Once again, Israel is facing one of those moral dilemmas that are so much a part of life in the Middle East. This time, the question at hand is whether Jerusalem should release a convicted terrorist, Marwan Barghouti.
The convict, a former head of the Palestinian grass-roots movement, Tanzim, might be the only person who could unify the fractured Palestinian entity and lead it to a peace deal with Israel. At first glance, the stakes are clear; substantive and procedural notions of justice suggest that Barghouti should serve his time in full.
He was involved in the killing of Israeli citizens and was convicted for his deeds. Pragmatism, on the other hand, dictates for a release.
Israel's long-term political interests could be best served if Barghouti is out of jail. Faced with similar choices in the past, Israel has always preferred pragmatic calculations over the subtleties of justice.
Israel, after all, allied with dictatorial regimes in Africa and South America in the '60s and '70s and made multiple deals with the PLO and Hezbollah in the '90s and '00s, in which hundreds of terrorists were released. In the latest demonstration of pragmatism, Israel freed hundreds of terrorists last January in return for one Israeli citizen who was deemed valuable because he had access to highly classified information.
Even if we leave behind the simple pragmatic argument in favor of Barghouti's release, there are other good reasons why he should be freed.
First, releasing Barghouti may, in fact, be morally justified. Many experts think that Barghouti is the only person that stands between chaos, or even worse, a Hamas government in the Palestinian areas. Both outcomes would be bad for Israel and would lead to many more years of Israeli-Palestinian violence, in which thousands more innocent civilians would suffer.
So isn't the right moral decision the one that will prevent further fatalities? The one that will create a moderate Palestine that one day will live at peace with Israel?
Second, there is the issue of Barghouti's trial. He is the only Palestinian leader that has been brought to trial in Israel in four years of conflict.
Israel's preferred strategy in dealing with leadership figures in the Palestinian uprising has been, simply put, to kill them. By mid-October, Israel had assassinated 179 people who were suspected terrorist leaders.
A number of those assassinated were as central as Barghouti in the Palestinian struggle: Hamas leaders Sheikh Ahmad Yassin and Abdel Aziz al-Rantisi both killed in 2004, and Popular Front for the Liberation of Palestine leader Abu Ali Mustafa killed in 2001.
In other words, Israel made an informed choice to keep Barghouti alive and in jail. One Sharon adviser admitted recently in The New York Times that in arresting Barghouti, Israel "had in mind possibly releasing him some day as an alternative to Mr. Arafat."
It is no surprise then that Israeli Interior Minister Avraham Poraz suggested two weeks ago that releasing Barghouti is a possibility. In short, freeing Barghouti will merely conclude Israel's original strategy.
Third, Barghouti's arrest and trial expose an inconsistency in Israel's position. Israel has treated the conflict with the Palestinians as more of a war than a law enforcement issue.
Military forces bore the brunt of the conflict, and suspects in terrorism were killed rather than arrested. Yet, when it came to dealing with Barghouti, the paradigm of law enforcement was invoked.
Those who object to his release argue today that it is his conviction that should prevent Israel from releasing him. Although Israelis don't like to admit it, Barghouti's status is more akin to that of a prisoner of war than that of a common criminal. By freeing Barghouti, Israel will merely be applying to his case the same standards that have been applied to the conflict as a whole.
The Barghouti issue is not a simple one, and a decision to allow a convicted murderer out of jail is a stomach-turning choice. Yet there is a lot at stake. With Arafat's death, the Israeli-Palestinian conflict is coming to a crucial crossroad, and Barghouti's release offers at least one possible road to a more stable future.
Given that there are good moral arguments both for and against releasing Barghouti, in terms of consistency with Israel's broad strategy in the conflict to date and for good pragmatic reasons, allowing Barghouti to go free is the right decision.
In the last four years, Israel missed a number of opportunities to end the cycle of violence. Let's not miss this one.
Ehud Eiran is a doctoral candidate at Brandeis University and a visiting fellow at Harvard Law School. He served as an assistant to the foreign policy adviser in the Israeli prime minister's office (1999-2000).
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