A distortion of legislative necessity: Israel’s new death penalty laws, and the mandate for immediate revision

Israel’s Knesset recently made an irrefutably controversial decision to impose oppressive and discriminatory new death penalty laws. The legislation, Death Penalty for Terrorists Law (5786–2026), was championed by Itamar Ben-Gvir, Minister of National Security, who wore a talismanic golden noose on his lapel throughout the proceedings and saw fit to brandish a bottle of champagne on the floor of the Knesset after the vote. The minister’s conduct has not been officially impugned by the government, and it lingers as evidence of a severe erosion of standards in the legislative chamber, as do the implications of the vote itself. 

The Knesset passed the new provisions by a slim majority of 62 to 48. In so doing, they expressly required military courts in the occupied West Bank to, inter alia, impose the death penalty for certain terrorism offences, unless special circumstances are demonstrated that may warrant life imprisonment.^[1] The new death penalty regime would foreseeably apply only to Palestinian people as Israeli citizens and Israeli residents are expressly exempt.^[2] A separate amendment to Israel’s Penal Law was also approved, through which death sentences may be ordered for those in Israel who intentionally cause the death of a person ‘with the aim of negating the existence of the State of Israel’.^[3] Extraordinarily, the Knesset also dictated that executions be carried out within 90 days of the final sentence (only allowing for postponement by Prime Ministerial intervention and with ‘special reasons’).^[4]

Of course, Israel’s death penalty laws cannot be interpreted in isolation. The Israeli government’s unabashed interest in ‘freedom of action to thwart immediate and emerging threats’ would appear to have superseded their appreciation for paramount duties to international law, and the international organisations that are designed to monitor and enforce such obligations. Ben-Gvir has cited the United States as a model for Israel’s new death penalty legislation, and so the current dynamics of that bilateral relationship must also be taken into account. In this context, is the new death penalty legislation intended as a warping of the Overton window (an extreme proposal that makes other actions comparatively more palatable)? Is it a diplomatic signal that Israel relishes the prospect of isolation from the ‘framework of values’ that underpins the movement to abolish the death penalty, irrespective of the fundamental importance of the issue to major allies? Or was the passage of these new laws an ‘historic opportunity’ for those with political ambitions to exploit the horrendous events of 7 October 2023, to create such a cleavage in the political discourse that the power to punish is extended carte blanche, and to ensure that electoral prospects are fortified? If there is any credence in the latter position, then those with authority in the Knesset must move to remedy it. 

This is not the first occasion that the Knesset has been asked to expand the scope of the death penalty, though other attempts in the last decade were unsuccessful. As a state party to the International Covenant on Civil and Political Rights (ICCPR), one that has not carried out a death sentence since the execution of Adolf Eichmann in 1962, any recourse to such measures should be prevented, as Israel is expected to ‘be on an irrevocable path towards complete eradication of the death penalty, de facto and de jure, in the foreseeable future.’ Factoring in the decades that have passed whilst the death penalty has remained dormant, it is particularly egregious for Israel to have pushed ahead with new death penalty laws, and it is also worryingly out of step with the global trend towards abolition. 

The stated purpose of the legislation is to respond to acts of terrorism in order to protect the State of Israel, its citizens, and residents, to strengthen methods of deterrence, prevent hostage-taking attacks and to deliver retribution.^[5] Zvika Fogel, Chair of the Knesset’s National Security Committee, has said that the death penalty laws are ‘another brick in the wall of our defence’. This message surely has a deep emotional resonance for many people in Israel, but it is built upon a weak foundation. Carolyn Hoyle and Ron Dudai’s expert opinion on flaws in the purported deterrent effect of the death penalty, filed in the wake of legal challenges to the legislation, is an important rejoinder to the proposition that the new laws will make anyone safer. It is therefore apparent that the legislation owes much more to penal populism^[6] than to empirical justification or legal reasoning. 

Israel’s Call for an International Moratorium on the Death Penalty 

The new death penalty laws have been widely condemned. However, the discriminatory nature of the legislation has somewhat obscured Israel’s longstanding and voluntary call for an international moratorium on the death penalty. In this respect, not only is the legislation ‘patently inconsistent with Israel’s international law obligations’, but it is also jarringly incompatible with established national policy. 

