Cruel and Unusual: Israel’s “Death Penalty for Terrorists” Law
On March 30, the Knesset, Israel’s parliament, passed on third and final reading the “Death Penalty for Terrorists” law. The law marks a radical shift in Israel’s policies on the death penalty: The country has only ever carried out two executions in its history (the last of which was in 1962), rendering it a de facto abolitionist state. The terms of the new law add further grounds for concern by removing important due process protections and appearing to apply discriminatory legal criteria. This law and another bill regarding the Oct. 7 trials—which is still pending before the Knesset—have the potential to significantly expand the use of the death penalty in Israel, raising serious concerns under both international and domestic law.
On a deeper level, the law seems to signal a legal-cultural move in Israel away from Western liberal traditions—which largely reject capital punishment and enshrine values of due process and equality—to a more populist and vindictive political system that uses the law in overtly politicized and discriminatory ways. In response, petitions have already been filed with the Israeli Supreme Court (see here, here and here), calling on it to intervene by striking down key provisions of the law. How the court will respond remains to be seen.
Here, we describe the legal context surrounding the enactment of the new law with regard to the death penalty. We then discuss its central elements. Finally, we evaluate the main claims against the law’s compatibility with international and domestic constitutional law.
The Preexisting State of the Death Penalty in Israel
In most democracies—the United States and Japan being prime exceptions—the death penalty has been formally abolished. At the heart of this abolitionist movement is a foundational moral belief that the state should not be authorized to take the lives of individuals, regardless of the crimes they committed. This ethical stance, deeply grounded in European post-World War II culture, has been embraced by almost all liberal democracies.
The death penalty was never formally abolished in Israel, either inside Israel proper or in the territories occupied by Israel since 1967, in which several million Palestinians reside. However, it was implemented only twice in the state’s history and largely remained only “on paper.” Under Israeli criminal law, the death penalty for murder was abolished in 1954, yet Articles 97-99 of the Israeli Penal Code retained the death penalty for the following treasonous crimes: intentionally committing acts amounting to harming the sovereignty of the state, acts likely to remove part of the state from Israeli sovereignty, causing military action against Israel, and assistance to the enemy during war. In addition, the Nazis and Nazi Collaborators Punishment Law of 1950 allows for the application of the death penalty, as does the Crime of Genocide (Prevention and Punishment) Law of 1950.
Finally, the jurisdiction of military courts inside Israel still formally encompasses, by virtue of Article 58 of the British Mandatory Defence (Emergency) Regulations (1945), the power to issue the death sentence for certain terrorist crimes—that is, shooting, using explosives, carrying illegal weapons, or being a member of a group that performs such acts. Furthermore, the Military Jurisdiction Law (1954) authorizes military courts to court-martial Israel Defense Forces (IDF) service members and to sentence to death convicts who have perpetrated the crime of treason. The military courts within Israel authorized to apply the 1945 regulation were, however, disbanded in 2000.
In the occupied territories, a security ordinance enacted by the IDF military commander in 1970 also includes the death sentence for the crime of intentional killing. (In 1968, Israel abolished the death penalty as a mandatory sentence for ordinary criminal offences in the occupied territories but retained the said security offenses provision, which also existed under Jordanian law and originated from the same aforementioned British Mandatory Defence (Emergency) Regulations.) The 1970 security ordinance also provides that a military court in the West Bank, when sentencing a person to death, may do so only if the decision of the three-person panel is unanimous and all judges hold the rank of lieutenant colonel or above.
In practice, the death penalty has been carried out only twice throughout Israel’s history. In 1962, Israel executed the notorious Nazi criminal Adolf Eichmann, a senior official in the Nazi apparatus, following his conviction by the Jerusalem District Court. Eichmann was found guilty of, among other things, crimes against humanity and crimes against the Jewish people under the Nazis and Nazi Collaborators Punishment Law in connection with his role in the extermination of Jews—particularly in Hungary—during the Holocaust.
A more obscure execution took place in June 1948, during the Israeli War of Independence, when Meir Tobianski, a senior member of the “Hagana” (the paramilitary force of the pre-state Jewish population of Mandatory Palestine) and a senior official of the British Electricity Corporation, was convicted by an ad hoc military tribunal of assistance to the enemy during war (relying on an earlier version of the military code crime of treason). He was convicted of transferring information to senior British officials of the corporation, which was later passed to the Jordanian Arab Legion, enabling it to target Jewish institutions in Jerusalem. A firing squad executed Tobianski. He was exonerated posthumously, after it was established that the accusations against him were baseless, and that the trial had been conducted in violation of basic due process standards.
