War Has Changed, So Must Deterrence

It’s long been an open secret that Israel’s legal system is biased. It leans so far backwards to prove that Israel is a “democracy,” not a Jewish country, that it consistently rules against Jews, especially when they are religious or right-wing.

So it wasn’t surprising that the prosecution sought a sentence of four to 7.5 years for a Jew who torched the Bilingual School in Yerushalayim, which has a student body of Jews and Arabs, double the sentence given to an Arab who set fire to a shul. What was surprising— shocking, even — was that the judge in the case would have none of it.

“This cries out to the Heavens,” Yerushalayim District Judge Tzvi Segal said in his ruling last week, referring to the glaring discrepancy. What makes the prosecution’s demand even more unreasonable is that the young Jewish man found guilty of the arson had no prior criminal record and came from an extremely difficult family background that warranted leniency.

But that didn’t matter to the state prosecutor, who plans to appeal the three-year sentence.

Of course, this isn’t the only case of discrimination. The defendant’s lawyer presented numerous cases of Arabs and Jews getting vastly different sentences for the same crime. But where the discrimination really “cries out to the Heavens,” to use the judge’s terminology, is when it comes to home demolitions.

When, for instance, a number of buildings in the Ulpana neighborhood of Beit El were found to have been built on privately owned Arab land, they were destroyed. Five apartment buildings — home to 33 young bnei Torah families — were demolished, and for what? The land on which the buildings were built is inside the fenced-in area of Beit El and will never be used by its Arab owners.

The most logical solution would have been to arrange payment to the owners so that they and the Jewish families would benefit, but since selling land to Jews is a crime punishable by death among the Arabs, the owners wouldn’t consider it.

On the other hand, Mark Ismailoff, a South African-born resident of Har Nof, is unable to get Bedouins off his land in the Negev. Adding insult to injury, the government of Israel was an accomplice to the crime by building a school for the Bedouins on the land, bought by Ismailoff’s grandfather in 1935 and duly registered in the land registry.

The same court that had no problem knocking down five apartment buildings to preserve the integrity of Arab ownership of land drags its feet when it comes to protecting Jewish rights.

These days, with the stabbing intifada entering its third month and having claimed more than 20 lives, the court’s inexcusable discrimination is more than infuriating. It’s life-threatening.

The High Court ruled last week that the security forces could not demolish the home of Nur al-Din Abu Hashiya, the terrorist who last November stabbed to death IDF Sgt. Almog Shiloni at a train station in Tel Aviv, because “too much time has passed.” It argued that the 11-month delay would negate the deterrent effect of such a move.

To be sure, shortening the time between the crime and the punishment does enhance deterrence, but letting the terrorist off on a technicality most assuredly does the opposite. It makes a joke of deterrence.

If every potential “lone” terrorist knows that his deed will not only cost him his life, but his family’s home, that would most certainly make him think 100 times before setting out on a murderous rampage. He may decide that his life is worth giving up to acquire “martyr” status, but the thought of his family being homeless is another thing. (Raed Musalma, the terrorist who murdered Aharon Yisayev, 32, and Aviram Reuven, 51, Hy”d, at a Minchah in Tel Aviv on Nov. 19, told police, “I came to kill Jews, I want to be a martyr.” But he apologized and made it clear that he didn’t want his family’s home demolished.)

The nature of war and peace is changing, and so are the rules of deterrence. During the Cold War, the superpowers build up vast nuclear arsenals that guaranteed mutually assured destruction (MAD) as a means of deterrence. Today, when wars pit large, well-equipped armies against terror groups, and civilians are on the front lines, new means of deterrence are needed.

Democracies around the world are beginning to recognize that the law must not be turned into a shield that protects the rights of terrorists at the expense of the lives of their victims. Israel, which unfortunately has the most experience in fighting terrorism, must have courts that put Jewish lives first. In approving measures that increase deterrence, the courts serve Israel not only as a Jewish state, but as a democracy.