Civil Fights: On Hamas, Israel should practice what it preaches

For years, Israel has urged the European Union to stop distinguishing between the political and military wings of terrorist organizations, arguing that the two are inseparable. Thus it comes as a shock to realize that our own legal system makes this same distinction. Yet that is the inescapable conclusion from the case of the Hamas politicians who were arrested following Gilad Schalit’s abduction.

The politicians – more than 20 Hamas members of parliament plus eight cabinet ministers – were seized in the West Bank a few days after Hamas kidnapped Schalit in June 2006. The unstated but widely recognized purpose was to use them as bargaining chips for his release.

However, it turns out that Israel has no law enabling members of Hamas’ political wing to be held until the end of hostilities: The Law for the Imprisonment of Illegal Combatants, which was enacted precisely to enable terrorists to be held in this fashion, applies only to the military wing.

Granted, even this law is largely a dead letter, since it enables terrorists to be held only if their “release would undermine national security,” and the Supreme Court has interpreted this phrase very narrowly. Nevertheless, the court has occasionally upheld the state’s right to keep high-level detainees as bargaining chips for its missing soldiers.

In this case, however, Israel could not even make the attempt, because the law applies only to actual combatants, meaning members of the military wing. Therefore, the arrested politicians were instead prosecuted as ordinary criminals.

Yet this effort, too, was stymied by the legal system’s distinction between the political and military wings: It turns out that members of the political wing cannot be held legally responsible for the military wing’s activities unless there is evidence linking them personally to these activities. In the case of the arrested politicians, there was no such evidence. Thus in the end, they could be indicted only on minor charges such as belonging to an illegal organization.

The result is that almost all of the arrested politicians were sentenced only to short prison terms, generally ranging from two to three and a half years. Some have thus already been released, and almost all the rest are slated for release over the course of 2009 – even if Schalit continues to languish in captivity.

This fact helps explain why Hamas has felt free to make such outrageous demands for his release. According to media reports, it is currently insisting that 1,400 Palestinian prisoners be freed in exchange for Schalit, including several hundred vicious murderers responsible for some of the worst terror attacks of the intifada.

In other times and places, prisoner exchanges during the course of hostilities (as opposed to end-of-war exchanges, when everyone is released) have generally entailed a rough parity: similar numbers of prisoners of similar rank, or perhaps one higher-ranking prisoner for several lower-ranking prisoners. By that standard, Hamas should be able to obtain very little in exchange for a single lowly corporal.

But Hamas has no reason to settle for anything less than the “highest-ranking” prisoners, meaning those convicted of the worst crimes, because Israel’s own laws will force it to release all the others in a relatively short time anyway. What incentive could it possibly have to trade Schalit for the arrested politicians when they will all be released next year regardless of whether or not Schalit is freed? Or for low-ranking members of its military wing, who will similarly be freed once their relatively short criminal sentences have been served? The only people whom the country will not eventually release on its own are the murderers sentenced to life. Hence they are the only ones worth trading for.

ISRAEL GOT it right in its EU campaign: A terrorist organization’s political wing is indeed inseparable from its military wing; they are two sides of the same coin, working together to achieve a common goal. And this is especially true for organizations such as Hamas and Hizbullah, whose political wings actually control territory, as this gives them access to resources essential for their military wings’ operations.

Hamas’ political control of Gaza, for instance, has enabled its military wing to recruit and train freely; as a result, both the size of its forces and their skills have increased markedly over the last few years. Its control of Gaza has also enabled it to greatly expand its arms smuggling over the Gaza-Egypt border. Political control gives it access to tax revenues and even international aid, and money, of course, is essential to pay its troops and purchase arms. Finally, despite being boycotted by the EU, Hamas’ political wing has effectively lobbied the organization’s cause in other world capitals for years, and even many Westerners view its electoral victory in 2006 as conferring legitimacy on the organization.

Thus while Hamas politicians are generally not involved in actually planning terror attacks, they knowingly and actively facilitate them via their political activity. They are not innocent dupes; they know quite well what the military wing does with the resources they put at its disposal. And they should therefore be held responsible for the military wing’s activities, rather than being let off on the grounds that they never actually pulled a trigger.

If releasing Schalit were the only way to secure its politicians’ freedom, Hamas might be under pressure to do so: Aside from any sense of obligation it might feel, letting them languish for years with no hope of release would probably deter many suitable people from being willing to fill these vital posts. But because Israel’s legal system accepts the false distinction between its military and political wings, the organization is under no such pressure.

Thus far, successive governments have simply accepted this distinction as immutable fact. Yet it is the Knesset that enacts the laws; hence any government ought to be able to use its Knesset majority to enact legislation that would remove this distinction from the law books. And it is long past time to do so – because until this distinction is eradicated, we will be fighting terrorist organizations with one hand tied behind our back.