Until now, the Israeli government has generally appeared to act in recognition of abolitionist principles when appearing before multilateral forums. In a National Report submitted during the UN Human Rights Council’s Universal Periodic Review (UPR) process in 2008, Israel provided reassurance that ‘a de facto moratorium on executions’ was being applied.^[7] When the UN Human Rights Committee enquired about the status of a bill on the death penalty that had passed a preliminary reading in 2018 and that would permit military courts to impose death sentences by majority verdict, Israel indicated that their Attorney-General had objected to the bill as it did not meet the requirements of the limitation clause in their Basic Law: Human Dignity and Liberty.^[8] Israel confirmed that the Attorney-General had drawn the Knesset’s attention to the Human Rights Committee’s General Comment on the Right to Life, ‘in order to highlight and explain several difficulties’ with the bill. The Attorney-General had also observed that the bill was incompatible with Israel’s approach to the question of the death penalty in international forums. Having cited these matters, Israel reassured the Committee that the bill had not been further considered.^[9] Whilst Israel has yet to act upon numerous recommendations to ratify the Second Optional Protocol to the ICCPR (those that have been forthcoming in subsequent UPR cycles), they have managed to preserve de facto moratorium conditions.  

Nevertheless, the death penalty was again put on the Knesset’s agenda in 2023. Whilst that bill stalled as well, it was the precursor to a similar variation that was adopted this year. The 2022 election results had delivered a coalition that was intent upon a ‘political-judicial overhaul’, and traditional bulwarks against the death penalty in Israel were evidently weakened. Although government advisors raised serious concerns about the legal validity of the most recent bill too, their advice was overlooked on this occasion.  

Contrary to these developments in the Knesset, it must be acknowledged that Israel has consistently voted in favour of the United Nations General Assembly resolution for a moratorium on the use of the death penalty, and that Israel has also taken upon itself to co-sponsor the resolution on each occasion.^[10] This means that Israel voluntarily and unambiguously pledged their public support for the tabling and adoption of the resolution when it was first introduced in 2007, and has done so at every biennial recitation since. Israel’s decision to continue with co-sponsorship in 2024 is just as instructive, for it was again declared in the resolution that the parties were convinced ‘that a moratorium on the use of the death penalty contributes to respect for human dignity and to the enhancement and progressive development of human rights’, considered in light of the view that ‘there is no conclusive evidence of the deterrent value of the death penalty’.^[11]  

It should be emphasised that whilst the moratorium resolution has garnered increasingly broad support, most recently securing adoption with votes from more than two-thirds of UN Member States, there are a vocal minority of states who oppose the process, and so Israel’s stance is far from merely perfunctory. Notably, Israel has never joined in voting for the hostile sovereignty amendment that is brought by some opponents of the resolution. The recent legislation is demonstrably in conflict with the object and purpose of the resolution, and Israel should be intrinsically motivated to immediately resolve the issue. 

Repercussions of the Knesset’s Decision 

There has been a loud international outcry since the Bill was passed, throughout government and across civil society. A joint statement issued by the Foreign Ministers of Australia, Germany, France, Italy, New Zealand, and the United Kingdom the day prior to the vote had made it clear that high-level diplomatic channels were being utilised. The Council of Europe’s Secretary-General, Alain Berset, addressed official letters to the Speaker of the Knesset, Amir Ohana, and to Israel’s President, Isaac Herzog; however, these appeals were evidently unsuccessful.

In response to the vote, the Parliamentary Assembly of the Council of Europe, amongst other bodies, has been quick to condemn Israel’s actions, and they have indicated that the Knesset’s Observer Status is ‘under careful review’ (a suspension could be forthcoming). Calls for the suspension of the EU-Israel Association Agreement have also incorporated references to the new death penalty legislation; UN experts having described Israel’s capital punishment regime as ‘a grave escalation in the oppression of Palestinians’ and a violation of international law. A group of Israeli international law scholars, including Eliav Lieblich, Yaël Ronen, Michael Saliternik, and Yuval Shany, published a statement in which they called for a number of remedies, including for the Supreme Court to issue a preliminary injunction against the implementation of the law and to make a finding that the law is wholly unconstitutional. They also called for the Attorney-General to refuse to defend the validity of the law in any challenge to its constitutionality, looked to political opponents of the legislation to pledge that the law would be repealed following elections, and warned Israeli military commanders in occupied territories that they risked exposing themselves to international criminal liability if they carried out death sentences. The UN High Commissioner for Human Rights, Volker Türk, has similarly indicated that applying the new law to Palestinian residents of the occupied territory ‘would constitute a war crime.’ A joint statement was released by Egypt, Jordan, Indonesia, Pakistan, Qatar, Saudi Arabia, Türkiye, and the United Arab Emirates, in which they said that Israel’s death penalty laws were a ‘dangerous escalation’, increasingly discriminatory, and that they ‘entrench a system of apartheid’ (although it must be acknowledged that some of these countries are responsible for their own draconian systems of capital punishment). Of course, these are just some relevant examples of the vociferous response to the legislation. 

