Death Penalty for Terrorists Bill is Not Constitutional and Will Deal Grievous Harm to Israel

The proposed bill contravenes the basic values of the State of Israel, flouts international treaties Israel has signed and will limit its moral superiority over terrorists. The bill will expose Israel to harsh international condemnation, and it will hamper, rather than alleviate efforts in the war against terror.

Simcha Rothman and Yariv Levine | Flash 90

The following are excerpts from the legal opinion, submitted (in Hebrew) to the Knesset on February 26, 2023.

Link to the Hebrew

The proposed bill was discussed in the Knesset on Sunday, 26.2.23. We oppose this bill. It is harmful to human dignity and the sanctity of life. It contravenes the values of the State of Israel as a Jewish and democratic state. The assumption underlying this proposal is that it will serve as a deterrent to terrorists. However, there is no professional basis for this view, rather to the contrary - security officials have previously opposed similar proposals, both because they believe it will not serve as a deterrent, and also because they believe that it will encourage taking hostages as bargaining chips and revenge attacks. The proposed bill also contradicts Israel’s obligations under international law, and could lead to negative repercussions. The bill would be a stain on the legislative records of the State of Israel and would be harmful to the country.

The Proposal

1. The first clause of the law will impose a mandatory death sentence on a person who deliberately or indifferently causes the death of an Israeli citizen by acting out of racism or enmity to the public and with the goal of “harming the State of Israel and the rebirth of the Jewish nation in its homeland”.

2. The second clause states that the Minister of Defense will instruct the regional IDF commander to rule that a military court will have the authority to impose a death sentence with a majority-rather than a unanimous ruling, and that this punishment may not be mitigated after a ruling has been issued in a regional court.

Rationale of the Proposal

1. The grounds for the proposal, extending over a half a page, include a statement that terrorist acts against Jews have escalated and a complaint that the State does not do enough to punish terrorists. The proposal claims that the death penalty will serve as a deterrent.

With regard to the addition to the crime of terrorist murder in Israeli law

2. We do not intend to conduct an extensive discussion on all the reasons that led to the abolishment of the death penalty in almost every democratic country, with the notable exception of certain states in the USA and Japan (and even then, the trend is to carry out capital punishment less and less). This form of punishment was abolished in most countries because it is considered cruel, inhumane and ineffective.

3. We will limit ourselves to citing the main reasons why most of the countries in the democratic world decided to remove capital punishment from their criminal legislation:

• Intentional killing of a human being is an act of utmost cruelty.

• There is no evidence-based and indisputable body of proof to back up the argument that the death penalty actually serves as a deterrent, even more so - when dealing with terrorists. The latter risk their lives when committing an act of terrorism; and some fervently wish to die as a Shaheed; some are killed in the midst of an unfinished suicide attack, and others are killed afterwards when resisting detention or in possible targeted killing attacks. Under such circumstances, it is unlikely that the death penalty can be an effective deterrent that will lead to a reduction in terrorist attacks. In the opinion of the National Security Service and the Israel Security Agency (Shabak), the death penalty does not deter terrorists and may even increase their motivation.

• No judicial system is free of errors. The death penalty is the one punishment that cannot be corrected, nor can it be compensated for. In this context, it is quite clear that the option of deciding on the death penalty without a unanimous ruling of all the judges in the court of law, increases the risk of error.

The argument has been made, and cited in the rationale for the proposed bill, that the death penalty is also meant to prevent the early release of terrorists, before they have completed their sentence. Would it not be simpler to desist from such prisoner release deals if the state believes that they harm the public interest? Is this not a case of us incentivizing terrorists to commit additional murderous acts in order to stop impending executions? This proposal is not only morally offensive and practically ineffective. It is also dangerous and harmful.

One of the goals of terrorists is to cause the country they are fighting against to take illegitimate or dubious measures. By adopting the death penalty, Israel will be depreciating its moral superiority over the terrorists, will be playing into their hands, and will be granting them an achievement. Israel must do everything it can to maintain its moral superiority.

Mandatory Death Penalty

If the idea of the death penalty as a maximum punishment is an illegitimate and erroneous idea, then a mandatory death penalty is an inconceivable idea and a flagrant and serious breach of human rights law. Not a single country in the democratic world includes mandatory capital punishment as part of its legislation. It is to be expected that lawyers and judges will refuse to cooperate with this idea, which would force them to act as executioners without any possibility for using their own judgment. It should be noted that even The Nazis and Nazi Collaborators (Punishment) Law (1950) did not make capital punishment mandatory.

