Death for Terrorists

Once a radical right-wing issue, imposing the death penalty for captured terrorists is now gaining widespread support in Israel. But fundamental issues remain.

By Michael Oren

Following the Japanese surprise attack on Pearl Harbor and the killing of 2,400 Americans, President Franklin Roosevelt addressed Congress and, via radio, the nation. “December 7, 1941, a date which will live in infamy,” he began and immediately declared war on the aggressors. But then, FDR halted, and his voice dropped. “The enemy has not just massacred our citizens,” he said, “but they have also taken hundreds, perhaps thousands, of prisoners. They are now being held hostage and will be raped, starved, and tortured to death, unless we agree to Tokyo’s demands.” Almost whispering, the president concluded, “We have no choice but to concede,” he rasped. “America must do everything to liberate the hostages.”

This history is, of course, counterfactual. Roosevelt indeed immortally deemed December 7 “a date which will live in infamy,” and proceeded to declare war on the Empire of Japan. He further described the Japanese attacks not only on Pearl Harbor but on U.S. bases and possessions throughout the South Pacific. Thousands of Americans were taken prisoner and subjected to unbearable cruelties. Many would die in captivity. Yet, at no time did the president say that, because of the hostages, America could not go to war but rather had to give in to Tokyo’s demands. The word “prisoners,” much less “hostages,” appears nowhere in his speech.

America’s counterfactual history is Israel’s reality. We, too, had our infamous day, October 7, 2023, when Hamas slaughtered 1,200 people—proportionally more than seven Pearl Harbors—and kidnapped 250. But unlike the United States in 1941, which waged unrestricted warfare against Japan irrespective of the myriad prisoners it held, Israel has refrained from entering large swaths of Gaza for fear of harming the hostages. In January, the Israeli government agreed to a 42-day ceasefire and the release of some 1,900 Palestinian prisoners from Israeli jails in exchange for thirty-three hostages, eight of them dead.

The costs are already incalculable. Experience shows that the majority of the Palestinian convicts return almost immediately to terror. They will once again conclude that the Jewish state is willing to save several dozen lives today at the probable price of losing many more tomorrow. Further attacks on Israeli soil, and additional attempts to kidnap its citizens, will likely follow. Meanwhile, the families bereaved by the terrorists released from Israeli jails will suffer immeasurably. Hamas will emerge triumphant.

Israel has been trading terrorist prisoners for hostages and IDF POWs for nearly forty years, yet now Israelis overwhelmingly agree that the practice must stop. Laws are even being drafted that prohibit such deals in the future. Nevertheless, the principle of redeeming captives, grounded in Torah and Talmud, will remain hardwired into the Jewish worldview and an essential component of Israel’s DNA. Mere legislation cannot break the covenant by which Israeli mothers agree to send their children to the army on the understanding that, if they’re captured, the state commits to do everything in its power to free them. That sacred compact distinguishes us from all other nations of the world, including the United States.

Yet the trauma of the hostages being displayed, gaunt and haunted, on Hamas stages, and of the mass murderers of Israelis freed and feted in Ramallah, may push Israel to be more like other countries, especially the United States. Twenty-seven of those states, along with the federal government and the U.S. military, still enforce the death penalty.

The call of “death to terrorists”—Mavet l’Mechablim—is hardly new to Israeli society. Avigdor Lieberman, a perennial figure in Israeli politics, made it the centerpiece of his platform in 2015. A poll taken two years later found that 70% of the Israeli public believed that "enacting a death penalty for terrorists, along with other measures, could restore deterrence and help stop terror in Israel." But once confined to the right-wing, support for executing captured terrorists is swiftly moving into the mainstream.

Israel, in fact, already has the death penalty. It has only been carried out once—on Adolf Eichmann, the convicted Nazi monster, in 1962. Reviving the practice now will raise multiple questions, not the least of which will be how, and by whom, will the sentences be carried out? Is Israel prepared for the denunciations sure to come from Western European countries, from American Jewish and human rights organizations, and most of the media? And what of Jewish terrorists—will they, too, be hanged? Still, the overarching question will remain: apart from serving justice, what practical benefit will the execution of Palestinian terrorists achieve? Will it prove effective in ending the hostage-for-terrorist trade-offs?

The answer, most probably, is no. Israel’s security forces regularly arrest large numbers of Palestinians, though relatively few of them on charges of murder. Hamas and other terrorist organizations will still seek to get them out of jail by exchanging them for Israeli hostages. Fear of execution has not proved effective in deterring murderers in the United States and is unlikely to do so here as well. On the contrary, it may in fact encourage terrorism. My late professor, the incomparable Bernard Lewis, once observed that “for the Iranian regime, mutually assured destruction is not a deterrent, it’s an incentive.” And what’s true for the Ayatollahs may hold equally true for Palestinian jihadists who see death at the end of an Israeli rope not as a threat but as a guarantee of martyrdom.

Still, executing those terrorists with “blood on their hands” could have several benefits, not the least of which will be sparing the families of their victims the agony of seeing them walk free and hailed as heroes by the Palestinians. Israelis may generally be comforted knowing that captured killers will not be given expert medical treatment and the ability to complete college degrees in prison—all while awaiting their release in the next hostage-for-prisoner swap.

Today, as Israel agonizes over whether to extend the ceasefire, withdraw its forces further from Gaza, and release many more imprisoned terrorists—all in exchange for the remaining thirty hostages still believed to be alive—support for “Death for Terrorism” will inexorably rise. We will continue to ask ourselves whether a liberal society can execute large numbers of Palestinian prisoners, what will be the moral and diplomatic cost, and what, if any, the benefits. Can we, as the Jewish State, respond as Roosevelt did on December 7, 1941—fight the war as though there were no prisoners—or continue to act as we have for nearly forty years, upholding a covenant at an excruciating cost?