Israel: An illiberal democracy?

Julia Christ: You were born in 1948 in Fürth, Germany. You studied law at the Hebrew University of Jerusalem, where you later became a professor and Dean of the Faculty of Law, and you served as a military judge in the IDF. Today you are Professor Emeritus at the Hebrew University and Senior Fellow at the Israel Democracy Institute¹, where you have directed programmes on constitutional principles, national security and democracy, and Jewish-Arab relations. You are one of the principal architects of Israel’s General Penal Code. In February 2023, when a first draft of this law was introduced by the newly formed coalition, you published a statement with several colleagues condemning it as unconstitutional, ineffective, and — in your own words — a stain on Israel’s legislative record. The law passed nonetheless, in March 2026, and on the day after its passage you published in Haaretz describing it as driven by bloodlust, and a sign of Israel’s confident march into the camp of regressive regimes. Could you begin by reminding our readers what this law actually says, and how it came to be passed?

Mordechai Kremnitzer: There were actually two distinct amendments to the death penalty law as it has existed in the Israeli Penal Code since 1954². The first concerns the law applicable in the occupied territories — the West Bank — which immediately raises the question of whether the Knesset has the power to legislate for the West Bank – not being a part of Israel – at all. But legislate it did. What the amendment accomplished there was to eliminate the unanimity rule that had previously applied to murder: where before the death penalty required the agreement of all three judges, a simple majority now suffices. There is no clemency provision — which is plainly contrary to international law.³ And unless special circumstances exist, the sentence must be carried out within ninety days. This is what the law does in the occupied territories, where capital punishment already existed in military legislation, so it did not need to be introduced from scratch.

JC: So what they did was take the existing law, remove the clemency clause, abolish the unanimity requirement, and add the ninety-day execution deadline.

MK: Yes. All these changes increase the terrible risk that an innocent person will be killed by the State because of a mistake

JC: You say the Knesset is legislating for the West Bank, which it is normally not entitled to do. Could you explain that?

MK: The West Bank is not part of Israel. It is militarily occupied territory, and under international law, authority there rests with the military commander of the area — not with the Israeli Knesset. By acting as it did, the Knesset behaved as though these territories had already been annexed, which they have not been. So whether the Knesset actually had the power to do what it did is legally questionable and will be probably contested and tested by our High Court of Justice.

There was also a second amendment, concerning Israeli domestic law. It introduces a new aggravating circumstance: a terrorist murder committed with the purpose of denying the existence of the State of Israel is now punishable by death or life imprisonment. The default sentence is death, unless very exceptional circumstances allow for mitigation to life imprisonment. So the rule is death; life imprisonment is the exception.

Initially, they wanted to make the death penalty mandatory. They were told that was constitutionally impossible and entirely illegitimate. They withdrew a bit: it is not fully mandatory, but it is the rule, and only in exceptional cases may the court deviate from it. They did not touch the president’s pardoning power. One should distinguish between the two different areas on which changes were made: the occupied territories on one hand, and the State of Israel on the other.

By incorporating the element of “purpose to undermine the existence of the State of Israel,” in the new definition of murder they have drawn a distinction between Jewish terrorism and Palestinian terrorism — which was the intention from the outset.

JC: So in Israel, the clemency clause was left intact?

MK: Yes.

JC: How is it possible to have, in effect, two laws — one for the West Bank and one for Israel — when in one case the Knesset may not even be legally entitled to legislate?

MK: Under my reading of international law, the Knesset is not entitled. And there is another very important element: Israel has a longstanding policy of not bringing Jews before military courts in the West Bank, even when those Jews are residents of the area who commit offenses there. They are tried in Israeli civilian courts. The military courts in the West Bank deal exclusively with non-Israelis — which means Arabs. So this is, in effect, a law specifically for Arabs. And by incorporating the element of “purpose to undermine the existence of the State of Israel,” in the new definition of murder (applicable in Israel) they have drawn a distinction between Jewish terrorism and Palestinian terrorism, because Jewish terrorism is not committed with the purpose of undermining the existence of Israel. Through this device, they have made capital punishment applicable only to Palestinian terrorists — which was the intention from the outset. Some among the extremist politicians deny that Jewish terrorism can even exist: whenever the question is raised, they say it may be a crime, it may be disorder, but it is not terrorism. Even when an act falls squarely within the legal definition of terrorism, they refuse to apply this term to Jews.

