Ben-Gvir’s death penalty law is an abomination

Just days before Pesach – Passover – when Jews around the world recite avadim hayinu, that we were once slaves in Egypt, Israeli Prime Minister Benjamin Netanyahu, National Security Minister Itamar Ben-Gvir, and 60 other Israeli parliamentarians saw fit to enact a morally repugnant death penalty law that effectively only applies to West Bank Palestinians convicted of lethal terrorist attacks.

In doing so, they knowingly treat Palestinians as inferior to themselves and risk alienating large numbers of diaspora Jews who have defended Israel against charges of racism and apartheid.

This law could easily be called the Luftglass law, after Markus Luftglass, a Polish Jew who was sentenced to 30 months imprisonment in 1941 for hoarding 65,000 eggs. Hitler read about the case in a Berlin newspaper and had the chief of his chancellery, Hans Lammers, inform acting justice minister Franz Schlegelberger that the Führer was furious at what he considered an overly lenient sentence. Schlegelberger proceeded to have Luftglass transferred to the Gestapo for execution.

Had a non-Jewish German been convicted of the same offence, he would most certainly have been treated differently. Luftglass was put to death – murdered, if you will — because he was a Jew and Nazi German law differentiated between Jews and Aryan Germans.

Or perhaps the new Israeli death penalty law should be called the Katzenberger law, after Lehmann, or Leo, Katzenberger. In 1942, Katzenberger, a 68-year-old prominent member of the Nuremberg Jewish community, was tried, convicted, and executed for allegedly having been intimate with a 30-year old German woman in violation of Nazi Germany’s infamous Law for the Protection of German Blood and German Honour that prohibited Jews from having sexual relations with Aryan Germans.

Again, this particular law applied only to Jews.

Let me be absolutely clear: I am decidedly not comparing Israel to Nazi Germany. I am, however, pointing out as unsubtly as I possibly can that the newly enacted Israeli death penalty law reeks of discriminatory bigotry.

I take no position on whether Israel should have the death penalty. This is a domestic matter for Israelis to decide. I sympathise with and understand Israelis who want terrorist killers to be executed.

However, Israel is a democracy, and in a democracy laws must be applied equally regardless of an accused’s or a defendant’s race, nationality, or ethnicity. “This is an immoral law that contradicts the foundational values of the State of Israel as a Jewish and democratic state, and the provisions of international law that Israel has undertaken to uphold,” declared opposition Knesset member Gilad Kariv, who happens to be a rabbi and knows what Jewish values are all about..

Kariv is right, of course.

Ben-Gvir, the law’s principal sponsor, has a long history of inciting violence and worse against Palestinians. In November, he said that if a proposed United Nations Security Council resolution that included an eventual IDF withdrawal from Gaza were to be adopted, “targeted assassinations of senior Palestinian Authority officials, who are terrorists for all intents and purposes, should be ordered.” At the same time, he has been supportive of Israeli settlers engaged in violent attacks against Palestinians on the West Bank.

The draconian Israeli death penalty law targets West Bank Palestinians exclusively. If an Israeli settler on the West Bank were to be charged with murdering a Palestinian child, that settler would not face the gallows. This is discrimination in its most blatant form.

As the Association for Civil Rights in Israel has noted, the law “seeks to create a normative arrangement whereby nationalist violence by Palestinians directed against Jews is worse than any other type of violence, including nationalist violence by Jews against Palestinians. This is, of course, a massive violation of the right to equality, and equality under the law, and indicates that the law is based on the racist assumption that the lives of Jews are more important and more worthy of protection.”

I want to believe that there are at least some coalition Knesset members who recognise that legal discrimination is an abomination, even if they’re afraid to say so publicly. Perhaps the Likudnik former Knesset Speaker Yuli Edelstein has some vague recollection of what it was like to be persecuted as a refusenik by the Soviet government.

Or perhaps some other Likud Knesset members remember the reverence Menachem Begin had for the rule of law, or that former President Reuven Rivlin still has.

It is true that neither Hamas nor the government of Iran has acted toward Israel and Israelis with any regard for the imperatives of international law or even a semblance of basic human decency. But Israel has always prided itself on its adherence to and embodiment of the highest moral values, which also happen to be fundamental Jewish values.

I realise full well that the law in question was a price Netanyahu had to pay to prevent the ultra-nationalist neo-fascist Ben-Gvir from toppling his government. Still, there must be some limits to a megalomaniacal lust for the retention of power. By comparison, Caligula threatening to make his horse a consul seems a positively enlightened act of statecraft.

A number of opposition parties, including the centrist Yesh Atid, the left-wing Democrats, and the Arab-majority Hadash–Ta’al, have announced that they will be petitioning Israel’s High Court of Justice to nullify the death penalty law. One can only hope that this will indeed happen, to quote from a traditional Passover song, “bimheirah be’yameinu,” speedily and in our days.

In the meantime, as we are about to sit down at the Seder, the Yiddish phrase, genug shoyn (enough already) comes to mind as a tempting alternative to Dayenu (it would have been enough) which we will also be singing. Or perhaps we should simply add this abhorrent law and its proponents to the recitation of plagues, alongside frogs and boils.

 

Menachem Z. Rosensaft is adjunct professor of law at Cornell Law School, lecturer-in-law at Columbia Law School, and general counsel emeritus of the World Jewish Congress. His most recent book is Burning Psalms: Confronting Adonai after Auschwitz.