Israel’s Death Penalty Paradox: The Law That Exists but Never Lives

In 1962, Israel executed Adolf Eichmann.
It never happened again.

Sixty years later, after the atrocities of October 7, the question arises: should the Jewish state execute again?

Many Israelis believe capital punishment must be “reinstated” for terrorists. That’s false. It already exists. National Security Minister Itamar Ben-Gvir is making a show of fixing this, threatening to leave the government if a mandatory death penalty bill isn’t brought to a Knesset vote within three weeks.

Article 96 of the Penal Code authorizes the death penalty for crimes committed during wartime. Similar provisions exist in military law in Judea and Samaria. The Nukhba terrorists who raped, burned, and beheaded Israelis on October 7th committed their atrocities during wartime. Under existing law, they are already eligible for execution.

None will face it.

Two Views of Restraint

Legal scholar Smadar Ben-Natan argues that Israel’s refusal to execute proves its humanity; we are a nation born from genocide showing restraint. But former IDF prosecutor Maurice Hirsch sees the same paralysis as something else entirely: the collapse of governance.

“We have the law,” Hirsch told me in a Zoom interview. “What we need is the courage to use it.”

The Prosecutorial Veto

In the early 1970s, two military courts imposed death sentences on their own initiative. Both were overturned on appeal. The High Court ruled that prosecutors must explicitly demand capital punishment at trial’s outset, creating a procedural barrier that became an effective veto.

“Many prosecutors have their own value systems,” Hirsch explained. “They object to the death sentence and therefore would never request it, not even for a Nukhba terrorist.”

The system enforces this veto through bureaucratic means. Cases under military jurisdiction, where capital punishment exists, are quietly shifted to civilian courts where it doesn’t apply. Prosecutors who seek death sentences face internal discipline or removal. Charges are framed narrowly to avoid invoking wartime clauses altogether.

“These are people who simply don’t believe in the death sentence,” Hirsch said. “So not only will they not ask for it, they will actively work to undermine any possibility that it would ever be requested.” And it continues only because the Justice Ministry allows it.

Legislative Theater

The new bill that Minister Ben Gvir supports would make the death penalty mandatory rather than discretionary. But prosecutors still control which charges to file and which jurisdiction to use. The mandatory provision means nothing if the charge that invokes it can be avoided.

Hirsch offered proof: a 2023 law stripping citizenship from Israeli Arabs convicted of terrorism who receive Palestinian Authority payments. The vote was 94 in favor, the most consensus legislation in Israeli history.

“Two and a half years later, not one terrorist has lost his citizenship,” Hirsch said. “The minister simply decided it’s more important politically to ignore it. What’s the point of the law?”

This pattern, to Hirsch, is not moral restraint. It’s abdication.

We have so many great laws that could fight terrorism, but no one implements.

The Deterrence Question

Security officials argue that executing terrorists would increase kidnapping attempts. Hirsch called this “one of the most ridiculous arguments you’ve ever heard.”

There’s no way to increase the desire of terrorists to kidnap Israelis. The desire is already at its height. They kidnap because they know Israel will release live prisoners. If those prisoners were dead, the incentive disappears.

He rejected claims that execution wouldn’t deter.

Most terrorists do not want to die. They want to live another day to murder more people. If Marwan Barghouti wanted to die, he would have fought to the end like those who kidnapped and murdered the three teens [that triggered the 2014 war]. Instead, he came out of his little hiding place in his tiny whiteys, really completely degraded, humiliated, in front of everyone, because he wanted to live to kill more Jews.

If terrorists fear death, execution becomes deterrence. If they don’t, Israel’s restraint is meaningless.

The Human Cost

Tal Hartuv survived a machete attack. Her attacker walked free in the last hostages-for-terrorists exchange and she now campaigns for the death penalty.

Hirsch sympathizes but thinks she’s aiming at the wrong target.

There’s no point changing the statute. We have the law. What we need is the courage to use it.

His recommendation is clear: focus on political accountability, not new legislation.

We need ministers to issue clear directives, and we need candidates who say openly, ‘I support the death sentence for terrorists and I will instruct prosecutors to request it.’ Otherwise we’ll stay where we are.

Two Interpretations

Ben-Natan would likely see prosecutorial resistance as the system working as intended. Non-execution sustains Israel’s moral identity. The state can wage war without appearing vengeful.

Hirsch turns that observation on its head. The fact that a 94-to-ten law is quietly ignored proves that what looks like paralysis is actually institutional control. The lawyers, not the lawmakers, decide. And the ministers let them.

Whether Israel has the death sentence and whether it’s implemented should not be a legal question. It’s a policy decision that should be set by the prime minister and the cabinet. Once decided, everyone else should fall in line.

Loss of Governance

Hirsch’s critique runs deeper than the death penalty. He contrasted right-wing governments that hesitate to replace senior legal officials with left-wing ones that move decisively.

When the Bennett-Lapid government came in, they appointed everyone they wanted, made controversial decisions a minute before leaving office. What are the right-wing governments doing? Three years down the road, we’re still sitting with the same bureaucrats who refuse to represent the government.

The problem, Hirsch insists, is not law but willpower.

Whether the refusal reflects moral civilization or the surrender of authority depends on whether you think the bureaucratic consensus or the legislative will should define the state. For now, we are a country with a justice system that passes laws for the record, bureaucracies that quietly bury them, and ministers who could overrule them but don’t.

What Kind of State

The law exists.
Israel refuses to use it.
And somewhere between those two facts lies the question of what kind of state Israel chooses to be.

A more in-depth examination of this topic can be found on my Substack newsletter.