In the context of ongoing military operations, thousands of terrorists have been transferred to Israel. Some of them have already been identified as direct participants in the October 7 massacre. Others certainly will be. The country now faces difficult judicial choices, none of which is satisfactory.

Israel inherited the British judicial system in 1948, including the death penalty. Since 1954, Israel has appeared on the list of abolitionist countries according to Amnesty International. However, Jerusalem has never ratified or signed the Second Protocol aiming at the abolition of the death penalty. In fact, it formally remains in force under Israeli military law applicable for:

Crimes against humanity and war crimes

Nazi crimes against the Jewish people

At the same time, Israel abolished the death penalty for murder, replacing it with mandatory life imprisonment without parole.

It was the 1950 law on the punishment of Nazi criminals that was applied in 1961 during the sentencing of Adolf Eichmann. Before that, one must recall the tragic episode of the 1948 execution of Meir Tobiansky, wrongly accused of espionage and treason, summarily convicted by a military tribunal. He was later posthumously rehabilitated. A third death sentence was pronounced in the case of John Demjanjuk, accused of being Ivan the Terrible, a guard at Treblinka. He was acquitted in 1993 by the Supreme Court on the basis of “reasonable doubt” regarding his identity.

For the past fifty years, right-wing politicians have regularly included the death penalty in their electoral platforms, but without ever truly moving forward.

At the beginning of 2023, the current government introduced the death penalty into its judicial reform proposal presented to the Knesset. It would establish a “mandatory death penalty” for “those who intentionally or through indifference cause the death of an Israeli citizen” “when the act is committed with a racist or hateful motive… and with the intention of harming the State of Israel and its rebirth.”

This proposal has now become reality; it has been voted on. To put it very briefly, it would ultimately apply only to Palestinians from the territories, and possibly others, accused of murdering an Israeli citizen. Since October 7, 2023, the terrorists who have been arrested fall into this category. It should be recalled that after 1967, military courts in the territories were authorized to pronounce the death penalty, but it was systematically commuted to life imprisonment without parole. If this law were to enter into force, its application by military courts alone would clearly mean that only Palestinian residents would be directly targeted. In reference to the most recent events, the 440 UNRWA employees would be liable to the death penalty, along with several hundred other Hamas terrorists.

Aaron Barak, former President of the Supreme Court, considered this law unconstitutional. The Attorney General of the State, Gali Baharav-Miara, also opposed it. Nevertheless, the amendment “Death Penalty for Terrorists” was approved in preliminary reading by the Knesset on March 1, 2023. The multiplication of massive demonstrations against the entire judicial reform led the Prime Minister to suspend it in May 2023, especially since a deep disagreement seemed to exist within the coalition regarding the continuation of this project supported by the far right, whose Minister of Public Security asserts that it is essential to reintroduce the death penalty. The position of the religious parties, however, is far from homogeneous. Religious authorities are very cautious and reluctant to take a clear position. Their pragmatism seemed to prevail over textual interpretation. The majority of the population is not in favor of this project. Nevertheless, the horrors of October 7 have led some to change their position. Beyond that, the procedural aspect also raises numerous legal problems too long to develop here, but sufficiently complex to provoke strong opposition regarding compliance with international laws to which the Jewish State, also a member of the OECD, adheres. It should be remembered in the government’s argument that the death penalty has not been completely abolished. This places Israel in the group of conditional abolitionist countries, with a dormant law in its legal arsenal. One therefore oscillates between DE FACTO and DE JURE.

The Consequences of Such a Choice

The experience of former leaders of the Jewish underground organizations Lehi, Etzel, and Stern, Menachem Begin and Yitzhak Shamir, who fought against the British, had shown them that death sentences pronounced by the British created martyrs. This had the effect of galvanizing the survivors. In this respect, one can indeed imagine that such sentences would create martyrs and become a formidable catalyst for armed struggle against Israel, in light of the multiplication of suicide attacks in recent months and over more than twenty years. The deterrent effect would ultimately be very limited.

Even if Jerusalem does not want to take this into account, the country is under considerable and growing international pressure, including from Jewish communities in the diaspora whose positions are not homogeneous. Many governments criticize the Hebrew State without nuance, both for domestic political reasons and on the international stage: European elections will be held on June 9, and other regional elections will take place in Germany in particular.

International Criticism

Described by some as an apartheid state, by others as “dehumanizing,” such as the Brazilian president who allows himself to use the term Nazi, genocidal according to the International Criminal Court, responsible for a massacre according to others.

The criticism would also be intense if this notion of a “mandatory death penalty” were perceived as a choice of the Jewish people, and worldwide, by extension, associated with the Jewish religion and a supposed lack of humanity. Because recent events have taught us that Judaism, Zionism, and antisemitism have now become synonymous in certain narratives, the ultimate scapegoat and the cause of all evils for antisemites around the world — and they are numerous. Israel’s reputation would undoubtedly suffer.

Commutation to Life Imprisonment

Events in the West Bank have led to hundreds of arrests, while it appears (without official confirmation) that thousands of terrorists have been arrested and transferred to Israel. One must question the State’s capacity to sustain the financial, political, psychological, and security burden that a substantial increase in the number of prisoners would cause. Would there be a waiting list for those sentenced, an American-style death row? With the international press present? A few figures to clarify:

In Israel, as of December 31, 2023:

19,756 prisoners, of whom 39% are not Israeli nationals, or 217 per 100,000 inhabitants, compared with:

Given current information, the prison population could exceed 25,000 inmates. And how many would be sentenced to death? This would entail a significant budget, in addition to the cost of the current conflict.

Dichotomy Between Victim and Aggressor

Martin Buber and Gershom Scholem spoke out at the time of Adolf Eichmann’s sentencing.

A New York Times article from June 5, 1962, quotes Martin Buber, fully aware of the guilt of the Nazi executioner, who declared:“Israel’s role should have been that of accuser and not that of judge.” Even the execution of a mass murderer sparked numerous ethical controversies about the death penalty.

“Buber Calls Eichmann Execution Great ‘Mistake’; Israeli Philosopher Foresees Ill Effects in Germany Says Expiation of Guilt May Retard Rise of Humanism.”

Seventy-five years after the camps, the 110,000 Jews living in Germany, out of a population of 83 million, are subjected to hundreds of attacks.

Gershom Scholem wrote:“It will be said that the Israelis captured the principal organizer of the genocide: that they should hang him and be done with it… one fears that instead of opening the accounts, so as to leave them open to the next generation, they have closed them.”

So, to each his own truth.

© The Times of Israel (Blogs)