Death Penalties

Critics of Israel have new ammunition: the Knesset passage of a bill that had been grinding through the gearworks of Israeli politics for close to three years. The Death Penalty for Terrorists Law (Hebrew: חוק עונש מוות למחבלים, התשפ”ו-2026), which prescribes death by hanging for certain terrorist offenses has been quickly condemned by much of the Western press and blasted by foreign governments on grounds it violates humanitarian principles and is racist because it applies to Arabs and not Jews. (As is the custom, much of what has been reported with haughty tones of reproach is based more on narrative than evidence; the speed and ferocity of the dissent should, in itself, be submitted as evidence of a possible bias, but I’ll leave that for later.) Alert readers of commentaries about the new law, especially when they suggest or assert that Israel is (again) demonstrating an egregious tilt to right wing extremism, are asking themselves basic questions, such as whether the death penalty is ever permissible, and, more specifically, about Israel’s historical record.

Those are legitimate questions: any legal move in the direction of accepting that ultimate form of punishment, anywhere, should evoke complex considerations of morality, public acceptance, and consequences. Here I offer some historical context that may illuminate what is sure to be ongoing public debate.

Israel established the death penalty for murder in 1954, with restricted application to acts of treason, genocide, and crimes against humanity. It has been implemented exactly once since then, when Adolph Eichmann was hanged in 1962, even against notable public opposition, after being found guilty of probably the greatest crime against humanity in history. (The only other case of an Israeli execution involved Meir Tobiansky, wrongly accused of treason in 1948 and posthumously exonerated a year later.) I anticipate that mentioning Eichmann will draw groans from people who (like me) don’t like to play “the Shoah card” in describing contemporary acts of violence against the Jewish people, none of which – as horrible as they have been – bear more than an approximate resemblance to the calculated annihilation of half the world’s Jewish population. Still, if “lessons of the Holocaust” are fraught with complexity, sometimes reactions from people learning about the Holocaust can, in fact, be illuminating.

Thus, it’s worth remembering reactions to the evidence about Eichmann and, more specifically, to the ultimate decision to execute him. Although most Israelis at the time supported the decision, it was by no means easy or obvious even for those who had not an ounce of doubt about his guilt, the justification of trying him in Israel, or the significance of his capture in the context of Jewish history and the rebirth of Jewish sovereignty. Opposition, as expressed by Martin Buber and Gershom Scholem, for example, no slouches when it came to confronting and denouncing the vile reprimands of people like Hannah Arendt, was founded on a conjunction of moral beliefs and pragmatic concerns. There was, first, the general argument that taking a life, even as punishment for heinous crimes, is unacceptable, about which there was (and is) a robust debate not only in the Talmud and contemporary Jewish texts but in the literature and teachings of all religions. In a famous letter to Prime Minister Ben Gurion, the poet Nelly Sachs (who later won the Nobel Prize for literature) pleaded with him: “Israel is blessed with the words of Abraham: ‘Perhaps ten righteous people will be found there [in Sodom]?’ And I myself know such righteous people, who risked their lives and often even paid the price just to save [others]. These righteous people also worked in the time of Hitler, and the undersigned is one of their survivors. Please do not allow a death sentence for Eichmann. The righteous also worked in Germany, and if only for them there should be a measure of grace.” Grace, indeed, even when it comes to a monster like Eichmann.

On a more pragmatic level, opposition centered on how the execution would be interpreted. Would it convey wrongly the message that the murder of millions could somehow be balanced, if not equated, with the death of one perpetrator, even one with as much responsibility as Eichmann clearly had? Would the rest of the world that looked the other way or abetted the crimes of the Shoah now be absolved of the need to take even partial ownership of the history to which they were front-row bystanders and cheerleaders? And finally, would freeing Eichmann from prison become the rallying cry for people hoping to delegitimize the Jewish state and its legal system? (Ben Gurion and others worried about that possibility; sadly, though, it didn’t take hero-worshiping of a beast like Eichmann to provoke global hatred and the resurgence of antisemitism in its various strains.)

