In December 1996, Israeli criminologist Anat Berko sat across a small, metal table from Hamas founder Ahmed Yassin in an Israeli prison. Five hours later, Yassin, who was convicted on terrorism charges, invited her to continue the conversation outside the prison.
“He told me that if I had more questions, I could ask him in Gaza, wherever he would be,” Berko, a former Knesset member, told JNS in late December. “He was convinced that he would be freed.”
A few months later, after a failed Israeli assassination attempt on then-Hamas politburo chief Khaled Mashal in Jordan, Yassin was released. His conviction that he wouldn’t rot in prison is common among security prisoners in Israel, who rarely see life sentences as permanent in an era defined by hostages-for-prisoners exchanges.
“They know that even if they receive a life sentence, they will not stay in jail for their entire lives,” she told JNS, “because Hamas or another terror organization will kidnap soldiers, civilians or others, and they will be released in a hostage deal.”
That assumption—and its implications for Israeli national security—has resurfaced as Israel again weighs the death penalty for terrorists.
A bill would mandate capital punishment for terrorists convicted of murdering “out of motives of racism or hostility toward the public, and under circumstances in which the act was carried out with the intention of harming the State of Israel and the rebirth of the Jewish people.”
There would be no room under the law, if passed, for judicial discretion, as death sentences would replace life imprisonment.
Berko told JNS that she opposed the death penalty before the Hamas-led terrorist attacks in Israel on Oct. 7, 2023, but that her view changed after Israel released almost 2,000 Palestinian prisoners and detainees, including many convicted of terrorism, during the hostage exchanges.
“As a criminologist, I was against it,” she said. “But I believed at least that if somebody received punishment, they would stay in jail.”
Berko has since concluded that prison is no longer a sufficient deterrent. Inside Israeli jails, terrorists can earn academic degrees, eat regular meals and receive extensive medical care—living for years in regimented routines that, Berko said, often do little to deter future violence.
“Many times, prison becomes a place to study, to improve abilities, to socialize with other terrorists, to coordinate attacks outside jail and to prepare for the next step,” she told JNS. “Their ideology is very clear. It’s not about borders or having a state. It’s about killing the last Jew in Israel.”
The legislation, which passed a preliminary reading in the Knesset on Nov. 30 by a margin of 39-16, was proposed by the Otzma Yehudit Party and advanced by party member Limor Son Har-Melech.
National Security Minister Itamar Ben-Gvir, who leads the party, drew attention to the bill during a heated parliamentary debate in early December, when he appeared at the Knesset podium wearing a yellow pin shaped like a noose.
Ben-Gvir said on Jan. 14 that hanging would be the execution method for terrorists under the law instead of lethal injection. Under the revised outline, the Israel Prison Service would carry out the executions within 90 days of a final judgment.
Terrorists “value their lives very much,” Berko told JNS, “and the lives of their families.”
Contrary to widespread belief that many Islamist terrorists seek martyrdom, leaders of terrorist groups often refuse to send their own children to attack Israelis or confront Israeli troops, according to Berko.
“Ismail Haniyeh did not send his children even to demonstrations near the border,” she said. “Many terrorists surrender. They raise their hands. They don’t want to die. The idea that everyone wants to be a shahid is a legend.” (The Arabic term means “martyr.”)
The bill has received support from Israeli Prime Minister Benjamin Netanyahu, as well as from Brig. Gen. (res.) Gal Hirsch, Jerusalem’s coordinator for the captives and missing. Hirsch has said that he and Netanyahu refrained from publicly endorsing the legislation until after the return of all the living hostages to Israel, due to concerns that doing so earlier could have harmed negotiations.
Israeli law allows for the death penalty in limited circumstances—including genocide, crimes against humanity and wartime treason—but the Jewish state has only carried it out once after a civilian trial. Israel executed Meir Tobianski, an Israel Defense Forces officer, in 1948 after a field court-martial on treason charges during Israel’s War of Independence. He was posthumously exonerated.
Israel also executed senior Nazi official Adolf Eichmann in 1962 for his role in the Holocaust.
‘A very grave question’
Some of Israel’s past hesitations around the death penalty stem from concerns about violating Jewish law, according to Rabbi Daniel Feldman, a rosh yeshiva (dean) at the Rabbi Isaac Elchanan Theological Seminary at Yeshiva University and spiritual leader of Ohr Saadya, an Orthodox synagogue in Teaneck, N.J.
Jewish law distinguishes between ideal legal systems and extraordinary measures taken to protect society in cases of emergency, according to Feldman.
Rabbinic authorities in Israel have viewed the death penalty historically as a last resort, arguing that if life imprisonment could adequately safeguard the public, capital punishment was unnecessary.
“The feeling of the rabbis at that time was that if life imprisonment could protect society in the same way, then it wouldn’t be appropriate to have the death penalty,” Feldman told JNS.
With life imprisonment no longer carrying significant weight, he said that Jewish legal discussions about the death penalty have become “more serious,” as rabbis weigh concerns such as potential reciprocal attacks against Jews or Israelis in response to executions.
Another central question, he said, is whether Israeli society can be adequately protected without capital punishment.
“It’s a very severe question, a very grave question—how to properly address that,” Feldman told JNS. “It has to be looked at very, very carefully. With an eye toward both justice and fairness and protecting the innocence of society overall.”
Maurice Hirsch, a former senior military prosecutor for Judea and Samaria and a longtime legal adviser on counterterrorism policy, told JNS that one practical solution to the religious barrier would be to exclude Israeli citizens and residents, including Israeli-Arabs, from the law.
“Whilst I obviously don’t make light of Israeli Arabs participating in terror,” he said, “one of the ways to resolve many of the problems and obstacles facing this law would be to exclude them as well.”
“There haven’t been many Israeli Arabs participating in terrorism,” he said. “I think we can differentiate between citizens, residents and foreigners who come uninvited to murder Jews.”
According to Hirsch, non-Jewish terrorists do not require adjudication by the historic Jewish judicial body to be sentenced to death under Jewish law. “You don’t need a Sanhedrin to put those people to death in any way, shape or form,” he said. “So the discussion is fundamentally different.”
Hirsch told JNS that capital punishment should be part of Israel’s broader counterterror strategy.
“The war on terror has to be fought on every level,” he said. “It’s not just the death sentence, it’s revoking citizenship, seizing terrorist payments, forfeiting assets and imposing real prison sentences.”
“Terrorism is a form of organized crime,” he said. “There’s no reason we shouldn’t use the same tools, asset seizure, forfeiture, mandatory sentencing, to dismantle it.”
If Israeli law prescribes 10 years for rock-throwing but terrorists receive six-month sentences, “you don’t deter anyone,” he said. “Israel has never put together a full terror-fighting package without wavering, and that wavering is exactly what terrorists exploit.”
It’s not about pitting Jews against Palestinians, according to Hirsch.
“This is the Jewish state saying that anyone who murders Jews for being Jews will pay that price,” he said. “If a Japanese terrorist or a German Hezbollah operative committed the same acts, they would be treated exactly the same.”
“This isn’t about vengeance,” he added. “It’s about deterrence and about finally taking terrorism seriously.”
