The Knesset Plenum Hall in Jerusalem, Israel. Ilgov/Adobe Stock

In recent months, Israel’s parliament has passed death penalty laws aimed at Palestinians convicted of terrorism offences in territories under Israeli control, including the occupied West Bank, and for those involved in Hamas-led 7 October attacks. The legislation has been strongly condemned by Israeli and Palestinian human rights organisations, as well as the governments of the UK, France, Germany, Italy, Australia and New Zealand, which collectively expressed ‘deep concern’ that it risked ‘undermining Israel’s commitments with regards to democratic principles.’

Volker Türk, the UN High Commissioner for Human Rights, has strongly criticised the laws and urged Israel to repeal them, stating that the application of the death penalty to residents of the occupied territory ‘would constitute a war crime’. ‘Trials for crimes related to October 7 are supremely important, but they must not be anchored in discrimination,’ he said. ‘All victims are entitled to equal protection of the law, and all perpetrators must be held accountable without discrimination.’

In May, the Knesset passed separate legislation to impose the death penalty and establish a special military court for Palestinian armed groups involved in the deadly attacks against Israel on 7 October 2023. Israeli legislators who voted in favour of the laws say they are necessary to protect the state of Israel and hold to account those responsible for the 7 October attacks.

Michelle Lesh, an officer of the IBA War Crimes Committee and professor at the University of Melbourne, says the Death Penalty for Terrorists Law ‘tests the limits’ of international law and puts Israel at odds with a global trend away from capital punishment. ‘It really risks entrenching discrimination into one of the most extreme forms of punishment,’ she says.

Lesh says the broad wording of the legislation to include deliberate killing with the aim of denying the existence of Israel is problematic because it is not clear what acts would meet the definition under the law. ‘The question is, if there’s a Palestinian with a record of resisting the occupation, and they shot at a settler in self-defence, would they fall within this law?’

The Association for Civil Rights in Israel, the country’s oldest human rights organisation, has filed a petition with the Supreme Court demanding the repeal of the Death Penalty for Terrorists Law. The organisation argues that the legislation violates Israel’s international human rights obligations by creating a ‘dual and discriminatory’ legal system based on ethnicity; and constitutes de facto annexation by legislating directly for the West Bank, where Israel is not the legal sovereign in the occupied territory. ‘There is no proof that the death penalty deters terrorism or ideological attackers,’ the organisation said. ‘In addition, the law is incompatible with Israel’s values as a democracy.’

Saul Lehrfreund, Co-Executive Director of the NGO The Death Penalty Project, says that the death penalty is incompatible with rule of law and human rights principles because it is inevitably arbitrary and the risk of executing an innocent person will always remain. ‘The abolition of the death penalty is the real litmus test of a country’s respect for human rights and the rule of law,’ he says.

Lehrfreund adds that the discriminatory nature of the laws and the restricted opportunities for judges to not impose the death penalty and to grant clemency violate Israel’s obligations under international human rights law. ‘When you break down the legislation, the implications are profound,’ he says.

The IBA’s Human Rights Institute has urged the Israeli government to withdraw the legislation and said that the laws ‘raise significant concerns from an international human rights law perspective including, among others, fair trial rights and due process’.

Israel is a party to the International Covenant on Civil and Political Rights, which does not prohibit the death penalty but restricts its application to the ‘most serious crimes’ and without discrimination. Those who are sentenced to death must also have the right to appeal the decision. Markus Beham, Co-Chair of the IBA’s Human Rights Law Committee, says that while Israel hasn’t ratified the Second Optional Protocol, which commits signatory states to abolishing the death penalty, ‘there is an argument to be made that Israel’s ratification of the Covenant should bring it on a trajectory towards abolition rather than further introduction of the death penalty’.

The death penalty has existed in Israel since 1948 but has only been carried out once, in 1962 for the execution of Nazi war criminal Adolf Eichmann. Only two years ago Israel co-sponsored a UN General Assembly resolution calling for a moratorium on the use of the death penalty. According to The World Coalition Against the Death Penalty, 145 countries have abolished the death penalty in law and in practice. ‘Even though there is this history of the death penalty, Israel has been considered a de facto abolitionist country, so the introduction of the law is significant legally and symbolically,’ says Lesh.