Israeli police flank Adolf Eichmann, the Nazi SS colonel who headed the Gestapo's Jewish Section and was responsible for millions of Jews' deaths in Nazi concentration camps, as he stands trial inside a bulletproof booth in a Jerusalem court.
(photo credit: REUTERS)
During coalition negotiations in May, the Yisrael Beytenu Party demanded legal changes to allow Israeli military courts to order the executions of terrorists convicted of murder. This demand, which to date has not been adopted, was the latest episode in many years of debate over the death penalty.
In its first years, Israeli law permitted the death penalty as part of the codes it inherited from the British Mandate. These codes allowed the death penalty not only for murder but also for illegal possession of certain firearms and explosives, and even membership in groups in which other members were convicted of such activities.
By 1954, the Knesset banned the death penalty for murder, and over the years restricted it to cases of Nazi war criminals, crimes against humanity, and treason. The law was famously applied to Adolf Eichmann in 1962, but otherwise has not been utilized.
Military courts are also authorized to administer the death penalty. The courts have on several occasions sentenced an enemy to death, only to have that punishment overturned through military, political or judicial orders. Today, protocol allows military courts to sentence a (non-minor) murderer to death only if the court is composed of senior IDF judicial officials who unanimously agree to the sentence following a conviction based on bona fide evidence (i.e., besides admission of guilt). These restrictions, along with moral and political considerations, have barred, in practice, the administration of the death penalty.
The current proposal lowers these legal barriers by requiring only a majority (as opposed to unanimous) decision and limiting the ability of the defense minister to change the sentence to life in prison.
Jewish law has had a complex relationship with the death penalty. The Bible mandates the death penalty in roughly 30 circumstances, including murder as well as a series of spiritual and moral violations.
That said, within talmudic literature one finds definite hesitancy in implementing these punishments. For starters, an extensive list of evidentiary requirements makes it difficult to convict a person of a capital crime. These requirements led the Sages to declare that a court that administered a death penalty every seven years (according to others, every 70 years) is deemed a “destructive tribunal.” R. Akiva and R. Tarfon further asserted that had they been on a Sanhedrin, they would have always found a way to avoid the death penalty, thereby abolishing it in practice. R. Shimon ben Gamliel retorted that such cavalier declarations would increase bloodshed by removing a major deterrence for criminals. By the time they lived, however, the biblical death penalty was no longer administered, because the Sages asserted that it could not be performed when the Sanhedrin did not sit in judgment in Jerusalem.
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Yet as Aaron Kirschenbaum has shown, several talmudic passages indicate that some early Sages continued to advocate for the death penalty. According to the Talmud, when judges were convinced of the guilt of an accused murderer but lacked sufficient evidentiary material under the stringent halachic standards, they could imprison the accused and indirectly cause his death by a combination of starvation and force-feeding. The Talmud further reports how the sage Shimon ben Shetah ordered the execution of 80 women convicted of witchcraft. Such a mass execution goes against the regular protocol of not executing more than one person in a day. His action seemingly followed the spirit of the much-discussed proclamation of R. Elazar ben Ya’acov, who declared, “A judicial court may impose flagellation and pronounce capital sentences even when not warranted by the Torah” in order to safeguard Jewish law. Accordingly, in cases of social exigency, the court may administer corporal and other punishments beyond the letter of the law prescribed by the Torah.
Talmudic commentators debated the scope of these powers. Many Geonic scholars in the immediate post-Talmudic era declared that they had no legal sanction to order corporal punishments. This sentiment was shared in the 15th century by R. Joseph ibn Habib, who argued that the Talmud allowed such extreme measures only when the Sanhedrin was functioning.
Yet most interpreters contended that even contemporary courts established by Jewish councils have the mandate to impose corporal punishment. Indeed, several medieval Jewish communities occasionally applied physical penalties – including execution – on severe deviants, even as the phenomenon remained relatively infrequent.
Many scholars embraced these powers as necessary for maintaining civil society and to ensure that the Jewish community could administer justice without the interference of the local gentile authorities.
Others continued to challenge their use, especially with regard to executing fellow Jews.
When the question emerged in 1948, chief rabbis Yitzhak Herzog and Ben-Zion Uziel, along with Rabbi Yehiel Michel Tukichinsky, contended that given the halachic qualms over this practice, there was no need to introduce the death penalty, especially since the widening use of life-in-jail sentences served as a satisfactory alternative.
That said, several scholars, including chief rabbis Ovadia Yosef and Shlomo Goren, asserted that it would be both permissible and appropriate to execute savage terrorists who indiscriminately kill Israelis in the context of protracted warfare. Their argument rests on the assumption that such executions would enhance state security.
As Rabbi Itamar Warhaftig has argued, such a claim is dependent on the evaluation of security, political and legal experts. Additionally, Rabbi Yuval Cherlow has noted that the inevitable debates over which convicted terrorists deserve death might lead to unnecessary contentiousness at a time when we need greater unity.
In short, while a strong halachic argument can be made to permit executing terrorists, Jewish law does not require it. Instead, it mandates levelheaded strategic planning that will execute justice while enhancing our security.The writer directs the Tikvah Overseas Students Institute and is a presidential doctoral fellow at Bar-Ilan University Law School. His collection of columns, A Guide to the Complex, received a National Jewish Book Award.
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