The death penalty law for Palestinians convicted of deadly acts of terror, which was fully enacted into law by the Knesset plenum earlier this week, is a stain not only on Israel’s statute books, but on the very fabric of Israeli society and the state itself.

It is a flagrantly unconstitutional law. Not only must the High Court of Justice strike it down, but any justice who fails to join such a ruling will be complicit in a moral crime, even if they remain in the minority.

The law also represents the rare, extreme case that justifies an interim injunction to freeze its validity. Although the High Court strives to avoid taking such a step out of respect for the principle of comity among the branches of government, this death penalty law warrants the issuance of an interim order.

Indeed, this was the first, immediate request made by the human rights organizations that rushed to file petitions against the law’s constitutionality.

The petitioners decried that not only does the law stipulate the immediate implementation of the death penalty, but that its enforcement could also undermine the presumption of innocence. They raised the concern that it “will lead defendants to confess to certain acts they did not commit in order to reach a quick plea arrangement that will not include the death penalty,” and that, consequently, the harm to the right to a fair trial may prove irreversible.

High Court Duty Justice Yechiel Kasher left the issue of an interim injunction on the table, even though he refused to issue an immediate order freezing the law. He ruled on Tuesday that the Knesset and the government must submit their responses to the petitions within approximately two months, after which a decision is expected on whether an interim order will be issued to freeze the law’s validity pending a final ruling.

The time the High Court typically takes to deliberate on constitutional petitions of this kind is generally measured in years, not months.

Another step toward de facto annexation

The central problem with the law is that it is intentionally racist — carefully designed to apply solely to Palestinian terrorists, not Jewish ones.

Accordingly, it does not settle for the standard definition of murder, nor even murder “under exceptionally grave circumstances,” as Israeli law stipulates regarding the release of prisoners in diplomatic deals — a clause written as a direct reaction to historical prisoner exchanges, most notably the 2011 Gilad Shalit deal.

Instead, the new legislation specifically defines the crime as “intentionally causing the death of a person with the aim of denying the existence of the State of Israel.”

The objective is to distinguish between Palestinian terrorists — who, according to the law’s drafters, carry out terror attacks to deny the state’s existence — and Jewish terrorists. It is highly unlikely that a court would determine that murders committed by the latter, even if classified as terror attacks, were carried out for the purpose of denying the existence of the state.

Another problem with the law is its direct application to the West Bank. Currently, Palestinians in the West Bank are subject to military law, while Israeli settlers are subject to civil law. By bypassing the military commander – the sovereign authority in the West Bank under belligerent occupation – and applying civil Knesset legislation directly to Palestinians, the law brings Israel closer to de facto legal annexation, distancing it from the family of nations that uphold the basic norms of international law.

The law also permits a court to hand down a death sentence in situations where the State Attorney’s Office or the Military Advocate General never even requested it. In doing so, the law deviates from a foundational principle of Israeli law, under which the court is supposed to rule between the positions of the two parties or find a middle ground between them.

The shameful nature of the law is further evidenced by the fact that the identity of the prison guard performing the hanging will remain classified, and anyone who publishes their identity will face up to three years in prison

The shameful nature of the law is further evidenced by the fact that the identity of the prison guard performing the hanging will remain classified, and anyone who publishes their identity will face up to three years in prison

The legislation also requires the Israel Prison Service to carry out the execution via the barbaric method of hanging. The shameful nature of the law is further evidenced by the fact that the identity of the prison guard performing the hanging will remain classified, and anyone who publishes their identity will face up to three years in prison.

“The death penalty is unconstitutional,” the Association for Civil Rights in Israel argued in its petition, “due to its grievous violation of the right to life. The law turns the death penalty into the default option for Palestinians, dangerously narrows judicial discretion, and strips the defendant of the procedural protections essential to saving their life. The drafters of the law designed a procedure in which the death penalty is a mandatory punishment, from which deviation is possible only in the most exceptional of cases.”

Crystal clear message against the law

It is highly likely that Attorney General Gali Baharav-Miara, who has expressed her opposition to death penalty laws since taking office, will allow the government to seek outside legal representation for these petitions.

This is because her position directly clashes with that of National Security Minister Itamar Ben Gvir — the bill’s primary architect, who made the legislation a central campaign promise and a strict condition for his far-right Otzma Yehudit party to join the coalition. Ben Gvir is one of the respondents to the petition, alongside Prime Minister Benjamin Netanyahu and Defense Minister Israel Katz.

Baharav-Miara’s likely stance will allow the attorney general to present a detailed argument against the law, outlining not only all the ways it fails the constitutional test, but also how it fails the moral and ethical tests — specifically regarding the state’s character within the family of nations.

