Capital punishment for terrorists: Theoretically defensible but not wise - opinion

The major legislative initiative that has garnered less attention than that of the revamping of the Israeli judicial system is the proposal of capital punishment for convicted terrorists. Such a legislative proposal is not a wise one. Few topics in the field of criminal justice generate more controversy than that of capital punishment.

One of the main reasons for the controversy is that it is very difficult to prove that capital punishment deters crime.

In the 74 years of Israel’s existence, only one person has ever been executed by the Israeli judicial system – Adolf Eichmann, the architect of Hitler’s Final Solution.

Supporters of capital punishment for terrorists believe that, although Israeli society generally does not favor capital punishment, even for murderers, an exception should be made for terrorists.

It is not necessary for Israeli society or the Knesset to engage in a quantitative comparison of the horrors of the Holocaust with the horrors of anti-Israel terrorism. Both are based on antisemitism and a wanton disregard for the sanctity of human life, and although it is unpleasant to find mitigating circumstances regarding the typical murderer, differences in crimes need to be taken into consideration when determining the appropriate punishment.

Every day in Western society, premeditated murders take place. The motive for those crimes could be greed, jealousy or revenge. All such murders are deplorable and should be punished harshly. But those acts of murder are not acts of terrorism or genocide.

What distinguishes the Nazis and anti-Israeli terrorists, on the one hand, from many ‘typical’ murderers in society, on the other hand, is that the former saw/see no reason to refrain from killing innocent people with whom they had/have no relationship other than the fact that the victim falls within a group hated by the perpetrator of the murder.

Both Nazis and anti-Israel terrorists defend their actions based on a warped sense of a cause: in the case of Nazis, Aryan supremacy and in the case of anti-Israel terrorists, anti-Zionism. It is the cause that distinguishes Nazis and anti-Israel terrorists from the typical murderer and it is legitimate for the Israeli penal system to take into consideration the evils of a murderer’s cause.

Why has Israel de facto done away with capital punishment?

The reason that Israel has de facto done away with capital punishment can be summarized as follows: (a) Jewish tradition has (for at least 2,000 years) frowned upon carrying out capital punishment, and (b) modern Israel has long-recognized the fallacy of human judges who might mistakenly sentence to death an innocent person. There is obviously a great deal of overlap between those two phenomena.

Presumably, even opponents of capital punishment recognize that in connection with Eichmann, there was no concern about possibly putting to death the wrong person. Similarly, capital punishment for terrorists (if enacted) would presumably only be applied when the level of certainty as to the defendant’s guilt is not merely the standard of beyond a reasonable doubt but beyond any doubt.

The reason that capital punishment for terrorists is not a wise idea is not that executing terrorists (adults, with no mental illness) would be immoral. The reason that capital punishment for terrorists is not wise is that it would not be efficient. If enacted, such a law would likely be counterproductive.

Take, for example, the case of the terrorist who fires shots at civilians sitting at an outdoor Israeli restaurant and then flees the scene, taking refuge in a nearby residential building that houses civilians. One of the victims of the shooting at the restaurant dies of his wounds, which would, under the proposed legislation, trigger the death penalty.

The above scenario should remind readers of a real attack that took place outside the Ilka Bar in Tel Aviv, in April 2022. In that case, the terrorist did not actually take refuge in a residential building in Tel Aviv; rather, he escaped to Jaffa. While trying to flee the next morning, he was shot dead.

But the concerns that the security forces immediately expressed – namely, that the terrorist might take hostages in a residential building in Tel Aviv and then kill them – were not far-fetched.

The Ilka Bar attack was not an unusual one. Over the years, we have seen many situations in which a terrorist committed an act of violence and then fled to a place where he was not apprehended and had the opportunity to commit further acts of violence.

In order to understand the potential danger of legislation that would make murder by a terrorist a capital offense, it is necessary to focus on the state of mind of the terrorist in a situation like the one that existed after the shooting at the Ilka Bar: namely, a situation in which the terrorist has an opportunity to take hostages after he committed a murder.

If that terrorist knows that he will be sentenced to death for having already murdered someone, then he sees no upside to releasing any of the hostages safely. Rather, that terrorist will see himself as essentially a dead man walking.

He knows that he will die either in a fight with security forces or at the hands of the Israeli legal system. Because he is a terrorist, as soon as he sees himself as a dead man walking, he can be expected to maximize the number of people that he tries to kill. Therefore, changing the law to allow capital punishment for terrorists would have a very detrimental effect.

It is likely that some who support capital punishment for terrorists would argue that “terrorists don’t work that way” – in other words, once a terrorist goes out on a terrorist mission, he does not think about his own survival. If that is the case, the argument that capital punishment is in any way a deterrent to terrorism self-destructs.

If capital punishment is not a deterrent, why use it? Even if we assume that the argument “terrorists don’t work that way” generally has merit, there remains a serious danger in ignoring even a small percentage of exceptions to that rule. Specifically, even assuming that for 99.9% of terrorists, their own physical survival is not a concern when deciding whether to kill as many innocent people as possible, there is still a danger in ignoring that 0.1%.

Let’s focus on the state of mind of that one in 1,000 terrorists. Assume that after he kills one innocent person, he still wants to live. If he knows that he will be put to death for the murder that he already committed, then he sees no upside to surrendering when surrounded by security forces. Rather, under such circumstances, even the terrorist who wants to live is likely to try to kill more victims.

A society that values the life of every innocent civilian wants to give the terrorist who is holding hostages an incentive to live. Like it or not, the only way to incentivize the terrorist to live (such as in an Ilka Bar-like situation) is to ensure that the judicial system will not sentence him to death.

Our society does not want a terrorist who has murdered to think “I have nothing to lose” by killing more innocent people. If the possibility of remaining alive is enough to prevent that terrorist from taking more lives, and even if such a profile applies to only 0.1% of all terrorists, then the price of enacting capital punishment for other terrorists would be too high a price to pay.

No law should ever cause, even inadvertently, consequences that are contrary to the main purpose of that law. The Ilka Bar situation occurred less than a year ago, and it should not be far from the memory of most Israelis. And, as indicated above, such a shoot-and-flee type of attack is far from unusual.

That attack and the police warnings immediately thereafter show that it is more than just theoretical that capital punishment for terrorists could have consequences contrary to the purpose of preventing terrorism.

The legislative process should not be used primarily to afford MKs the opportunity to check a box from their campaign promises. Lawmaking has consequences and when there is a possibility that an act of the Knesset could inadvertently lead to the death of innocent civilians, prudence cautions against taking that action.

The writer is an American-Israeli lawyer based in Ramat Gan. He serves as the vice chair of the American Bar Association’s International Litigation Committee and has held other positions with the ABA.