Europe warns Israel against ‘game-changer’ death penalty legislation
Germany’s foreign minister, diplomatic official voice opposition to legislation making its way through Knesset amid spike in Palestinian terror attacks
Lazar Berman is The Times of Israel's diplomatic reporter
As Israel advances a bill that would allow courts to impose the death penalty for deadly terror attacks against Israeli citizens, a European diplomat warned that its successful passage would transform relations between Israel and the continent.
The Knesset plenum on Wednesday gave preliminary approval to the bill, an item that National Security Minister Itamar Ben Gvir’s far-right Otzma Yehudit party has long been pushing for. It is set to be discussed by the high-level security cabinet, which is seen as likely to insert modifications.
“It’s a game-changer that would negatively impact relations,” said the official from a European Union member state in a conversation with The Times of Israel.
“That would lead to a certain change in perception and a switch from the democratic side, another step towards states that are having more authoritarian stances,” the official continued.
According to some reports, Prime Minister Benjamin Netanyahu’s Likud party is seeking to delay the legislation, and the attorney general is expected to oppose it. Haredi parties have also expressed reservations.
While EU foreign affairs spokesman Peter Stano would not comment on domestic Israeli legislation that has not passed, he told The Times of Israel that the 27-member bloc has “a strong and unequivocal opposition to the death penalty in all times and in all circumstances.”
“It is a cruel and inhumane punishment, which represents an unacceptable denial of human dignity and integrity, and fails to act as a deterrent to crime,” Stano continued. “It is a definitive punishment that makes potential miscarriages of justice irreversible.”
He added that the EU is working for the abolishment of the death penalty in countries where it is still practiced.
Other senior European officials expressed similar concerns this week. Standing in Berlin next to her counterpart Eli Cohen, Germany’s Foreign Minister Annalena Baerbock signaled “particular concern” over the bill.
“We have abolished this penalty,” Baerbock said, adding that Germany was “talking about this with every country that has the death penalty, including the United States,” and that it has proven ineffective as a deterrent.
Baerbock noted that students in German schools are taught that Israel has only carried out the death penalty in one case — that of Adolf Eichmann, who played a major role in the Holocaust, in the early 1960s — despite facing a bigger terror threat than any other country (the nascent Israeli military also executed an IDF officer in 1948 on highly questionable charges of treason).
At the same time, having a death penalty doesn’t necessarily keep democratic countries from having robust ties with the EU. Though the bloc’s delegation in Washington, DC, publicly condemns executions in the United States, the EU and US represent the world’s largest bilateral trade market and cooperate on a range of issues.
Instituting a death penalty for terrorists had already been high on the hard-right coalition’s agenda before a string of deadly Palestinian attacks killed 14 people in recent weeks, including two on Sunday and another on Monday. The terror wave, which comes amid escalating deadly tensions in the West Bank, has re-energized calls for harsher punitive action against Palestinian perpetrators as well as more severe deterrent measures.
On Sunday, Ben Gvir said that after “two Israeli citizens were murdered in a Palestinian terror attack, there is nothing more symbolic than passing a death penalty for terrorists law.
“This is a moral and fair law that exists in the world’s largest democracy” — a reference to the United States — “and definitely [should exist] in a country where citizens are hit by a terror wave.”
Hebrew media reported last week that Attorney General Gali Baharav-Miara was set to oppose the law on the grounds that it poses significant constitutional difficulties and goes against Israel’s declarations on the matter in international forums and against the international trend of limiting the use of the death sentence.
The Ynet news site quoted from what it said was Baharav-Miara’s planned legal opinion, saying the law wouldn’t serve as a deterrent, especially when the perpetrators are ideologically motivated and willing to accept being killed anyway. She was also purportedly claiming that the only Western country that still uses death sentences is the US, and even there, only 31 out of 50 states still have it, with seven having nixed it over the past decade.
Israel’s penal code includes capital punishment but only for exceedingly rare cases. Right-wing politicians, including some in the current opposition, have long pushed for a law imposing the death penalty on terrorists, but efforts have fizzled without sufficient support and due to legal issues. In 2017, Yisrael Beytenu head Avigdor Liberman proposed a bill allowing a court to execute any terrorist whose attack results in a victim’s death, and former justice minister Ayelet Shaked pushed for capital punishment to be imposed over any attack that results in a child’s death.
In 2016, then-attorney general Avichai Mandelblit submitted a legal opinion to the government in which he argued that a death sentence does not deter terrorists who already know they have a good chance of dying in the course of their attack.
In 2018, Netanyahu okayed lawmakers to push ahead with a death penalty bill despite professional opposition. At the time, Shin Bet chief Nadav Argaman told Knesset lawmakers that he was unequivocally against the measure.
“It’s not helpful,” Argaman said then. Nonetheless, a poll in 2017 found that over 70 percent of Jewish Israelis backed the measure to some degree.
Ben Gvir has pointed to large celebrations last month for Palestinian terrorists freed from prison after serving decades for killing a soldier as proof of the need to execute convicted terrorists.