How Likely Is the Return of the Death Penalty in Israel?
MENA
Early 2023, the newly elected government of Israel announced an ensemble of judicial reforms; including a new bill that would introduce the death penalty for acts of terrorism. As of May 2023, the judicial reforms have been put on hold by the PM Netanyahu. This article takes a historical perspective to recontextualize the issue of the death penalty in Israel, as well as the views of civil society organizations on the subject.
In January, the newly elected government of Israel announced an ensemble of judicial reforms which would modify the entire Israeli judiciary system. As part of this reform package is a law trying to instate mandatory death penalty for those deemed “terrorists” by the State. Specifically, the law targets anyone who “intentionally or out of indifference causes the death of an Israeli citizen when the act is carried out from a racist motive or hate to a certain public… and with the purpose of harming the State of Israel and the rebirth of the Jewish people in its homeland.” In essence, the law would only apply to Palestinians Israeli citizens accused of killing a Jewish Israeli citizen, but not in any other case.
The law has been found unconstitutional by Chief Justice Barak, as it contradicts with the right to life embedded in Israel Basic Law on Human Dignity and Freedom. Attorney General Gali Baharav-Miara was also set to oppose the law on constitutionality grounds. Despite this, the Penal Bill (Amendment – Death Penalty for Terrorists) was approved in a preliminary reading by the Knesset (Israeli Parliament) Plenum and sent to the House Committee on 1st March 2023.
As of May, however, the entirety of the judicial reforms package has been put on hold by Prime Minister Netanyahu, following massive demonstrations and a general strike.
Historical Perspective on the Death Penalty in Israel
Historically, capital punishment has been present in Israeli law since the inception of Israel in 1948, inherited from the British Mandate legal code.
The first recorded official execution in Israel was that of an Israeli army officer, Meir Tobianski, in 1948, who was found guilty of espionage and treason by court martial and executed by firing squad. However, Tobianski was later exonerated posthumously, highlighting the deep flaws of death penalty as an irreversible punishment.
In 1954, the Knesset, abolished the death penalty for murder, but has retained it for war crimes, crimes against humanity, Nazi crimes against Jewish people, treason and in certain cases under military law. It also remained on the books under emergency regulations inherited from the British Mandate. The last person to be executed was Adolf Eichmann, architect of the Holocaust, in 1962. He was sentenced using the 1950 Nazis and Nazi Collaborators Punishment Law.
Israel has been classified by Amnesty International as an abolitionist country for ordinary crimes since 1954. It has not signed nor ratified the Second Optional Protocol aiming at the abolition of death penalty.
After the occupation of the Palestinian Territories following the 1967 War, Israel declared that the military courts it established there could impose the death penalty. However, the policy since then has been to systematically commute the death sentences though the military chain of command, a feature that would become much more complicated if the new proposed law were to pass.
Overall attitudes in Israel have mostly been against death penalty, partly due to multiple factors. Firstly, power of deterrence for death penalty against Palestinians accused of killing Jewish Israelis is dubious at best, since many of these missions are usually suicide missions. There is also a fear of Palestinian martyrdom from Israel, which is a well research phenomenon within Palestinians terror and resistance groups alike.
Secondly, there is a fear of international outcry, since Israel, which groups itself with Western countries, would be the first to ever bring back death penalty. The law proposal already attracted a lot of criticism from European countries and the UN.
Until 2018, the demand for death penalty had never garnered momentum or the endorsement of any major parties in Israel. Since then, political instability and coalition building have made demands for the return of the death penalty part of public discourse.
Civil Society Reaction to the Proposed Bill
The proposed judicial reforms attracted massive public protest and demonstrations, including members of parliament and many civil society organizations. Physicians for Human Rights Israel, a non-governmental organization founded in 1988 by a group of Israeli physicians has recently asked to join the World Coalition. It said it wants to “mobilize local civil society against an imminent abhorrent and discriminatory attempt to introduce the death penalty in Israel.”
They stated that the proposed bill “and the rhetoric surrounding it demonstrate clear discriminatory intent, as it will only be used against Palestinians in all areas of Israeli control. It thus further contributes to an already existing process of dehumanization of Palestinians, manifested already in extra-judicial killings by the Israeli security apparatus, and puts both Palestinian individuals and communities at increased risk.”
They also stressed the importance of the coming months, highlighting that “a wide cross-section of the Israeli public, which is likely to support the bill, ignores its implications – that there are judges living among us willing to implement state-mandated murder, individuals willing to serve as executioners, physicians ready to administer lethal injections, and firing squads prepared to aim their rifles and kill.”
Calling onto other civil society actors to follow their lead, they stated that they “firmly believe that all associations representing health and medical professionals must unequivocally oppose the death penalty and not only prohibit their participation in its implementation.”
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