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October 4, 2021 12:17 pm

Palestinian Prisoners and the Israeli Death Penalty

avatar by Jacob Sivak


Israeli soldiers guard along a fence leading to the West Bank, as part of search efforts to capture six Palestinian men who had escaped from Gilboa prison earlier this week, by the village of Muqeibila in northern Israel September 9, 2021. REUTERS/Ammar Awad

Six Palestinian inmates (five belonged to Islamic Jihad, and four were serving life sentences for attacks that killed Israelis) recently escaped from a prison in northern Israel. All six  were recaptured less than two weeks later. But one aspect of this story has been overlooked.

In 2021, Amnesty International reported that countries in the Middle East and North Africa “ruthlessly persisted with executions, making them some of the world’s most prolific executioners of 2020.”

But Israel was not mentioned in the list of countries — and that is an interesting omission.

The death penalty is a legal option in Israel, but only for special cases such as genocide, and crimes against the Jewish People. In 1954, Israel removed the death penalty for murder, and the last execution was that of Adolf Eichmann in 1962. (The only other execution was carried out in 1948 during the War of Independence on the basis of a false accusation of treason.)

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The Jewish approach over the centuries has moved toward the complete abolition of the death penalty. A text titled “Crime and Consequence” (from the Rohr Jewish Learning Institute of Chabad) notes that during the early Common Era, the rabbis of the Sanhedrin were reluctant to apply the death penalty. The Mishnah tractate Makot states that a Sanhedrin that executes once every seven years is said to be a destructive one, while Rabbi Elazar ben Azaria, said it should be once every 70 years.

One of the primary concerns about the death penalty was the possibility of wrongful conviction, and studies have shown that eyewitness misidentification is the most common reason for wrongful convictions. The Mishnah notes that in monetary cases, a false witness can atone by returning the money; but how can one atone in capital cases? According to Maimonides (“Sefer Hamitzvot”) it is better that a thousand guilty individuals be released than to execute one innocent person.

The absence of a death penalty has meant that Palestinian terrorists with long prison sentences are incarcerated in Israeli prisons, and this has led to efforts by groups such as Hamas to use kidnapped Israelis, or the bodies of dead Israelis, as bargaining chips in exchange for their release.

In 2011, Gilad Shalit, an Israeli soldier captured five years earlier, was returned to Israel in return for 1,027 Palestinian prisoners. Close to half of the prisoners released had “blood on their hands,” and Hamas was proud to confirm an Israeli report that the prisoners released were collectively responsible for the killing of 569 Israelis.

Every now and then, after a particularly horrifying terrorist attack, there are calls by some Israelis to reinstate the death penalty. A recent case was the stabbing attack in the West Bank settlement of Halamish in 2017, in which three Israelis — a grandfather, his son, and daughter — were stabbed to death, while his wife was severely injured. The assailant, a 19 year old from a village near Ramallah, received four life sentences. It has been reported that he and his family has received and will continue to receive a substantial monetary reward from the Palestinian Authority for these murders.

In 2018, Al Jazeera published an opinion piece by Yara Harawi, a Palestinian journalist, which condemned efforts by some Knesset members to restore the death penalty in the aftermath of the attack. (The bill died before it was passed.) The irony is that Harawi didn’t mention that both Hamas and the Palestinian Authority have kept the death penalty, in spite of appeals by Amnesty International to abolish it. Hamas has been especially quick to execute individuals that run afoul of its regime. There is a double irony here, because Qatar, the home base for Al Jazeera, was taken to task by Amnesty International for having reverted to the use of capital punishment after a hiatus of 20 years.

Despite the absence of a death penalty in Israel, Palestinians are still being killed while carrying out their attacks. And Palestinian incitement by Fatah and Hamas bears a heavy burden of guilt. A quote attributed to the late Golda Meir (the true source of the quote is elusive) seems very appropriate: “When peace comes, we will perhaps in time be able to forgive the Arabs for killing our sons, but it will be harder for us to forgive them for having forced us to kill their sons.”

Jacob Sivak, a Fellow of the Royal Society of Canada, is a retired professor in the School of Optometry, University of Waterloo

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