JC: As you wrote in your 2011 article on the illiberal tendencies of Israeli democracy, there was already at that time a distinction in practice whereby far-right violence was interpreted as patriotic and other violence was interpreted as terrorism. And in making that argument, you drew a comparison with the Weimar Republic — the way the Weimar justice system distinguished between left and right and privileged the right. Would you say that this tendency — to close one’s eyes to crimes from the far right — has continuously developed from 2011 to today?

MK: Yes, clearly. And in the last year, the pogroms that Jews are carrying out in the West Bank have reached a scale we had not seen before. It is something qualitatively different. And I think one can say that the authorities are doing close to nothing to stop it — and that in some cases, soldiers and others are even actively helping or joining forces with these pogromists, these Jewish terrorists.

JC: You use the word “pogrom” for what is being done in the West Bank since the end of October.

MK: Yes, because for Jews, victims of pogroms, this is the term we know. It is a familiar one, and a deeply negative one from our own history. It also points out the racist nature of these acts.

JC: The majority going after a minority in a violent way, unpunished by the state.

MK: Yes.

When the security services came and said that capital punishment is not only ineffective but potentially harmful, that created a serious obstacle for the Knesset. And there, something changed.

JC: Let us go back to the statement you and your colleagues published in February 2023, because obviously there was already a first draft of the law, just two months after the new coalition took office. So passing the death penalty was clearly among the first items on their agenda, and you published a sharp critique of that draft. It passed anyway — three years later. You have noted that they modified the mandatory character of the sentence. But why do you think it passed, despite your having demonstrated that it is, as you wrote, a stain on Israel’s legislative record, unconstitutional, ineffective, and dangerous?

MK: The only thing I would add to the earlier statement is that it is a bloody stain — “bloody” in both senses of the word. I have no illusion concerning the limited impact of academic critique on the coalition When I criticize a law, I am not predicting that the Knesset will not pass it. I try to refrain from prophetic statements — after the destruction of the Temple, we know who the prophets are. I think two things shifted. The first was October 7th, which changed the climate in Israel — a powerful surge of rage, fear, and desire for revenge, and a tendency to view Palestinians not merely as enemies but as demons : a dehumanization first of the people of Gaza, but more broadly of Palestinians as a whole. The second factor was the change in the position of the security services, which had been a real obstacle to this legislation in the past. As you may know, Lieberman’s party had supported the death penalty even before. But when the security services came and said — as their former heads have continued to say — that capital punishment is not only ineffective but potentially harmful, that created a serious obstacle for the Knesset. And there, something changed.

JC: How do you explain that change? Was it purely a matter of personnel? We know that Ronen Bar was forced out, but how could the entire Shin Bet change its position on this kind of law?

MK: The change is deeply suspected, because it came without an institutional process one would expect. After a long tradition in which the Shin Bet consistently opposed capital punishment — arguing it was ineffective and potentially counterproductive — if a new director wished to change that policy, he should have convened a committee of experts to produce a reasoned document explaining the shift. Nothing of the kind took place. My impression is that the change has everything to do with the change of personnel at the top. A populist government (like the one we have) wants, in public positions — especially at senior levels — one quality above all others: absolute loyalty to those who appointed them. And because they want absolute loyalty, they must ensure that these appointed officials are incompetent, because the more incompetent an official is, the more loyal he will be. This approach destroys the quality of the public service.

Within the Shin Bet at lower levels — was there any protest? There have been letters from former directors saying this is a very bad idea. But within the security apparatus itself, was there any internal dissent?

MK: You cannot practically protest in a hierarchical secret institution. It goes against the institutional ethos. And in most organizations — especially in an institution like the Shin Bet — people tend to align themselves with whoever is at the top. When the head changes, the tendency is to change with him.

JC: That is very pessimistic.

MK: Most ordinary officials want to be on good terms with the boss — especially if the boss is the head of the Shin Bet. Most will avoid a conflict with him, and above all one that becomes public. The courageous ones will go to him privately and say: you are making a mistake, you should not do this. But they will not go public about it.

When we have sleeping dogs in our laws and indulge the illusion that they will sleep forever, they sometimes wake up. Capital punishment may be an example of a sleeping dog that could now begin to bite.