Apart from these two cases, Israel has never implemented the death penalty. A combination of factors led to its disuse. First, within the country there was a deep moral apprehension about the state taking a human life, grounded by liberal sensibilities and the aversion to the death penalty found in prominent sources of Jewish law. Second, the Israeli security apparatus consistently opposed the application of the death penalty for terrorist offenses, maintaining that it would not serve as a deterrent (in the same way that the use of the death penalty against Jewish terror suspects by the British Mandate did not quell the Jewish insurgency). On the contrary, they felt that it could lead to desperate attempts to kidnap Israelis in order to prevent executions, and to cycles of revenge. A third, more implicit reason was the fear of judicial error, perhaps reinforced by the aforementioned Tobianski incident.
The Political Backdrop
Over the years, a few right-wing parties have campaigned for wider use of the death penalty—citing both a need to get tougher on terrorism and criticism of hostage exchange deals that enabled convicted terrorists serving life sentences to be released. In the current coalition, in which far-right parties play a central role, this until-recently fringe agenda has gained considerable political momentum. Imposing the death penalty was, in fact, one of the central campaign promises of the current minister of national security, Itamar Ben-Gvir, and his extreme-right “Jewish Power” party. Ben-Gvir conditioned his continued support for the governing coalition on the promotion of this law. Like other elements relating to the rise of the Israeli far right, the passage of the law reflects, in our mind, a broader shift of Israeli society from core liberal values to more radical populist views—especially, but not exclusively, in matters relating to the Israeli-Palestinian conflict.
Indeed, it appears that the single most significant factor in changing Israeli attitudes toward the application of the death penalty is the Oct. 7 massacre, committed by Hamas and Palestinian Islamic Jihad terrorists. In the aftermath of the massacre, the long and bloody war that ensued, and the release of thousands of Palestinian prisoners in several hostage deals, public support for the death penalty for terrorists has soared. In fact, some Israelis regard Oct. 7 itself as a consequence of a previous hostage deal. (Yahya Sinwar, the Hamas leader who masterminded the massacre, was released from Israeli prison in 2011, with more than 1,000 other Palestinian prisoners, in exchange for one Israeli soldier captured by Hamas.)
One additional factor that seems to have facilitated the passage of the law was the Israeli Security Agency’s (ISA or “Shin Bet”) shifting stance on the death penalty. Whereas the ISA had long opposed the death penalty on operational grounds, it refrained from expressing explicit opposition prior to the passage of the law this time around. It did maintain its opposition, however, to a proposal—which was eventually rejected—to deny judges discretion over whether or not to impose the death penalty.
The ISA did not publicly explain the reasons for this position reversal. The recent change in the organization’s leadership—namely, the appointment of David Zini, a darling of the political right in Israel, as ISA head—might have influenced the organization’s change of position on the matter. It is notable that the IDF, for its part, publicly expressed only mild reservations about the new law during the drafting process. This may be attributed to its focus on various wars during the drafting period, and to the already-tense relations between the military and political branches.
The combined effect of these factors was a relatively comfortable majority (62 in favor, 48 against, 1 abstention) in support of the law in its third reading in the Knesset. A few ultra-religious members of the coalition voted with the opposition, and a few opposition members from the Israel Beytanu party (headed by former Defense Minister Avigdor Liberman)—who have campaigned in the past for the expansion of the death penalty—supported the coalition position.
Breaking Down the Law
The new law contains provisions regarding the application of the death penalty in Israel proper, some dealing with the application of the death penalty in the West Bank, and a few relevant for both jurisdictional tracks. In Israel proper, Article 6 of the law amends the Penal Code by creating a new category of an aggravated murder offense punishable only by death or life imprisonment: intentionally causing the death of a person with the goal of denying the existence of the state of Israel (all other aggravated murder offenses under the Penal Code carry mandatory life imprisonment only).
