The law of the peace process
This week, US Senator Arlen Specter submitted a troubling request to the US Justice Department. Specter asked that the US attorney-general request that Israel extradite convicted Hamas terrorist Hassan Salameh to stand trial in the US for the murder of three US citizens.
Salameh was one of the commanders of Hamas at the time of his arrest in 1996. He was sentenced to some 50 consecutive life terms in prison for his direct involvement in the murder by suicide bombings and shooting attacks of scores of Israelis from 1994-1996.
Given the steep sentence, why would Specter seek his extradition?
Perhaps Specter is disturbed by what has become the state of the Israeli criminal justice system since 1993. For instance, Specter may be aware of the story of Nasser Abu H'meid.
Abu H'meid is one of Fatah chief Marwan Barghouti's deputies. He was sentenced to seven consecutive life sentences plus 50 years in prison last December. Abu H'meid was charged and found guilty of seven counts of murder and more than 100 charges of attempted murder.
The thing about Abu H'meid is that in the early 1990s he was convicted of nine counts of terrorist murder and sentenced to nine consecutive life sentences, only to be released a few years later as a confidence-building measure for the PLO.
Then again, maybe Specter is aware that PLO bomber Ahmed Jbarra served but 27 years of his life sentence for the murder of 14 Israelis in the 1976. Because of his early release, Jbarra sat in prison for less than two years for every Jew he killed. Jbarra signed a form upon his release last month stating that he would not engage in hostile activities against Israel. And yet, the day he left prison he embraced PA chief and enemy of Israel Yasser Arafat, and days later accepted the position of Arafat's advisor.
Then too, maybe it isn't the justified fear that Salameh may one day go free to murder again that motivated the senator to act. Maybe he doubts that being in an Israeli prison is sufficient to neutralize the threat emanating from hardened murderers like Salameh. After all, behind the entire story of Hamas's theatrical decision to take a short break from its genocidal program against the Jewish state stands Marwan Barghouti.
Barghouti, who is currently standing trial for the murder of scores of Israelis, has orchestrated the negotiations with Hamas that are taking place simultaneously in three countries and the territories.
He sent emissaries to Lebanon to meet with Hizbullah commanders to pressure them to work out a deal for a prisoner swap together with Hamas and Islamic Jihad. The deal would include his release from prison. Barghouti's emissaries, acting at his direction, have spoken with Egyptian intelligence officials as well as Hamas leader Khaled Mashal in Syria and Egypt. The fact that Barghouti is capable of arranging and coordinating this international operation from behind bars makes a mockery of the criminal justice system in the country.
Of course, the source of the problem does not lie with the prisons or the courts. After sentencing Abu H'meid, the Jerusalem District Court justices made this point clear in publishing the following statement: "It should be pointed out that we are talking about someone who was previously sentenced to life terms and it seems that those punishments were not enough to deter him, and only by keeping him behind bars will he be prevented from carrying out criminal acts in the future."
The point was directed not at the parole board but at the government. It was the government that decided to allow Abu H'meid and thousands of other terrorists to go free over the past decade. And it is the government that, to no small extent, bears responsibility for allowing them to murder again.
Today we see that the hope engendered by the 1993 Oslo Accords and by President George W. Bush's speech last year demanding Palestinian reform proved to be baseless. Mahmoud Abbas is a terrorist, and so is his security chief, Muhammad Dahlan. Neither man has any intention of either ending terrorism or enacting reforms that would allow for political participation by Palestinians who oppose the PLO's aim to destroy Israel.
On Thursday morning, Dahlan's "security" chief in Gaza, Rashid Abu Shabak, announced that his forces are willing to take security responsibility in Gaza. But Shabak himself is wanted for murder by Israel.
In an Israel governed by the rule of law, not only would the government not be negotiating with Dahlan, Abbas, and their ilk, it would be trying them for murder and sending them to prison.
Amazingly, what we find is that far from bringing democracy and peace to Palestinian society, every move by Israel to placate the Palestinian leadership has involved the undermining of Israel as a state of laws.
The erosion of the criminal justice system's credibility in exercising its lawful power to prosecute mass murderers is only one aspect of the breakdown of Israel's legal system following its attempts to cut a deal with the PLO. Another glaring example is found in law enforcement.
On Thursday morning, the IDF began evacuating a home for troubled youth and three mobile homes belonging to their instructors at the settlement of Adei Ad.
Adei Ad, adjacent to Shilo and Shvut Rahel, is an agricultural community established five years ago. It is home to some 14 families and an agricultural yeshiva. The community is well established and sits on government-owned land. The four structures that the IDF intended to destroy have been standing for close to three years and were built with government approval. The occupants received no prior warning of the IDF's intent to expel them but were, according to Segula Melet, a resident of the community, "taken by complete surprise when the army trucks appeared this morning with the troops and the bulldozers."
In an attempt to thwart the decision to illegally expel the residents, the Council of the Jewish Communities in Judea, Samaria, and the Gaza Strip petitioned the Supreme Court. The court ordered the government to defend the IDF's move.
"Let's see what Ariel Sharon comes up with," Melet told me. "It will be interesting to see how the prime minister justifies this illegal act."
This seemingly egregious denial of due process to the residents of Adei Ad is all the more startling when contrasted with the government's refusal to contend with the rampant and systematic illegal building carried out by Beduin in the Negev. Just 10 minutes outside of Beersheba it is nearly impossible to walk 10 meters without running into another illegally constructed structure on state-owned land by Israeli Beduin.
Commenting on this state of affairs, Prof. Eliav Shochetman from the Hebrew University Law School says, "The first rule of a properly functioning state is equality before the law. The point when political considerations are allowed to influence the fairness of the law enforcement and judicial systems is the point where the law enforcement and the judicial systems begin to unravel."
On Wednesday, President Bush reiterated his firm stance that Hamas must be dismantled and not permitted simply to stand down for a short period as Abbas wishes. And yet, while a reasonable demand (given that the road map explicitly stipulates that the PA must dismantle terrorist organizations), the manner in which the president stated the case shows the moral infirmity of the entire attempt to have a peace process with terrorists.
Bush said, "Progress toward [peace]... will only be possible if all sides do all in their power to defeat the determined enemies of peace, such as Hamas and other terrorist groups."
But Hamas is not simply an enemy of "peace." Hamas is an enemy of Israel. The obfuscation of the fact that Palestinian terrorists are enemies of Israel and must be defeated by Israel is the reason that the justice system is rendered impotent in carrying out its duties.
In a normal country, there could be no question that those wishing to massacre its citizens and undermine its laws and national identity are enemies of the state. But in Israel, every time a move is made to cut a deal with the PLO, the national identity is trampled under the peace process steamroller.
Victims of war crimes are referred to as "victims of peace." Enemies of Israel are defined as "enemies of peace." Citizens are denied due process in the "interest of peace." This being the case, victims of terrorism cannot be assured of legal redress. Their murderers are granted immunity from prosecution. Why? Because of what Secretary of State Colin Powell refers to as the murderers' "high profile" in the peace process.
Advocates of the peace process often argue that there can be no justice without peace. But given Israel's experience over the past decade, it seems truer to say that peace must be predicated first and foremost on justice. Until Israel is able to mete out justice fairly and without prejudice under its laws, its enemies will continue to work towards its destruction with impunity. And no peace will be achieved.
Originally published in The Jerusalem Post.