Menachem Begin would be horrified by Israel’s death penalty law
The death penalty law adopted last week by a bare majority of 62 Knesset members is a discriminatory abomination that would subject West Bank Palestinians to capital punishment.
Mencachem Rosenaft
Unless it is annulled by Israel’s Supreme Court, this statute’s very existence is certain to further isolate Israel in the international community and will exacerbate the country’s relations with many Jews across the globe.
The offending and offensive law goes counter to Israel’s character, in the words of its Declaration of Independence, as a “Jewish state” that “will ensure complete equality of social and political rights to all its inhabitants.” Its sinister nature was made evident by the noose-shaped lapel pin worn by its sponsor, the neo-fascist National Security Minister Itamar Ben-Gvir, at a Knesset hearing on the legislation.
Article 3 of this statute requires Israel’s defence minister to direct the commander of the Israel Defence Forces in the West Bank to insert the following provision in “the Order regarding Security” within 30 days of the law becoming operative:
“A resident of the Area [i.e., the West Bank] who intentionally causes the death of a person, where the act constitutes an act of terrorism as defined in the Counter-Terrorism Law, 5776–2016 (hereinafter – a terrorist), shall be sentenced to death, and this punishment only; however, if the Military Court finds, for special reasons which shall be recorded, that special circumstances exist for which it is appropriate to sentence the terrorist to life imprisonment, it may impose such a sentence, and this punishment only; in this subsection, a ‘resident of the Area’ – one who is registered in the population registry of the Area or one who resides in the Area even if not registered in said registry, excluding an Israeli citizen or an Israeli resident.” [Emphasis supplied]
In other words, the law applies only to West Bank Palestinians and not to any Israeli living there. Thus, a West Bank Palestinian convicted of a lethal act of terrorism could be sent to the gallows, while an Israeli settler or an Israeli thug who kills a Palestinian child or woman would be immune from such a sentence.
Simply put, the very notion that Israelis – read Israeli Jews or Israeli Jewish settlers – should be treated differently as a matter of law than Palestinians in the West Bank is abhorrent and should force Israelis, even with Iranian missiles raining down on them, to determine whether this is really what they want their country to look like. It also requires those of us in the diaspora who consider ourselves liberal or progressive Zionists to scrutinise our relationship with and attitude toward the present Israeli government.
I am not questioning diaspora Jewry’s commitment to and identification with the State of Israel and its people. These are and should be sacrosanct. The administration led by the hyper-nationalistic Prime Minister Benjamin Netanyahu, Justice Minister Yariv Levin, and the aforementioned Ben-Gvir is another matter altogether.
Israel’s first two prime ministers, David Ben-Gurion and Moshe Sharett, whom I was privileged to know as my father’s friends, believed that Israel must at all times be both Jewish and democratic. So did Prime Minister Menachem Begin who declared in the Knesset in 1962 “that in the Jewish State, there must be and will be equal rights for all its citizens, irrespective of religion, nation, or origin.”
It goes without saying that Begin would be horrified by the death penalty law.
In his lecture upon receiving the 1978 Nobel Peace Prize, he quoted what he called “the magnificently written words” of the Universal Declaration of Human Rights that “All human beings are born free and equal, in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” Begin then added that “Free women and men everywhere must wage an incessant campaign so that these human values become a generally recognized and practiced reality.”
Along the same lines, former Israeli President Reuven Rivlin, a staunch proponent of annexing the West Bank, maintained that “applying sovereignty to an area gives citizenship to all those living there.” He was adamant that “if we extend sovereignty, the law must apply equally to all,” that is, to Israelis and non-Israelis alike.
Begin was and Rivlin is a disciple of Vladimir Ze’ev Jabotinsky, the nationalist Zionist ideologue and activist whose goal was Jewish control over the entirety of British Mandatory Palestine. Netanyahu claims to be so as well; he has said that “I have Jabotinsky’s works on my shelf, and I read them often.” Except that he seems to have missed, or disingenuously chooses to ignore, those works in which Jabotinsky advocated full quality for minorities – that is, Arabs – living in an eventual Jewish state. According to Jabotinsky,
“Democracy means freedom. Even a government of majority rule can negate freedom; and where there are no guarantees for freedom of the individual, there can be no democracy. These contradictions will have to be prevented. The Jewish State will have to be such, ensuring that the minority will not be rendered defenseless.”
I write as a professor of law who teaches about the law of genocide at the law schools of Cornell and Columbia Universities, and about antisemitism in the courts and in jurisprudence to law students and undergraduates at Cornell. I cannot in good conscience overlook the daunting reality that the death penalty law violates international human rights law.
In this context, it is important to bear in mind that Israel formally ratified the 1966 International Covenant on Civil and Political Rights, which guarantees “the right to equality before the law.” Emphasis on “equality.”
In July 2018, after the Knesset, by the same 62-vote majority, adopted a similarly controversial law defining Israel “as the Nation-State of the Jewish People” in which the “right to exercise national self-determination is unique to the Jewish people,” the author and political commentator Yossi Klein Halevi observed that “Israel is based on two non-negotiable identities. The homeland of all Jews, whether or not they are citizens of Israel, and it’s the state of all its citizens, whether or not they are Jews. Anything that upset that balance, in either direction, is a threat to Israel.”
By that measure, the threat to Israel posed by the death penalty law is downright existential. It is also profoundly un-Jewish. As Rabbi Arie Hasit, the associate dean of the Schechter Rabbinical Seminary in Jerusalem, has cogently pointed out, “A law meant to protect Jewish or Israeli life while remaining cavalier regarding Palestinian life goes against one of the most basic principles of Judaism.”
We stand at a crossroads. Much to the displeasure of the Netanyahu-Levin-Ben-Gvir crew, who have been trying to weaken, if not scuttle, Israel’s independent judiciary since coming to power at the end of December 2022, the Israel Supreme Court is likely to invalidate this particular law, providing a measure of breathing space. But that does not mean that we can relax.
On the contrary.
On July 10, 1940, the French National Assembly, by a vote of 569 to 80, accepted a humiliating armistice with Nazi Germany. The 569 parliamentarians who agreed to collaborate with Hitler’s Third Reich are widely vilified in present-day France as responsible for replacing their nation’s fundamental principles of Liberté, Égalité, Fraternité (Liberty, Equality, Fraternity) with Marechal Philippe Pétain’s far-right nationalist slogan of Travail, Famille, Patrie (Work, Family, Fatherland). The 80 who voted no, meanwhile, are revered for refusing to yield to fascism.
The 62 Knesset members, including Netanyahu, Ben-Gvir, and Levin, who voted in favour of the death penalty law, are as ignominious as the 569 French parliamentarians who brought the collaborationist Vichy French regime into existence. With any amount of luck, they will be ousted from power in the next Israeli national elections.
We in the diaspora must draw our own line in the sand. If we don’t want to have anything to do with politicians or influencers who deny Israel’s legitimacy as a nation, we must in the same vein unequivocally and publicly denounce not just the death penalty law but also those Israeli politicians who seem intent on blowing up Israel’s democracy.
Menachem Z. Rosensaft is adjunct professor of law at Cornell Law School and lecturer-in-law at Columbia Law School. He is the author of Burning Psalms: Confronting Adonai after Auschwitz (Ben Yehuda Press, 2025).
