Photo: Hagai Nativ
Martin Sherman
Photo: Hagai Nativ

Land, law and death

Martin Sherman analyzes MK Eldad’s call to enforce death penalty over territorial concession

The recent furor over MK Eldad’s call to enforce the death penalty against politicians promoting territorial concessions has given the above clause stark relevance and ignited fierce public debate - fueled mainly by ignorance. Thus an orderly debate of the matter seems both urgent and appropriate


The existing Israeli Penal Code - 1977, Article 97(b) explicitly states:


A person who, with intent that any area be withdrawn from the sovereignty of the State or placed under the sovereignty of a foreign state, commits an act calculated to bring this about, is liable to life imprisonment or the death penalty.


Regarding the severity of the penalty prescribed, it ought to be pointed out that Article 96 sets forth the following limitation:


Notwithstanding the provisions of this Chapter (State Security, Foreign Policy, and Official Secret—MS) the Courts will not impose the death penalty unless the offence is committed in a period in which military actions are being conducted by Israel or against it.


Clearly even without the recent official declaration of Gaza as a "hostile entity," it is difficult to see how the current period cannot be considered as anything else but one "in which military actions are being conducted by Israel or against it."


Another aspect of the severity of the penalty prescribed in article 97 is reflected in Article 98 (Causing War) which states:


A person who, with intent to bring about military action against Israel, commits an act to bring this about is liable to fifteen years imprisonment; if he intends to aid and abet the enemy he is liable to the death penalty or life imprisonment.


From this, two things emerge. The first is that Israeli law considers the bringing of war upon the country a lesser offence than an attempt to remove territory from its sovereignty - since it carries a far lighter sentence. The second is that in the eyes of the prevailing law in Israel, the removal of territory from Israeli sovereignty is equivalent - at least in terms of the severity of the prescribed penalty - to aiding and abetting the enemy.


At this point it is difficult to avoid broaching several disturbing questions, for it would seem that almost all Israeli governments (or at least numerous ministers and prime ministers who served in them) since the 1977 Camp David Agreements - and certainly during the last decade and a half since Oslo - have grossly violated article 97(b) of the Penal Code…and are thus liable for the penalties prescribed therein.


Clearly, given today's political realities, no one realistically expects the wholesale execution of government ministers - past or present. Yet the failure of the Israeli legal establishment to activate - or alternatively, to eliminate - such a grave and far-reaching clause raises serious doubts as to the criteria that guide the conduct of the affairs of the nation and in particular the equitable dispensation of justice.

In this regard it should be pointed out that since its enactment in 1977, the Israeli Penal code has been continuously updated - including during Olmert's incumbency - yet there has be no attempt to remove, or modify, Article 97.


Of course, one could try to explain away some of the inaction by more abstruse legal interpretations. One could, for example, claim that the legislative intent was to include only areas over which Israel officially claimed sovereignty. But what about the Golan and east Jerusalem – areas over which Israel has effectively extended its sovereignty? Should not those who purposefully act to remove these areas from Israeli sovereignty or place them under the sovereignty of a foreign state be considered in violation of the law? And if not, why not?


Some, like Ariana Melamed, in her recent article "Words can kill" invoke Article 94 which translates roughly into the following:


"An act will not be considered a violation according to this article if it reflects an act of good faith or if it is committed in good faith with the intention to bring about, in ways that are not illegal, changes in the mode of operation of the state or any one of its organs, of a foreign state or one of its organs, or any institution or organization of states"


However in interpreting Article 94 it must be noted it refers to other articles such as:

Aiding and abetting the enemy in war(99); Intention to commit treason (100); Serving in forces of the enemy (101); Helping enemy prisoners of war escape (102) ; Dissemination of subversive propaganda (103).


This of course raises some intriguing questions:


1. How is one to reconcile "good faith" with acts of aiding and abetting the enemy in war; intending to commit treason; serving in enemy forces…? What does this entail for the validity of Article 94, its interpretation and scope?


2. While the legality of certain unspecified acts in the context of these articles may be debated, the act of "removing land from Israeli sovereignty" is a specified action which has been designated illegal and carrying the heaviest of penalties. How then can any act of this kind be considered falling under the provisions of Article 94 as being "not illegal"?


3. Surely the existence of "good faith" should be required to be demonstrated in court - unless any act in contravention of Article 97 is to be considered "in good faith"? And even if one might have assumed "good faith" in the heady days of the early ‘90s, how can one assume it today after decade-and-a-half of disastrous failure of the policy of transfer of land to non-Israeli control. Surely at some stage "good faith becomes "bad judgment"?


One could also raise the possibility that the legislative intent was to preclude official government organs and personnel from the prohibitions prescribed in article 97(b). But even if we embrace this improbable position, thorny problems persist. For if this was the original intent, why was it not explicitly specified? Moreover, why was/is the law not enforced against those individuals who were not part of the governmental apparatus and overtly acted to foster transfer territory from undisputed Israeli sovereignty to that of an alien entity?


It was only in 1999 the Administration and Law Arrangements Law passed in which appears to specify conditions under which the government can withdraw sovereignty from territories where it previously prevailed (an absolute majority in the Knesset and a referendum - once the Basic Law specifying the conditions for the conduct of referendum, is passed.)


However, even if the later law is seen as taking precedence, this still leaves open the question of the status of those individuals and organizations (government and non-government) that acted to transfer territory to foreign sovereignty prior to 1999, and of that non-government ones who did so after 1999.


These are questions that cannot be left unanswered. For if the legal establishment genuinely wishes to address and curb the growing erosion in the public trust and confidence it enjoys, it must act vigorously to narrow the growing gap between its own code of conduct and the prevailing public perceptions of common sense and precepts of elemental natural justice.


פרסום ראשון: 06.02.08, 01:41
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