With the exchange of 1027 Arab prisoners for Gilad Shalit, many in Israel are again considering and debating whether it would be prudent for Israel to institute the death penalty for persons convicted of murder, and more specifically, of murder through terrorist acts. One the primary arguments raised is that the continued incarceration of high value Palestinian prisoners encourages Palestinians to kidnap or kill Israelis in order to free the prisoners. In the wake of Gilad Shalit's release, crowds from Gaza to Ramallah implored the Palestinian governments to organize more kidnappings to free more Palestinian prisoners. Indeed, even killing Israelis abroad has also led to prisoner exchanges where Israel freed Palestinian prisoners in exchange for the return of the bodies of the dead. This occurred with the bodies of Ehud Goldwasser and Eldad Regev, whose bodies were returned to Israel in a prisoner exchange with Hezbollah. If Israel executed the terrorists who had committed the worst crimes (who incidentally are often considered the most valuable prisoners for the Palestinians), some contend that it would create less incentive for kidnappings because those terrorists would be dead and, Palestinians have historically been unwilling to give up much to recover the bodies of their comrades.
There are, of course, numerous reasons to oppose this idea. First, the international outcry would be significant, though Israel also receives significant outcry for things such as housing construction or the continued presence of Jews in the West Bank. Moreover, Israel also receives significant criticism for its international assassinations, such as that of Imad Mughniyeh and Ahmed Yassin. Yet, the level of criticism that would accompany the civilian executions would be significantly higher and could potentially isolate Israel further in a time where it has significant international pressure. A second issue would be that an increase in executions would create martyrs and rally more people to the resistance cause. Indeed, the execution of a significant terrorist could trigger another Intifada or mass resistance against Israel. However, Israeli authorities have made decisions about whether the killing of certain Arab targets is worth the likely response. Indeed, Israeli authorities made the decision not to kill Yasser Arafat but did decide to kill Ahmed Yassin, even though that killing led to large scale condemnations. The decision of whether to seek the death penalty in a particular case could be similarly made by Israeli government authorities. Indeed, Israel faced significant international condemnation for the Eichmann trial in 1962 far beyond what the Nuremberg tribunals faced (though part of that condemnation related to the daring capture of Eichmann in Argentina).
The real driving force behind Israel's decision to institute the civilian death penalty would be based on whether it would be the best way to respond to the evolving threat of kidnappings. Aside from Munich, Israel did not face significant kidnappings of its people, but Hamas evolved to take on this strategy after the success of prisoner exchanges for the recovery of the bodies of deceased Israelis abroad. Of course, an increase in executions could push Hamas and the PLO back toward suicide bombing attacks, where the chance of capturing a prisoner is substantially lower. Additionally, it could create more incentive for rocket or other long distance attacks that again reduce the risk of capturing prisoners. Indeed, the vast majority of the highest value targets are not likely to be individual operatives, but either high level masterminds like Imad Mugniyeh or inspirational types such as Ahmed Yassin.
Lastly, there is unlikely to be any deterrence value to implementing the death penalty because most Palestinians who are willing to launch attacks into Israel accept the risk of death associated with their actions. Indeed, many embrace it. The primary and really sole benefit associated with instituting a civilian death penalty in Israel would be to primarily discourage kidnappings by keeping fewer valuable prisoners in Israeli jails. Ironically, the Israeli government may consider an almost opposite policy, which would be to simply cease taking Palestinian terrorists prisoner at all and having summary military executions while still "in the heat of the moment." This approach, however, creates the potential for similar problems to the civilian death penalty.
Israel does face another unique situation, which would arise if Israel attempted to enforce the death penalty for treason in dealing with Israeli-Arab citizens who engage in or aid in terrorist activities. This would potentially be most interesting the in context of certain Israeli-Arab government ministers who have unequivocally stated their support for organization and people who wish to destroy the Jewish State. Knesset members such as Ahmad Tibi, Mohammad Barakeh and Azmi Bishara (of "Bishara Bill" fame, a law passed after Bishara attended the funeral of Hafez Assad in Syria and publicly expressed his support for Hezbollah) have all arguably committed treason against Israel but would not be likely candidates for the death penalty. More relevantly, Israeli citizens who plot to undermine the security of the state would be the most likely persons to whom the death penalty may apply. While the Arabs living in Gaza and the West Bank have ambiguous legal status in Israel, which may make them enemy combatants far more than traitors, Israeli citizens who plot against the state could be more clearly characterized as traitors.
In the end, I don't necessarily believe that the death penalty is the solution for Israel, primarily because Israel has operated with a functional death penalty in the form of targeted assassinations. Moreover, the incentives to kidnap and kill Israelis as retaliation for executions could present a real danger to Jews around the world because civilian executions would strongly inflame passions of many of Israel's detractors. Yet, the death penalty discussion raises the question of how Israel can de-incentivize the kidnapping of Israelis who are then used as bargaining chips to free Arab criminals.