The Knesset passed a controversial law on Monday allowing — and in some cases requiring — courts to impose the death penalty on terrorists found guilty of murder. Opponents swiftly challenged the legislation in court, with appeals arguing that its designations are vague and discriminatory.

While Israel already allowed the death penalty for genocide and crimes against humanity, it had not been invoked since the execution of senior Nazi Adolf Eichmann in 1962. National Security Minister Itamar Ben-Gvir’s Otzma Yehudit Party proposed the new law in the aftermath of Hamas’ Oct. 7, 2023, attacks with an aim to have terrorists sentenced to death, and conditioned the party’s support for the state budget, which the Knesset approved earlier Monday, on passage of the bill.

The law applies in military courts to non-Israeli residents of the West Bank — meaning, in the vast majority of cases, Palestinians. 

In civilian courts, the law permits applying the death penalty to those who “intentionally cause the death of a person with the aim of denying the existence of the State of Israel” — language which would also likely exclude Jewish assailants.

The law further states that the government cannot free or exchange prisoners sentenced to death. Israel released around 2,000 Palestinian security prisoners last fall in exchange for hostages held in Gaza, including about 250 prisoners who were serving life sentences for carrying out deadly terror attacks.

The legislation passed along coalition lines, with 62 in favor and 48 opposed.

Otzma Yehudit lawmaker Zvika Fogel argued from the Knesset podium that “the State of Israel is dealing with a reality of evil and hatred that is unmatched around the world. Our enemies do not want a border, compromise or shared future. Rather, [they seek] to destroy, harm, sow fear and undermine our existence here. In such a reality, it is our clear responsibility to defend the citizens of Israel not with words or hopes, but with action.” 

“This bill is not about revenge or rage, but the state’s responsibility towards its citizens and its leadership towards human life. … The message is clear, whoever chooses the path of terror and raises a hand against Israeli citizens … should know that it has a clear and irreversible price,” Fogel added.

The new law is also much broader than legislation making its way through the Knesset to prosecute perpetrators of the Oct. 7 attacks in a special military tribunal, which could also result in their being sentenced to death.

Yulia Malinovsky, from the opposition Israel Beytenu party and one of the cosponsors of the bill to prosecute Oct. 7 perpetrators, said that “everyone in the coalition understands that Otzma Yehudit’s bill cannot be implemented and will be struck down by the High Court of Justice, but they are all afraid of Ben-Gvir. They tell me so themselves.”

“I am in favor of the death penalty for terrorists,” she added, “but… even if [the law] passes and is not canceled, terrorists will only die of old age.”

Gilad Kariv of the Labor Party plans to petition the High Court against the law, along with Israeli human rights organizations.

During the debate, Kariv said that the law is “not moral, not Jewish and not democratic, nor is it helpful to security.” According to Kariv, none of the defense officials or experts that appeared before the Knesset Law, Constitution and Justice Committee meetings to discuss the bill said that it would serve as a deterrent against terrorism.

Some lawmakers, like Hadash-Ta’al’s Aida Touma-Sliman, argued that the bill is discriminatory against Arabs, comparing it to apartheid South Africa and the Jim Crow South: “First, we look at the nationality of the victim and the nationality of the murderer, and then we decide.” 

However, Touma-Sliman added, she would still oppose the law if it were applied more broadly to Israelis, because she opposes the death penalty — “even against terrorist settlers.”

The Foreign Ministers of Germany, France, Italy and the U.K. released a joint statement expressing “deep concern” about the bill on Sunday.

“The adoption of this bill would risk undermining Israel’s commitments with regards to democratic principles,” they stated. “The death penalty is an inhumane and degrading form of punishment without any deterring effect. This is why we oppose the death penalty, whatever the circumstances around the world. The rejection of the death penalty is a fundamental value that unites us. We urge the Israeli decision makers in Knesset and Government to abandon these plans.”

The debate ahead of the final votes on the death penalty law took close to 10 hours, and was not held in the plenum; rather it took place in an auditorium that is fortified in case of a missile attack from Iran.

The return of the final, living hostages to Israel last week has reopened discussion of putting the Palestinian perpetrators of the Oct. 7, 2023, atrocities in Israel on trial.

Israeli Justice Minister Yariv Levin threw his support behind legislation to allow for the formation of a special tribunal to prosecute Hamas terrorists who are part of the Nukhba, the terrorist group’s special forces unit, on charges of genocide, which carries the death penalty.

The bill is meant to “ensure that the legal process will be run efficiently and to ensure that justice will be done and seen,” Levin said in a joint statement with the bill’s sponsors, Knesset Law, Constitution and Justice Committee Chairman Simcha Rothman of the Religious Zionist Party and Yisrael Beytenu lawmaker Yuli Malinovsky. The group plans to bring the legislation to a first vote as soon as possible and usher it through the process “at the greatest speed, with a shared aim to bring the Nukhba terrorists to justice soon.”

Levin, Rothman and Malinovsky said that the office of the Israeli state attorney, the country’s chief prosecutor, has drafted indictments against Nukhba terrorists.

They noted that during the two years since the Hamas attacks on southern Israel, the State Attorney’s Office, police and Shin Bet have interrogated the Nukhba terrorists and collected evidence “of an unprecedented scope,” including thousands of hours of video of the atrocities and of testimony. 

