“The moral, just and necessary demand”: The resurgence of the death penalty in Israel
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On 1 March 2023, the Israeli parliament approved in a preliminary reading a bill introducing a mandatory death sentence for those deemed to be terrorists – a development that may have grave consequences, not only for Israel, but for the abolitionist cause worldwide. In addition, the bill invalidates several procedural guarantees currently in place in Israel’s military courts, which have jurisdiction over Palestinian residents of the Occupied Territories and can already impose the death penalty – although thus far, none of the few sentences handed down have been executed. The bill, introduced after being unanimously approved by the cabinet led by Prime Minister Binyamin Netanyahu, is truly alarming in its nature and scope. Moreover, if Israel, an Organisation for Economic Co-operation and Development (OECD) member country whose diplomats have until now proudly proclaimed its restraint in not using capital punishment and consistently voted in favour of UN moratorium resolutions, were to reverse its policy, that could have global repercussions. It is not clear if the bill will pass into law – there is a committee discussion still to take place, and there must be three plenary votes before this could happen – but it already provides many reasons for concern. It also enables some broader insights into the functions of the death penalty in other jurisdictions in the contemporary world.
Israel abolished the death penalty for murder in 1954. It stayed on the law books for exceptional offences: crimes relating to the Holocaust and genocide; treason; and under emergency regulations inherited from the British Mandate. Yet the only execution in Israel’s history was that of the Nazi war criminal Adolf Eichmann, an architect of the Holocaust, in 1962. After the occupation of the Palestinian Territories in 1967, Israel declared that the military courts it established there could impose the death penalty, but since then the policy of every successive government until now has been to avoid it. Behind this policy were two main sources of restraint: first, advice from the security establishment that executions would have no deterrent effect and were likely to escalate violence, and second, the concern that imposing and executing the death penalty would damage Israel’s international standing.
Demands from right-wing politicians to use the death penalty against Palestinians have long been part of Israel’s public discourse. Private members’ bills seeking to change the policy have been tabled several times, but for more than 50 years the policy and the law have not changed, with the death penalty becoming what can be described as a populist fantasy. Israel, both a prominent target of political violence and an actor often unencumbered by international norms, nevertheless found the death penalty unusable. This has sometimes been seen as a telling indication of the death penalty’s demise in the modern world.
Now Israel’s stance may change. Unlike previous similar bills, the current measure was, as noted above, approved by the cabinet and passed a preliminary vote with a substantial majority. This came after years that have seen a significant rise in the power of the radical populist right, for which restoration of the death penalty has become a signature demand. But the 2022 election result and the coalition assembled in its wake by Netanyahu mean this faction is now effectively in control of government. Israel is going through extreme turmoil. The coalition, by far the most right-wing in the state’s history, is also attempting to overhaul the entire political-judicial framework, rejecting all advice from the military and judicial establishments. As of this writing, it is not evident that the vote count may change in subsequent readings of the death penalty measure.
The content of the bill is more brazen than that of previous proposals and it violates several international law norms. It provides a mandatory death penalty for those who “intentionally or out of indifference cause the death of an Israeli citizen, when the act is carried out from a racist motive or hate to a certain public … and with the purpose of harming the State of Israel and the rebirth of the Jewish people in its homeland.” The last sentence creates unambiguous discrimination, and is explicitly meant to clarify that the death penalty will apply only to Palestinians who kill Jewish-Israelis, and not vice versa. Moreover, the military courts that would award death sentences have jurisdiction only over Palestinians. Such discriminatory application of the death penalty is a blatant violation of international law. The bill also violates other international norms on the death penalty, for example by authorizing the death penalty for offences short of intentional killing; making the death penalty mandatory; being retrogressive; and lacking judicial precision in the definition of the capital offence.
The second part of the bill seeks to get rid of procedural guarantees in Israel’s military courts: the requirement that a death sentence can be passed only by a unanimous decision of a three-person panel, and only if all three are of a rank of at least lieutenant-colonel; and the authority of the Military’s Chief of Staff to commute death sentences. In the past these have helped ensure that very few valid death sentences would be passed, and in the rare cases that this happened – against the policy discussed above – enabled swift commutation. Without these safeguards, the risk of blatant violation of international law is even higher, especially given that Israel’s military courts are generally not considered to be able to provide fair trials.
