Israel has confronted terrorist attacks for many decades, but in all of those years, the Knesset and the public have not seriously considered whether the justice system should sentence convicted terrorists to death. Instead, despite allowing punishment by death for a narrow range of crimes that might plausibly be applied to terrorism offenses, Israel has continued to apply a de facto moratorium on the death penalty.
A recent Knesset bill that would introduce the death sentence for terror-related murder in Israel has broken the decades of relative silence on the matter. With the backing of Defense Minister Avigdor Lieberman, members of the Yisrael Beiteinu party proposed the bill and saw it through preliminary approval in a plenary session of the Knesset. It is now pending before the committee on constitutional and legal matters for further debate and preparation for additional readings. The proposal has two elements. The first amends Israel’s Penal Law to stipulate that a person convicted of murder while committing a terrorist act may receive the death penalty. The second part relates to the West Bank, which Israel has controlled since the Six-Day War and which is ruled under a separate legal regime based on the international law of belligerent occupation. Article 209 of the Decree on Security Instructions (issued by the military commander of the West Bank) already allows the death penalty for murder, or what the law calls “intentional manslaughter,” provided that the sentence receives unanimous approval from a panel of military judges. The proposed bill orders the defense minister to direct the commander to change the decree, so that a decision of a majority of a panel of military judges can issue a death sentence. Furthermore, the bill proposes that the military commander of the West Bank will have no power to mitigate a final death sentence.
This piece will provide an overview of the current legal status and history of the death penalty in Israel. The death penalty also presents many deep moral, legal and criminological questions, both in its more general application and in the specific context of punishment for acts of terror. Though these issues are important, I will not address them here.
When Israel was established in 1948, the first statute that the temporary state council enacted declared that existing law remain in force, as long as it is not in contrast to new law (Article 11). Thus, Israel inherited the legal system from the British Mandate of Palestine. This system included the death sentence for a variety of crimes, including murder and security-related offenses. In 1954, Israel abolished the death sentence in civilian cases of murder. Between the establishment of the state of Israel and the abolition of the death sentence for murder, courts issued a few death sentences, but the punishments were never carried out. The 1954 amending law commuted pending death sentences to life imprisonment. The law includes only one exception: convictions of murder according to the 1950 Nazi and Nazi Collaborators (Punishment) Law. The only person executed in Israel according to a sentence of a regular court in almost 70 years was Adolf Eichmann, executed in 1962 after his conviction for crimes against humanity, war crimes and other crimes he committed during the Holocaust.
The Defence (Emergency) Regulations of 1945, which the British Mandate enacted during the period when Jewish struggle for the establishment of an independent state intensified, includes under Regulation 58 the death sentence for discharging “any firearm at any person” or throwing or depositing “any bomb, grenade or incendiary article with intention to cause death or injury to any person or damage to any property.” Furthermore, even carrying a firearm without a permit or a membership in a group of which another member committed such offences would be enough to sentence a perpetrator to death before a military court. During the last years of the British Mandate, nine members of Jewish underground movements were executed for such offenses. This provision remains in force in Israel, though the military court established pursuant to the regulations is no longer active under a 2000 decision by the attorney general.
The death penalty also exists in Israeli penal legislation for treason in times of war (Articles 96-99 of the Penal Law and Article 43 of the Military Justice Law). To this day, no one has been executed for these offenses.
The Defence Regulations remain in force in the West Bank as well, though Palestinian terrorism defendants are usually indicted before military courts in the West Bank for offenses under the Decree on Security Instruction.
As noted, the decree includes the death penalty as the maximum punishment for murder, as well as three safeguards against an erroneous death sentence. First, the death sentence may not be pronounced based solely on an admission of guilt. The court must conduct a trial and find that the accused is guilty beyond a reasonable doubt (Article 121). Second, a death sentence requires the unanimous decision of a panel of three military judges holding the rank of lieutenant colonel or higher (Article 165(a)). (As mentioned earlier, the bill currently before the Knesset would lift this requirement and allow the imposition of a death sentence by a majority decision.) Third, there is an automatic appeal on a death sentence to the military court of appeals, even if the convicted party does not seek one (Article 156).
