Israel has always had the death sentence as a possible punishment for certain crimes. The current debate over new legislation is intense because it aims not just to update the law but to fundamentally challenge how the death sentence is invoked and whether it should serve as a deterrent to terrorism.
Contrary to popular misgivings, the death sentence in Israel was not limited only to the prosecution of Nazi war criminals (Nazis and Nazi Collaborators (Punishment) Law, 5710–1950) or people who commit Genocide (Genocide Prevention and Punishment Law, 5710-1950). Rather, the death sentence is a stipulated punishment for certain crimes in Israel’s regular penal code, from 1977, such as damaging the sovereignty of the state (para. 97) and assisting the enemy in its war against Israel (para. 99). The death sentence is also a proscribed punishment in the Military Justice Law (para. 43), for the crime of treason. In addition, the Security Regulations, 1945, enacted by the British during the mandate period and then adopted by Israel, also provide for the death sentence for certain crimes.
In Judea and Samaria, several legal systems, including British, Jordanian, and Israeli military law, still provide for the death sentence for various offenses.
With all of these provisions, why does Israel need a new law?
The answer is that while the different statutes provided the death sentence as a theoretical option, the Israeli legal establishment, with the silence, at the very least, of Israel’s governments, has prevented its actual invocation.
Israel’s progressive legal establishment never liked the death sentence and did its utmost to prevent its use. The system was simple. Naturally, the death sentence can only be handed down by a court. In court, the state is represented by the prosecution. Internal regulations within the prosecution prohibited any prosecutor from requesting the death sentence without prior authorization. To get authorization, the prosecutor had to initiate the process. By doing so, he would automatically be labeled as “one of them” – one of the perceived fanatics, a neanderthal who hadn’t yet seen the progressive light. So almost no prosecutor ever broached the subject.
On some occasions, the judges took themselves and the law seriously. Having convicted terrorists of mass murders, the judges then imposed the death sentence, without the prosecution’s application. The appeals courts, at the prosecution’s specific request, quickly agreed to ignore the law and ruled that the death sentence could be imposed only if the prosecution specifically petitioned for it.
A Hebrew adage says that when you want to make an approach iron-clad, “You add a belt to braces.” To prevent slippage, authorities imposed further limitations: in Judea and Samaria, only panels of judges holding at least the rank of Lieutenant-Colonel could impose the death penalty, and all decisions had to be unanimous.
These obstacles made imposing the death sentence almost a fantasy, less likely than seeing unicorns in Jerusalem.
In the meantime, tens of thousands of Israelis have been murdered by Palestinian terrorists and their supporters. The arrested murderers were inevitably arrested, indicted, convicted, and sentenced to life in prison. But they never actually served their sentences to the full, and it is probably possible to count on the fingers of one hand the number of times when Palestinian murderers died in prison of old age.
In reality, the Palestinians celebrate at least 50 different occasions in which Israel released terrorists, including murderers, or as they are known in Israel, “terrorists with blood on their hands.”
As early as 1970, Palestinian terrorists recognized Israeli society’s sensitivities and began kidnapping Israelis to exchange for imprisoned terrorists. At first, the price was low, but success drove demands higher: in 1970, one terrorist’s release secured Shmuel Rosenwasser’s return; by 1985, 1,150 terrorists were exchanged for six Israelis; and by 2011, 1,027 terrorists were traded for one hostage.
Hostage deals offered some return, but thousands of terrorist murderers were also released through the peace process, without bringing actual peace.
Whether released as part of the imaginary peace process or in return for hostages, the terrorists quickly returned to terror. According to statistics provided recently by the head of the Israel Security Agency, at least 82% of the terrorists released in the Shalit deal in 2011 returned to terror.
Herein lies one of the foundations of the new legislation.
There are, without doubt, hundreds of fanatical terrorists willing to give their own lives to carry out acts of terror. However, based on almost three decades of experience, I can say with confidence that they are a small minority. For every suicide bomber, there are a plethora of other terrorists who don’t want to die. The recruiters, the bomb makers, the planners, the transporters, the financiers, etc., etc., etc.
The terrorists don’t mind being caught. In prison, they get rich from the PA’s Pay-for-Slay terror reward payments and establish their terror credentials, simply waiting for the day when their buddies will kidnap enough Jews to secure their release.
The new legislation provides the death sentence for murder carried out as an act of terror. The fundamental understanding is that the current system of punishment simply does not deter the terrorists. The goal is to change the equation. From now on, terrorist murderers will not see prison as a transitional location, but rather as a final destination from which there is no return. The terrorists who do not want to die would have to reconsider their actions. Lives will undoubtedly be saved.
The law also rolls back the requirements that were impossible to fulfill and clarifies that the judges are entitled to impose the death sentence, even in the absence of a request from the weak-kneed, reluctant prosecution.
One of the fundamental principles of criminal law prohibits retroactive criminal legislation. The prohibition includes both creating a new crime with retroactive force (i.e., criminalizing an action that, at the time it was committed, was not an offense) and imposing a more severe punishment on offenses committed before the amendment.
The fact that Israel had multiple provisions regarding the death sentence prior to the October 7, 2023, means that the terrorists who participated in the massacre can be charged with crimes that carry the death sentence, and actually be sentenced to death, without Israel breaching internationally recognized standards.
In its essence, the new law can be divided into three sections. The first section deals with amending the law specifically in Judea and Samaria. The second section pertains to amending the law within Israel proper, as defined by the 1948/9 Armistice Lines. The third section primarily addresses the logistical aspects of potential execution.
In Judea and Samaria, the law will no longer condition the imposition of the death sentence for the crime of murder on a panel of judges all holding the rank of Lieutenant-Colonel. The decision to impose the death sentence will be based on a majority decision, as is the case in Israel. The court’s jurisdiction will not depend on a prosecution’s petition. The death sentence will be the standard sentence, unless the court finds special reasons to suffice with a life sentence.
In Israel, in addition to other offenses, the court will now have jurisdiction to impose the death sentence specifically for murders deemed to be acts of terror, distinguishing them legally from other types of homicide.
The primary difference between the two jurisdictions concerns the power to modify a court-imposed sentence. In Judea and Samaria, a terrorist sentenced to death may not receive any kind of change in his sentence, either on appeal or through an administrative process, while a terrorist prosecuted in Israel can appeal both his conviction and the sentence, and, if sentenced to death, will always have the opportunity to appeal to Israel’s President to commute his sentence.
Despite being designed to deter Palestinian terrorists and their supporters from murdering Jews, the European Union and others are all up in arms. Hanging their objections on the fact that the law was initiated and promoted, sometimes using provocative gimmicks, by what they term as the “far-right” Minister Itamar Ben Gvir, and the fundamental rejection of the death sentence, the Europeans are, once again, hiding a more repugnant agenda.
The Europeans are essentially asserting that they expect Palestinian terrorists to continue killing Jews and that Jews should not take preventive action. Therefore, the European Union has openly called on Israel to refrain from passing the legislation.
The European hypocrisy could not be more palpable. While attempting to interfere in Israel’s sovereign legislative process, the Europeans never openly call on the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA) to abolish their “Pay-for-Slay” terror reward policy, never openly call on the PLO/PA to stop inciting terror, and never openly call on the PA/PLO to stop glorifying terror. Moreover, they actively finance the PLO/PA education system that indoctrinates Palestinian children to hate, kill, and be killed.
As is too often the case, the European Union’s bias against Israel, and in favor of Palestinian terror, is on full display.
Now that the law has passed, some Europeans will be amazed to see that the sky did not fall. In contrast, potentially, the days in which Palestinian terrorists murdered Israelis with impunity could come to an end.
