The Authority of the President of the State of Israel to Issue Pardons
In recent weeks, United States President Donald Trump has approached Israeli President Isaac Herzog with a request to grant Prime Minister Netanyahu a pardon. Here is everything you need to know about the power of the ceremonial President of Israel to issue pardons.
Photos by Miriam Alster, Arie Leib Abrams/Flash90
The President of the State of Israel is granted the authority to pardon offenders and ease sentences by reducing the punishment or commuting it. This authority is anchored in the Basic Law: The President of the State. In addition, under the “Criminal Information and Rehabilitation of Offenders Law, 2019,” the President is authorized to shorten or cancel periods of limitation and erasure of a criminal record, and even order the erasure of serious offenses, including those punishable by life imprisonment. The President can grant only individual pardons, not group pardons. In the past, the President would grant individual pardons to prisoners released in prisoner-exchange deals based on a list prepared by the government. However, an amendment to the Basic Law: the Government (2001) transferred to the government the authority to release prisoners for reasons related to managing the state’s foreign relations and security. This was done to preserve the principle that a pardon considers the circumstances of a specific prisoner and their personal circumstances.
According to protocol the president is considered a “compassionate authority,” an institution embodying the ability to invoke moral and humanitarian considerations of mercy, compassion, and correction. The authority is intended to allow moral, human, public discretion in certain cases requiring considerations beyond legal ones, enabling a humane or just solution. A pardon serves as a compassionate mechanism in cases where an offender’s life circumstances have significantly changed. This happens when the law “on paper” does not allow the court discretion regarding punishment, or in cases of exceptional circumstances for which the legal system cannot provide an adequate humane response.
According to official procedure, a pardon request must be submitted by the offender themselves (the convict) or their representative (an attorney or authorized representative), or a first-degree relative, and it must be done with the convict’s knowledge.
- Submission of the request to the Pardons Department at the President’s Residence.
- Transfer to the Pardons Department at the Ministry of Justice (or to the Ministry of Defense if it concerns a military court ruling).
- Collection of materials: court files, opinions from the prison service, medical reports, police and prosecution opinions, and socioeconomic data about the applicant.
- Forming a recommendation: the Ministry of Justice submits a recommendation to the President which is usually adopted.
- Signing: if the pardon is approved, the President signs the document of mitigation or erasure, and the Minister of Justice adds a confirmation signature, which is generally a formal approval.
In general, a pardon is an act of compassion and justice granted based on the individual with consideration of their unique personal circumstances. Therefore, there are no preconditions for a pardon, and the law does not specify what the President’s considerations must be when reviewing a pardon request. Out of respect for the President’s broad discretion and privacy considerations, the reasons for granting or denying a pardon are not published. No law requires an admission of guilt as a condition for a pardon. A pardon may be granted even to someone who maintains their innocence, and it is meant to allow forgiveness, correction, or rehabilitation, not to determine guilt or innocence. A full pardon erases the conviction and the criminal record, but does not cancel the existence of the court ruling itself. In other words: a pardon is an act of grace, not an acquittal. That said, it is reasonable to assume that an offender who acknowledges their guilt, accepts responsibility for their actions, and demonstrates genuine regret is more likely to be granted a pardon.
The general rule is that the President pardons those who have been convicted, or in the language of the law, “offenders.” Presidential involvement while legal proceedings are still underway may undermine the rule of law, law-enforcement authorities, and equality before the law. The possibility that the President might pardon someone before or during trial risks turning the President into an authority that bypasses the law-enforcement and judicial system. The rule is that the President acts as a “compassionate authority” only after all other authorities have spoken. A pardon before the completion of legal proceedings is rare and exceptional. One such case was the Bus 300 affair, in which President Chaim Herzog granted pardons to senior Shin Bet officials even before their trial, after they had admitted guilt and the head of the Shin Bet agreed to resign for reasons related to protecting the public interest. The Supreme Court affirmed the legality of the pardon by majority opinion but stressed that it was an “exceptional authority that must be exercised only as a safety valve.” The pardon was granted before the individuals were indicted, yet it was not intended to declare that the acts had not occurred or to acquit the recipients. The affair caused a major shock to the Shin Bet and the Israeli public and led to the head of the Shin Bet’s resignation. Following the ruling, the Attorney General’s directives established that “as a rule, the President deals only with requests concerning someone who has been convicted. Handling requests before conviction will occur only in rare cases.” It should be noted that during a trial, the authority to stay criminal proceedings in exceptional circumstances lies with the Attorney General. Similarly, the authority to withdraw an indictment lies with the prosecution. Therefore, a pardon during trial, which would effectively terminate ongoing proceedings, constitutes interference in the independence of the criminal prosecution.
