• Many terrorists are being arrested in Gaza, as well as in Judea and Samaria. Arresting terrorists poses a particular problem: whereas a terrorist who has been killed cannot return to terror activity, a terrorist who has been temporarily detained does not lose his murderous ideology, and once released, he returns to action in the terror group.
• If the terrorists and infrastructure are destroyed in Gaza, but in Judea and Samaria the terrorists are not killed or arrested and the terror infrastructure is not dismantled, Israel will fail in its task of toppling these organizations. The question is, what must be done to ensure that these terrorists do not go back to business as usual and rebuild the terror infrastructure?
• In the Israeli legal system, including in the military courts, whereas the punishments for terror offenses stipulated by legislation are generally severe, in practice, the punishments handed down to the terrorists are very light. For example, the law – in Israel and in Judea and Samaria – authorizes judges to hand down a 20-year prison sentence to a terrorist convicted of stone-throwing. In actuality, if the terrorist gets a one-year term, it is a considerable achievement.
• Judges do not distinguish between cases in which it is appropriate to let the offender be rehabilitated and cases in which the offender, an enemy terrorist, is not interested in “rehabilitation” because he does not see his terror activity as morally flawed. So, for decades, thousands of terrorists have benefited from light punishments that are designed for common offenders and not for terrorists.
• Daily, thousands of terrorists benefit from lenient punishments, which defeats the whole purpose. Essentially, all that is needed to change the situation is a different approach by the State Prosecutor and the Military Prosecution for Judea and Samaria. For terror offenses, the prosecution’s demand for punishment must differ from its demands for ordinary offenses.
• The prosecution must petition to sentence the convicted terrorist to the maximum sentence instead of beginning with punishment at the lowest level and then ascending level by level according to the severity of the offense. If this change does not start with the prosecution, it will not begin at all, as it will certainly not change on the initiative of the judges. There is no need to revise legislation, only to make a policy change that can be carried out immediately.

The war Israel launched against the Palestinian terror organizations following the October 7, 2023, massacre has many fronts. Part of the war is being waged in the Gaza Strip, part in Judea and Samaria (a.k.a. “the West Bank”), and other parts in other areas of Israel. While the war is being waged on the battlefield, part is waged and will keep being waged in the courtrooms. Wherever the battle is fought, Israel’s goal must be a total victory over the terror groups. Although the general perception is that the IDF forces are winning on the physical battlefield, both in Gaza and in Judea and Samaria, there is a quieter issue that, if not dealt with promptly, could cause Israel to lose the campaign as a whole: the general prosecution and military prosecution, including the civilian and the military courts in the West Bank.

Although the IDF forces in Gaza are killing most of the terrorists, many are being arrested. In Judea and Samaria, few of the terrorists are being killed, and most are arrested. According to announcements by the IDF Spokesperson’s Unit,¹ since the war began, more than 2,450 terrorists have been arrested in Judea and Samaria, half of them Hamas members. While the exact numbers of terrorists detained on the day of the massacre or during the fighting in Gaza have not yet been published, it appears that hundreds of terrorists have been apprehended.

Arresting the terrorists poses a particular problem: whereas a terrorist who has been killed cannot return to terror activity, a terrorist who has been temporarily detained does not lose his murderous ideology, and once released, he returns to action in the terror group.

Since the subject of arrest, detention, and prosecution of the terrorists is a subject encompassing many and varied issues, this article will focus on one specific topic, namely, the sentencing of the terrorists who have been arrested in Judea and Samaria since the beginning of the war.

The article makes a basic assumption that in Gaza, most of the terrorists will be killed, and the infrastructure of the terror groups operating there will be destroyed.

The Palestinian terror groups operate in both Gaza and Judea and Samaria. Eliminating them requires a far-reaching effort on both fronts. If the terror operatives and infrastructure are destroyed in Gaza, but the terror operatives are not killed or arrested, and the terror infrastructure is not dismantled in Judea and Samaria, Israel will fail in its task of toppling these organizations.

Therefore, because many terrorists in Judea and Samaria are arrested and not killed, the question is, what must be done to ensure that these terrorists do not go back to business as usual and rebuild the terror infrastructure?

Bringing Terrorists in Judea and Samaria to Justice: The Criminal Process

The unit responsible for prosecuting terrorists in Judea and Samaria is the Military Prosecution for Judea and Samaria, a division of the Military Prosecution within the IDF Military Advocate General Corps. Daily, officers and soldiers of the Military Prosecution for Judea and Samaria (consisting of about 40 to 45 prosecutors, reinforced by reservists) carry a weighty burden. In ordinary times, the young officers and soldiers who serve in the unit prosecute the majority – more than 95% – of the terrorists who are arrested in Israel as a whole. This unit acts as the “last leg” of the IDF forces’ activity on the ground, and if the team does not deal with terrorists who have been apprehended, they are released within a short time.

