As I write this, Israel is again engaged in defensive military operations in a renewed attempt to dismantle terrorist infrastructure in the Palestinian territories. This latest chapter in the vast novel of the Israeli/Palestinian conflict began with the kidnapping and murder of three young Israeli civilians by alleged Hamas terrorists. It spiralled further out of control when a gang of Israeli youth reacted to the murders by perpetrating their own barbaric vengeance against an innocent Palestinian teen who was kidnapped and burned to death. Although the suspects in the murder of the Palestinian were quickly arrested and charged by Israeli authorities, the depravity of their actions was more than sufficient to ignite the tinderbox as Hamas terrorists began raining hundreds of rockets from Gaza onto Israeli civilians.
The initial kidnapping of the Israeli teens was believed to be a botched Hamas operation. The working plan according to media reports had been to capture the youths alive and hold them for ransom to secure the release of Palestinian terrorists serving sentence in Israeli jails. This model has proven viciously effective in the past with Israel trading 1027 convicted prisoners for the safe return of a single captured solider (Gilad Shalit) in 2011. Despite Israel’s stated policy to ‘never negotiate with terrorists’, the past has seen the freeing of terrorist prisoners for the return of mere burial bodies in some circumstances. Although the human urge to take any and all steps to save even a single life is the hallmark of Israel’s compassionate democracy, it is plain to see that the willingness to engage in such trades only enhances the market for future terrorist kidnappings. It is in this context – with the rockets still falling in Tel Aviv, Jerusalem, and elsewhere – that I turn to formulating a legal deterrent to terrorism.
For many years, I have been a consistent opponent to the use of a state-sanctioned death penalty. My opposition to the measure has not been grounded in inherent moral disapproval but is instead rooted in a combination of two factors: a utilitarian concern over wrongful convictions, and a practical objection to the use of a measure that has shown no ability to effect general deterrence. But what if these twin concerns could be minimized or eliminated? Is there a place for a self-confessed defence lawyer to support the death penalty?
If there is, surely terrorism is that place.
While no criminal investigation can ever be said to provide certainty of truth, the enormous cost and care that typically go along with terrorism investigations offers a limited but important safeguard against wrongful conviction. To be sure, forensic science (even the ubiquity of DNA) is not foolproof while the political and public dimensions of a terrorism trial can challenge a democracy’s ability to ensure a fair trial. Democracies with entrenched proof-beyond-a-reasonable-doubt burdens and robust appellate provisions provide some measure of comfort that a capital conviction is a safe and reliable conviction. However, the Canadian legal scene is littered with examples of wrongful convictions in homicide cases despite the presence of meticulous investigation, a high burden of proof, and appellate safeguards. Thus, my utilitarian concern that democratic legal systems could still execute a wrongfully convicted accused remains uncomfortably live. In the absence of a practical benefit to capital punishment, the risks – however small – of a wrongful conviction tip the balance against the ultimate penalty.
The discussion must therefore focus on whether the death penalty can, in some circumstances, create a credible deterrent. Countless comparative studies have been done demonstrating that capital punishment has no discernible effect on general deterrence in conventional criminal cases. If my proposal were merely to introduce capital punishment as an available penalty for certain terrorism offences, I see no credible reason to believe future terrorists would suddenly give up their craft. What I propose instead is the use of deferred capital punishment to deter future terrorist acts by members of the convicted terrorist’s criminal organization.
Deferred Capital Punishment (DCP) would operate initially as any other criminal terrorism trial. An accused is arrested, charged, tried and convicted for an enumerated terrorism offence. Much like the example in many American states, the trial would then turn to a penalty phase where prosecutors would have to convince a Judge to impose the death penalty. If granted, rather than proceeding through the stages of ‘death row’ in the United States, the prisoner would be placed on a list marked for DCP. The death sentence would be automatically suspended substituting a term of life imprisonment but the suspension could be lifted if the DCP criteria were met. In the event of a future terrorist act perpetrated by the same or related terrorist group, a new hearing would be held on an expedited basis. If the prosecution can prove the commission of an enumerated terrorism offence by the same or related terrorist group as the original prisoner, the death sentence suspension is lifted and the original sentence of capital punishment is imposed. It is not vengeance being visited due to the actions of a third party but rather compassion being reversed – the death penalty having been imposed, but deferred, in relation to the original crime.
