On November 10, right-wing Knesset member Itamar Ben-Gvir proposed a bill that would use the death penalty to punish Palestinian terrorists convicted of killing Israeli citizens. Some Knesset members have argued that such a law would prevent future prisoner release swaps, as there would be little value for a dead prisoner in such an exchange. It is further claimed that the threat of execution will discourage terrorism. The government intends to medicalize execution by using lethal injection, the most common method in the US death penalty.
This death penalty bill, if passed, will be unenforceable and a violation of current Israeli law. A willingness on the part of Palestinian terrorists to die as martyrs runs counter to any claim that execution will serve as a deterrent. Importantly, it also fails to address the fuel that fires the conflict. The Israeli Government will be mistaken if it expects broad support from Israeli courts or Israeli physicians. The Israeli Supreme Court can declare laws passed by the Knesset invalid if they violate Basic Laws. The Israel Medical Association has indicated that execution is not a problem in need of a medical fix.
Israel lacks a formal written constitution, yet it has still established judicial review. The US Supreme Court established the doctrine of judicial review in the landmark case of Marbury v. Madison (1803). In 1995, the Israeli Supreme Court recognized the Basic Laws on Human Dignity and Liberty and on Freedom of Occupation as a source of higher law, thereby allowing the court to review legislation passed by the Knesset. Israeli courts have interpreted this to forbid corporal and degrading punishment. In the months leading up to October 7, 2023, the Netanyahu government pursued actions intended to limit the Israeli Supreme Court’s power of judicial review. This proposed judicial overhaul has been a bitter point of political disagreement. Death penalty legislation is precisely the sort of issue that should be addressed by judicial review.
These same constitutional principles have shaped Israeli jurisprudence on state-inflicted suffering. In the 1999 case Public Committee Against Torture in Israel v. the Government of Israel, the High Court of Justice unanimously held that some physical interrogation methods used by the General Security Service (Shin Bet) were illegal under current Israeli law. Although Israel ratified the UN Convention against Torture in 1991, it has yet to enact a specific and comprehensive law that defines and criminalizes torture. For Israel, the last two years have been a constant state of war, against the backdrop of many more wars and violence. Surrounded by death and mourning, Israeli society finds itself in a bitter political and philosophical divide. Israel has had little choice but to defend itself. This use of force, including deadly force, is permitted under international law.
Torture is the deliberate infliction of severe pain or suffering on a person for reasons including punishment, extracting a confession, interrogation for information, or intimidating third parties. Separate from debates about the morality of torture is the question of whether torture works at all. Expert consensus based on scientific evidence and historical analysis asserts that torture is ineffective in extracting reliable information. While this may be true, author Naomi Klein claims that when it comes to social control, nothing works quite like torture—suggesting deterrence operates through fear rather than rational calculation. By this reasoning, the mechanism of deterrence is via an in terrorem effect. Israel has effectively used the targeted killing of enemy belligerent leadership. To do so, such killing must comply with the laws of war. Despite this action, Israel continues to be subjected to frequent acts of terrorism.
Expanded death penalty advocates in Israel may implicitly echo Klein’s position when they argue for capital punishment. Many countries and international bodies, such as the European Union and the majority of the UN General Assembly, consider the death penalty to violate fundamental human rights, specifically the right to life and the right to live free from torture or cruel, inhuman, and degrading treatment. Even if one is agnostic on the rightness or wrongness of capital punishment, the US death penalty is a disaster. It is racist, classist, arbitrary, not an effective deterrent against crime, and kills by torture. It certainly can’t be improved by medical or scientific assistance. Regarding execution, Israel would be foolish to emulate the US.
In the US, lethal injection and nitrogen gas asphyxiation mimic medical and scientific acts, demanding commentary from the medical and scientific community. The Court, unironically, would like physicians to design a cruel-free method of execution. The American Board of Anesthesiology, the American Medical Association, the World Medical Association, and many other medical bodies stand in staunch opposition to the death penalty. Execution is not a medical act, even if it seeks to impersonate one. US death penalty jurisprudence defines execution success as the production of a corpse. By that standard, the US death penalty is a roaring success. This ignores the fact that lethal injection causes prisoners to die by drowning in their own blood, and execution by nitrogen gas has produced, in every instance, death after struggling, gasping, and writhing in agony.
Post-war Israeli societal recovery will need a version of itself not mired in violence. For the foreseeable future, Israel will need to protect its borders. It can’t rely on pledges of peace from neighbors, even if such promises were made, and it will require more than ever to maintain an immaculate political and legal system to guard against depravity. While war and violence may be necessary for Israel’s defense, it is unlikely that the enemies of Israel will be mollified by capital punishment. Israel needs to defeat the teachings and worldview of Hamas and the like, but that requires more time and effort.
Israel needs a legal regime, recognized as legitimate, and empowered with judicial review. Executing Palestinian terrorists by lethal injection will cause a cruel, torturous, and, according to existing Israeli law, unlawful death. The current Israeli government will get no official support from the Israel Medical Association, and an ever-escalating use of violence to solve complex political problems will have a counterproductive and erosive effect on Israeli society. Such decisions run counter to Israel’s desire to serve as a light unto the nations. If Israel chooses the execution path, darkness will be the ultimate consequence.
Joel Zivot is a practicing physician in anesthesiology and intensive care medicine and a senior fellow in ethics at Emory University in Atlanta, Georgia. Zivot, who also holds a legal master’s degree, is a recognized expert who advocates against the use of lethal injection in the death penalty and against the use of the tools of medicine as an arm of state power. Follow him on “X”/Twitter @joel_zivot