To prevent a revolving-door phenomenon, the unit’s soldiers and officers work day and night and prepare thousands of indictments per year. In an average year, the unit files between 3,000 and 3,500 indictments, two-thirds for offenses involving “terror activity.” The level of the unit’s activity can be considered the security pulse of Judea and Samaria, in particular, and of Israel, in general. The quieter the security situation, the fewer terrorists are arrested, and fewer indictments are submitted. When the security situation is less stable, more terrorists are arrested, and more charges are presented.

The Root of the Problem Lies in How Sentences Are Given

The problem that needs to be addressed concerns how terrorists are sentenced in the current Israeli legal system, including in the military courts.

Israeli criminal law is among the most advanced in the world. As such, sentencing convicted offenders does not usually entail severe and painful punishment. Instead, broader considerations prevail, including the rehabilitation of offenders. The legislative body defines the offenses and sets the maximum penalties. The system is tailored to a developed civil society, which, only for lack of an alternative, has to use criminal justice to deal with marginal social elements.

Accordingly, the judges are granted many tools and, most notably, full discretion in fitting the offender’s punishment to the offense he has committed and to his personal circumstances.

However, affording very wide discretion to the judges leads to a situation where the maximum punishments set by the laws are rarely imposed. Occasionally, an offender’s sentence sparks a public outcry. Members of the Knesset, and sometimes ministers, protest vehemently in TV studios and on radio interviews, but the storm quickly passes, and all the actors very quickly revert to their usual behavior.

Unfortunately, this method of sentencing is also applied to terror offenses and terrorists. Whereas the punishments for terror offenses stipulated by the legislation are generally severe, in practice, the punishments handed down to the terrorists are very light. For example, the law – in Israel² and in Judea and Samaria³ – authorizes the judges to hand down a 20-year prison sentence to a terrorist convicted of stone-throwing. In actuality, if the terrorist gets a one-year term, it is a considerable achievement. This, of course, is just one of numerous examples.

The problem is that the judges have not distinguished, and do not distinguish, between cases in which it is appropriate to let the offender be rehabilitated and cases in which the offender, or more precisely the enemy terrorist, is not interested in “rehabilitation” because he does not see his terror activity as morally, ethically, or educationally flawed. Nevertheless, in the judges’ approach, as it has developed over the years, how terrorists are sentenced does not essentially differ from how ordinary offenders are sentenced. And so, for decades, thousands of terrorists have benefited from light punishments that are designed for common offenders and not for terrorists.

The judges are not alone in this ongoing failure. Israeli governments and lawmakers, both civilian and military, are well aware of the phenomenon but have done nothing to counteract it. Apart from one instance in 2015, neither the governments nor the lawmakers have sought a change in the situation. Committees that dealt with “defining judicial discretion” came and went, and nothing changed.

In other words, the problem is the current method of sentencing offenders. If we do not act, this method will lead to a catastrophe and could cause the state of Israel and the public to lose the battle against the terror groups.

Past Failure as an Omen for the Future

In January 2006, elections were held in the Palestinian Authority. Hamas not only participated but won by a landslide. In light of the victory, PA chairman Mahmoud Abbas invited Hamas leader Ismail Haniyeh to form a government. And so he did, appointing ministers both in the Judea and Samaria and the Gaza Strip.

Alongside the establishment of the Hamas government, the group continued its terror activity. On June 25, 2006, terrorists from Gaza infiltrated Israel, attacked a tank crew, murdered Lieutenant Hanan Barak and Sergeant Pavel Slutsky, and abducted Corporal Gilad Shalit.

In response to the ongoing terror activity, and all the more so to the infiltration, murder, and abduction, within a few days, hundreds of Hamas terrorists were arrested, including all the ministers of the Hamas government who lived in Judea and Samaria. Naturally, the government ministers were the most senior Hamas officials.

Within a short time, indictments were filed. They stated that the top Hamas officials were not only members of a terror group – an offense punishable by ten years in prison – but also held positions in a terror group – also punishable by a 10-year term. In other words, theoretically, the terrorists could have been handed 20-year sentences. ⁴

Indeed, after an appeal to the Military Court of Appeals,⁵ the terrorists were detained until the end of the legal proceedings, and their trials began. Lamentably, however, the treatment of these senior Hamas officials was no different than usual – relatively lenient. After their trials ended in convictions, the system proceeded to sentence them.

First Page of the Military Court’s Ruling on Appeals of the Cases of Ministers of the Hamas Government, Sept. 12, 2006

Military Court of Appeals in the Judea and Samaria District D.A. 3249/06 and others

Before the President: Colonel Shaul Gordon

The Appellant: The Military Prosecutor (Via Counsel Major Maurice Hirsch and Captain Limor Ben-Hamo)

Versus

The Respondents: 1. Bassam Ahmed Musa Zaarur, Identity Number [blank space] (D.A. 3249/06)

2. Wael Muhammad Abd al-Fatah Abdel-Rahman El-Husseini, Identity Number [blank space] (D.A. 3250/06)

3. Ahmed Muhammad Ahmed Atun, Identity Number [blank space] (D.A. 3251/06)

(Respondents 1-3 via Counsel Attorney Andre Rosental)