In the West Bank, Article 3 of the law stipulates that the minister of defense shall order the military commander (who serves as legislative authority for the territories) to amend within 30 days the existing military legislation so as to provide that a terrorist act that intentionally causes the death of a person is punishable by death, unless the military court sets out reasons establishing that special circumstances justify the imposition of life imprisonment instead. (The current version of the 1970 security ordinance already includes the death penalty as the maximum sentence, but it does not restrict the power of the military court to impose less harsh punishments, as this one does.) In addition, the military court may impose the death penalty even if the bench is not unanimous, and even if the military judges do not hold a senior rank. (The current law requires a unanimous bench composed of officers ranked lieutenant colonel or higher for the imposition of the death penalty.) This element of the law explicitly does not apply to Israeli citizens or permanent residents—it applies only to Palestinians or foreigners residing in the West Bank. The law also stipulates that the military commander cannot commute the death penalty. Instead, Article 5 provides for a process by which the prime minister can request that the court postpone the sentence for periods of time not exceeding 180 days in total.
The law also includes several procedural provisions applicable in both Israel proper and the West Bank, which remove procedural safeguards existing under the current legislation. First, judges may impose the death penalty even if the prosecution did not seek it (Articles 3(e)(1), 4). Second, executions must take place within 90 days after the final verdict (i.e., after all appeals have been exhausted) (Article 5). Third, executions are to be carried out by hanging, and persons sentenced to death are to be held separately from all other prisoners and may be in contact only with prison or state authorities, a religious cleric, a lawyer, and a doctor—that is, no family members may visit them, unless prison authorities decide otherwise for special reasons (Article 7). Finally, the new law provides that persons on death row may not be released as part of any international agreement, prisoner exchange, or hostage deal (Article 8).
The Incompatibility of the New Law With International Law and Israeli Constitutional Law
The new law raises serious concerns under both international law and Israeli constitutional law. This comes as little surprise—as opposition lawmakers, civil society representatives, and government legal advisers made the point again and again throughout the legislative process. Such critics of the legislation have pointed to, among other things, the discriminatory design of the new law, the relaxation of important due process safeguards, and its departure from the long-standing Israeli practice of treating the death penalty as effectively a “dead letter.” This criticism has resulted in the watering down of some of the more extreme versions of the draft bill—in particular, the removal of provisions removing from judges all discretion whether or not to issue death sentences upon conviction. Still, the final adopted text remains highly problematic.
It remains to be seen, however, whether the new law will be utilized. Some commentators have argued that the retention of prosecutorial and judicial discretion in whether or not to request the death penalty will likely leave in place the status quo—under which the death penalty is never imposed, for moral, legal, and practical reasons.
A Violation of International Law
Regardless of whether it will be put into effect, the new law alters the existing legal framework in ways that appear to violate international law—as a public statement composed by 25 Israeli international law scholars (including the two of us) suggests. Israel is a party to the International Covenant on Civil and Political Rights (ICCPR), adopted in 1966. The ICCPR is one of the foundational instruments of international human rights law, ratified by the vast majority of the world’s states (175 states parties). Among its core protections, the covenant guarantees the right to life and imposes strict limitations on the continued use of the death penalty. Although Israel has previously contested the application of the covenant to the occupied territories, this legal claim has been rejected by all international bodies that have reviewed it, including the International Court of Justice (ICJ). It is hard to see how such a claim can be made with respect to Knesset legislation, which purports to apply not only in Israel proper but also in the West Bank.
The Human Rights Committee’s General Comment 36 (2018), which represents a broadly accepted interpretation of state obligations relating to the protection of the right to life under the ICCPR, states (in paragraph 34) that the Article 6 prohibition on reintroducing the death penalty, once abolished, includes a ban on extending the list of crimes to which the death penalty applies or relaxing associated procedural safeguards, even for states that have not formally abolished the death penalty. Furthermore, states are required to put themselves on a path toward the abolition of the death penalty. In any event, legal proceedings relating to its imposition must meet all due process safeguards, including the right to seek commutation of the death sentence (a parallel requirement exists under Article 75 of the Fourth Geneva Convention, governing military trials in occupied territories).
