Opinion

Should Israel Have a Terrorists-only Death Penalty?

A modern nation of laws isn’t supposed to act based on revenge. Its legal system is founded on decency, justice and equality, not primitive concepts like hatred

FILE Photo: The Megiddo Prison in northern Israel, July, 2018.
Amir Cohen/REUTERS

The bill allowing the death penalty for murderers “in circumstances of terrorist acts” is being prepared for discussion at the Knesset Constitution, Law and Justice Committee before the first vote in the full parliament. According to the bill’s sponsors, three MKs from the Yisrael Beiteinu party, the proposal is designed to “create significant deterrence among those who carry out terrorist operations.” But is this really the goal?

First, if the rationale is deterrence, what are the bill’s authors basing their argument on? According to the position of senior security officials – including the head of the Shin Bet security service and top army officers – the death penalty doesn’t lead to deterrence.

Moreover, according to the law that applies in the West Bank, the death penalty is possible for convicted terrorists, but military prosecutors avoid requesting it, partly in the belief that it would cause more harm than good. This position conforms with the findings of almost all criminologists, whose research shows that the death penalty isn’t a deterrent, especially regarding ideological criminals willing to take great risks with their lives.

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But even if the bill’s sponsors overcome this “security” hurdle, they’ll run into a legal hurdle. Attorney General Avichai Mendelblit opposes the bill because it breaches Israel’s international commitments; for example, those that prevent the reimposition of the death penalty in areas where it has been revoked. At issue are Israel’s international standing and constitutionality.

In addition to the question of whether the death penalty is unconstitutional, the idea of imposing it on only a certain type of murderer – terrorists – raises a question of discrimination. Only a few weeks ago, the Supreme Court of Washington state ruled that the death penalty was unconstitutional because it was implemented in a discriminatory way against minorities.

A law designed to apply only to Palestinian terrorists is much more problematic. The bill’s authors also don’t explain why now, when the level of terrorism is relatively low, there is an urgent need for such extreme means – which have been rejected by a huge majority of countries and which no Western nations use save for the United States and Japan. (And the number of executions in the United States has fallen sharply in recent years.)

In light of the weakness of the security rationale, we can only conclude that the motive behind the bill is political: to satisfy many Israelis’ need for revenge and to win votes off those feelings. In this phenomenon, which is dangerous, politicians try to force defense officials to use methods that the professional consensus deems unhelpful for security, such as deporting families of terrorists and worsening terrorists’ prison conditions. Or the military feels the methods cause more harm than good, such as house demolitions.

The bill shows that some politicians prioritize collecting votes by satisfying their constituency's yearning for revenge, at the expense of security considerations. Also worrying is that the promotion of bills such as this one is often done through the cynical exploitation of the tragedies and bereavement of the families that are victims of terror. It’s thus hard to conduct a level-headed discussion.

But unlike a street gang or tribal society, a modern nation of laws isn’t supposed to act based on revenge. Its legal system is founded on concepts of decency, justice and equality, not primitive concepts of revenge and hatred. A new death penalty law would stain Israel’s legal system and undermine its foundations as a nation of laws. Also, when political considerations trump security considerations, this endangers a country’s security and could damage the long-term national interest.

The danger in relying on feelings of revenge while applying security measures isn’t new. Back in 1948, Natan Alterman wrote in a poem in his book “The Seventh Column:” “Whether by action or agreement subliminal / Are thrust, muttering ‘necessity’ and ‘revenge’ / Into the realm of the war criminal.” David Ben-Gurion praised Alterman and his impressive moral position, and ordered that 100,000 copies of this wisdom be distributed to all Israeli soldiers.

But unlike the Yisrael Beiteinu MKs, what did Ben-Gurion know about security, deterrence or building a nation of laws?

Yuval Shany is the deputy president of research at the Israel Democracy Institute and a professor at Hebrew University’s law school.