(photo credit: MARC ISRAEL SELLEM)
Prime Minister Benjamin Netanyahu and Yisrael Beytenu chairman Avigdor Liberman have reportedly agreed on one major condition for Liberman and his party joining the coalition: the execution of terrorists. Amid the as-yet-unresolved upheaval in the cabinet, this demand at least should come as no surprise, for the death sentence has been close to Liberman’s heart for some time.
The last time it was a public issue was a year ago, when a bill introduced by Yisrael Beytenu MK Sharon Gal sought to change the law allowing the death penalty only in a case of judicial consensus to one allowing a majority of judges to sentence a terrorist to death. The Knesset defeated the bill by a vote of 94-6.
Interestingly, Netanyahu at the time buried the bill, directing the Ministerial Committee for Legislation to vote against it and instead to establish a committee to study the possibility of changing the law.
Gal’s justification for his proposal was deterrence: “We must change the reality and eradicate terrorism,” he said.
“The death penalty will increase Israel’s deterrence. It is moral to legislate it in order to protect the lives of our citizens.”
The concept of deterrence, however, has been singularly misunderstood in Israeli discourse. To deter means to prevent from happening. Executing a terrorist murderer cannot prevent a slaying that has already occurred; just as demolishing the family homes of some terrorist murderers does not deter others. Politicians say deterrence, but they mean revenge.
There are good fundamental reasons in Jewish tradition why our sages have eliminated the death penalty over the centuries. Violating the Sabbath, to cite just one example, is no longer punishable by death by stoning. Neither is adultery, idolatry, or 33 other biblical capital crimes. Maimonides taught that such restriction is necessary to prevent the execution of the innocent.
Justice must indeed be done – and be seen to be done – but only in the most extreme cases. In the past 68 years of our independence, the Jewish state has carried out the death penalty only twice. Twice? Everyone knows why Adolf Eichmann was hanged in 1962, but few recall the IDF officer who was convicted by a summary court martial and executed by a firing squad in 1948.
During the War of Independence, Capt. Meir Tobianski was falsely accused of passing target information to the Jordanian artillery, found guilty by a field court martial, and executed by firing squad. Thanks to an investigation pursued by his widow, he was posthumously exonerated.
In July 1949, a year after Tobianski’s wrongful execution, David Ben-Gurion issued a public exoneration of Tobianski and his body was reinterred in Mount Herzl Military Cemetery in a ceremony with full military honors. On his gravestone is written, “Killed by mistake.”
Nathan Alterman wrote a protest poem called, “The Traitor’s Widow,” to honor Tobianski’s widow’s successful campaign to reverse his wrongful court martial.
An Israeli civil court sentenced two Arabs to death for murder in 1949 and their sentences were confirmed on appeal – but were commuted to life imprisonment by then-president Chaim Weizmann, who opposed the death penalty.
Israel inherited the British Mandate code of law, which included the death penalty for various offenses, but abolished the death penalty for murder in 1954. In 1954, the Knesset abolished the death penalty for murder, but retained it de jure for war crimes, crimes against humanity, treason and certain crimes during wartime.
Although it remains on the books, as do too many Emergency Regulations from the Mandate, Israel does not impose the death penalty. No death sentences have been sought by prosecutors since the 1990s – neither against terrorist murders nor even against the assassin of a prime minister.
Until the present wheeling and dealing for cabinet jobs is concluded, it is good to consider a remark last year by Meretz chairwoman Zehava Gal-On, when proposing a bill to abolish the law allowing civil and military courts to sentence people to death, except in cases of genocide.
Imposing the ultimate sanction would require deep thought and evaluation, way beyond the regular political negotiations upon the establishment of a new government.
“The proposal to sentence terrorists to death does not reflect Jewish morals or democratic values,” Gal-On said.
“Killing for reasons of revenge is wrong. It is unwise and unjust, and its results were best described by Dr. Martin Luther King Jr., who said that an eye for an eye leaves everyone blind.”