A more complex challenge rests on the shoulders of the Knesset’s legal adviser, Attorney Sagit Afik. Knesset law dictates that whenever a constitutional petition challenging the validity of a law is filed, the Knesset’s legal counsel must step forward and defend the legislation.

Four months ago, the legal team of the Knesset’s National Security Committee submitted a review of the proposed death penalty law, and its underlying message was crystal clear: Do not enact it.

The position paper noted that the global trend for many years has been to either legally abolish the death penalty or render it a dead letter. More than two-thirds of the world’s countries have abolished the death penalty in law or in practice. The 54 countries where the death penalty still exists are Third World nations or dictatorships, such as China, Egypt, Jordan, Iran, Ethiopia, Nigeria, Lebanon, and Qatar.

The only two Western democracies that still practice capital punishment are Japan and the United States, and even there, the practice is on the decline.

In fact, the death penalty existed in Israeli law long before this legislation was enacted. Under the British Mandate emergency regulations that carried over into Israeli law upon the state’s founding in 1948, courts were granted the authority to impose the death penalty for offenses such as murder, treason, and the illegal use of weapons or explosives.

Following the establishment of the state, additional clauses mandating the death penalty were enacted: for a soldier committing treason under the Military Justice Law; for intentionally provoking war and aiding the enemy during wartime under the Penal Law; and, of course, under the Nazis and Nazi Collaborators (Punishment) Law, as well as the Crime of Genocide (Prevention and Punishment) Law.

In 1954, the Knesset formally abolished the death penalty for the crime of murder within the Penal Law.

The Knesset’s legal counsel warned the lawmakers debating the current bill that for the law to be considered constitutional, they must be convinced that “the death penalty will achieve the purpose of deterrence, that this purpose cannot be achieved by a less harmful means, and that the benefit of the death penalty outweighs its damages.”

Ultimately, though, the death penalty law for Palestinians convicted of deadly acts of terror must be struck down by the High Court not just because it fails the proportionality test, but because it contradicts the very values of the State of Israel, both as a Jewish state and as a democratic one.

In this context, it is worth revisiting the words of the late Supreme Court Justice Haim Cohn, written following the enactment of Basic Law: Human Dignity and Liberty, in his essay, “The Values of a Jewish and Democratic State”:

Not only has the death penalty ceased to be a Jewish value, but one could argue that the rejection of the death penalty has itself become a Jewish value

Not only has the death penalty ceased to be a Jewish value, but one could argue that the rejection of the death penalty has itself become a Jewish value

“The prohibition against harming human life, as a foundational principle of public law, means first and foremost the prohibition against imposing the death penalty. Human life – meaning the life of a murderer or a traitor as well. The fact that a murderer took human life does not justify taking his, neither by the state nor by anyone else,” Cohn wrote.

“The sages of the Mishnah did everything in their power to ensure that no offender would be put to death,” he noted. “Not only has the death penalty ceased to be a Jewish value, but one could argue that the rejection of the death penalty has itself become a Jewish value. And this rejection is also a distinctly democratic value.”

Are you relying on The Times of Israel for accurate and timely coverage of the Iran war right now? If so, please join The Times of Israel Community. For as little as $6/month, you will:

Support our independent journalists who are working around the clock under difficult conditions to cover this conflict;

Read ToI with a clear, ads-free experience on our site, apps and emails; and

Gain access to exclusive content shared only with the ToI Community, including weekly letters from founding editor David Horovitz.

We’re really pleased that you’ve read X Times of Israel articles in the past month.

You clearly find our careful reporting of the Iran war valuable, at a time when facts are often distorted and news coverage often lacks context.

Your support is essential to continue our work. We want to continue delivering the professional journalism you value, even as the demands on our newsroom have grown dramatically during this ongoing conflict.

So today, please consider joining our reader support group, The Times of Israel Community. For as little as $6 a month you'll become our partners while enjoying The Times of Israel AD-FREE, as well as accessing exclusive content available only to Times of Israel Community members.

Thank you,David Horovitz, Founding Editor of The Times of Israel

1 Israel comes under repeated missile fire on Passover as Tehran vows ‘crushing’ blows

2 US op to seize Iran’s uranium would take weeks, require building a runway — report

3 ‘Entrenches apartheid’: UAE, 7 other Muslim countries blast Israeli death penalty law

4 Macron scoffs at Trump’s mockery of his marriage, says it ‘doesn’t merit a response’

5 40 nations attend UK-led talks on stopping Iran from holding world ‘hostage’ in Hormuz

6 Hezbollah fires some 130 rockets at north on Passover; 4 lightly injured

7 UK to gather more than 30 countries to discuss methods of reopening Strait of Hormuz

8 Hegseth fires US Army chief of staff, sources say, shaking up Pentagon amid Iran war

© The Times of Israel