishing family members, we have a pretty reliable way to put an end to the terrible tragedy of bloodshed that has plagued our region. It is therefore all the more unfortunate that Barak has come out so clearly against deterrence.
Despite all of the above, defense lawyers were incensed. Leah Tzemel of Moked argued that even these light sentences were too heavy. She argued on principle that cases such as this should be brought directly to a court of law, and not administered by the army. She should know better. When brought to a court of law, the defendants can expect to receive the punishments that courts generally hand down in such cases. The army, however, has determined that temporarily transferring these individuals will provide a valuable deterrence to further murders. They are not interested in other punishments, however severe and deserved. They have the responsibility for protecting our citizens by determining what punishment is appropriate, and implementing it, so long as it is not done in an illegal manner. Leah Tzemel apparently wants to the army to surrender this power.
On the other hand, what was little noticed was that the court denied the army the right to temporarily transfer one of the Palestinians in question. This is Abdel Nasser Assida, the brother of Nasseradin Assida, wanted on suspicion of killing two residents of Yitzhar and organizing the ambushes near Emmanuel on December 12, 2001, in which 10 were killed and 30 wounded, and on July 16, in which nine were killed and 20 wounded. The court decided that although he knew of his brother s intentions, and gave him personal material assistance including rides in his automobile, there was not conclusive proof that he had taken part directly in a terrorist action, and therefore no possibility of punishment.
As Chaim Zissovitch of Reshet Beit radio pointed out in an interview with Leah shortly after the verdict, the decision to exempt him on the grounds that he may not have knowingly taken part in a terrorist act stands in contradiction with the famous decision regarding Margalit Har-Shefi. Readers will recall that she was convicted of not preventing the murder of former Prime Minister Yitzchak Rabin -- although the prosecution acknowledged that she did not assist in the murder or even provide shelter or material assistance to the murderer. The claim was that since she had heard him threatening to carry out the murder and failed to report him to authorities, she deserved punishment.
There are however several important differences between the two cases. Even if she did hear the assassin threatening to commit that terrible crime, Margalit had no reason to believe that he was serious: no one had ever even attempted to assassinate an Israeli Prime Minister before. Furthermore, the army had not asked for her to be punished as a deterrent to others or because she represented any real danger. So it is hard to see why a Court would have felt obligated to bend the rules against her. The present case merits greater severity on both grounds. Therefore, it is all the more surprising that the justices decided on greater leniency here.
In short, Barak has contributed to the decline of the Court?s standing in international opinion, while simultaneously contradicting his own rulings and weakening the army?s ability to stop terrorism. Some say that Barak is a brilliant tactician. This time, however, that brilliance is not easy to see.
-------------------------------------
Dr. Gabriel Danzig teaches at the Department of Classics at Bar Ilan University
danzigg@mail.biu.ac.il