JC: You have also said — and this is the impression outside Israel as well — that this is a discriminatory, racist law. Two questions: could you spell out again why it is racist and discriminatory? And second: among people in the Shin Bet, among Israelis more broadly, is there no sense that we cannot, as Israelis, pass a law that is racist in its very construction?

MK: Let me first make it unambiguous: this law is racist. How could it be otherwise? Under this new legislation, a terrorist like Baruch Goldstein⁴ — had he survived — could not have been sentenced to death, because his crime was not committed with the intent to undermine the existence of the State of Israel. A Palestinian terrorist who committed a comparable act, however, can be sentenced to death — and most likely would be executed. This is not an accidental outcome but an intended consequence- death only to Arab terrorists. I believe that many people in Israel feel this way, like me, but not all. Some people tell themselves: even if there is terrorism on both sides, it is not equivalent in terms of the level of danger, because Palestinian terrorism claims far more victims than Jewish terrorism. This asymmetry leads some to think the law is less wrong than it appears to be. More broadly, Israel may not share the same visceral rejection of capital punishment that prevails in Europe, because of the Nazi crimes. There were people who objected to the execution of Eichmann — but they were a small minority. The vast majority of Israelis , including myself, believe it was a just sentence. And the problem with making exceptions to a principle is that the principle gets eroded. There is also the simple fact that capital punishment has been on the books in Israeli law for certain crimes — it did not fall from the sky.

JC: It was never applied after Eichmann. And from what I understand, there is something comparable in the Jewish legal tradition itself: capital punishment exists in the texts, but the procedural requirements were designed in such a way that it could virtually never be applied in practice. So yes, it existed on the books, but since Eichmann, all manner of obstacles prevented it from ever being carried out.

MK: To be precise: capital punishment was in fact imposed on John Demjanjuk⁵ by the district court. When he was acquitted — because the Supreme Court was not convinced he was “Ivan the Terrible” — the sentence of course fell away. And there was an older case from 1948, in a military field court, where someone was sentenced to death and executed, and we know today that it was most probably a mistake. As with Demjanjuk, we now know he was not Ivan the Terrible. So the risk of killing a person wrongfully due to a mistake is not theoretical in our history — we have concrete evidence of it. This should have prevented the Knesset from increasing the likelihood of such terrible mistake, a mistake that cannot be corrected. You are right that the policy was: it is on the books, but we will not use it. I should say, about myself, that I did not formerly think that it is necessary to remove capital punishment from the books entirely, because I believed there was a certain value in a society that retains the power but chooses not to exercise it — that it is always on trial, so to speak. I think now that I was mistaken. When we have sleeping dogs in our laws and indulge the illusion that they will sleep forever, they sometimes wake up. Capital punishment may be an example of a sleeping dog that could now begin to bite.

JC: How would you characterize the people who woke it up? It is on the books, it has now been roused — but someone chose to rouse it. Who, in Israeli society, wants this dog to bark?

MK: The extremist, racist faction of Ben-Gvir and his associates — that is the main force driving this in our Knesset.

JC: But Likud voted for it.

MK: Yes. It illustrates a widespread phenomenon: when you have a very extreme right-wing party, it pushes the entire system to the right. What used to be a moderate right now competes with the far right for the same electorate. The competition becomes: who can be seen more patriotic, more anti-Arab, more caring for Israel’s security? And so the moderates drift rightward too. The Likud used to be a liberal party; it is not liberal anymore.

JC: But beyond the extremist parties — is there real popular support in Israeli society for this law? There were massive protests against the judicial reforms and the attacks on the Supreme Court. One might expect that same energy to mobilize against the death penalty. Is that the case? Or is support for capital punishment broader than one might think?

MK: It is broader, as a result of October 7th. There is a sentiment of revenge, and this law channels it. And from another angle: many Israelis believe the law will not survive — that the Supreme Court will strike it down. So there is no sense of urgency to take to the streets, especially since we are still at war. I should add something about the Jewish tradition you mentioned: according to Jewish tradition, a Sanhedrin that executed one person in seventy years was called a “murderous Sanhedrin.” This perfectly illustrates what you said — there has always been a gap between what is written in the law and what is actually done.