4. Ibrahim Said Hasan Abu Salim, Identity Number [blank space] (D.A. 3296/06)

5. Muhammad Maher Yusuf Muhammad Bader, Identity Number [blank space] (D.A. 3297/06)

6. Muhammad Ismail Utman Tal, Identity Number [blank space] (D.A. 3298/06)

7. Issa Hairi Issa al-Ga’abri, Identity Number [blank space] (D.A. 3299/06)

8. Abd al-Jaber Mustafa Abd al-Jaber Fukawa, Identity Number [blank space] (D.A. 3300/06)

9. Halil Musa Halil Rabi’i, Identity Number [blank space] (D.A. 3301/06)

10. Anwar Muhammad Abd al-Rahman al-Zabun, Identity Number [blank space] (D.A. 3302/06)

11. Samir Salah Ibrahim al-Qadi, Identity Number [blank space] (D.A. 3303/06)

12. Ali Salim Salman Romanim, Identity Number [blank space] (D.A. 3304/06)

13. Muhammad Matlak Abd Al-Mahdi Abu Jehisha, Identity Number [blank space] (D.A. 3305/06)

14. Muhammad Mahmud Hassan Abu Tir, Identity Number [blank space] (D.A. 3306/06)

15. Mahmud Daud Mahmud Hatib, Identity Number [blank space] (D.A. 3307/06)

16. Naif Mahmud Muhammad Rajoub, Identity Number [blank space] (D.A. 3308/06)

17. Khaled Ibrahim Ishak Abu Arfa, Identity Number [blank space] (D.A. 3309/06)

18. Fadl Hamad Salah Hamdan, Identity Number [blank space] (D.A. 3310/06)

19. Aziz Salah Murtada Dwek, Identity Number [blank space] (D.A. 3311/06)

20. Mahmud Ahmed Abd Al-Rahman al-Rumhi, Identity Number [blank space] (D.A. 3312/06)

21. Mahmud Ibrahim Mahmud Musalah, Identity Number [blank space] (D.A. 3313/06)

(Respondents 4-21 via Counsel Attorney Boulos and Sa’adi)

Whereas the law, as noted, permitted sentencing terrorists to 20 years in prison, the actual outcome was very different. At that time, just as today, the punishment the judges met for the offense of membership in a terror group usually ranged from only one to two years in prison. In this case, because the terrorists were no less than senior Hamas officials, the judges adjusted, giving the terrorists sentences ranging from three to four and a half years.

In other words, amid the ongoing failure of the system, the senior Hamas officials who were arrested following the kidnapping of Gilad Shalit were released from prison after serving their sentences and returned to terror activity as Hamas members, even before the freeing of Shalit himself, in October 2011.

No More Repeating of the Same Errors

The situation described above has not changed to this day. Daily, thousands of terrorists benefit from lenient punishments, which defeats the whole purpose. This situation is not an edict of fate.

Essentially, all that is needed to change the situation is a different approach by the State Prosecutor and the Military Prosecution for Judea and Samaria.

During the sentencing procedure, the prosecution and the defense present their positions on the “appropriate” punishment for the offender. Today, the systemic failure begins with the fact that the prosecution petitions for a sentence in accordance with the regular “levels of sentencing.” These levels, as noted, are very far from exacting justice on the terrorists and very far from the maximum punishments set by the law.

To begin the process of repairing the system, what is required, first and foremost, is a change in prosecutorial approach. For terror offenses, the prosecution’s demand for punishment must differ from its demands for ordinary offenses. The prosecution’s point of departure must be a petition to sentence the convicted terrorist to the maximum sentence that the legislator has determined. Instead of beginning with punishment at the lowest level for terror offenses and then ascending level by level according to the severity of the offense, the prosecution must begin by petitioning for the highest penalty, requesting lower penalties only in exceptional circumstances. If this change does not start with the prosecution, it will not begin at all, as it will certainly not change on the initiative of the judges.

The courts, too, must change their approach. When sentencing terrorists, the point of departure for the judges, too, must be the maximum punishment. The Israeli public has had its fill of lenient sentences that enable the revolving door and subvert deterrence. The equation of punishments for ordinary offenses to punishments for terror offenses reveals a resounding failure, and the time has come for a change.

And suppose the prosecution and the judges, together and separately, do not make the vital changes quickly. In that case, legislators can act alone, stipulating in law that apart from very exceptional cases, a conviction for a terror offense entails, mandatorily, the maximum punishment set for the offense.

There Is No Time to Wait

When making the necessary change, there is no time to wait. It does not involve any need to revise legislation, only to make a policy change that can be carried out immediately. If this change does not occur, then the prosecution, the judges, and the legislators are sentencing the Israeli public to the fate of being perpetual victims of terror.

To make it clear, once and for all, that the days in which Israel’s legal system behaves forgivingly toward terrorists have ended, and to give a voice to the 1,200 people who were murdered in the October 7 massacre, a deep and thorough change in the sentencing of terrorists is essential.

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Notes