AG Gali Baharav-Miara issued an opinion to the Government stating that the bill pushing the death penalty for terrorists, to be voted on this Sunday at the Ministerial Legislative Committee, must be opposed, among other things because “the death penalty is not a deterrent and we fear a punishment that is essentially irreversible.”
She gets it! Once the state executes a terrorist murderer, it can’t use it in, say, massive prisoner exchange.
But wait, there’s more, so much more. “The position of the Attorney General is that the bill does not meet constitutional tests,” Baharav-Miara added. “Our professional position is that the death penalty should not be established for the crime of murder.”
Baharav-Miara is wrong. Basic Law: Human Dignity and Liberty has nothing to say about murder or terrorism. It limits the ability of the government to interfere with individuals’ human rights – but certainly not the human rights of those who commit murder.
It opens: “The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.” It then states: “There shall be no violation of the life, body or dignity of any person as such,” and “All persons are entitled to protection of their life, body, and dignity.”
However, clause five declares: “There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise.” This means that the individual envisioned by the four clauses above cannot possibly be a criminal or a terrorist, since the state is empowered to imprison, arrest, and extradite criminals.
One of the reasons Baharav-Miara was rejected by retired Supreme Court President Asher Grunis, who was chairman of the search committee that looked to replace outgoing AG Avichai Mandelblit, was her complete lack of criminal law experience. He wrote: “It’s like appointing a lieutenant colonel to be the Chief of Staff. She doesn’t have the professional training for the job.” She was pushed up anyway by then-Justice Minister Gideon Sa’ar for reasons that are becoming clear these days: she still appears to be working for the Lapid government that pulled her out of complete anonymity.
In Jewish law, only one offense cannot be paid for with compensation or lashes – malicious murder. If Reuben works as an executor for the Sicilian mafia, and Shimon’s body is found in Reuben’s trunk and two kosher witnesses testify that Reuben murdered Shimon with premeditation, the only punishment the Sanhedrin will hand him in such a case is death. There are no shticks here – whoever murdered on purpose has no remedy except execution. This is not the case with an accidental murderer, the punishment for which is exile.
In my opinion, a justice system in which the death penalty exists at least potentially serves as a healthier basis for society, because the death penalty expresses our society’s statement about the value we place on life. A society that bargains with the murderer over how many years he will serve as punishment for brutally taking the life of his neighbor, and after a few years of good behavior sets him free, is a society that will inevitably suffer the devaluing of human life in it.
Deterrence doesn’t even come into it. If we were to evaluate, say the laws against tax evasion, according to how many people have stopped cheating on their taxes, we’d have to eliminate them. The intent of the Basic Law: Human Dignity and Liberty is not to increase or decrease crime but rather to limit the capacity of government to oppress normative individuals, including when they are suspected of a crime. But once those individuals have been convicted, they are no longer entitled to most of the freedoms the basic law guarantees.
And that’s what Justice Grunis meant when he said Gali Baharav-Miara was not qualified.