We are putting American support at risk in a remarkably irresponsible way. Now we are telling the Democrats that we are not interested in them. We will pay for that.

JC: Let us return to the racist character of the law, because no one seems to fear any international reaction to it. Has Israel moved so far from the international community? One can understand — given how intensely hostile the world has been toward Israel — why Israel might say: what does it matter what they say? But Israel is a democratic state; it should normally care what its peers think of its legislation. Is there simply no interest left in what the international community says?

MK: It is a genuinely intriguing question, because Israel seems to be doing something that is not very rational — as if it wants to increase the already frightening level of animosity toward it. There are two elements of a possible explanation. First, this coalition has decided to foreclose any possibility of a Palestinian state and to deny the Palestinians their national identity in principled terms — there is no Palestinian people. This is a fundamental change from the past, when Israel at least claimed that one day the two parties of the conflict would reach an agreement. They know Europe will not accept this position, so by taking this course, they are knowingly losing Europe. They appear willing to pay that price. Second, there is a kind of contempt for Europe, grounded in a sense that we have been outsmarting you along for years — very successfully. We played the game of settlements as something temporary, hinting that some arrangement would eventually be found. You condemned us, but you were entirely ineffective in changing our policies. So we do not take you very seriously, because we have learned how easy it is to misguide you. At the end of the day, you will bark but you will not bite.

JC: And yet that is not entirely true. Israel depends on Europe in many ways, including economically.

MK: I am not saying this is a wise way to treat Europe — not at all. I am trying to explain what goes on in the minds of our ministers. The fact that they think this way does not make it correct.

JC: Europe barks but does not bite…

MK: Yes. And there exists the precious friendship with the United States and with President Trump — a good powerful father who takes care of us and is easily influenced by us. So why worry? This is entirely short-sighted, because he will not remain President of the United States forever . But this is part of the thinking on the Israeli right. And we are putting American support at risk in a remarkably irresponsible way, because it was always Israel’s policy to maintain bipartisan support — from both Democrats and Republicans. Now we are telling the Democrats that we are not interested in them. We will pay for that. It is a wrong, short-sighted and dangerous policy.

JC: Is there a connection between the fact that this coalition — with its vision of Great Israel⁶ — is cutting all ties with the idea that Israel is, in part, a European construction, built by European Jews in a European spirit?

MK: There is a clear break.. For this coalition, Israel is a state with a messianic mission. It must be a religious state, a halakhic state, a state that fulfils the vision of a “Great Israel” (as promised by God) with Jews alone. That has nothing to do with Europe. And the non-European character of this vision also has political appeal: it resonates with Israelis who did not come from Europe and have no particular affinity (even the opposite) for the European connection.

He picked up the book and said: “This is a thin book. I promise you — I will give you reason to write very thick volumes against legislation.” When we came out, I told my wife: “He has a very strange sense of humour.” She said: “You don’t understand — he is completely serious.”

JC: Reading your 2011 article on illiberal tendencies in Israeli democracy, on the Nakba Law⁷, on the loyalty laws and citizenship laws, one realizes that there were already movements in the 2010s pointing clearly in this direction. It seems to be a process internal to Israeli society — a legislative drift that was already underway, and that no one, least of all the Israeli left, did enough to stop.

MK: The Israeli left did try to resist what we call anti-democratic or non-democratic legislation, but without success — the government had a majority. It is true, though, that fifteen years ago even I did not foresee where we would be today. The danger of Israel becoming slowly less liberal was visible; the course was clearly not a good one. But I did not then think we would become what we have become, that a full scale autocratic attack aimed to destroy Israeli democracy will take place.

JC: So October 7th was an accelerant.

MK: That is one factor. Netanyahu’s trial is another that cannot be ignored — it produced a decisive change. His decision to form a coalition with Smotrich and Ben-Gvir is also a crucial element. And one important milestone was the Nation-State Basic Law. But there is one point I would like to draw your attention to: it all began with the NGOs. They started by making life difficult for the left-wing NGOs — those critical of the government — that receive money from foreign states or international organizations. Initially the pretext was transparency: they said, we want more transparency. Even I could not object to that, because transparency is a legitimate value. But what they truly had in mind was to delegitimize these organizations, to point a finger at them and say: these people are not Israeli patriots, they are agents of foreign powers, they are virtually traitors. Historically, that was probably the first step in the distancing of Israel from a liberal democracy. And this was fifteen years ago.

