By: Attorney and Social Activist Hussein Abu Hussein
Modern law is supposed to reflect a civilized society’s commitment to fundamental moral principles and its aspirations to achieve justice and equality among its members. Law must define the boundaries of society, indicate what is permitted and forbidden, and formulate the image of a community that respects human rights. However, the Israeli Knesset has decided to turn its back on these principles, recently enacting a law that imposes the death penalty on any Palestinian convicted of intentionally causing the death of a person in an act described as “terrorist.” Israel has adopted the spirit of “Ben Gvir,” abandoning its duty to protect those under its responsibility—whether they are citizens or subjects under occupation—and has legitimized the law as a tool of state violence.
In recent decades, a clear global trend toward the reduction and abolition of the death penalty has prevailed. Most democratic countries have abolished capital punishment either by law or in practice, based on the understanding that it is a cruel, irreversible penalty incompatible with fundamental human rights. Furthermore, international law and international institutions encourage states to abandon the use of this punishment; its reintroduction into the statute books is viewed as a fundamental retreat from the accepted norms of the modern world.
The National Security Committee in Israel, which discussed the proposed death penalty law for Palestinians convicted of intentionally causing death, rejected more than 2,000 objections filed against the proposed bill and gave it final approval. Commenting on this, MK Itamar Ben Gvir, the Minister of National Security, stated: “We are in a period of historical opportunities and great successes. The death penalty law for terrorists is the most important legislation enacted by the Knesset in recent years, and it aims to protect our children. This law was created to make our enemies think a thousand times before choosing to harm the citizens of the State of Israel. Everyone who votes in favor of the law is a partner in making history. With God’s help, we will implement this law in full and kill our enemies.”
The law states that its goal is to increase deterrence, prevent operations, and seek retribution for acts of sabotage. However, global research has found no evidence that the death penalty deters potential perpetrators more than prison sentences. Thus, studies conducted worldwide have found no link between the existence of the death penalty and lower crime rates. This applies particularly to operations carried out on ideological grounds by individuals who are already prepared for or aspiring to death. In fact, the death penalty may lead to a counter-deterrent effect by creating a “role model” for operations or inciting a quest for revenge. It is worth quoting the American satirist George Carlin here: “If you kill the killers, the number of killers remains the same.”
The new law addresses the imposition of the death penalty in military courts, mandating that courts hand down a “mandatory” death sentence—and this penalty alone—to a Palestinian who intentionally causes the death of a person in a “terrorist” act. The court will not be able to sentence the defendant to life imprisonment instead of death except in very narrow, exceptional cases—for special reasons and under extraordinary circumstances. In practice, Palestinians residing in the occupied territories are tried exclusively in military courts, while Israeli citizens, including settlers, are tried in Israeli civil courts according to the provisions of Israeli law.
The new law conflicts with established principles of international law. Article (6) of the International Covenant on Civil and Political Rights (ICCPR) emphasizes the right to life and stresses that countries that have not yet abolished the penalty must only impose it for the “most serious crimes.” However, the Second Optional Protocol to the ICCPR explicitly aims at the abolition of the death penalty. Moving backward is considered a “regression” from the international human rights obligations undertaken by civilized nations.
The law also stipulates the imposition of the death penalty in Israeli civil courts according to the provisions of the Israeli Penal Code, stating that a person who intentionally causes the death of a human being “with the aim of denying the existence of the State of Israel” shall be sentenced to either death or life imprisonment—and only one of them. This is a vague and ambiguous definition, but it is obvious that only Palestinian defendants—whether residents and citizens of Israel or residents of the occupied territories—will be covered by this definition. This is because terrorism practiced by Israeli Jews, often against Palestinians, is never carried out with the motive of “denying the existence of the State of Israel,” despite the documentation of 2,660 settler attacks against Palestinians from January 2024 to the end of September 2025 resulting in physical injuries or property damage, according to UN data.
The new law has created a different arrangement within the Penal Code currently in force in Israel. Unlike the death penalty imposed in military courts, the death penalty in Israeli civil courts—i.e., those in which Israeli citizens are tried—will be “discretionary” rather than a default option that requires special reasons to deviate from. This indicates an explicit intent by the legislator to ensure that even if a Jewish citizen had a motive to deny the existence of the State of Israel, they would not be executed.
