Haaretz reported this morning that the military prosecution has finished preparing the charge sheet for the two suspected murderers of the Fogel family from the settlement of Itamar, and intends to ask for a death sentence. Says Chaim Levinson:

The army will apparently seek the death penalty for the murderers of five members of the Fogel family in the West Bank settlement of Itamar in March. This would be the first time it has sought a sentence of death since the mid-1990s.

Such a request would most likely be purely symbolic, since the only case in which a death penalty was ever actually carried out in Israel was that of Nazi war criminal Adolf Eichmann in 1962. Death sentences were occasionally handed down against terrorists in the early years of the state, but were always commuted.

Assuming that the two suspects currently in custody are indeed the murderers, and assuming they are convicted – neither of which is certain as of yet – three points should be considered:

1. Just how symbolic or serious the IDF’s intentions are remains to be seen. But why did they choose to even so much as raise that possibility? After all, no death sentence was requested for, say, the Palestinian sniper who shot a baby in the head in Hebron, for the recently and most unnecessarily released Samir Kuntar, who smashed another child to death with the butt of his rifle, or for the masterminds of various suicide bombings, all of whom were responsible for the deaths of innocent civilians, sometimes entire families. What’s more, since any attack on a settlement is considered a suicide mission by definition (chances of being caught are high, and of being caught alive miniscule), it’s not as though an increased prospect of “martyrdom” is going to deter future attackers. So why, then? The answer is simple: Populism. The IDF is bowing to the howls of the mob and to pressures of politicians, both in and out of uniform. If the two youths suspected of this ideological murder are convicted and killed by the state, their killing will be for the cause of something even more cynical than “resistance”: public relations.

2. Even if the intentions are symbolic, raising such a high bar of expectation for bloodletting, only to row back from it, is extremely inadvisable. If the two are convicted and sentenced to death and the IDF rows back out of “compassion” (or “Jewish state morality’), it will be seen as craven and spineless; if the IDF rows back under international pressure, the mob will only cry for more blood. Either way, the message will be: We really want to kill them, but because we are official, we cannot.  And soon, perhaps after the next murder, someone at the back of the crowd will say: “That’s ok. I’m not official, and I don’t mind bloodying my hands. Please look the other way.” Another option, of course, is that the mob will chase the state authorities so far up the tree they’ll have no politically viable option to commute the sentence, and the two convicts will be put to death.

3. But the real story here is that of apartheid. Put simply, no Israeli has ever been considered for a death penalty, and is not likely to be considered for it in the future. In fact, the death penalty barely even exists in Israeli law, and even extrajudicial executions of suspected Palestinian militants were always sold to the public as military victories (a guy driving in a car or sleeping in his flat versus a squadron of F16s. I’m sure the top brass in the command centre was holding its breath). So why is it an option for these two suspects? Simple: Different legal systems. In the land of Israel-Palestine, deceptively described as divided into several territories but in fact completely ruled by an Israeli-only government in Jerusalem, several legal systems exist. There are elements of Jordanian, Ottoman and even British emergency laws operating here. However, the most important are, on one hand, the civic law system operating inside Israel, and, in a bubble of sorts, around every Israeli citizen traveling in the West Bank, and on the other hand, old fashioned military law for Palestinians and, in a bubble of sorts, around any Palestinian, whether in Israel or the Occupied Territories. It happens all too often that Palestinians and Israelis arrested together on suspicion of the same offense (like disturbing the peace) are brought before different court systems and receive vastly different punishments. In other words, the IDF does not seek to execute the two suspects because it thinks they may be the culprits. Suspected guilt is merely what it wants to convict them for, as it’s ought. But it seeks to execute them because it knows that they are Palestinian. This is about as Jim Crow as it gets, and it’s officially sanctioned by the state.