JC: Fifteen years ago already. We did not see it in Europe.

MK: We saw it. We tried to write against it, to fight it — sometimes successfully, sometimes – not. There was an event in Tel Aviv where we discussed a thin book of the Israel Democracy Institute on anti-democratic legislation, cataloguing the laws that had been passed at the time. We invited Yariv Levin⁸ to participate, in order to be open to all viewpoints. He picked up the book and said: “This is a thin book. I promise you — I will give you reason to write very thick volumes against legislation.” When we came out, I told my wife: “He has a very strange sense of humour.” She said: “You don’t understand — he is completely serious.” And she was right. He meant every word. So the beginnings were there, early on.

The fact of being an occupier goes hand in hand with a sense that the occupied is both an enemy and inferior. It generates a feeling of superiority. And it also puts democracy itself into question.

JC: From a very thin book to one that keeps getting thicker. What happened to Israeli society over these fifteen years that allowed this to proceed? I can tell you why Europe did not see it, or did not want to see it: there was a growing sense of antisemitism here, a feeling of solidarity with and need for Israel, a combination of loyalty and fear that made criticism taboo. But what happened within Israeli society that made it possible — before October 7th? Between 2010 and 2023, what shifted?

MK: It is hard to say with precision. One element to which we did not give sufficient weight was the corrupting effect of occupation and settlement on the Israeli psyche. The fact of being an occupier goes hand in hand with a sense that the occupied is both an enemy and inferior. It generates a feeling of superiority — Jewish superiority vis-à-vis Arabs. And it also puts democracy itself into question. Imagine you are a civics teacher. You come to class and speak eloquently about democracy. And a student asks: if we care so much about democracy, why is there no democracy in the occupied territories? How can it be that on this side of the Green Line we are democrats, and on the other side something entirely different prevails? If you say it is temporary, the sense of temporariness dissolves after so many years. It stops being temporary. This is a crucial element of the picture. There is also the fact that we did not separate religion from the state and never had a unified educational system. In Israel, we have separate systems. The combination of the breath- taking victory of the 6 days war and the conquest of the West Bank together with messianic trends in Judaism shaped a vision of “Great Israel” for Jews. The religious schools provided fertile ground for gradually inculcating the idea of a “Great Israel”, a religious state. There was a large audience whose minds could be shaped by this vision. And then there is the question of what people mean by democracy. Many people in Israel — and perhaps elsewhere too — understand democracy as reduced to elections, upon which a majority is formed, and the majority rules as it wishes, because this represents the will of the people. “The People” is identified with the majority. You will find many Israelis who believe this is the only meaning of democracy. Netanyahu’s coalition says precisely that, constantly: majority rule is the only meaning of democracy. Everything else — human rights, rights of minorities, the rule of law, equality before the law — is leftist propaganda. The minority does not matter; it can even be described as the enemy. The society is split on this. When Yariv Levin came forward with his grand “judicial reform” plan, people went out into the streets in extraordinary numbers, offering a more hopeful picture of Israelis and what they care about. But then came the war. And war is not a good time for mass demonstrations in the name of human rights.

JC: One can understand. Let me return to the question of the occupation. In what you are saying, it sounds as though the logic of occupation has seeped back into Israeli society itself — that the habit of living in an undemocratic space, in a space without equal rights, free speech, or the protection of minorities, has gradually corroded the democratic fabric within Israel. You are describing, in some sense, the habit of injustice making it easier to be unjust at home.

MK: Yes, exactly. Take the soldier in the West Bank who has to search Palestinian cars. He probably looks down on the Palestinians he is dealing with, and he is also afraid of them, knowing they are against him. When he returns to Israel, how will he treat an Arab Israeli citizen? Will he make the distinction? Will he continue to believe in the values we claim to believe in — equality, freedom, justice?

“The People” is identified with the majority. Many Israelis believe this is the only meaning of democracy. Netanyahu’s coalition says precisely that, constantly: majority rule is the only meaning of democracy.