The new law violates these standards in several respects. It creates a new capital crime (intentional killing with the intent to deny the existence of the state of Israel) and transforms the death penalty for another crime (international killing under the security ordinance) from optional to semi-mandatory (one that can be deviated from only under special circumstances). It further removes due process safeguards by authorizing the military courts to impose the penalty even by a nonunanimous decision based on a majority of two low-ranking officers, and, in all cases—in Israel proper and the West Bank—without requiring the prosecution to request the death penalty. The abrogation of the right to seek commutation and the expedited timeline for execution (90 days) for seeking pardon under Israeli law (for convicts tried by Israeli civilian courts) also represent a serious dilution of preexisting procedural laws—including of a minimal due process guarantee such as commutation or pardon. In addition, the law mandates execution by hanging—a method that appears to be banned by General Comment 36 due to its “painful and humiliating” features.
Yet the most sinister—and arguably the most blatantly unlawful—aspect of the law is its discriminatory nature. The law is designed in a way that makes it highly improbable that it would ever apply to Jews, even without explicitly stating so. The jurisdiction of the military courts in the West Bank to apply the law extends only to Palestinians and foreign residents of the West Bank, excluding Israeli citizens and permanent residents. Consequently, Israeli settlers—all of whom are Israeli citizens or residents—who commit a terrorist act resulting in the murder of Palestinians will not be tried in the military courts in the West Bank, but only in Israeli civilian courts. Although under the status quo, as a matter of years-long prosecutorial policy, prosecutions against Israeli nationals are normally channeled to civilian courts and are only rarely conducted before military courts, the law transforms this practice into a legal obligation, with life and death implications. What’s more, in order to convict a person before an Israeli civilian court under the new category of aggravated murder, the court would have to conclude that the person acted with the aim of denying the existence of the state of Israel. It is extremely unlikely that an Israeli court would conclude that a Jewish defendant committed murder with that goal in mind.
With regard to the West Bank, the law raises additional concerns under the norms of international law governing belligerent occupation. First, the authority of the Knesset to enact new criminal offenses with respect to the occupied territories runs against a foundational principle of the law of belligerent occupation (under which these territories are governed/administered according to Israel). According to the law of belligerent occupation, the legislative authority for the occupied territory lies with the relevant military commander of the occupying power—who, in Israel’s case, is the commander of the Central Command. The Knesset consequently has no general legal power to pass legislation to regulate the conduct of Palestinian residents inside the area, whether by directly or indirectly requiring the military commander to legislate in a certain manner (which violates his legal obligations under international law).
As a result, the new law serves to bolster the conclusion already drawn by the ICJ in 2004 and 2024—that is, that Israel is de facto annexing the occupied territories. In fact, the Knesset’s attempt to dictate the substance of military legislation exposes the fragility of the entire Israeli legal fiction that the West Bank is held under the laws of belligerent occupation and has not been annexed yet. As the ICJ has already observed, Israel’s conduct exceeds its authority as an occupying power and violates the international prohibition on the annexation of territory.
A Violation of Israeli Constitutional Law
Which of these legal problems might provide grounds for the Israeli Supreme Court to strike down the law, pursuant to the legal petitions already submitted to it by Israeli nongovernmental organizations (the Association for Civil Rights in Israel, Zulat, and Adalah)? As a caveat, it should be noted that there is no extensive jurisprudence regarding the constitutionality of the death penalty’s imposition in Israel. Still, the Israeli Supreme Court clearly has the authority to strike down legislation that violates one of Israel’s Basic Laws (constitution-like laws that restrict the power of the Knesset to pass laws that violate certain fundamental rights). Furthermore, in past rulings, the court has used international law as a tool to interpret the rights enshrined in the Basic Laws. Hence, the apparent violation of the right to life under international law could play an important part in the decision of the court.
Articles II and IV of Basic Law: Human Dignity and Liberty protect the life and human dignity of the person. Although the Israeli Supreme Court has never ruled on the relationship between these provisions and the death penalty, it is likely to view specific provisions of the law as violating both the right to life and the right to human dignity.
For example, the court might regard the “default” imposition of the death penalty in the West Bank, barring special considerations, as bordering on an “arbitrary” imposition of the death penalty—an approach that served as the basis for the U.S. Supreme Court’s decisions striking down mandatory death sentences. Furthermore, the court might view the various procedural aspects discussed above as infringing on the right to life. Specifically, the court might view the very short period between the final sentencing decision and the execution date, and the parallel erosion of the right to seek a pardon or commutation, as an infringement of the duty to protect life. The same approach might also be taken with regard to other dilutions of due process, as the right to a fair trial is constitutionally protected as part of the right to human dignity. The right to human dignity can also be interpreted as prohibiting cruel and unusual punishments—the death penalty itself, or the specific method of execution by hanging.