Not easy questions, and I don’t raise them to score points in arguments about the 2026 law. But I do wish that our esteemed punditocracy would take a deep breath before rushing to judgment about its origins, symbolism, and realities. Ditto for those who quickly rush to the Knesset’s defense without more nuance. (I find the argument that victims of terrorism should be accorded special preference in the debate unsatisfying. I am grateful for a legal system that listens to – but is not necessarily swayed entirely by – the understandable emotions of victims.)

In the light of a complicated history dealing with enemies whose determination to annihilate the Jewish people is again on wide public display, I respectfully offer a short guide for the continuing discourse. In the spirit of Passover, here are four questions I find myself asking as I try to untangle my ambivalence:

1) How is this law different from all other death penalty laws? According to the Federal Bureau of Justice Statistics, in 2023 a total of 26 states and the Federal Bureau of Prisons held 2,192 prisoners under sentence of death … and five states executed a total of 24 prisoners. As for the situation in Israel’s neighboring countries, the comparison is more stark: according to the World Population Review, 216 people were executed in 2023 in Saudi Arabia, Egypt, Kuwait, Iraq, and Yemen combined. Such comparisons do not exonerate Israel for its own potential actions, but ought to be included in critical commentaries for evidentiary context.

2) What is the likelihood that Israel’s law will result in a significantly increased rate of executions? We can’t know that, but my sense is that public dissent will be significant, and likely more pronounced and effective than was the dissent about Eichmann. The fact that two people were executed in the last 78 years, that none of the thousands of imprisoned terrorists were, and that many of those terrorists subsequently freed in prisoner exchanges went on to successful careers as suicide bombers and tunnel excavators, provides some reassurance about the country’s perhaps unique and certainly controversial capacity for self-restraint.

3) Is there ever a moral basis for capital punishment? Maybe the word “ever” in that question is out of place, and the more interesting phrasing would omit it. I lean partly with Buber, Scholem, and Sachs, i.e., my default is to reject the moral basis for capital punishment (hence my discomfort with the new law). On the other hand, I sided with Ben Gurion and President Ben Tzvi in their consideration – and ultimate rejection – of the appeal for a stay of execution, because I believed then that there was both a moral and pragmatic justification for hanging Eichmann. Maybe it’s a matter of scale, and the challenge is to design criteria under which selective applications of the death penalty are at least worth debating. Do terrorists who kill 1200 civilians in a day of orgiastic murder deserve to die? Maybe. In that case, though, we can at least be confident they would be brought before a court of law first.

4) Which raises another interesting question, about Israel taking responsibility for the trial and punishment of alleged terrorists and genocidal maniacs. How would other countries handle the proceedings? The Eichmann episode is again instructive. One of the arguments then, coming even from some American Jews, was that Israel was not the right place; indeed, Arendt and others went so far as to accuse Israel of staging a “show trial.” Maybe Germany or Austria could have put on a fairer judicial proceeding, though I find that implausible at best and morally bankrupt at worst, given the right of Israel as the sovereign home of the Jewish people to manage trials of people accused of attempting (and partly succeeding in) its destruction. In any case, does anyone in their right mind think that Saudi Arabia would have been a good venue to try the 9-11 perpetrators or that Gaza City would be the right place to bring to justice those involved in 10-7? (Ironically, the likelihood that those jurisdictions would enact the death penalty – if not for murdering Jews, then for not helping those doing the murdering – is about 100-fold greater than it would be in Israel).

I’ll close by reasserting a point I mentioned earlier: let’s use the reaction to Israel’s new law to explore preconceptions that might be influencing the tone and substance of public and professional criticism. After all, people who are worried about “implicit bias” in other contexts should be ready, willing, and able to test that possibility here with great authority and credibility. In this week when we celebrate freedom, let’s not get enslaved by false narratives, blanket accusations, and simplistic answers to complicated questions. And for those unwilling or unable to avoid those sins, the good news is that the day of atonement is only five months away.