Israel’s Knesset recently passed legislation mandating the death penalty for deadly acts of terrorism committed “with the intent to deny the existence of the State of Israel.”
The new law is almost exclusively applicable to Palestinians. Since it mandates an ideological burden of proof (“the intent to deny the existence of the State of Israel”), it will be nearly impossible to implement against Jewish nationalist terror. Furthermore, according to the bill, if a crime is committed on Israeli territory by a non-Israeli citizen in a region controlled by Israel (that is, the West Bank and most of the Gaza Strip), the suspect will be tried in a military court in the West Bank—where only Palestinian residents can be tried, as Israeli citizens living in the West Bank are tried in civil courts. Additional provisions deny the right to clemency or appeal and prohibition of contact with lawyers and family members. The sentence must be carried out within 90 days.
Even a supporter of the death penalty should know that in true democracies, an execution is not a time for celebration.
Following passage of this law, death by hanging is now the default punishment for Palestinians convicted of terrorism. Use of capital punishment is supposed to be a definitive expression of state power, but this legislation eliminates judicial discretion. In legal terms, it raises serious questions about due process, standards of evidence and the different roles of civilian courts and military courts.
But even worse, this disgraceful and racist law, passed by a 62-48 majority, with one abstention, undermines basic tenets of both Israel’s legal system and its Jewish underpinnings. And its passage proves that this government will stop at nothing to keep itself in power.
Proponents of the law argue that it will curb acts of terrorism. On his party’s Instagram page, Minister of National Security Itamar Ben-Gvir wrote, “Today, the State of Israel has taken a historic and necessary step in the global fight against terrorism…The passage of the law allowing for the death penalty for terrorists who commit premeditated, nationalistically motivated acts of murder sends a clear message: Those who seek to annihilate our people will no longer find refuge behind prison bars.”
Yet, with the exception of the new Shin Bet Director David Zini, a far-right figure recently appointed by Prime Minister Benjamin Netanyahu, all previous Shin Bet directors and legal advisers have warned that a death penalty law would actually cause a backlash and increase acts of suicide-terrorism. (Other than the ruling coalition itself and the far-right fringe on social media, Israelis overwhelmingly oppose the legislation.)
Actually, the death penalty is already part of the Israeli criminal code. Israeli criminal law specifies offenses punishable by death, including crimes against humanity and the Jewish people and terror offenses. But it has been used only once, in the case of Adolf Eichmann. This is because, as legal expert Mordechai Kremnitzer explains, the courts are aware that the taking of a human life—even in the name of justice—demands a level of certainty and restraint that human institutions can rarely achieve.
Our sages knew this. In Mishnah Makkot 1:10, they note that a Sanhedrin (the supreme judicial council of ancient Israel) that executed more than one person in 70 years should be regarded as “murderous” or “tyrannical.” According to Jewish law, the council required a minimum of 23 judges to adjudicate a capital case, and the requirements for a conviction were so rigorous that it was almost impossible to impose the death penalty.
Yet Ben-Gvir and his allies celebrated the passage of the law with champagne. Even a supporter of the death penalty should know that in true democracies, an execution is not a time for celebration. They should realize that, according to Jewish values, the taking of a life, even the life of one who presumably deserves to die, should be taken with restraint and viewed with humility and awareness of the irrevocability of the act.
But these are not the Jewish values that Ben-Gvir upholds. His is an ugly Judaism, based on interpretations of Jewish law that call for destruction of the other, vengeance and bloodthirsty Jewish superiority. His Judaism is based on revenge, dehumanization and rejection of belief in the sanctity of life.
And it is his brand of Judaism, he believes, that will satisfy his base and keep him in office. A keen populist, he knows that his rejection of restraint, his willingness to wield power without mercy and his clear, cruel division between “us” and “them” will appeal to the many in Israeli society who are traumatized by October 7, physically and emotionally exhausted by the ongoing wars, grieving their losses and furiously frightened that this conflict may have no end. He knows that they have little capacity for complexity and that they seek moral absolutism.
In contrast to Ben-Gvir, Netanyahu, who has projected himself as a security expert and an international statesman, has been much more ambivalent. Yet he voted for the law because his political survival demands that he placate and support the extremists in his coalition in order to ensure their loyalty. By voting for the legislation and showing himself to be “tough on terror,” he hopes to prevent any leakage from his own base to the more extreme right. Moreover, he can use his vote to distract the public from his massive failures in the Gaza and Iranian wars and his legal troubles.
Ben-Gvir, Netanyahu and the other supporters of the legislation must know that it is likely to be struck down by Israel’s High Court of Justice; indeed, petitions against the legislation have already been filed. But this, too, they believe, will play in their favor. If the court does intervene, they will be able to present the Court as responsible for future terror attacks and as an institution that has abandoned “true” Jewish values. They will argue that they, not the court, are the true supporters of Israel.
As general elections approach (by law, they must be held by October 2026), we can expect more of this politicking, based not on principle but rather on subjugating morality to political expediency.