During that time, the Law, Constitution and Justice Committee held a series of meetings to examine possible ways to put the Nukhba terrorists on trial and ensure they are prosecuted to the full extent of the law.

“We met with the Justice Ministry once every few months,” Rothman told Jewish Insider. “Levin finally supports [the bill]. Every obstacle was standing in our way, and [Levin] didn’t make an effort to remove them. Now, there’s nothing preventing it from moving forward.”

The move toward putting Oct. 7 perpetrators on trial comes soon after the return of the living hostages, as well as weeks after a heated debate in the Knesset over instituting the death penalty for terrorists. The legislation’s explanatory portion says it is meant to “nip terrorism in the bud and create a heavy deterrent.” 

The death penalty has only been carried out once in Israel’s history — following the conviction of senior Nazi official Adolf Eichmann for crimes against the Jewish people and crimes against humanity.

The bill, which applies to terrorists broadly, not only those who participated in the Oct. 7 attacks, was proposed by members of National Security Minister Itamar Ben-Gvir’s Otzma Yehudit Party and brought before the Knesset National Security Committee, chaired by Tzvika Foghel, also of Otzma. The Prime Minister’s Office asked Ben-Gvir to postpone the vote. 

Gal Hirsch, the coordinator for the hostages, said in the committee meeting that Ben-Gvir’s effort was potentially harmful to the ongoing discussions to secure the release of the remaining hostages. Representatives from hostage families have also pleaded with the lawmakers to stop the proceedings, concerned that the moves could endanger their loved ones.

On Monday, Ben-Gvir made an ultimatum to Israeli Prime Minister Benjamin Netanyahu that either the death penalty bill passes a first Knesset vote in the next three weeks, or his party will no longer vote with the coalition. 

“When terrorists remain alive, the terrorists outside are motivated to carry out kidnappings in order to free their Nazi brothers in future deals,” Ben-Gvir said. “If they murder a Jew, they do not stay alive.”

Rothman argued that his bill is significantly different from Ben-Gvir’s, and pointed out that he held a committee meeting the same week as the one that courted controversy, and neither Netanyahu nor Hirsch asked him to hold off.

“It’s a question of whether you want real results. [Otzma lawmakers] don’t understand what they’re dealing with. The law they want to pass [is so broad], I think it would end up giving a Jewish Israeli the death penalty first,” he remarked.

While Rothman said that having all of the living hostages home will help the Oct. 7 trials to move forward, when he asked senior defense figures over the last two years whether there was a risk to the hostages’ lives from his actions, “they said no. They said when there’s a conviction or maybe even an indictment, possibly, but just building the framework is not a risk.”

As such, Rothman said that though it may seem like a long time has passed, “the time hasn’t been a waste. A lot of material was collected and we oversaw the legislative and political decisions that needed to be made.”

Rothman and Malinovsky’s bill would establish a special tribunal for those who participated in the Oct. 7 attacks, with the proceedings made public. The legislation sets different rules for presenting evidence to protect the privacy of victims and their families, and to streamline the process of prosecuting large numbers of defendants. It also allows for non-Israeli judges to be appointed. In addition, it would establish a committee of representatives of Israel’s justice minister, defense minister and foreign minister to determine government policy as to whether to prosecute the Nukhba terrorists on genocide charges, which carry the death penalty, taking national security into consideration.

In a Knesset Law, Constitution and Justice Committee meeting on Wednesday, the first since Levin publicly supported the bill, Malinovsky said that she and Rothman “understand that it was difficult to gather evidence … and I know that law enforcement and the State Attorney’s Office overturned every stone to find evidence. [Regular] criminal justice proceedings do not have a response for the events of Oct. 7, therefore MK Rothman and I wrote this bill to regulate the jailing and prosecution of the terrorists who participated in the Oct. 7 massacre.” 

Malinovsky said that there is difficulty tying specific terrorists to specific murders, and genocide is a collective crime, by which they can be charged as a group. In cases in which there is no evidence tying a terrorist to genocide, they can be tried in a military court as illegal fighters who committed acts of terror against Israel, a crime that carries a life sentence. 

Much of the bill is focused on clear criteria for genocide charges.

“At first, the Justice Ministry said that genocide charges won’t work,” Rothman recalled earlier this week, “but today, I think they understand that they need to go there.”

The special tribunal is meant to prevent the Oct. 7 trials from getting caught up in the Israeli justice system’s significant backlog.

“It’s a lot of heavy cases that will block up the whole justice system” if the trials are in regular courts, Rothman explained. 

In addition, he said, “I don’t want a situation where a judge is with the Nukhba in the morning and in the afternoon is dealing with an Israel who stole a car. We could end up lowering the standards of defendants’ rights in all of Israel. When we authorized preventing meetings [of terrorists] with lawyers, [judges] used it for all kinds of other cases, just because they can. We’re not going to allow that.”

Rothman said that the question of appointing foreign judges to the tribunal remains open, because it may be too complex. However, he said, “bringing a major jurist from the U.S. or somewhere else can give the trials an international imprimatur.”

Malinovsky said at the committee meeting that the Oct. 7 attacks “are like nothing else in the world, and I invite anyone who has knowledge to speak. We need creative solutions, outside of the box, and therefore we need a change of attitude, especially in the Justice Ministry.”