Thus, the new law imposes the death penalty for Palestinians—citizens and residents of the occupied territories—as a default option. It serves as a punishment based on a national-ethnic background of a racist nature, fatally undermining the rights of Palestinian citizens and residents to life, dignity, due process, and equality. The law creates a normative hierarchy according to which the violent nationalism of Palestinians directed against Jews is more serious than any other type of violence, including the nationalist violence of Jews against Palestinians, and must be met with an extremely harsh punishment.
The new law distinguishes between two tracks: the military court track (for Palestinians in the West Bank) where execution is “mandatory,” and the civil court track (for Israelis) where execution is “discretionary” and subject to broad definitions. This separation violates Article (7) of the Universal Declaration of Human Rights and Article (26) of the ICCPR, both of which state that “all people are equal before the law.” Establishing two different judicial systems based on national or ethnic origin is a flagrant violation of the principle of non-discrimination and may amount to the definition of “Apartheid” under the 1973 Apartheid Convention.
Restricting the Discretionary Powers of Courts and Military Commanders
The law also contradicts the basic principle of any self-respecting legal system: granting independence to the judiciary to exercise judicial discretion and impose appropriate penalties on offenders. The new law obliges the military court to impose a mandatory death sentence on Palestinians in the occupied territories. Under the law, the court will not have the right to impose life imprisonment instead of death except for “special reasons” and in “extraordinary circumstances.” These narrow exceptions themselves effectively amount to a mandatory death penalty.
The “Mandatory Death Penalty” is considered illegal under international custom because it deprives the court of considering mitigating circumstances or the individual characteristics of the offender, making the punishment “arbitrary” by nature. Numerous international bodies have ruled that mandatory execution constitutes a violation of the right to a fair trial.
Furthermore, it will not be possible to commute the sentence of someone sentenced to death in a military court or to grant them a pardon. The provisions of the law limit the powers of the military commander to commute the sentence or grant a pardon, as required by international law—specifically Article 75 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, and the ICCPR of 1966, both of which state that those sentenced to death cannot be deprived of the possibility of seeking a pardon or commutation of the sentence.
Additionally, a simple majority of the judicial panel is sufficient to issue a death sentence, rather than a consensus, and the court’s authority—in both Israel and the occupied territories—will not be conditional on the prosecution’s request for this penalty or its support for its imposition.
In addition to the terrible and irreversible blow to the right to life and equality, the new legal arrangement mandates holding the death row inmate in solitary confinement, prohibiting family visits, and restricting the number of lawyers they can meet. The law also stipulates the execution of the final sentence within 90 days by hanging. This arrangement severely impacts the prisoner’s right to a fair legal process, particularly their ability to file a petition for pardon or a retrial and wait for new evidence to emerge, as is customary in other countries, despite the lack of any urgent necessity justifying this timeline. These arrangements cruelly and disproportionately harm the dignity of the prisoner.
These contents directly clash with Article (6, Paragraph 4) of the ICCPR, which states: “Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence.” It also violates Article (75) of the Fourth Geneva Convention, which protects persons in occupied territories and guarantees them the right to appeal and petition for pardon.
Moreover, the judicial system by its nature, and the military judicial system in the occupied territories in particular, does not enjoy a strong judicial reputation and is not immune to errors. The mere fear of executing a single innocent person is enough to reject this cruel and final punishment. In the United States, for example, about 200 death row inmates have been exonerated since 1973 after it was discovered that their convictions were erroneous. Consistently, the death penalty worldwide is imposed disproportionately on minorities and vulnerable groups, and is often associated with authoritarian states that use it as a tool to suppress dissidents. Based on all of this, more than two-thirds of the world’s countries have chosen to abolish the death penalty—a choice that reflects the global trend to end its use, not the reverse.
In the same context, it is worth noting that in a joint statement published by the German Foreign Office, the foreign ministers of Germany, France, Italy, and the United Kingdom expressed their strong reservations about the proposed law due to its effectively discriminatory nature and the law’s infringement on Israel’s commitment to democratic principles. But then again, who says these statements have any influence on decision-makers in Israel?