JC: And that brings me back to the majority-minority question. — and to the question of what Israel is: a European construction, i.e. a properly Zionist one. One would think that the Jewish political experience over two thousand years of life in exile would make Jews acutely sensitive to the rights of minorities, above all others. And yet you are describing an Israel moving in a direction of growing indifference toward the minorities within it.

MK: Not merely indifference — hostility. And this is bound up, of course, with the conflict. One cannot forget that this is a special minority (being part also of the Palestinian People), not like the Jewish minorities that lived in Europe. It is a different situation. And from the basic facts of Jewish history, two lessons can be drawn. One: do not do to others what was done unjustly to you. The other: we have suffered so much that moral restraints apply less to us — our history gives us more latitude to act, especially in self-defense. We are less bound by the rules because of what we have endured, because we have been victims. And when it is convenient to present ourselves as still being victims, we do so.

JC: There is a related question in what you are describing — this shift in Israeli society toward the non-recognition of the Palestinian people, the foreclosing of the idea of a Palestinian state. Is there any responsibility on the Palestinian side? Negotiations have been blocked in various ways since 2005 or 2006. Is there some element of disillusionment on the Israeli side — a sense that it was never going to work in any case? Some degree of shared responsibility, or is this entirely a dynamic internal to Israeli society?

MK: Arafat could have perhaps made peace with us, given his standing within Palestinian society. But he did not want to. From his perspective, the deal offered to him was probably not good enough. Abbas knows that he lacks the legitimacy and the support needed to make the major concessions that peace would require — and he is probably right. The fact that the Palestinians are divided between the PLO and Hamas, and dispersed between the West Bank and Gaza, does not make it easy to reach a settlement with them. That is on their side. The tremendous imbalance of power between the parties makes the success of negotiations extremely difficult. The Israeli right has succeeded in convincing the Israeli public that the Palestinians are Israel’s essential and eternal enemy, that they will never accept the existence of a Jewish state — and that even if they say so, they are lying. I think a majority of Israelis now believe this, that it is not within our power to change, that we can do what we like and it will make no difference, because of this irreducible enmity. Populists must have an enemy and the Palestinians are providing a convincing one. This feeds back into your earlier question: if a people believes that it is destined to live by the sword, because there is no way out of conflict, then democracy becomes a luxury, human rights become an obstacle; none of the normal constraints on the ruling power apply in a permanent state of war. Look at what the opposition parties in Israel are saying. The only one who speaks about peace with the Palestinians is Yair Golan. All the others are afraid to mention arrangements, negotiations, peace — either because they do not believe in it or because they judge it to be politically toxic. I believe that if we do not return to a path of internationally supported negotiations — including Europe, including Europe — the long run holds very serious trouble for us.

From Jewish history, two lessons can be drawn. One: do not do to others what was done unjustly to you. The other: we have suffered so much that moral restraints apply less to us.

JC: That long run brings me to another kind of question — which is about you. You were born in 1948, in Fürth, like Kissinger.

MK: Yes — same hospital.

JC: You have co-built Israeli criminal law. You served as a military judge in the IDF. You know all of these problems from inside the system. The question is: how do you live with the transformation of Israeli society over the past twenty years, and now with this latest instance of it, the death penalty law?

MK: You know, it is not quite the right answer to your question, but what has hurt me most was not the death penalty — because I hope it will not last. What has been truly unbearable for me is the Nation-State Basic Law, based on Jewish supremacy and the pogroms committed in the West Bank.

JC: You say the death penalty will not stand — and yet the Nation-State Basic Law came before the Supreme Court and survived.

MK: Which is a shame. Therefore, it hurts more.

If the Supreme Court decide to deal with the law, I think the law will not survive. The danger is that they would be dismantled or would be deprived of independence.

JC: But you are confident that the court this time will not let the death penalty law stand?

MK: The jury is still out on this.. One cannot rule the possibility that the court will choose not to intervene at this stage; they may wait until a concrete case comes before the court. If they decide to deal with the law, I think the law will not survive.

JC: Why do you think they might hesitate? You said in Haaretz that there is a danger for the Supreme Court in striking it down. Could you describe that danger?

MK: The danger is that they would be dismantled or would be deprived of independence.

JC: Yes, of course. But is there a connection — in other words, do you think this law may be a kind of trap set for the Supreme Court, designed to exploit the popular emotion around the hostages and the October 7th perpetrators in order to turn the court into an enemy of the people if it strikes the law down?