Legal and Political Remedies 

Mordechai Kremnitzer has said that the revival of the death penalty has succeeded in ‘completely severing Israel’s remaining humanistic and liberal values.’ However, he suggests that those responsible for the legislation are aware that it will not withstand judicial review, and forecasts that there is primarily a political benefit to be won by proponents of the legislation — those who intend to erroneously attribute responsibility to the Courts for increasing Israel’s exposure to terrorism, when the legislation is found to be constitutionally incompatible. 

If it is the case that the death penalty has been used for such a cynical purpose then it could be said that there is a style of Motte and Bailey political strategy at play. Nicholas Shackel, who devised the concept in a related field, reminds us of medieval castles in which the Motte was a very secure stone tower, and the Bailey was a more accessible courtyard. Whereas the Bailey was vulnerable to attack, the Motte was much more robust, and so a successful defence of territory could be sustained from the Motte, when it was necessary to retreat to it. After an attack upon the Motte subsided, its occupants could then return to the wider comfort of the Bailey. 

In this instance, the Knesset adopted legislation that is expressly discriminatory and in open violation of international law. They have done so in direct contradiction of Israel’s enduring support for the call to secure an international moratorium on the death penalty. Perhaps those responsible in the Knesset do foresee that the Supreme Court will be obliged to intervene, and that these laws will be invalidated. Should that occur, they can plausibly retreat to the safety of the political arena, having planted a contest over the validity of the death penalty into the public consciousness and having cultivated some new ground upon which to argue for exceptionally punitive measures. However, in light of the pervasive condemnation of the new laws, it is not obvious that this will have been a successful strategy, nor a beneficial one. Having regard to the international legal framework of the right to life, that Israel has itself defended, it was certainly unnecessary and unjustified. Formally, the Motte and Bailey Doctrine has its roots in criticism of rhetorical practices within postmodernism; it was intended to expose theories that are contingent upon vacillation between easily defensible claims, and more radical propositions. There are not strictly the same ‘equivocal fulcra’ at play here, but the analogy does highlight tensions between political and legal institutions in Israel. 

To experiment with a more modern term, those responsible for the death penalty legislation could be said to have engaged in ‘normbaiting’, having advanced a legislative initiative with weak legal justification, designed to frame and exploit subsequent judicial intervention as illegitimate interference in the normative evolution of the state. The Knesset’s decision to, in effect, deliberately provoke judicial review is not a simple matter of dialogue between legislature and judiciary.[12]It is more closely associated with ‘court curbing’ techniques (stripping courts of resources, moving to reduce court powers, and making judicial appointments for political purposes, for example). However, as the death penalty legislation does not formally curb judicial powers, the conditions may be more aptly described as ‘normbaiting’. Amichai Cohen and Yaniv Roznai have both considered the likely impact of judicial review in a manner that is relevant to this exercise, noting that it is implausible that the most overtly discriminatory elements of the legislation could be sustained at law. 

That the legislation contains a mandatory requirement for death sentences also warrants immediate scrutiny. As the UN Human Rights Committee have consistently found,[13] mandatory sentencing in death penalty proceedings is inconsistent with the right to fair trial, and violates the right to life, rendering any such sentences arbitrary. Li-Yen Peng has demonstrated that there are powerful reasons to conclude that a customary prohibition of the mandatory death penalty can be found within international law, and Israel should strive to ensure that they act in full conformity with it. 

Roznai confirms that legal flaws in the legislation were made obvious during the Knesset’s proceedings, but that it is a ‘win-win’ for coalition lawmakers who will be inclined to ‘label the judges as enemies of the state’ should the legislation be found to be unconstitutional. Cohen is also attuned to the various public law pathways open to the Court. He cites the importance of testing the veracity of evidence relied upon by the Knesset to infringe upon specific rights; a ‘factual record’ that he says was missing from the debate. Adding to this, Amir Fuchs stresses that the new laws have resulted in a very extreme version of the death penalty ‘which doesn’t exist in any democracy’, and this is regrettably consistent with Suhad Bishara’s observation that the legislative process was marked by extreme incitement to violence. 

Now that petitions have been filed, it is reasonable to expect that the Court will find that the new laws fail relevant tests of legal validity, to put it broadly. Israeli civil society organisations, including the Association for Civil Rights in Israel (ACRI), the Legal Centre for Arab Minority Rights in Israel (Adalah), and the Public Committee Against Torture in Israel (PCATI), are amongst a number of petitioners, all of whom have strongly opposed the legislation and have been quick to instigate legal proceedings. The Court has set down a schedule, requiring the state to respond by the 24th of May. 

