A State That Legislates but Does Not Govern: Death Penalty Laws, Supplement III

Israel has the legal power to execute terrorists. It simply refuses to use it.

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

That one hanging, carried out without fanfare in a small bare room in Ramla Prison, marked a pivotal moment between justice executed and justice withheld: Israel demonstrated great restraint in trying and convicting the mass murderer in a court of law and then unceremoniously hanging him and spreading his ashes over the sea.

Yet, from that moment on, not a single execution has taken place. And not because there have been no evil murderers with genocidal motives convicted of their crimes.

While, in 1954, the death penalty was abolished for the “common criminal murderer,” the statutes still include a law that would allow execution of convicted terrorist murderers.

It is this contradiction—the law that exists but never lives—that defines Israel’s moral and bureaucratic relationship to justice. Legal scholar Smadar Ben-Natan calls it “the shadow of the death penalty,” the power to kill, deliberately left unused. Former IDF prosecutor Adv. Maurice Hirsch calls it something else entirely: a refusal to govern.

A Hearing in Wartime

On 28 September 2025, as rumours swirled of an imminent hostage deal, the Knesset Internal Affairs Committee held an irregular session during recess to debate new death-penalty legislation. The timing was explosive. Families of hostages waited in anguish for news of loved ones still in Gaza. My review of that session can be summed up succinctly:

National Security Minister Itamar Ben-Gvir argued that Israel must finally mandate the death sentence and not leave it up to judicial discretion. However, Likud’s Galit Distel-Atbaryan warned that even discussing executions could jeopardize negotiations. Some hostage families agreed with her.

Bereaved relatives of those murdered by terrorists, on the other hand, spoke about supporting the death sentence because it might save others from abductions.

Adv. Hirsch attended the session. I interviewed him via Zoom to understand what the debate revealed about Israel’s approach to capital punishment..

Hirsch described the debate as part of a deeper reckoning:

Do we stay where we are now, doing what we’ve been doing for the last 78 years, or do we actually change something?

The Law Israel Refuses to Use

Many Israelis still believe capital punishment must be “reinstated” for terrorists. As mentioned above, that is false. It already exists.

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

And yet, none will face it.

In the early 1970s, when two military courts, on their own initiative, imposed death sentences, both were overturned upon appeal. The High Court ruled that, being exceptional, the death penalty could be applied only if prosecutors explicitly demanded it at the outset of the trial.

That precedent became a procedural barrier.

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

Since then, prosecutors have held an effective veto over Israel’s ultimate punishment.

Hirsch described how 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 defy the unwritten policy and seek death sentences face internal discipline or removal. And when all else fails, charges are framed narrowly to avoid invoking the wartime clauses that would allow execution at all.

These are people who simply don’t believe in the death sentence, so not only will they not ask for it, they will actively work to undermine any possibility that it would ever be requested.”

When Law Becomes Performance

The new Knesset bills attempt to circumvent this prosecutorial discretion by making the death penalty mandatory rather than discretionary. But perhaps we could call this legislative theater, as Hirsch points out that prosecutors still control which charges to file and which jurisdiction to use. The mandatory provision is rendered meaningless if the charge that invokes it can be avoided.

Even if a death sentence were imposed, it would still require executive approval; every such sentence in Israeli history has been commuted.

“We have the law,” Hirsch said. “What we need is the courage to use it.”

Hirsch offered a case proving his point about implementation gaps: a 2023 law stripping citizenship from any Israeli Arab convicted of terrorism who receives payments from the Palestinian Authority. The vote was 94 in favor, the most consensus legislation in Israeli history.

Yet:

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

To Hirsch, this pattern is not about moral restraint; it is about the collapse of governance.

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

The Deterrence Myth

Security officials have long argued that executing terrorists would only 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 the 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.

And he rejected the broader claim that execution would not serve as a deterrent.

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 [an act that triggered the 2014 Gaza 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.

Hirsch explained that if terrorists fear death, then execution becomes deterrence; if they don’t, Israel’s restraint is meaningless.

Two Interpretations of Restraint

Smadar Ben-Natan looks at the same paralysis and sees something deliberate. In her essay “The Shadow of the Death Penalty in Israel,” written a month before October 7^th, she argues that Israel’s refusal to execute is not dysfunction but identity.

By executing Eichmann—and only Eichmann—the state established what she calls a “hierarchy of evil.” Nazi genocide stands alone at the apex; Palestinian terrorism, however horrific, is symbolically beneath it. Israel’s restraint thus serves a moral narrative: a nation born from extermination, now proving its humanity by withholding death.

“De-facto abolition,” she writes, “rescues the conscience of the accusers but leaves the shadow of death hanging over Palestinians.”

In Ben-Natan’s view, prosecutors don’t block executions because they are rogue bureaucrats, rather, they embody morality. The state’s self-image depends on restraint. The refusal to execute, she argues, is the very thing that sustains Israel’s claim to moral sovereignty.

Ben-Natan claims that the system is working as intended whereby non-execution is deliberate policy with restraint as national identity. Hirsch turns that observation on its head: it’s abdication of legitimate power. The fact that a 94-to-ten law is quietly ignored proves what the public perceives as paralysis—or the absence of any law at all—is actually institutional control. The lawyers, not the lawmakers, decide.

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. It is about a government that legislates without governing.

He recalled the bureaucratic culture inside the army’s legal corps, officers who publicly describe Judea and Samaria as ‘occupied territory,’ lawyers who don’t believe Israel has any legal claim to it.

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.

The Way Forward

Hirsch pointed to the human cost of this paralysis, noting the example of Tal Hartuv, who survived a machete attack and saw her terrorist released in the last hostages-for-terrorists exchange. She now campaigns for the death penalty.

Hirsch sympathizes deeply 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: do not focus on new legislation. Focus on political accountability.

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.

Whether Israel’s refusal to execute reflects moral clarity and civilization (Ben-Natan) or the surrender of authority (Hirsch) depends on whether you think the bureaucratic consensus or the legislative will should define the state. For now, the same legal bureaucrats who opposed the death penalty before October 7^th remain in their positions, among them prosecutors who will never request the death penalty. 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.

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

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The “Death-Penalty-for-Terrorists Law” Series

Part I: The Bill that Never Dies — A history of Israel’s death penalty laws
Supplement I: Vengeance? Justice? Survival? — The November 2023 Knesset debate
Supplement II: Has Something Finally Changed? — The September 2025 Knesset debate
Supplement III: A State That Legislates but Does Not Govern — Interview with Adv. Maurice Hirsch (this article)
Part IIa: Objections Within — An Israeli view of opposition to the death penalty
Part IIb: Objections from without — International views of the death penalty (in preparation)
Part III: Jewish Law regarding the death penalty for terrorists (in preparation)

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