MK: Yes — because it is clear that Ben-Gvir cannot lose on this issue. Even if he loses in court, he wins in public opinion. He will say: you see, these judges are not for Israel. They are not moved when Jewish blood is spilled. They even sympathize with Arabs, God forbid. He will turn it into a major element of propaganda against the court. They do this constantly — depicting the court as the enemy of democracy, the enemy of security, the enemy of the people. So the court finds itself in an impossible position. And there is something else I should have mentioned about the death penalty: the law has no retroactive application. But what they truly want is for the prosecution to change its traditional policy of not seeking capital punishment in cases involving the “Nukhba” — the perpetrators of the October 7th atrocities whom we are holding in prison. There are crimes already on the books — genocide, treason (harming the sovereignty and territorial integrity of the State) — that carry the death penalty. To get there, they only need to change prosecutorial policy. And with public sentiment strongly in favour of seeing the “Nukhba” executed, they hope to see people hanged. So the new law and the “Nukhba” prosecutions are not two separate stories: they are connected. The aim is to have capital punishment imposed on the “Nukhba” and carried out.

JC: In this case the prosecution would the charge and the requested penalty, using the existing law, and the court has no direct legislative target to strike down.

MK: Exactly. They cannot quash the law. Therefore, it is so dangerous.

My parents are Holocaust survivors — not German Jews. They were Jews from Ukraine who ended up in Germany as displaced persons after the war. In the last year of the war, they were sheltered by a Ukrainian priest. When the Russians came and they were able to leave, he said: I ask only one thing of you — never tell anyone it was I who saved you, because it would do me no good here. And he refused any recognition. For me, Israel is the only place where I can imagine living. Not only because of my age. I believe I would feel the same if I were thirty years younger. So what the country is, morally, matters to me enormously. And we are not on the right course — we as a state. The question whether my colleagues and I are doing enough to save Israel as a democratic-liberal State, guided by the vision of the prophets of Israel is driving my sleep away

JC: What do you expect from diaspora Jews? How can they help?

MK: If I dare say – you should maintain the distinction between the Israeli government and its policies on the one hand, and the Israeli people on the other. And you should support the liberal forces within Israeli society in every way that is feasible. Those forces exist. They need both moral support — which matters enormously — and other forms of support as well. It is important, even for this coalition, to know where diaspora Jews stand. The Jewish diaspora has a say about the kind of regime, society and the underlying values of the Jewish state. So I venture to say: raise a clear voice for a democratic, liberal Israel. You are already doing so. The only thing I can say is: please do it louder. We are involved in a struggle we cannot afford losing.

1. The Israel Democracy Institute (IDI) is an independent think tank founded in Jerusalem in 1991, whose work focuses on strengthening democratic institutions in Israel. ↩︎
2. The death penalty was abolished in 1954 for murder, but retained as a possible punishment for genocide, crimes against humanity, war crimes, crimes against the Jewish people, and treason. ↩︎
3. Under international law of occupation, legislative authority is governed by the Hague Regulations of 1907 and the Fourth Geneva Convention (1949). The occupying power may maintain order and adapt existing law, but may neither annex the territory nor apply its domestic law there. ↩︎
4. Baruch Goldstein (1956–1994), an American-Israeli settler, carried out the Cave of the Patriarchs massacre in Hebron on February 25, 1994, killing 29 Muslim worshippers. Since his crime was not committed with the intent to destroy the State of Israel, it would not fall under the scope of the new law. ↩︎
5. John Demjanjuk (1920–2012), a Ukrainian-American camp guard, was extradited to Israel and sentenced to death in 1988 for being the “Ivan the Terrible” of Treblinka. The Supreme Court acquitted him in 1993 after Soviet documents identified another individual. ↩︎
6. “Greater Israel” refers to the plan for Israeli sovereignty over the entire West Bank, based on biblical and historical arguments. ↩︎
7. The Nakba Law (2011) allows for the reduction of subsidies to public institutions that commemorate the Nakba (“the catastrophe”), a term referring to the exodus and expulsion of Palestinian Arabs in 1948. ↩︎
8. Former Speaker of the Knesset and Minister of Justice under Benjamin Netanyahu. Member of the Likud party. ↩︎