Amidst these considerations, the Knesset has also just taken action on a bill for the regulation of the incarceration and prosecution of people accused of participation in the events of 7 October 2023. UN Special Rapporteurs had grave misgivings about this plan, as it establishes a special military tribunal with the power to deviate from standard rules of evidence and procedure, whilst also being equipped with the power to impose death sentences. As has been established, resorting to the death penalty in unfair proceedings amounts to an arbitrary deprivation of life, and it simply must be avoided. Not dissuaded by these matters, the Knesset passed the legislation with 93 votes in support and without any votes recorded in opposition. 

Yulia Malinovsky, a co-sponsor of the bill, invited the world to ‘see how the State of Israel is a sovereign state which knows how to hold those who harmed it to account’. Of course, it is right that those who are proved to be responsible for participating in the October attacks must be held accountable, but as Sari Bashi warns, ‘show trials and mass executions based on confessions extracted through torture’ are not representative of a system of justice. 

Those with legislative authority in Israel know full well that the new death penalty laws are cruel, discriminatory, arbitrary, and in blatant violation of international law. It is reasonable to expect that urgent problems of this nature would be rectified with immediate effect. Instead, it has been disturbing to witness the Knesset’s preparedness to expand upon them.

	Saul Lehrfreund is Co-Founder and Co-Executive Director of the legal action NGO The Death Penalty Project. He is an Honorary Professor at the School of Policy Studies, University of Bristol, and a Visiting Professor of Law at the University of Reading.
	Matthew Goldberg is President of the World Coalition Against the Death Penalty. He is a DPhil Candidate at the Faculty of Law's Death Penalty Research Unit and a board member of the Capital Punishment Justice Project.

[1]   Death Penalty for Terrorists Law, 5786–2026, ‘Death Penalty in Judea and Samaria’, section 3(d).

[2]   Ibid.

[3]   Ibid, section 6 (Amending Penal Law, 5737-1977, section 301A).

[4]   Ibid, section 5. 

[5]   Ibid, section 1.

[6]   John Pratt, Penal Populism : Key Ideas in Criminology (Routledge 2007); David Garland, ‘What Is Penal Populism?’ in Alison Liebling and others (eds), Crime, Justice and Social Order: Essays in honour of AE Bottoms (Oxford University Press 2022); also see Bart Bonikowski, ‘Ethno-nationalist populism and the mobilization of collective resentment’ (2017) 68(S1) BJS 181.

[7]  UNHRC, ‘National Report submitted in accordance with paragraph 15(A) of the Annex to Human Rights Council Resolution 5/1: Israel’(25 September 2008) UN Doc A/HRC/WG.6/2/ISR/1, [93]. 

[8]  Ibid.

[9]   Ibid.

[10] UNGA, ‘Report of the Third Committee’ (5 December 2007) UN Doc A/62/439/Add.2; UNGA, ‘Report of the Third Committee’ (4 December 2008) UN Doc A/63/430/Add.2; UNGA, ‘Report of the Third Committee’ (8 December 2010) UN Doc A/65/456/Add.2(Part II); UNGA, ‘Report of the Third Committee’ (8 December 2012) UN Doc A/67/457/Add.2; UNGA, ‘Report of the Third Committee’ (8 December 2014) UN Doc A/69/488/Add.2; UNGA, ‘Report of the Third Committee’ (6 December 2016) UN Doc A/71/484/Add.2; UNGA, ‘Report of the Third Committee’ (4 December 2018) UN Doc A/73/589/Add.2; UNGA, ‘Report of the Third Committee’ (1 December 2020) UN Doc A/75/478/Add.2; UNGA, ‘Report of the Third Committee’ (5 December 2022) UN Doc A/77/463/Add.2; UNGA, ‘Report of the Third Committee’ (29 November 2024) UN Doc A/79/458/Add.2. 

[11] UNGA Res 79/179 (17 December 2024) UN Doc A/RES/79/179.

[12] For insights into ‘dialogic review’, see: David S Law and Mark Tushnet, ‘The Politics of Judicial Dialogue’ in Mark Tushnet and Dimitry Kochenov (eds) Research Handbook on the Politics of Constitutional Law (Edward Elgar 2023). 

[13] Paul M Taylor, A Commentary on the International Covenant on Civil and Political Rights: The UN Human Rights Committee’s Monitoring of ICCPR Rights (Cambridge University Press 2020) 156.