Smirking Past the Gallows

Minutes after the Israeli Knesset, on a 62–48 vote, passed a law designed to apply the death penalty to convicted terrorists, its lead sponsor, Minister of National Security Itamar Ben-Gvir, popped open a bottle of champagne.

The performance was gross and gloating, but not inconsistent with his record. In recent months, the extremist Ben-Gvir and his parliamentary faction replaced the yellow-ribbon lapel pins widely worn while Israeli hostages were held in Gaza with yellow noose pins. He has also made provocative social-media postings from the gallows Israel used to execute the Nazi official Adolf Eichmann in 1962. Ben-Gvir’s treatment of Israel’s grim struggle against terrorism has been disturbingly glib. As Israel heads to elections this year, look for the same provocative style in an upcoming Ben-Gvir campaign ad—because that is what the passage of this ugly law is truly about.

The law will be immediately challenged in the Israeli supreme court, which most observers expect to strike it down. In an attempt to avoid the charge that the law will discriminate on a racial basis, condemning Palestinian terrorists to death but not Jewish terrorists, it applies only to residents of the West Bank who are under the jurisdiction of Israeli military courts. These military courts cover only Palestinians, thereby exempting Israeli citizens (both Jewish and Palestinian), including West Bank settlers.

But even in the unlikely event that the law is upheld, it may not actually be enforced. The law requires the murder be committed “with intent to deny the existence of the state of Israel.” That means judges must establish a killer’s motivation—perhaps seemingly obvious in the case of Palestinian terrorism against Israelis, but full of opportunities for defense attorneys. Would the law apply to a terrorist claiming to act in revenge for a lost family member, and not as part of a nationalist cause? Or one who says he seeks full Israeli withdrawal from the West Bank and Gaza?

In fact, whether the drafters expect many executions to result from the law is far from clear. Although it ostensibly requires death by hanging within 90 days as the default penalty upon conviction, leaving scant opportunity for appeal, there is also a proviso that allows judges to waive the death penalty for ill-defined “special circumstances.”

[Graeme Wood: Ben-Gvir can’t bring himself to pretend]

So the celebration of its passage was heavily performative. And not just for Ben-Gvir. Having previously argued against this law, Prime Minister Benjamin Netanyahu this time came to cast his vote for the bill in person. He has long relied on the tactic of advocating harsh policies, or accepting the enactment of extreme proposals advanced by coalition partners to his right, knowing they will be struck down. He then blames their failure on liberal judges, journalists, and activists who are, in his telling, insufficiently committed to Israel’s security.

But the law does reflect a genuine Israeli dilemma, which helps explain its passage. Indeed, it received some votes from the opposition—specifically, the faction led by former Minister of Defense Avigdor Lieberman, who had long called for it to pass. (Meanwhile, some ultra-Orthodox members of Netanyahu’s coalition cast their votes against it, reflecting their principled religious objection to the death penalty.)

Israel’s experience with terror—the country counts thousands of victims since its founding—has left its leaders perpetually looking for tools to deter it. Diplomatic compromise has failed time and again, with plenty of blame to go around, and is now deemed by many Israelis to be naive and dangerous. And the common practice of holding those who commit acts of terror for lengthy sentences has been described by critics as an incentive for further terror.

It is easy to see why. In 2011, to free a single soldier kidnapped by Hamas, Israel released 1,027 Palestinians convicted of acts of terrorism. Among them was Yahya Sinwar, who became the mastermind of the October 7, 2023, mass terror attack that killed some 1,200 Israelis and led to more than 250 hostages being dragged into Gaza. The painful negotiations to free them lasted months, but it was always understood that a deal would include further prisoner releases. Most Israelis assume that some of the freed prisoners will return to terror, as Sinwar did, with devastating consequences. Thus, the argument is made that putting murderers to death would reduce the incentive for additional attacks, specifically the taking of hostages that can be used for leverage. For those Israelis looking to avoid reliving the trauma of the Gaza hostage crisis, the death-penalty law has appeal.

But the law also has strong critics. Some point to Israel’s long history of deep legal and moral debates that has led it to avoid—in all but two cases—applying the death penalty, which is technically on the books. The detractors also include many security professionals who have spent their lives fighting terror, including current officials in the Shin Bet, the security agency tasked with combatting Palestinian terrorism. They argue that putting terrorists to death in judicial proceedings only deepens the incentive for the next round of terrorist murders, this time with the perpetrators believing they have nothing to lose, and certainly no reason to spare the lives of their Israeli targets. Opponents further maintain that the law will embitter the large majority of Palestinians who are not affiliated with Hamas and that it will harm Israel’s international reputation by creating two tiers of justice for the same crime. At a time when Israeli extremist violence in the West Bank is spiking—including multiple alleged murders of Palestinian civilians already this year—and punishment of the perpetrators has been scant and light, it reinforces the argument that Israel considers Palestinian blood to be cheap.

[Yair Rosenberg: Netanyahu’s very useful war]

It won’t take long for some of these arguments to be tested. Terrorism will almost certainly continue, despite the new law. Israel will still wrestle with demands to release Palestinian prisoners who have Israeli blood on their hands if more hostages are taken. Israel has handed critics evidence that politicians with extreme agendas are taking over the country, and those critics will use it. And then, in all likelihood, the high court will strike down the law. In sum, little will change.

Only the haunting image of Ben-Gvir’s grin will remain.