Note that international humanitarian law does not preclude sentencing to death protected persons in occupied territory. Article 68 of the fourth Geneva Convention allows the death penalty for espionage, serious acts of sabotage against military installations, or intentional offenses that cause death. Three other conditions apply: The offense must have been punishable with death under the law of the territory before the occupation; the court must be made aware that the defendant is not a national of the occupying power and therefore not bound by a duty of allegiance to it; and the sentenced person must have been at least eighteen years of age at the time of the offence.
In securing the right to life, international human rights law, allows courts to impose a death sentence “only for the most serious crimes” (Article 6(2) of the 1966 International Covenant on Civil and Political Rights [ICCPR]). Additional limitations on capital punishment in the ICCPR include that it may not be carried out on pregnant women and may not be imposed for crimes committed by persons below eighteen years of age (Article 6(5)), echoing the fourth Geneva Convention. The U.N. Human Rights Committee, the expert body entrusted with monitoring the implementation of the ICCPR, has clearly indicated that once abolished, the death sentence cannot be reintroduced, nor can new capital offenses that did not exist at the time of the ICCPR’s ratification be added (Draft of General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights). According to this position, the proposition in the bill to reintroduce the death penalty in Israeli penal law for murder, though only in terror-related cases, may be considered a violation of the ICCPR.
The proposed language in the bill designed to prevent the ability to mitigate a death sentence is directly contrary to the ICCPR (Article 6(4)). Lastly, the proposition in the bill to allow imposition of the death sentence by a majority of the judges instead of the requirement for a unanimous decision, may be contrary to the position of the Human Rights Committee that states parties may not remove legal conditions from an existing offence with the result of permitting the imposition of the death penalty in circumstances in which it was not possible to impose it before. This is the case if this position applies not only to substantive legal conditions but also to procedural guarantees.
Israel continues to apply a de facto moratorium on the death penalty
A change in established policy against the death sentence will have to overcome another legal hurdle: Israeli constitutional law. Specifically, Basic Law: Human Dignity and Liberty declares in Articles 2 and 4 that all persons are entitled to protection of their right to life. It allows a restriction of rights that may only be superseded by a law befitting the values of the state of Israel, enacted for a proper purpose, and to an extent no greater than is required (Article 8). It is quite possible that the Israeli Supreme Court would accept a petition against a law promoting the death penalty and declare such a law unconstitutional.
Finally, a change in government policy towards the imposition of the death penalty may raise tensions between prosecutors, both military and civilian, and politicians. The attorney general, heading the state prosecution and the military advocate general heading the military prosecution must make their law enforcement decisions independently. They are not subject in this capacity to the directions or policy of the justice minister, the defense minister, or the government, and in case of disagreement between the attorney general and the government, the final call belongs to the former.
Whether the Knesset changes the law to expand the possibility to use of the death penalty in terrorism cases or the government decides to adopt a policy to encourage imposition of the death sentence when possible under existing law, the attorney general and military advocate general should consider the policy change. However, they would remain free to decide not to request the death penalty. Such a decision will not be surprising considering the reports about the attorney general’s objection to the bill, as well as the objection raised by the head of Israel Security Agency to the bill. Interestingly enough, the head of the agency, in an appearance last month before a Knesset Committee, opined that the death penalty will encourage new terrorist kidnapping attacks and is not an effective counterterrorism measure.
Against the backdrop of the professional position of both the legal and the security establishment, a survey by the Israel Democracy Institute in July 2017 found that 70 percent of the Jewish public supports the death penalty for Palestinians found guilty of murdering Israeli civilians for nationalist reasons. Though probably affected by severe terrorist attacks just before the survey, it seems the government will have to navigate carefully between public sentiment and rational decision making, between short term and long term considerations. It is hard to predict the outcome.
The article was published in Lawfare.