Capital punishment for capital crimes

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Six years ago last week, a bomb went off in the Frank Sinatra Cafeteria at Hebrew University's Mt. Scopus campus. Seven students were murdered. The attack was the work of a Hamas cell from the Jerusalem neighborhood of Silwan.

The Silwan cell was one of the most prolific and murderous cells Israel has seen. In addition to the massacre at Hebrew University, its four members carried out the massacre at Moment Café in Jerusalem in which 12 were murdered; the Sheffield billiards club bombing in Rishon Lezion, which left 16 dead; and the bombing of railroad tracks in Lod. The cell's most horrendous attack, however, is generally downplayed.

In May 2002, the group planted a bomb in a fuel tanker and detonated it as the tanker stood on line to refuel at the Pi Glilot fuel depot. Miraculously, the cell had attached their bomb to a diesel tanker. Since diesel fuel is not as flammable as regular gasoline, the blast was insufficiently strong to blow up the fuel depot as they had planned. Had they managed to attach their bomb to a gasoline tanker, the blast would likely have resulted in a fireball that could have killed thousands.

Pi Glilot fuel depot is located in one of the most densely populated areas of the country. It is adjacent to North Tel Aviv, Ramat Hasharon and the Glilot junction which, when the bomb went off, was filled with bumper-to-bumper traffic. Given the magnitude of its foreseeable and sought for carnage, the attack on Pi Glilot constituted an act of genocide.

For their activities, three members of the cell were convicted of 35 counts of murder and several counts of attempted murder (210 people were wounded in their attacks). They received 35 consecutive life sentences and additional decades for their non-lethal attacks. The fourth member was convicted of assisting murder and was sentenced to 60 years in prison.

THE CRIMES of the Silwan cell bear recalling today as the lame duck Olmert-Livni-Barak government continues its negotiations with Hamas toward the release of IDF Sgt. Gilad Schalit, whom the terror regime and its terror partners have held hostage since June 2006. Hamas is demanding that in a three-stage swap, Israel release a thousand terrorists for Schalit. Hamas has made clear that it demands senior terrorists and convicted murderers including  Fatah terror master Marwan Barghouti, PFLP commander Ahmed Sa'adat and an unknown number of additional murderers.

In late June, Prime Minister Ehud Olmert's hostage negotiator Ofer Dekel provided Hamas the names of 450 terrorists that Israel is willing to release in the first stage of the deal. Although their identities were not revealed to the public, it can be assumed that among them are convicted murderers. Olmert recently told the government that Israel will have to redefine what it means by terrorists "with blood on their hands" in order to relax the criteria for releasing murderers and attempted murderers in exchange for Schalit. Moreover, several ministers are actively lobbying for Barghouti's release.

To date, no one has publicly raised the prospect of releasing murderers like the Silwan cell members. But this is no cause for relief. Even if they are not released in a deal to free Schalit, there is no reason to assume that they will die in prison.

In 2004, Israel refused to release baby-murdering Samir Kuntar in exchange for the bodies of soldiers Adi Avitan, Benny Avraham and Omar Sawayid, and for drug dealer and Hizbullah agent Elhanan Tannenbaum. Instead, Israel released Hizbullah commanders Mustafa Dirani and Abdul Karim Obeid – men who were supposed to only be released in exchange for IAF navigator Ron Arad who was kidnapped in 1986. Once Dirani and Obeid were released, Israel had no one left except Kuntar to release in exchange for the mutilated corpses of IDF reservists Eldad Regev and Ehud Goldwasser last month. So too, if Israel releases a thousand mid-level terrorist murderers as well as Barghouti and Sa'adat for Schalit, it will have set the stage for the release of mass murderers in the next go-round.

ALL OF this raises the issue that polite Israeli society insists on sweeping under the rug: Israel's repeated willingness to release terrorists for live and dead hostages makes clear the need to implement the death penalty against terrorist murderers.

The criminal code permits the death penalty to be used in cases of treason, murder, crimes against humanity, genocide and crimes against the Jewish people. The problem is not the laws on the books; the problem is the state prosecution's refusal to use them. Regardless of the nature of their crimes, the State Attorney's Office refuses to request that judges sentence terrorists to death.

After the members of the Silwan cell were arrested in the fall of 2002 and the enormity of their crimes was made known, there was a relatively concerted public campaign to lobby then attorney-general and current Supreme Court Justice Elyakim Rubinstein to request the death penalty for the cell members. But he never considered it.