Note that under Israeli constitutional law, constitutional rights can be limited if certain conditions are met, provided such limits correspond with the values of Israel as a Jewish and democratic state, serve an appropriate purpose, and limit rights to the extent required only. It seems to us that it could be argued that the new death penalty law fails all of these requirements: The law runs contrary to both democratic and Jewish values. There is no empirical basis supporting the proposition that it responded to an actual need for increased deterrence—that is, that it was adopted for an appropriate purpose or only to the extent required. (The Knesset was not presented with clear empirical assessments during the legislative process.) Even if one assumes that the death penalty is effective in deterring “regular” crimes, ideological and terrorist crimes should likely be treated differently, as the perpetrators of these crimes are often willing to sacrifice their lives in order to carry them out.
It seems to us, however, that the most probable ground on which the court might strike down the law is its aforementioned discriminatory effect. In a significant precedent, when the Knesset previously attempted to legislate in a manner that harmed Palestinians’ private property rights in the West Bank through the Settlement Regularization Law of 2017, the court struck down that legislation because it was found to be designed specifically to enable the expropriation of Palestinian private property for the benefit of settlements in ways that violated the principle of equality. Notably, in that case, the court left open the question of legality of Knesset legislation purporting to apply in the occupied territories.
The October 7 Cases
In parallel to the enactment of the new Law, the Knesset is preparing another law, which also involves the application of the death penalty to perpetrators of the Oct. 7 massacre and subsequent events. Israel currently holds approximately 3,000 persons suspected of participation in the massacre, as well as in other crimes committed against Israeli hostages during their captivity in the Gaza Strip. These 3,000 individuals are currently detained without trial under the Unlawful Combatants Detention Law of 2002, which regulates the detention of individuals taking part in an armed conflict against Israel or against members of armed groups engaged in hostilities against Israel who are not entitled to the status of prisoners of war.
A bill currently in advanced stages of legislation before the Knesset will regulate how the trials of these combatants will be conducted. The current version stipulates that these trials will take place before special military tribunals sitting in Jerusalem. The bill, which currently enjoys the support of significant parts of the opposition, also addresses the appointment of judges, the special evidentiary rules that would apply, and the manner by which defense counsel would be appointed.
Significantly, the so-called October 7 trials will be based on the Israeli penal legislation already in force on Oct. 7, 2023. The new death penalty law will therefore not apply to these proceedings. Rather, if the death penalty is sought, it will be pursuant to preexisting laws. The drafters of the bill clearly anticipate that the prosecution will request the death penalty in at least some cases, and the bill includes a special provision mandating automatic appeals in any case resulting in a death sentence.
It thus appears to us that if the death penalty is to enter Israeli legal practice, it will more likely be carried out through the October 7 trials, which may commence sometime in the future. Once these trials begin, the number of defendants potentially facing the death penalty will become clearer—a number that could be substantial.
* * *
The new law marks a significant and troubling departure from decades of Israeli practice demonstrating legal and moral aversion to the application of the death penalty. It expands the scope of capital punishment, weakens long-established procedural safeguards, and—most critically—is designed in a manner that is inherently discriminatory, applying in practice almost exclusively to Palestinians. In doing so, it raises grave concerns under the ICCPR, the Fourth Geneva Convention, and other provisions of the law of occupation, while also exposing Israel to credible accusations of racial discrimination and even the crime of apartheid.
Domestically, the law is already facing a constitutional challenge before the Israeli Supreme Court, particularly on grounds of discrimination. It is not yet clear whether the court will intervene now (it may prefer to intervene later, in the face of an actual conviction and sentence); still, the broader trajectory of moving in the direction of reintroducing the death penalty is cause for major concern given all we know about the deep problems associated with this form of punishment. This is especially the case since the anticipated October 7 trials—which will proceed under preexisting legislation—may introduce the death penalty into Israeli legal practice on a large scale.
If that occurs, the death penalty will no longer be a relic of Israeli legal history, invoked twice and then effectively abandoned. It may, regrettably, become the “new normal.” It remains to be seen whether, when the country is longer in a mindset of war, an assessment of the morality and wisdom of the death penalty will lead to other conclusions.