As with many laws, there are challenges to creating a clear and unambiguous statute that can remain effective while minimizing the potential for abuse and misuse. Perhaps the most obvious challenge lies in limiting DCP to terrorist acts performed by the same or related terrorist group. Effective deterrence is lost if a Hamas prisoner is made to pay the price for the future actions of some European neo-Nazi but there is a cogent argument to be made that the fraternity of terror extends between such like-minded groups as Hamas, Islamic Jihad, and the Al Aqsa Martyrs Brigade (to name but a few).
The message is clear and unequivocal. Future terrorist activities will result not (only) in the possible death of the perpetrators (at the hands of responsive military action) but the new terrorists will have been the direct proximate cause of the death of a ‘colleague’ in their ‘struggle’. Detonate a bomb in a mall? A convicted terrorist is executed. Shoot commuters on a public roadway? A convicted terrorist is executed. Fire a rocket at a kindergarten? A convicted terrorist is executed. DCP works by tying murderous action directly to a fatal reaction.
Some might question the efficacy of a capital deterrent against those with a demonstrated willingness to self-detonate in the name of a cause. And yet, terrorist organizations seem peculiarly bent on securing the release of their captured suicidal charges going to great lengths to negotiate the release of thousands of convicted terrorists serving sentences in jails. It stands to reason that while the individual terrorist himself is committed to a suicidal mission, once captured, his handlers and confrères would far prefer to win back his freedom than become the inadvertent agents of his lawful execution. Moreover, it sends a very different message to the original militant contemplating terrorist action. Rather than having a reasonable expectation of a jail sentence shortened by some future prisoner swap, he now faces the very real possibility of a death sentence the next time his co-conspirators engage in terrorism.
DCP not only has the capacity to act as credible deterrent against future terrorist attacks, it also has the potential to save lives on both sides of the conflict. The tit-for-tat dance of terrorism and counter-terrorism has become disturbingly well-known in the Middle East. A terrorist blows himself up at a night club and the IDF (Israel Defence Forces) launches an air-strike or ground offensive on suspected terror cells in Palestinian territories. These strikes – as ‘surgical’ as they may be – frequently cause collateral deaths to unintended Palestinian targets (this is particularly true in light of a deliberate policy by Hamas and other terrorists to embed their fighters and rockets into civilian institutions such as schools, mosques and hospitals). In an effort to minimize collateral damage, the IDF will deploy infantry units putting soldiers at grave risk. The only target of a DCP sentence is the previously convicted terrorist – someone for whom a death penalty has already been determined appropriate by a court of law at the conclusion of a fair trial and the expiry of all appeals. It is the ultimate surgical strike with no chance of collateral harm to soldiers or civilians.
Like pieces of legislation in other jurisdictions which are responsive to terrorism threats, a sunset clause should be added to ensure sober review five years down the line. At that time it would be incumbent on the Israeli government to adduce evidence demonstrating the efficacy of the law. Has a credible link been established between the use of deferred capital punishment and the deterrence of future terrorist acts? If the impact appears to be neutral (or even negative if a correlation is found between increased terrorist activities in response to executions) the primary benefit of the law would have been eliminated undermining the very foundation of its existence.
Can DCP change the tragically clichéd ‘cycle of violence’ that washes over Israel with disturbing regularity? A problem so intractable is not responsive to any ‘quick fix’ but there is reason for optimism and rationale for legal experimentation. Terrorism is unique among crimes. It is not fuelled by greed, drugs, alcohol or mental illness. Its fuel is calculated ideology and premeditated politics. The legal fight against terrorism therefore calls for a different tactic; a different deterrent. Perhaps DCP is part of the solution.