In most cases, when pardon authority is held by a ceremonial president or a monarch (such as in the UK), the president/monarch’s pardoning authority is exercised only after a conviction, though in Iceland, the President may halt prosecutorial proceedings. In presidential systems where the president heads the executive branch, such as in the United States, the President’s pardoning power is very broad. They may pardon at any stage, including before indictment or during trial. In France, which is a mixed system, the President has broad authority, but pardons are almost always granted only after a final judgment.
The President’s discretion in granting pardons is very broad, and oversight is limited and rare. The law does not specify criteria for pardons, but two oversight mechanisms exist:
- The Minister of Justice’s confirmation signature: The minister signs a confirmation on the President’s pardon decision, enabling parliamentary oversight of the pardon. Since the minister is involved in the process, this allows the Knesset to oversee presidential decisions through the government, via the minister, who may be required to give an account to the Knesset. The prevailing view is that the minister’s signature is mostly formal, but in exceptional cases the minister may refuse to sign due to procedural defects (e.g., the President lacked necessary information) or substantive issues (e.g., a moral difficulty in approving a specific pardon).
- Judicial review: The Basic Law: The President of the State grants the President immunity from any legal action and from any court regarding the fulfillment of their duties or powers. But this immunity is not absolute. The Supreme Court decided that judicial review must be as limited as possible and exercised only in exceptional cases, and even then, differently than with other authorities. This is due to the special nature of the presidency and the uniqueness of the pardoning power.
Over the years, several notable pardon requests by prominent figures or cases that generated public attention were submitted:
- Amos Baranes was convicted of the murder of soldier Rachel Heller, but claimed to be innocent and refused to request a pardon because he believed it would imply admitting to a crime he did not commit. Nevertheless, Justice Haim Cohn personally initiated an appeal to the President to limit his sentence after it became evident that flaws existed in the conviction. Baranes was released, later received a “silent retrial,” and was compensated for the wrongful conviction.
- Shin Bet officials in the Bus 300 affair, President Chaim Herzog granted them pardons before trial after claims that prosecuting them would harm state security. The Supreme Court approved the pardon by majority, but it sparked fierce public criticism.
- Jewish Underground prisoners: President Herzog also commuted their life sentences, leading to their release after roughly ten years.
- Margalit Har-Shefi, convicted of failing to prevent the assassination of Prime Minister Rabin, received a partial pardon from President Moshe Katsav in 2001. The decision was made despite widespread public opposition, prompting the President to publish the reasoning for the first time in Israel's history.
- Former President Moshe Katsav, former Prime Minister Ehud Olmert, and Rabbi Yona Metzger all submitted pardon requests that were denied.
These cases of high-profile pardon requests illustrate the tension between considerations of public and criminal responsibility and considerations of compassion and leniency. Denials of pardons are often made to uphold the rule of law and equality before the law.
In conclusion, the President’s pardoning authority is vested in the President’s broad discretion. However, according to established policy, as a rule, the President reviews a pardon request only after all legal proceedings have ended. The possibility of a pre-conviction pardon, according to the Bus 300 precedent, is extremely rare. A pardon before conviction, while legal proceedings are ongoing, threatens the rule of law and seriously undermines the principle of equality before the law.
