We will never know what took place behind closed doors throughout the five years the Shalits fought for the release of their son. Did tempers flare? Were there shouting matches? Or was the heartbreaking situation limited to sorrow and tearful agony? The public can only evaluate what is out in the open. More than anything, over the 1942 days of captivity Aviva and Noam Shalit and their associates exuded restraint and moderation. This stoicism continued even upon realizing their long-held goal. Prime Minister Benjamin Netanyahu walked with Gilad toward his father, who gave him a reassuring embrace and kissed him on his cheek, close to his ear, as Gilad rested his head against him. The reunification lasted all but several seconds. There were no smiles or kisses all over; no joyous shouts; no tears. All this attests to the power or possibly the weakness of restraint and moderation. Get the Israel Hayom newsletter sent to your mailbox! What next- First, let's specify what should not be done. Let's not accept former Chief Military Rabbi Brig. Gen. Avichai Ronsky's suggestion that soldiers be instructed to kill terrorists at their homes. Such a policy would put Israel in legal jeopardy on the world stage and send shockwaves across Israel's political landscape. It may also compromise the lives of Israeli soldiers who fall captive. Such an order would qualify as an illegal order that must be disobeyed, or as the courts put it in several decades ago, "It has a black flag hoisted above it." By the same token, one has to disavow National Union MK Aryeh Eldad's similarly disturbing call that can be interpreted as green light for bereaved families to take the law into their own hands and kill terrorists that have been freed. Are we like that? Are we going to allow private militias to settle scores? Is Israel going to be like "The Sopranos"? No, no and no. And we should also reject the proposal from Transport and Road Safety Minister Yisrael Katz (Likud) who suggested Netanyahu push to have the Fogel family murderers executed. Although military courts may sentence terrorists to death, this has never been implemented. For years, capital punishment has not been a part of Israeli policy, and should this change, Israel must only apply it to future cases, not retroactively. As the scriptures tell us, you don't punish unless you forewarn. Such a decision would also not be cost-effective. Palestinians have produced a whole cadre of suicide bombers over the years, none of whom were deterred by death. It seems that Katz feels a little embarrassed for voting in favor of the Shalit deal and now he wants to compensate for that by indulging in more aggressive punishment down the road. Capital punishment should be applied only to those who have taken part in the extermination of Jews in the Holocaust. That is how I see it. Israel's reputation would be well-served if it were to continue with this policy. By having Adolf Eichmann's execution as the only case that warranted the death penalty, the horrific proportions of the Holocaust are justifiably singled out. So what should we do? There is a whole chorus of people who claim Netanyahu failed to follow his own prescription for fighting terrorism in the Shalit deal. While there is a valid argument to be made on this apparent incongruity, the philosophy Netanyahu adopts in his book "A Place Among the Nations" can serve as a strong foundation for the public debate on this issue. The issue at hand here is, how does a democracy deal with terrorism that threatens it and acts on its soil? Legal experts should find a way to take the core tenets of Netanyahu's philosophy and put them on a path toward becoming law. Legislation is practically a must if we want new policy on prisoner swaps to have any weight. But we cannot just let this issue go away without explaining something. After the prisoner release was concluded this week, Hamas Political Bureau Chief Khaled Mashaal said that Hamas is better suited to fight Israel because it "knows the Israeli mind set" and can therefore extract the most concessions. There is no doubt that he truly believes this, and he does have something on which he can base his claim past deals and the most recent one. There is no doubt that many Israelis share this belief and think the Israeli public cannot stomach the kidnapping of soldiers, and this will always lead to the Jewish state ultimately buckling to the pressure. Therefore, it is imperative to establish deterrence that is believable. Israel's new policy should clearly state that the government views such acts as a casus belli grounds for war. Such language could be interpreted as a threat to our enemies and, more than that, it could tie the Israeli government's hands and force it to honor its word. If the Knesset writes this policy into law it would send a clear signal to Hamas that the government cannot meet most of its demands no matter how much it wishes to do so during negotiations. The Knesset would have to include meaningful language in such legislation. Now that the Shalit deal is behind us the recommendations of the Shamgar Commission appointed to investigate this matter can be made public. Defense Minister Ehud Barak already knows what they are. If adopted, the government would have limited wiggle room when it comes to concessions. Hamas would understand that Israel cannot meet its demands. The Knesset would not accept compromises that oppose the law - and in the event it does the High Court of Justice would actually hold a meaningful discussion on it, not just go through the motions like in past deals. There is a proliferation of ideas on this issue. Dr. Boaz Ganor from the Interdisciplinary Center in Herzliya has recently written that terrorists should be detained as prisoners of war if they act against the army, and should be released only after a peace agreement is signed with the terrorists' enablers. According to Ganor's plan, when terrorists act against civilians they can be released only upon serving out their sentence. Such an idea does have its shortcomings and is complex, but it merits attention. There are other proposals, too, like the IDF operational plan in the event of kidnappings, known as the Hannibal Procedure, according to which soldiers must open fire to avert a kidnapping, even at the risk of hurting the would-be abductee. If a soldier is kidnapped in a car, this procedure would allow