Although the Israeli situation is somewhat unusual, it speaks to some broader trends and features of the contemporary death penalty.
First, it is a reminder that dormant death penalty laws are not always an inevitable step toward full abolition: decisions not to use the death penalty are not irreversible. Israel has been largely ignored by international abolitionist actors, and that may have been a mistake. States that do not execute for prolonged periods – described by the UN as “abolitionist de-facto” – should remain an integral part of the remit of the international struggle for abolition. The issue has been kept alive in Israel at least partly because capital laws have remained part of the legal, as well as the political and cultural, architecture; it seems likely that had Israel become de jure abolitionist it would have been much harder to draw support for such a bill. The risk that dormant death penalty laws would be translated into political reality is a feature of many countries, though this is perhaps not always recognized enough by the international community.
Second, the functions of the death penalty here are symbolic, not instrumental, a characteristic of much of the contemporary death penalty global landscape. While Israeli politicians went through the motions of referencing deterrence, it is clear that their motivations lie elsewhere, and the call to restore and enlarge the death penalty is largely a political message. The Knesset member Limor Son Har-Melech, who presented the bill to Parliament, spoke of its role in countering “decades of disgraced national pride”, and stated that it will serve to say “Enough with the national humiliation”. She called the bill “the moral, just and necessary demand”, while the Minister of National Security, Itamar Ben-Gvir, another prominent advocate of the death penalty, said that “This law will not eradicate terror entirely, but this punishment is morally justified.” The death penalty is thus presented as moral, whatever its practical consequences, and as a show of strength and national honour; death penalty opponents are then cast as immoral and weak. Another important message results from the discriminatory nature of the bill: it – and the parliament that supported it – states, quite clearly, that Jewish lives are worth more than those of Palestinians. The death penalty bill also reinforces, and is interlinked with, a broader punitive and abusive trend, for example, a law to strip citizenship from Arab-Israelis convicted of terrorism (formulated so that it would not apply to Jewish terrorists). If the death penalty is legitimized, opposition to other abusive sanctions becomes harder.
These issues are apparent also elsewhere, if not always so visibly: the death penalty conveys nationalist sentiments and intolerance to political dissent, anchors a politics of punitiveness, and distinguishes “real” citizens from migrants and minorities. One implication is that common arguments against the death penalty, for example that it is discriminatory and politicized, become futile when these are exactly its intended functions.
Another lesson from the Israeli bill should be to disabuse us of the belief that the Jewish religion is somehow resistant to the death penalty – an assumption common in both academic and popular contexts. All of the most prominent sponsors of the bill are religious and belong to political parties self-defined as religious: Limor Son Har-Melech, Minister of National Security Itamar Ben-Gvir, and the Minister of Treasury, Bezalel Smotrich, who a few years ago stated he would be happy to serve as an executioner himself. Other religious figures oppose the death penalty bill, mostly for pragmatic rather than theological reasons. It should be clear that Judaism – perhaps like most other religions – is complex and ambiguous enough on such issues that political actors can find in it reasons to either support or oppose the death penalty. In the end it is politics rather than theology that is decisive.
International pressure on Israel on this front can be crucial in shifting the politics. Such pressure has started, but has been fairly muted thus far, and will have to become stronger and clearer to be effective. Given that opposition to the death penalty in Israel often relies on the argument that it will damage Israel’s reputation, international pressure and internal opposition can work in synergy. A success in blocking the bill would be, given the current power of the coalition, an important indication of the strength of anti-death penalty norms; if it passes, this would be another important sign of the potential for retrogression in the fight against the death penalty. The coming months will be critical.
|Dr Ron Dudai is a Senior Lecturer at the Department of Sociology & Anthropology, Ben Gurion University. He’s a board member of the Journal of Human Rights Practice, where he was previously co-editor. His work has been published in leading journals including British Journal of Sociology, British Journal of Criminology, Law & Social Inquiry, and Punishment & Society, and his recent monograph Penality in the Underground: The IRA’s Pursuit of Informers (2022) is published by Oxford University Press. In the past he also worked as a policy advisor at the International Secretariat of Amnesty International, and he currently serves on boards of several human rights organizations.
Photo credit for listing image: Avital Pinnick via Flickr. Licensed under Creative Commons CC BY-NC-ND 2.0.