04 August 2015
Perpetually threatened countries that don’t hang terrorists but are able to keep themselves secure, like Israel and the US, are able to do so because they carry out targeted assasinations instead. India’s anti-death penalty lobby should keep this in mind
Whatever the merits or demerits of 1993 Mumbai bombing convict Yakub Memon’s hanging, the one undeniable victim in the hullabaloo has been a fact-based approach to policy — confusing and conflating just about everything under the sun, other than the horticultural merits of growing mangoes, to the hanging.
One example of this appeared on this writer’s Twitter feed, demanding a more muscular ‘Israeli-style’ policy on everything from hostages to executions to targeted killings. What is curious about this is that Israel, in fact, exemplifies the many shortcomings of ‘muscularity’ and how legality is in fact an extension of ground-based facts rather than some esoteric morality.
For starters, Israel buys the ‘death penalty is not a deterrent’ argument lock stock and barrel. This is a factual case — because it is the fear, the surety of being caught rather than the punishment that follows, that deters. At the same time, while it is equally factual that study after study shows that death penalty does not deter, an application of the same methodology would also prove that punishments as a rule do not deter. This begs the question: Why have jails, fines or punishments of any sort?
This is the reality, though much like any polarised debate, the two parties will stick to dogma and refuse to accept that the truth lies somewhere in between. The reality is that the severity of the punishment adds significantly to the deterrent value to some kinds of crime, in much the same way that the threat of nuclear weapons usage deters certain but not all kinds of aggression.
It is precisely because both India and Israel have nuclear weapons that they have become the victims of, what it has become fashionable to call, severe ‘sub-conventional’ aggression, which is just jargon for good old fashioned terrorism. But this is where the similarities end.
Israel long ago decided that it would chose one side of the capital punishment debate — morality — and for all practical purposes effectively did away with the death penalty. The last time the death sentence was applied was in 1962 when notorious Nazi perpetrator Adolf Eichmann was executed. The reasons are complex. On one hand, Israel has an excellent investigative, forensic and judicial system with an excellent rate of solving crimes — a key constituent to the argument that “it is the fear of getting caught” that deters crime. Equally Israel’s self image as that of a moral and just state meant that it adopted the position that the state was an aspirational being that should set high standards — specifically not engage in murder.
This was an era when Israel faced significant conventional threats. The 1967 war and the 1973 Yom Kippur War were far more serious than the terrorist threats it faced at that time, and the rules of those conventional wars were as clear as night and day. But by the 1980s, Israel’s Arab neighbours, having accepted their conventional inferiority as fait accompli, came to much the same conclusion that the Pakistanis did vis-à-vis India at about the same time — that sub-conventional warfare, or terrorism, will succeed where tanks had failed.
From this point on, it took close to 20 years when ground reality, legality and technology intersected to necessitate the policy of targeted killings in a significantly ramped-up way. In many ways it is precisely because of Israel’s refusal to execute prisoners, and the propensity of Arab terrorist organisations to take Israelis captive to ransom these prisoners out, that Israel moved to targeted killings.
In the mid 1970s and 1980s, these killings were carried out by assassins; by 2000s, this was being done by drones. It is important to remember that most European Governments either actively colluded with Israel in assassinations on their soil or turned a blind eye to these. And yes, this was also an era in which most European Governments themselves carried out the death penalty.
Israel’s adoption of the no death penalty stance also carried, and continues to carry, a heavy price. Till date, Israel has had to release over 7,000 dangerous prisoners in return for the lives or remains of less than 25 Israelis — who had been captured for the specific purpose of ransoming. And the numbers have steadily escalated. In 2004, Israel had to hand over 430 hardened terrorists in return for the bodies of three Israeli soldiers; in 2011, it had to release 1,027 prisoners in exchange for the life of one soldier — Gilad Shalit.
This has meant that Israel has switched to the ‘Hannibal directive’, effectively allowing its soldiers to kill one of their own who has been captured and is in the process of egress. This has also meant that Israel’s cost benefit calculus has shifted decisively to targeted killings, as the costs of an excellent justice system are strategically and tactically unsustainable.
The US, another prime target of terrorism, has also since moved in this direction. The US retains the death penalty but its targeted killings are carried out under the legal rubric of both imminent threat and the impossibility or high expense of capturing a said target alive. Curiously enough, European protestations on targeted killings are minimal. While Europe is not a major target of terrorism, it silently acquiesces in and frequently provides targeting information for these killings.
What then are the lessons for India here? The lessons are both for the Government and those who have taken a moral — as opposed to operational — position on the hanging of Yakub Memon. First, is that the death penalty certainly can’t deter acts of religious terrorism emanating from Pakistan. On the other hand it also presents the anti-death penalty lobby with a harsh reality that it chooses to ignore — that while justice system reforms in India are critical, they will not in any way deter terrorism of the 26/11 kind.
The lack of a single major terrorist episode in Israel and the US, since they made targeted killings their weapon of choice, means that the anti-death penalty activists will also have to become pro-targeted killings, if they are to prove their arguments are fact-based and not based on morality.
(The writer is Programme Coordinator, National Security Programme, at the Observer Research Foundation, Delhi)
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