The Death Penalty and the Future of Law in Israel

During my first months in Jerusalem, I stayed with a woman whose reaction I still remember clearly. On election day, November 1, 2022, as the results came in, she sat in front of the news, visibly unsettled. She told me that this outcome would have serious consequences for the Israeli state. As the months that followed showed, she was not wrong.

Shortly after coming to power, the new government under Benjamin Netanyahu began advancing what it termed a “judicial overhaul,” presented by its proponents as a necessary correction to what they described as an overly politicized judiciary—one that, in their view, had come to undermine the Jewish character of the state. In the months before October 7, large crowds took to the streets every Saturday to protest what they saw as an erosion of the democratic and rule-of-law character of the state. At one of these demonstrations, an older man walked alongside his wife. He had a wheelchair with him; when he grew tired, he would sit in it and then get up again and continue walking. As he pushed his empty chair, he placed his Israeli flag in it. It felt symbolic of the moment.

As the demonstrations continued, the legal field and particularly the law faculties of major Israeli universities became a focal point of the government’s attacks. Much of this debate centers on the legacy of Aharon Barak, whose jurisprudence—often associated with a “constitutional revolution”—expanded the interpretive role of the Basic Law: Human Dignity and Liberty (1992), the central rights-based Basic Law in Israel’s constitutional framework. This law has been interpreted as expressing general principles of human dignity and has come to serve as one of the most visible legal anchors of Israel’s dual character as both a Jewish and a democratic state.

The proponents of the law are likely aware that it may not withstand judicial scrutiny. Yet this does not diminish its political utility.

It is against this background that the Knesset’s recent decision to introduce the death penalty for terrorism-related murder must be understood. To avoid confusion, this legislation is not directed at the perpetrators of October 7. More than 250 individuals currently held in Israeli custody have been described as members of Hamas’s elite Nukhba forces. Discussions surrounding these cases, including proposals for Eichmann-style trials, belong to a distinct legal framework and are to be addressed in separate proceedings.¹ By contrast, the law under discussion here is structured in a way that primarily affects cases within the West Bank military court system.

Before turning to the details of this deeply troubling law, which was adopted by the Knesset on March 30, 2026, it is important to note that that it was mainly promoted by Itamar Ben-Gvir, the Minister of National Security, along with other radical right-wing figures in the current government. Efforts to introduce such legislation did not begin after October 7; an earlier version of the bill was already brought before the Knesset in February 2023.² What is striking is not only the persistence of these efforts, but also the way in which they are being accelerated under current wartime conditions.

As Mordechai Kremnitzer, professor emeritus of law at the Hebrew University of Jerusalem and senior fellow at the Israel Democracy Institute, recently argued in Haaretz,³ the proponents of the law are likely aware that it may not withstand judicial scrutiny. Yet this does not diminish its political utility. Even the prospect of judicial intervention can be mobilized: a decision by the Supreme Court to strike down the law can be framed as obstruction—perhaps even as contributing to insecurity. From there, the argument can shift further, toward questioning the legitimacy of the court itself and calling for its restructuring in line with what is presented as the will of the majority.

In this sense, the debate over the death penalty exceeds the question of punishment. It becomes a test case for the character of Israel’s legal and political order. Whether a state adopts or rejects capital punishment, as Kremnitzer suggests, increasingly signals how it understands law: as a framework of restraint and generalizable standards, or as an instrument shaped by political pressure and supposedly majoritarian demands. This is the broader context in which the current proposal must also be assessed—beyond its discriminatory effects alone.

A decision by the Supreme Court to strike down the law can be framed as obstruction—perhaps even as contributing to insecurity. From there, the argument can shift further, toward questioning the legitimacy of the court itself and calling for its restructuring in line with what is presented as the will of the majority.

What, then, are the implications of the “Death Penalty for Terrorists Law, 5786–2026”—a law that would, in practice, apply primarily to Palestinians tried in military courts in the West Bank?

Even after last-minute amendments, the structure of the law remains striking. The death penalty is no longer a maximum punishment but the default. This shift—from maximum penalty to default outcome—is the core structural change introduced by the law. Judges may deviate from it only in exceptional circumstances, leaving extremely limited room for judicial discretion—something largely unheard of in democratic systems and more commonly associated with authoritarian regimes. At the same time, key safeguards are weakened: a unanimous verdict is no longer required, the scope for clemency is significantly restricted, given that executions are to be carried out within 90 days once the sentence becomes final.

In practice, the law is structured in a way that primarily affects Palestinians in the West Bank, who are tried in military courts, whereas Israeli citizens residing in the same territory are tried in civilian courts. The revised wording of the offense, which requires an “intent to negate the existence of the State of Israel,” does not resolve concerns about discrimination. It introduces vagueness and is liable to uneven application within a system already marked by structural asymmetry. As a result, Israeli citizens, even in cases involving comparable acts of political violence, would be prosecuted under a different legal framework and subject to different procedural conditions.

