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Israeli party ponders capital punishment bill to prevent another prisoner swap

An Israeli air force helicopter, part of an air convoy carrying Israeli soldier Gilad Shalit, arrives at Tel Nof air base in central Israel October 18, 2011. Shalit returned home to a national outpouring of joy on Tuesday after five years in captivity as hundreds of Palestinian prisoners exchanged for him were greeted with kisses from Hamas leaders in the Gaza Strip.

ERIC GAILLARD/REUTERS/ERIC GAILLARD/REUTERS

The recent prisoner swap that saw Israel release several hundred Palestinian prisoners in exchange for the release of Israeli soldier Gilad Shalit brought joy to many Israelis, but consternation to many others.

How could prisoners be released who had "blood on their hands" they demanded, referring to the fact that a large proportion of the Palestinians freed were serving life sentences (some of them multiple life sentences) for their role in terror attacks that killed Israeli civilians.

Since the exchange, several efforts have been mounted to try to ensure that such releases never take place again. One effort involves an attempt to draft a set of rules by which any future Israeli government must operate in the event an Israeli citizen is held hostage.

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Another effort has been taken by the Israel Defence Forces (IDF) to try to ensure that no Israeli soldier is ever taken prisoner. The new directive is to the effect that Israeli soldiers must fire upon any enemy forces attempting to abduct a fellow Israeli soldier, even if such fire jeopardizes the life of the soldier being taken captive.

This week, Shas, one of the parties in the governing coalition announced it would put forward another formula for ensuring no prisoners with blood on their hands are ever released – a bill to be introduced in the Knesset that would impose a death penalty on terrorists who seek to destroy the state of Israel.

Not since 1962, when former Nazi officer Adolf Eichmann was executed for his role in the mass extermination of Jews in Europe, has capital punishment been carried out in Israel. Indeed the action is not one of the legal punishments set out in almost all criminal statutes administered by civil authorities.

Such a bill as Shas has championed has a few problems to overcome, not the least of which is the fact that most Palestinians in Israeli prisons have been convicted by military courts. While Israel's civil justice system is internationally praised for its independence, impartiality and the quality of the judiciary, the same cannot be said of the country's military courts (nor almost any country's military courts).

Capital punishment, still permitted in certain military court cases, has only been carried out once, in 1948, in the early days of the state.

By its very nature, a military court operating in occupied territory and trying civilians from the occupied population is hardly independent or impartial. The officers of the court are also uniformed military officers in an armed force that largely views the prisoners as the enemy.

Until 2004, when legal minimums were introduced, many of those sitting in judgment even in trials of capital offences need not have had legal training.

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Not surprisingly perhaps, Israeli studies have shown that in some recent years more than 99 per cent of the accused have been convicted.

The practice of military courts trying civilians (as opposed to trying its own soldiers accused of breaching military laws) is widely discredited in international legal circles, and neither Israeli society, nor the international community would tolerate a situation where such a court system meted out the death penalty.

This would mean that, if the Shas or a similar bill is passed into law, a large number of the hundreds of serious Palestinian cases would have to be tried in Israeli civilian courts where processes would take far longer than the often brief, summary-style justice of the military courts. It might also result in a far lower rate of conviction.

That alone would probably guarantee that a bill introducing new terms for capital punishment will not be passed.

It is noteworthy that it is Shas that is bringing a capital-punishment proposal forward. Created in the 1980s, Shas is an ultra-Orthodox religious party that represents mostly Sephardi Jews, those descended from Jewish communities of the Middle East and North Africa, as opposed to Northern Europe.

Capital punishment is widely condemned in Jewish religious circles and Shas is breaking from that religious position, not an insignificant matter.

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It's also worth noting what happened in that early Israeli military case of capital punishment.

An Israeli officer named Meir Tobianski was charged with treason for allegedly having passed information to Jordanian forces that allowed their artillery to hit sensitive targets during Israel's War of Independence. Capt.Tobianski was tried by a makeshift military court in June 1948, found guilty based on evidence provided by the fledgling state's head of military intelligence, and executed by firing squad.

A year later, an investigation determined that Capt. Tobianski had not been guilty. He was posthumously acquitted of all charges.

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