The Death Penalty Law in Israel
Regarding the law on the death penalty for terrorists enacted by the Knesset on 2026-03-30.
Assessment of the Enacted Law
The amendments to Israeli criminal legislation, in particular to Section 301A of the Penal Law (חוק העונשין), providing for the death penalty or life imprisonment as punishment for intentional killing with a purpose directed against the existence of the State of Israel, are in themselves justified. However:
(1)
As I have previously written, in criminal law in general and in Israeli criminal law in particular, a law that establishes or increases a penalty has no retroactive effect (Article 15 of the International Covenant on Civil and Political Rights and Section 3(b) of the Israeli Penal Law (חוק העונשין)).
That is, although some may get the impression that the law can be applied to terrorists who took part in the attack on Israel on 7 October 2023, in reality it cannot. The law may only be applied to acts committed after its entry into force.
(2)
The enacted law contains a provision allowing the court to impose a death sentence even though the prosecution has not requested it.
This is a very serious violation of a fundamental principle underlying the very concept of a court of law.
The introduction of the death penalty as a form of punishment is not in itself a violation of human rights, but a violation of the basic principles governing the functioning of a court is.
This also violates the recognized religious principle of the commandment to "establish just courts" for all peoples, including Israel (the Laws of Noah).
(3)
Under Article 6(4) of the International Covenant on Civil and Political Rights, ratified by Israel in 1991: "Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases."
The bill was drafted without regard to this provision. This gives rise to the suspicion that its drafting took place without the involvement of international law specialists.
(4)
The law proceeds from the assumption that residents of the District of Judea and Samaria are not residents of Israel, i.e. it is based on the premise that the District of Judea and Samaria is not a territory of Israel.
This is incorrect; see on this site my text "Borders and Territory of Israel".
(5)
The law thus in no way addresses the question of what to do with the terrorists held in Israeli prisons who took part in Gaza's war against Israel. And this is indeed a difficult problem that calls for very tough but carefully considered decisions, not populism.
How It Could Have Been Done Better
Naturally, in light of the above observations, a legitimate question arises: "What should have been done instead?"
We cannot give retroactive effect to a law that establishes or increases a penalty, i.e. apply it to acts committed before its entry into force. No one who calls himself a lawyer should do such a thing. However, we can consider several possible approaches which, though debatable, are of interest:
(1)
There is a concept known as continuing offense, i.e. an offense that may have been commenced before a law's entry into force and may continue after it — in which case it is punishable under the new law, since the act took place after the law's entry into force, even though it may have begun before it.
Here is a remarkable example: in Georgia, criminal liability was introduced for being a thief in law (thief with code) (Rus. «вор в законе»). This law, naturally, had no retroactive effect. That is, a person could not be punished merely for having become a "thief in law" before the law's entry into force. But he could be punished for continuing to be one after the law entered into force. A person would simply be brought to the police and asked: "Do you continue to be a thief in law?"
We already have a fairly well-developed, though, regrettably, applied far less than it should be, Counter-Terrorism Law No. 5776 (2016) (חוק המאבק בטרור, התשע״ו–2016) (The Counter-Terrorism Law, No. 5776 (2016)). It already provides for such offenses as "membership in a terrorist organization," "provision of services or resources to a terrorist organization," "an act of identification with a terrorist organization," "incitement to terrorism," and others.
Following 7 October 2023, it is of course necessary to increase the penalties for these offenses, including life imprisonment and the death penalty for mere participation in a terrorist organization. We must, regrettably, acknowledge that the mass sadism displayed by residents of Gaza who burst into kibbutzim and a music festival killing everyone in sight, the ecstatic joy with which crowds tortured and killed hostages in the streets of Gaza (as recorded in numerous videos — both from the music festival and from the streets of Gaza), justify such severe measures.
At the same time, the death penalty must never be a mandatory penalty and must always be imposed with due regard to the individual circumstances of the accused.
But there is an important point here. Membership in a terrorist organization is a continuing offense. That is, we cannot impose the death penalty for mere membership in Hamas prior to the entry into force of the relevant law. However, it may be applied to those who continued to belong to Hamas after the law's entry into force. And members of Hamas may, regrettably, continue to be such even while held in prisons. But this, of course, like any question of imposing a criminal penalty, must be considered on an individual basis.
It should also be noted that the accused's own confession of membership in a terrorist organization may in itself be insufficient (it may, like any other confession, be false), but equally, the accused's own assertion that he has ceased to be a member of a terrorist organization should not be treated as the sole and sufficient evidence — but rather assessed in the totality of the circumstances.
In short: we cannot retroactively apply increased penalties, including the death penalty, simply for the fact of membership in terrorist organizations prior to 7 October 2023 (i.e. those penalties that were already provided for at that time may be applied, but no more), but for membership in such organizations after the law's entry into force we may impose penalties up to and including life imprisonment and the death penalty (I emphasize: with due regard to the individual circumstances of the accused).
(2)
Criminal prosecution is not the only, and not always the optimal, lawful form of terminating criminal activity. In Israel, the majority of persons committing terrorist attacks are neutralized on the spot by ordinary citizens, since many in our country are armed.
It must be acknowledged that this is the right approach, and it should be formalized to a greater degree — by adding to the Counter-Terrorism Law No. 5776 provisions on non-punishability of causing harm to a perpetrator up to and including death (while torture and degradation of human dignity are impermissible under any circumstances) for the purpose of suppressing offenses defined by the law. The list of such offenses should be explicitly specified, including established membership in a terrorist organization, with a definition of the conditions under which this rule applies.
The following must be emphasized: 1) each such case must be thoroughly investigated to verify the extent to which the application of such measures by citizens was in compliance with the law; 2) if the perpetrator, having realized in such a situation the criminal nature of his actions, ceases them and manages to surrender to the authorities — he then enters the framework of formal criminal proceedings.
It appears that such an approach is, on the one hand, effective and, on the other, does not contradict the fundamental principles of criminal law and criminal procedure but, on the contrary, is grounded in its generally recognized concepts, such as "continuing offense," "measures aimed at the suppression of an ongoing crime," and so forth.
(3)
And one more important point regarding the death penalty. In addition to the principle that it must never be a mandatory penalty and must always be imposed with due regard to the individual circumstances of the accused, a humane measure would be to provide that even death sentences imposed for offenses under the counter-terrorism law are not to be carried out except when Israel is engaged in active hostilities.
The positive aspect here is that the enemy will know: an attack on Israel will henceforth lead not to the release of their accomplices from prisons, but to the carrying out of death sentences against them.
A valuable addition here would also be the inclusion in the counter-terrorism law of a prohibition on complying with any demands of persons who have taken hostages. This relieves politicians of responsibility for refusing to negotiate and deprives the enemy of the motivation to take hostages in the future.
Post and discussion on Facebook (in Russian): part 1 and part 2