This already marks a significant shift. But it becomes clearer when placed in a longer perspective. After 1945, the abolition of the death penalty came to be seen as a central legal achievement of most democracies. Formally, the death penalty never disappeared from Israeli law. It remained on the books for certain categories, including grave security offenses and certain terrorism-related acts under criminal law, as well as provisions of military law. Yet in practice it remained a dead letter. This was not accidental but rather reflected a consistent policy shared by prosecutors and courts of avoiding its use. Israel aligned itself with this post-1945 development in two ways: by abolishing the death penalty for ordinary murder in 1954, which had been inherited from the British Mandate period, and replacing it with mandatory life imprisonment; and, in practice, through a consistent policy of refraining from using capital punishment, except in the case of Nazi crimes.

Even under the Nazi and Nazi Collaborators (Punishment) Law of 1950, capital punishment functioned as a maximum penalty, not a mandatory one. Otherwise, Israel only ever carried out the death penalty in the case of Adolf Eichmann. In the Eichmann Trial, the court still retained full discretion, and the sentence emerged from a highly formalized judicial process—one that, despite its extraordinary circumstances, was regarded by contemporaries such as the German legal scholar Jürgen Baumann, writing in JuristenZeitung in 1963,⁴ as a case in which law was indeed applied.

This is a structural shift: from a model in which capital punishment is tightly constrained within an exceptional legal framework, to one in which it is deployed as a general instrument within an ongoing conflict.

At the same time, even this exceptional framework was not immune to difficulty. A different kind of problem emerged in the case of John Demjanjuk, a Ukrainian-born former guard accused of being “Ivan the Terrible” at the Treblinka extermination camp. Demjanjuk was prosecuted under the same law, and convicted and sentenced to death by a district court, only to be acquitted on appeal when reasonable doubt arose regarding his identity. That acquittal was legally correct given the evidentiary standard at the time. It also reflected the limits of the information then available: only with the opening of Soviet archives did additional evidence emerge that cast doubt on the identification as “Ivan the Terrible.” Demjanjuk was later tried and convicted in Germany as a guard at the Sobibor extermination camp. The case thus illustrates not simply (potential) judicial error, but the changing evidentiary landscape within which courts must operate. No judicial system can fully escape such limits—and in the context of irreversible punishment, they acquire particular weight, since errors cannot be corrected.

In the Nazi and Nazi Collaborators (Punishment) Law, the death penalty appears not as a policy tool, but as a by-product of legal classification. It followed from the categorization of the crimes—genocide, crimes against humanity, and, under Israeli law, crimes against the Jewish people—within an exceptional legal framework that asserted universal jurisdiction over offenses of a historically singular character. This law applied to a category of crimes, not to a category of persons.

The frequent invocation of the Eichmann trial in support of reintroducing the death penalty is therefore analytically misleading. The judgment itself illustrates how narrowly the function of a criminal trial must be defined: not as a forum for historical explanation, political messaging, or moral pedagogy, but as limited to establishing individual guilt and imposing punishment according to law. At the same time, the Eichmann trial was widely understood—by supporters and critics alike—as serving broader functions of historical narration and public pedagogy, a development that has itself been the subject of extensive debate. This duality is not accidental, but reflects a recurrent tension in modern criminal trials addressing collectively organized crimes, especially those perpetrated under National Socialism. Hannah Arendt, for instance, criticized the strategy of the Attorney General, Gideon Hausner, for orienting the proceedings toward a broader historical narrative, while at the same time defending the trial as a juridical undertaking and accepting the death sentence in this particular case.⁵ Against this background, the death sentence in the Eichmann case appears not as the expression of a broader penal policy, but as the legal consequence of a specific and exceptional normative framework.

The death penalty is a litmus test—not only of penal policy, but of what kind of state Israel seeks to be. Whether a state adopts or rejects it increasingly signals how it understands law: as a framework of restraint, or as an instrument shaped by what is presented as the majority’s will.

The current law reverses this logic. It begins with the punishment and structures the law around it. What was once an exceptional maximum sentence becomes the default outcome. The comparison is therefore not one of continuity, but of inversion. It is not merely a change in degree, but a structural shift: from a model in which capital punishment is tightly constrained within an exceptional legal framework, to one in which it is deployed as a general instrument within an ongoing conflict.

For these reasons, the Eichmann case should not be read as a precedent for expanding capital punishment. If anything, it demonstrates how cautiously—and under what extraordinary conditions—it was once applied.