The Death Penalty for Arabs Only

The wording of the proposed bill is drafted in such a way that almost ensures that only Arab terrorists (or at the very least: those who are not Jewish) will be liable for capital punishment. This is because a Jewish terrorist (for example, Baruch Goldstein) who target Arabs does not act to “harm the State of Israel and the rebirth of the Jewish nation in its homeland”. Not only does this bill degrade the sanctity of life and human dignity, it is also racist and discriminatory, in that the death penalty would only apply based on ethnic-nationalist criteria. Such a bill has no place in a democratic country. The entire world will view it as an inherently racist law.

Applying the Law in Judea & Samaria

The proposed bill will not apply to Judea and Samaria because the Knesset has no sovereign rights in the region and cannot pass any legislation that would apply there. This would only be possible if the State of Israel were to annex the area and would apply Israeli law to Judea and Samaria.

Therefore, if the bill were to be enacted as law, the State of Israel would be accused of taking steps to annex the area. In addition, the section of the proposed law stating that if a military court hands down the death penalty, it may not be mitigated (by the regional commander) blatantly violates international law.

In fact, applying this draconic norm – capital punishment without a mechanism for reducing the sentence – in an area under control of the State, can be compared to imposing the death penalty on a selective basis for a specific population group – the Palestinians–and this is unheard of anywhere else in the world. Israeli citizens living in Judea and Samaria are not tried in military courts, so the proposed bill would be creating a special category just for Palestinian terrorists. This is inherently discriminatory, and we cannot think of any proposal that could attract more negative international condemnation than this: Israel is proposing to legislate that capital punishment, without the possibility of mitigation, would only apply to Palestinians, protected residents in an area under military control, and not to citizens of the State of Israel.

The Proposal as Seen Through the Prism of International Law

Depriving a person sentenced to the death penalty of the option to mitigate his punishment:

Under current military law that applies to Judea and Samaria, the courts are permitted to sentence a person to the death penalty for deliberate killing, which is equivalent to murder.

The new proposal contravenes article 75 of the Geneva Convention relative to the Protection of Civilian Persons in Times of War (4th Geneva Convention) which explicitly states: “In no case shall persons condemned to death be deprived of the right of petition for pardon or reprieve..”

The International Covenant on Civil and Political Rights which was ratified by the State of Israel, determines (in article 6) that, “Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence.” The proposed bill contravenes these articles.

The Knesset cannot ride two horses at the same time. If the State of Israel is the military occupying power in Judea and Samaria (West Bank), then it is bound by the laws of belligerent occupation, including the 4th Geneva Convention. If the State considers itself to be the sovereign power over the region and applies legislation passed by the Knesset, then it is all the more obvious that all its actions are bound by the Covenant on Civil and Political rights.

Therefore, it is patently clear that under international law, enacting the proposed bill would be viewed as a breach of Israel’s commitments according to international treaties, and will lead to strong international condemnation.

In Conclusion:

If the proposed bill is enacted, Israel is liable to join a dubious list of countries – China, North Korea, Iran, Iraq, Saudi Arabia, Yemen etc. – that impose the death penalty, and the only democracy which moves in the direction of increasing the use of the death penalty. While it is still applied in some States in the US, such use decreases in scope and is subject to severe criticism within the US and beyond. There is no logical reason why the State of Israel should try to emulate this practice, instead of condemning it. Does Israel really want to be among the three democracies that sentence people to their death?

We would like to point out that the bill, which proposes to enact such a fundamental change in Israel’s penal system, has been proposed with barely any explanatory material, and does not refer to any relevant considerations. These include the influence of the legislation, constitutional questions, research on the issue, and lessons to be learnt from other countries’ experiences. This is a classic case of contempt for the legislative process. For that reason alone, and to send a clear message to MKs about their responsibilities, the Ministerial Committee should reject the proposal.

The proposal is a severe infringement of human rights, which imposes a cruel and inhuman punishment, and is irreversible in case of error. Under the proposal, the State of Israel shows disdain for the value of the sanctity of life. The damage caused by the proposal far exceeds any benefits it may bring.

According to the proposal, the death penalty would be applied selectively – only to Arab terrorists, and not to Jewish ones. This is blatant discrimination and infringes on the principle of equality.

The proposed bill contravenes the State of Israel’s commitments to international law. When a similar bill was proposed a few years ago, representatives of the Ministry of Justice and of Foreign Affairs stated their view that if adopted, Israel would be subjected to severe condemnation which would bring with it negative implications in the international arena.

Therefore, we propose that the bill be rejected out of hand.