The fact that another irresponsible government would be liable to one day release them in exchange for hostages seems not to have bothered him. Then, too, Rubinstein seems not to have been bothered by the fact that these men, and thousands like them continue to constitute a grave danger. In prison they are free to plot and order the carrying out of still more attacks. Several murderous attacks have been ordered by prisoners who communicate their orders through their lawyers, their family members and even on the telephone. Moreover, while in prison they are free to draft their fellow prisoners into their genocidal ranks. Since many of these fellow prisoners were convicted of lesser crimes, they will be released to kill still more Israelis after being radicalized in prison by the likes of the Silwan gang.

IT IS not surprising that none of these facts played into Rubinstein's calculations when he opted not to ask the judges to sentence the Silwan gang to death. Quite simply, the rarified intellectual and moral universe that he, his successor Menahem Mazuz and their fellow prosecutors inhabit is not the intellectual and moral universe that most Israelis live in. The prosecutors live in a world in which morality is an abstract issue, best adjudicated by professors, judges and themselves in the name of enlightened humanism.

The country's professoriate, which enjoys an intimate relationship with its legal fraternity, long ago dropped any semblance of propriety in its enthusiastic embrace of anti-Zionist causes. Their top-to-bottom moral derangement was clearly on display last week when a day before the sixth anniversary of the Hebrew University massacre, the university's president, Menahem Magidor, joined his fellow university presidents in signing a letter to Defense Minister Ehud Barak demanding that the Defense Ministry stop barring Palestinian students who constitute security risks from studying in Israeli universities.

The university presidents wrote the letter in support of a petition to the High Court of Justice by the anti-Zionist NGO Gisha which is demanding the court bar the security services from preventing Palestinian students from studying in Israeli universities or prevent them from studying subjects like nuclear physics that could facilitate the pan-Islamic war effort against the Jewish state. Gisha's petition was signed by some 450 senior and junior faculty members from all Israeli universities.

Ironically, the university presidents issued their missive 10 days after the Shin Beit (Israel Security Agency) announced it had arrested six Israeli Arabs suspected of membership in al-Qaida. Two of them were students at Hebrew University. One of the students is accused of planning to assassinate US President George W. Bush by downing his helicopter during his visit in May.

In light of the legal and intellectual elites' pathological refusal to recognize the murderous character of Palestinian terrorists and Isra
el's duty to defend its citizens from murder, it would make sense for the Knesset to circumscribe their authority to adjudicate morality from the bench and the lectern. The Knesset could amend the criminal code to require the death penalty in cases of terrorist murder.

Unfortunately, such an effort by the Knesset would likely not suffice to force their hand. Either the prosecutors would indict the terrorists on lesser charges or the judges would declare the amendments unconstitutional, or both.

The Supreme Court's refusal to simply acknowledge Israel's duty to defend its citizens was made clear by its handling of the anti-Zionist Left's 2001 petition to bar the IDF from conducting targeted killings of terrorists. Although the measure is perfectly legal, the court took five and a half years to issue its ruling that the IDF is in fact legally entitled by customary international law to target terrorists. Why there was even a question that the IDF has the right to target illegal combatants engaged in an illegal terror war is unclear. Yet even in its self-evident ruling, the Court invented limitations on the tactic to demonstrate its concern for the well-being of terrorist mass-murderers.

The recidivism rates of terrorists released in hostage swaps alone make clear that hostages-for-terrorists swaps endanger Israeli citizens. And in light of the moral depravity of our intellectual and legal elites, it is clear that legislative action alone cannot remedy the current situation in which even the most monstrous terrorists can safely assume that they will one day be released. The public must involve itself in the issue.

THE FIRST step in a campaign calling for a mandatory death penalty for terrorist murderers would be to conduct a poll on the issue. To date, no major polling institution has conducted a poll of public opinion on the death penalty.

Beyond that, student activists should band together to oppose their professors' call for the Defense Ministry to stop conducting security checks of potential students. A new student organization, "Im Tirtzu," was formed last year to combat the anti-Zionist claptrap disguised as academic research being propagated by their professors. It is already organizing such a campaign and its efforts should be supported.

Finally, the public must make clear, through demonstrations and e-mail campaigns to political leaders and to the mass media, that it demands both an end to the hostages for terrorists swaps and the death penalty for convicted terrorist murderers. It is now, as our politicians gear up for elections, that they are most prone to listen to us.

It is hard for private citizens to take a public stand. But between our governmental instability, the weakness of our political leaders and the perfidy of our elites, it has fallen to us to make our demand for security and responsible leadership clear. Until we can be certain that murderers like Kuntar and the Silwan gang will never harm us again, we will not be able to sleep soundly in our beds.

Originally published in The Jerusalem Post.

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