The risks involved are not theoretical. Another historical case has recently been invoked: the Meir Tobianski affair. In June 1948, during the Arab–Israeli War, Tobianski was accused of passing information to the enemy, tried by an ad hoc field court-martial, and executed within hours. He was only later exonerated, and his conviction overturned on the orders of David Ben-Gurion.⁶

Invoking historical cases can be useful. But this comparison only makes sense in a limited and carefully framed way—otherwise it risks being misleading. What actually overlaps is quite narrow: both involve military jurisdiction rather than ordinary civilian courts, and both raise the issue of irreversible punishment under conditions of heightened security pressure. But the differences are far more significant. Most importantly, the nature of the procedure: Tobianski was tried by an improvised field court during wartime, without meaningful due process. The current proposed law, by contrast, operates within an institutionalized military court system with formal procedures (however problematic these may be). The Tobianski case is therefore best understood as a warning about what can go wrong when procedural safeguards collapse—nothing more, nothing less.

The issue is therefore not simply one of citizenship, but of equality before the law. If the most severe penalty is effectively confined to one legal system, the principle of generality—central to any rule-of-law system—is called into question. At this point, the debate can no longer be understood solely in terms of punishment or deterrence. It concerns the role of law itself. Laws are not only instruments for responding to violence; they are also mechanisms for restraining the impulse to respond in kind. That is precisely why democracies have laws: to restrain even understandable desires. Precisely under conditions of extreme violence, their legitimacy depends on their capacity to operate as generalizable standards, not as tools shaped by political circumstance or identity. This is also why the debate cannot be reduced to security considerations alone. Even arguments frequently invoked in its favor, such as deterrence or the expectation that it would prevent the use of hostages as bargaining leverage, rest on assumptions that lack empirical support and have been explicitly rejected by security officials in the past. If anything, there are reasons to fear the opposite effect.

This is an attempt to redefine the role of the judiciary itself. If courts are reduced to implementing predetermined outcomes in the most extreme cases, their function shifts from judgment to execution.

This, in turn, helps explain why the current law cannot be separated from the broader conflict over the judiciary. The introduction of a default death penalty, combined with reduced judicial discretion and weakened safeguards, can be read in this context not only as a penal measure, but also as reflecting the political logic of parts of the Israeli far right—and, more importantly, as an attempt to redefine the role of the judiciary itself. If courts are reduced to implementing predetermined outcomes in the most extreme cases, their function shifts from judgment to execution.

In this sense, the death penalty becomes a litmus test—not only of penal policy, but of what kind of state Israel seeks to be. Whether a state adopts or rejects it increasingly signals how it understands law: as a framework of restraint, or as an instrument shaped by what is presented as the majority’s will.

Seen in this light, the current proposal can be read as part of a broader development. It does not merely challenge specific constitutional protections; it places pressure on the judiciary itself. If courts are positioned either to implement a predetermined outcome or to block it at the cost of political backlash, their role as independent arbiters is transformed. The question is no longer only what the law permits, but who ultimately has the authority to determine its meaning. What is at stake, then, is not a single policy decision, but the conditions under which law can still function as a constraint on power.

It is in this sense that the warning issued on the day of the vote by Yuval Shany, Mordechai Kremnitzer, Amichai Cohen, and Amir Fuchs on behalf of the Israel Democracy Institute acquires its full weight. Even after amendments, they argue, the proposal remains unconstitutional, violating Israel’s Basic Law: Human Dignity and Liberty and contradicting the fundamental values of the state as both Jewish and democratic.⁷ This Basic Law has been interpreted as expressing general principles of human dignity, which is precisely why the debate cannot be reduced to citizenship alone, but concerns the integrity of the legal order itself.

1. See Noa Shpigel, “Israel’s Knesset Advances Bill to Create Special Tribunal for October 7 Terrorists.” Haaretz, March 25, 2026; Herb Keinon, “What Trials and Punishments Await Hamas’s Nukhba Terrorists in Israeli Prisons? – Analysis.” The Jerusalem Post, October 19, 2025. ↩︎
2. Yuval Shany, Mordechai Kremnitzer, Amichai Cohen, and Amir Fuchs, “Death Penalty for Terrorists Bill Is Not Constitutional and Will Deal Grievous Harm to Israel.” Israel Democracy Institute, February 26, 2023. https://en.idi.org.il/articles/48231 ↩︎
3. Mordechai Kremnitzer, “Racist and Unlawful: Israel’s Death Penalty Law Is Driven by Bloodlust.” Haaretz, March 31, 2026. ↩︎
4. Jürgen Baumann, “Gedanken zum Eichmann-Urteil.” JuristenZeitung, vol. 18, no. 4, February 15, 1963, 121. ↩︎
5. See, for example, Hannah Arendt, Eichmann in Jerusalem: Ein Bericht von der Banalität des Bösen. München: Piper, 2014 [1964], 394, 399. ↩︎
6. See David B. Green, “1948: An Israeli Army Captain Is Wrongly Charged With Treason and Shot.” Haaretz, June 30, 2016. ↩︎
7. Legal Opinion: “הצעת חוק עונש מוות למחבלים [Death Penalty for Terrorists Bill].” Israel Democracy Institute, March 30, 2026. https://www.idi.org.il/knesset-committees/63404 ↩︎