The new “Death Penalty for Terrorists” law passed by the Israeli legislature is not ethnicity-based. The new law raises serious moral and legal questions, but describing it as inherently racist mischaracterizes its structure, which is based on citizenship status rather than ethnicity.
Despite international uproar about the “racism” of this law, it actually applies to non-citizens in occupied territories, making capital punishment the default sentence (with discretionary exceptions) for non-citizens convicted through military judicial process of murder as an act of terror.
The optics for Israel are bad, especially in the context of widespread anti-Israel sentiment and narratives. Itamir Ben-Gvir’s gleeful champagne popping celebration in Knesset was inappropriate and too emotional, and gave easy fodder to critics and ideological antizionists. People across the world are focusing on Israel’s new death penalty law, calling it everything from racist, to evidence of apartheid, to genocide. Some have even compared the law to Nazi policy.
However, the new death penalty law is far from any of those things because it is not based on ethnicity. Crucially, if an Arab-Israeli citizen is convicted of murder as an act of terror, the law does not apply. The law therefore is not targeted at Palestinian Arabs, who comprise about 20% of Israel’s citizen population, but rather at non-citizens convicted of murdering citizens or residents.
Critics will say that the outcome of the new law will still be racially disparate. But the law is an ethical and practical deterrent against terroristic murder, which is sponsored by the Palestinian Authority government of the West Bank. It is also a reasonable way to avoid incentivizing the kidnapping of Israelis to exchange for the release of terrorists from prison, as Hamas did. That is why polling indicates that a majority of the Israeli population supports the law.
Applying the death penalty in this way in an occupied territory is also arguably lawful under international law. Even assuming the applicability of the Fourth Geneva Convention (which Israel ratified in July 1951), Article 68 states in pertinent part that an “Occupying Power . . . may impose the death penalty on a protected person only in cases where the person is guilty of . . . intentional offences which have caused the death of one or more persons, provided that such offences were punishable by death under the law of the occupied territory in force before the occupation began.”
Israel occupied the West Bank from Jordan, which under the Geneva Convention would mean that Jordanian penal law applies. Under the Jordanian Penal Code of 1960, which was the law in force in the West Bank immediately prior to the 1967 occupation, the death penalty was permitted and even mandatory for specific types of murder and acts of terrorism. Israel also has the death penalty as an available sentence for Israeli citizens, although it famously has only been used twice in history for Adolf Eichmann in 1962 and IDF officer Meir Tobianski in 1948.
The outrage over the Israeli law is selective, as anti-Israel outrage often is. The Palestinian Authority has a law that makes capital punishment the sentence merely for selling land to “hostile citizens,” interpreted as Jews. Meanwhile, the death penalty is actively applied merely for being gay in Iran, Saudi Arabia, and Afghanistan, and is technically the law (but with a de facto moratorium) in Qatar and the United Arab Emirates. At the same time, many countries apply the death penalty for terrorism, including the United States, China, Singapore, Iran, Egypt, and Saudi Arabia. Nevertheless, a unique level of outrage is directed at Israel for the passage of its law mandating capital punishment for terrorism committed by non-citizens in the occupied territories.
Granted, the judicial process in military courts is not the same as the process in civilian courts. The conviction rate is relatively high. But that does not make the new death penalty law racist. Nor does it mean that those convicted of murderous terrorism are not guilty.
Israel must be pragmatic. It is surrounded by terrorism from the West Bank (the families of whom were legally compensated by the PA until last year), Hamas terrorism from the Gaza Strip, and Hezbollah terrorism from Lebanon, all while being for elimination by the Islamic Republic of Iran. Other countries cannot even imagine this reality. Therefore, Israel cannot base its penal code on whether it will be judged from the outside, especially when many of those people will find ways to hate Israel regardless.
Jeremy Etelson is a commentator and legal professional whose writing and television appearances focus on geopolitical strategy, U.S. and Israeli domestic policy, and the shifting political landscape for young voters. He holds a law degree (JD) from George Washington University, a master’s degree (MPhil) in political theory from the University of Cambridge, and a bachelor’s degree (BA) magna cum laude in philosophy, politics, economics, and law from the University of Richmond. He formerly served as Judicial Law Clerk to Judge Kevin G. Hessler in an American trial court of general jurisdiction.