Death penalty bill is a moral stain on Israel's leadership

Just when you think the current ultra-nationalist, religious, messianic Israeli government has reached the bottom of the moral abyss, its members somehow manage to descend even further —  and who knows what is in store next? In its latest move, the sixth government of Prime Minister Benjamin Netanyahu, which day by day looks increasingly like the first government of National Security Minister Itamar Ben-Gvir, has pushed a bill through the Knesset mandating the death penalty for the deliberate killing of a person with the intention of “negating the existence of the state of Israel.” The bill stipulates execution by hanging, restricts access to legal counsel and family visits, limits external oversight, and grants immunity to those involved in carrying out executions — everything that screams of summary trials rather than legality or justice. 

The coalition mobilized almost all of its members to ensure that 62 lawmakers supported the bill, against 47 from opposition parties who voted against it. The law mandates that military courts, where these trials will be held, impose death by hanging as the default punishment. For all intents and purposes, this is a law that singles out Palestinians convicted of deadly terrorist acts, which by itself should be condemned. The history of safe convictions in Israeli military courts is questionable, and granting them such power is, at best, irresponsible and, at worst, sinister. 

The only alternative to the death penalty, but in a manner which leaves little leeway for the judges, is life imprisonment, which judges may impose under vaguely defined “special circumstances” that are not clearly outlined. Beyond making the death penalty the default, the law requires that executions be carried out swiftly, within 90 days of sentencing. To make matters even more draconian, a sentence would require only a simple majority of judges rather than unanimity, while eliminating any right of appeal. All of this illustrates, once again, that this is a government that has abandoned any sense of justice and due process, pursuing instead a path marked by further death and bloodshed in its relations with Palestinians, on the march toward annexation. 

There are general arguments against the death penalty, as well as specific ones in the context of this conflict, particularly regarding the wording and timing of this law. Every provision of it suggests moral bankruptcy and a loss of direction —  an act of self-harm by third-rate populist politicians who, with one, if not both eyes on the next general election, are appealing to the basic instincts of their political base, deluding them that this would bring them security. 

This deplorable law reflects an isolationist mindset.

Yossi Mekelberg

Opposing the death penalty is not about being soft on terrorism or on those who take the law into their own hands and kill innocent people. It is a principled objection to violating the fundamental right to life, regardless of how vile the crime. A major argument against capital punishment is that judges, prosecutors, and, where applicable, jury members are human and therefore fallible. There is ample historical evidence of wrongful convictions, including cases in which individuals were sentenced to death, only for their innocence to emerge later. In such cases, once the sentence has been carried out, there is no recourse to justice, at best only a hollow apology, which offers little consolation to their families. This alone should give any legislature pause before supporting such a law. 

In cases of terrorism prosecutions, especially in military courts, the risks are even greater, as they do not necessarily have to have a legal background. Moreover, there are many Israelis who, particularly in the current climate, struggle to view Palestinians as innocent to begin with. This makes the danger of unsafe convictions even more acute. It is also the discriminatory nature of this law, which by effectively targeting Palestinian perpetrators, making it deeply objectionable. Sponsors of the bill, mainly from the ultra-nationalist Otzma Yehudit party and Likud, have been quoted as openly distinguishing between Jewish and Palestinian terrorists. At a time when Jewish terrorism in the West Bank is rampant, this piece of legislation not only tolerates but also encourages it. 

Amid this dark legislative development, promoted by those who appear uninterested in peace and intent on maintaining the oppression of Palestinians, the phrasing of the law itself provides a silver lining that it will not lead to actual executions. Proving that an act of terrorism was carried out with the specific intention of “negating the existence of the state of Israel” would be extremely difficult. The burden of proof is high, and establishing such intent beyond reasonable doubt is unlikely, unless the defendant admits it. Yet, as Israel continues down a slippery slope toward authoritarianism, it is not inconceivable that a similar government, if returned to power after the next election, could amend the law to lower this threshold, making convictions easier and leaving courts with little choice but to impose death sentences. 

The harm inflicted on Israeli society is profound.

Yossi Mekelberg

It is no coincidence that this distortion of justice is assigned to the military court system, whose jurisdiction applies almost exclusively to Palestinians. When Israeli settlers commit acts of violence —  incidents that are on the rise —  and are brought to justice, their cases are handled by civilian courts. The implication is stark: Only the killing of Jews is treated as warranting the ultimate punishment, while the killing of non-Jews may not even be seen as “negating the existence of the state of Israel.” 

Notably, Israeli security services have historically opposed the death penalty, arguing that it risks creating martyrs and emboldening further violence rather than deterring it. This deplorable law also reflects an isolationist mindset among ultra-nationalists, cynically supported by Netanyahu. It has already been condemned by many in the international community, including allies of Israel, as a violation of international law, including the Geneva Conventions, particularly given its restrictions on appeals, that the courts are to be held in in illegally occupied territories, which adds insult to injury. It represents a troubling departure from both liberal democratic principles and broader international norms. 

Those who sponsored this law may gain support among their base, as may those who backed it, including Netanyahu, despite understanding its damaging implications. However, the harm it inflicts on Israeli society and its global standing is profound, immeasurable, and ultimately unforgivable. 

• Yossi Mekelberg is professor of international relations and an associate fellow of the MENA Program at Chatham House.
X: @YMekelberg