opening fire on its wheels to stop it or to make it overturn, but would be limited to ground troops, as targeting the terrorists from the air would almost certainly cause the death of the kidnapped IDF soldier. Such a distinction was discussed several years ago by former IDF Chief of General Staff Shaul Mofaz (now an MK from Kadima) and the Military Advocate General at the time Menachem Finkelstein and ethics professor Asa Kasher. The procedure must be streamlined so that it is clear what is permissible and what is not. The permissible parts should be made into binding law, making the law mandatory and not just optional. Military commanders on the ground must have clear orders in case of such an event. The language of the new law should stipulate that anyone who holds a soldier or a citizen captive would be regarded as an enemy state that had declared war on Israel - to the full extent of the law. The law will instruct IDF and the Israel Security Agency (Shin Bet) to prefer a military option to release abductees if there is a reasonable course of action. While this is the de-facto policy, it should be written into law. The Knesset must require the government to use leverage to secure the release of abductees. This should include a provision that would allow under certain conditions the abduction of some enemy combatants and noncombatants; the reduction of rights afforded to prisoners to the bare minimum required under international law; the denial of academic studies and family visits for prisoners; and the denial of access to various in-prison services. These benefits would only be granted if the International Committee of the Red Cross would be allowed access to the Israeli abductees where they are held and after the ICRC had concluded that they are enjoying the same benefits. In-cell television for in-cell television; visitations for visitations. A modern interpretation of an eye for an eye. But the crux of the matter is the price that will have to be paid for the release of the Israeli abductees, which poses the most difficult challenge. Israeli lawmakers would serve us well if they allowed the government to choose between two options: a ratio of one to one for the prisoner exchange, in which case the terrorists would be allowed to name a prisoner of their choice; or a ratio of not more than ten to one, but with negotiations to determine the exact number of prisoners, which would in turn be subject to a cabinet vote. Of particular importance is that no Arab-Israeli terrorist be set free if a deal emerges according to this rule. The law must clearly state that Fatah and Hamas would have no say when it comes to Israeli prisoners. MK Einat Wilf from the Independence (Atzma'ut) party has floated an interesting proposal: Any Arab-Israeli citizen who is released from prison to meet the demands of a terrorist group would automatically be considered to have renounced their citizenship and left the country. Above all, the policy must be finalized and approved like all Knesset bills in three readings before another kidnapping takes place. No one was shown the door in the IDF For some time now people have been claiming that former IDF Chief of General Staff Lt. Gen. Gabi Ashkenazi and his counterparts at the Israel Security Agency and the Mossad were shown the door because they had expressed their opposition to an Israeli strike on Iran's nuclear facilities, advocated by the prime minister and the defense minister. This is a ludicrous claim that is harmful. The claim materialized after Ashkenazi's associates began portraying him as a victim, omitting the fact that his office might have leaked the so-called Harpaz document [which bashed his apparent successor at the time, Maj. Gen. Yoav Galant] or that he held a land-line phone conversation with the individual thought to have authored the document while a police investigation was underway; or that he had possessed the document for five days without surrendering it to the police. This merits a discussion. Much more than the views of certain individuals on an attack on Iran. If you were to believe this claim, Netanyahu who undoubtedly had no involvement in the Harpaz document and Barak are willing to have Israel be embroiled in a war whose outcome could be catastrophic just so they would not be investigated in this affair. Cynicism at its worst. But the facts just don't support this claim. If Barak had sought to replace Ashkenazi with someone who shares his views and acts as a "yes" man, he would have asked the would-be successor what their views are on Iran. But Barak never asked his preferred choice, Maj. Gen. Yoav Galant, and most notably, not even before the government approved his appointment as chief of staff - what his views are on Iran's nuclear program. [Galant's appointment eventually had to be nullified because of suspected improprieties on behalf of Galant.] Can someone credibly claim that Barak acted to accelerate Ashkenazi's departure to pave the way for a strike on Iran- The notion that Israel might attack Iran to prevent it from producing nuclear weapons should not be automatically rejected. First, because there is an ongoing, legitimate debate on this issue. Cabinet ministers will have shirked their duties if they decide on a course of action without first exhausting all possible options including military options. A military option must be on the table, particularly in light of its many political dividends. U.S. diplomats have repeatedly told their European counterparts that they are facing an increasingly uphill battle in dissuading Israel on this matter. If there is no consensus on sanctions against Iran, no one would be able to stop the Israeli march forward. The U.S. believes that the diplomats were somewhat successful in convincing the Europeans on this issue, which resulted in more crippling sanctions. But now with all this criticism we are undermining an effective diplomatic instrument, which has already proven itself. Perhaps Israel does not want to strike or simply cannot act military against Iran. But what good reason is there to destroy this "made-in-Israel" diplomatic tool that helped impose tougher economic sanctions on Iran? There is no convincing argument to be made against this, and this should not be done through a debate that is driven by impure motives. Even if this just an Israeli decoy.
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