Pay for Slay?

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Posted in: Human Rights

After reading about the protests in the Gaza, I originally intended to write about the use of force questions raised by shooting rock throwers and tire burners; the evidentiary complexities raised by videos seeming to show international law violations but alleged to be fakes or deceptively edited; the increasing calls for IDF soldiers to refuse to accept unlawful orders; and the legitimacy of Israel’s refusal to submit to an international investigation. These issues raise deeply important questions, worthy of sustained attention, and many journalists (see, for example, here, here, and here), and human rights organizations (here and here) are taking them up. But I found myself interested in a related issue getting less attention: the decision of Hamas to provide funds to those wounded and to the families of those killed by Israeli military forces and whether such payments ought to be condemned as “pay for slay” disbursements.

As regular readers know, I’m very interested in the practice of making amends and paying compensation in situations of harm-doing such as payments to torture victims and amends to those civilians lawfully killed in combat. Not surprisingly, if Israel concludes after an internal investigation that some of the protestors were not engaged in active hostilities, I think amends are appropriate and morally demanded as well. For instance, if the Israeli investigation concludes that Yaser Murtaja was targeted as a journalist, that act would be unlawful and worthy of an apology and compensation, as well as criminal charges. Even if non-threatening protesters were accidentally, rather than intentionally injured or killed, an apology and compensation would still be appropriate. But if Israel concludes that all killings are lawful, no apologies or compensation will be forthcoming from them for the 22 dead and potentially hundreds or thousands wounded.

In contrast, after the first set of deadly protests, Hamas announced that it would provide $3,000 to each decedent’s family as well as a $200 or $500 payment to all those wounded. It may have begun distribution of payments as early as last Thursday, only a few days after the initial clash. What is the purpose of such payments? And can such payments be distinguished from the so-called martyr or “pay for slay” payments made by the Palestinian Authority?

By way of background, the Palestinian Authority has long provided payments to the families of those killed or imprisoned for their “participation in the struggle against the occupation.” The Jerusalem Post contends that such payments reached as high as $3,500 a month to families and that the funds dedicated for payments compromise approximately 7% of the Palestinian Authority budget. These funds and their revocation are politically contentious in Israel, the United States, and Palestine. In June 2017, then Secretary of State Tillerson testified that such payments had ceased, but both Israel and Palestine quickly proclaimed otherwise. Then, in the wake of a murder of a US Army officer by a Palestinian terrorist, the United States passed the Taylor Force Act to stipulate that some aid to Palestine will be withheld until it stops paying “stipends to terrorists in Israeli prisons, released terrorists and the families of shahids, the Arabic word for martyrs—terrorists who die while carrying out violent acts.” Yet such funds seem to continue.

Can the Hamas-funded payments be distinguished? Opponents say no. They suggest that such payments are a clear inducement to martyr oneself in the engagement in unlawful violence. In poverty-stricken Gaza, $3,000 is a significant sum that might persuade individuals who would otherwise eschew risky activities such as rushing the fence, rolling burning tires, or throwing stones at Israeli soldiers. Israel has condemned such payments as “inciting violence by putting a ‘price tag’ on casualties.” Even if one views joining insurgencies and/or engaging in terroristic violence against the state as the equivalent of joining and participating in a state military’s activities, an equivalence emphatically denied in international law, paying individuals a salary to join forces is practically and morally different from offering a bonus to encourage participants to willingly become part of a body count.

One might also view such practices as a form of hazard pay or insurance for those acting at Hamas’s behest. Just as families receive benefits from the military when their loved ones are killed in the line of duty, so too do the members of Hamas’s military wing and the Hamas commanders killed in the protest. But even as the practice of compensation for the family for similar activities is embedded across nearly all countries for dangerous public sector jobs such as the military, law enforcement, and fire fighters, the notion of providing insurance for inherently illegal activities is worthy of condemnation as such. Even so, though, if one believes this is the framework under which such payments are made, they need not be viewed as designed to incentivize violence that would not have otherwise occurred. To some, at least, this would make the payments somewhat less morally problematic than if they are designed to encourage unlawful activity.

But, I argue that at least some payments made by Hamas might be appropriate. Given the seeming unconditional nature of the offer, it appears that Hamas will also provide the payouts to individuals unaffiliated with and unmotivated by Hamas’s military wing. So long as a Palestinian was injured in the course of the protest by Israelis, he or she is eligible. A representative for the Hamas organization committee responsible for the demonstrations justified these payments saying “This is our duty to our people, to ease the suffering of our citizens. This does not mean that we are promoting people for death. We will offer what we can for our people.” Reading this charitably, one might view this “duty” narrowly. As promoters of demonstrations in an area likely to draw a harsh military response, the organizers might have a moral duty to all those injured by a foreseeable use of intentional force by a third party. Under this view, payments to innocent individuals not presenting an active threat do not undermine compliance with law nor suffer from any obvious moral defect.

Were Hamas trying only to compensate such innocent individuals either out a sense of moral obligation or to build social solidarity or to provide evidence of its ability to provide governance like social service functions or some combination of the three, I would view it as unproblematic and a valuable counterbalance to Israel’s likely disinclination to compensate any innocent victims (see Israeli Defense Minister Avigdor Liberman’s troubling statement that “there are no innocents in the Gaza”). But in failing to distinguish between innocent victims and participants in hostilities, the current structure of Hamas’s payments replicates Israel’s category errors.