A system in which punishment can be undone struggles to function as punishment at all. Israel’s new law is an attempt — controversial, but not irrational — to restore finality.
A prison sentence only works as punishment if it is final. In some conflicts, it isn’t. That is the problem sitting behind Israel’s recent move to expand the death penalty for terrorist murders. The headlines have treated it in various ways: as a moral rupture, a crude act of deterrence, or further evidence of Israel’s inherent evil. None of these quite captures what is being attempted. The law is narrower than its critics suggest, and more conceptually serious than its defenders sometimes admit.
It applies to terrorists convicted of murder in deadly attacks. It is not retroactive, and judges retain discretion to impose life sentences. The president retains the power to pardon. Israel has, in fact, retained the death penalty in law for decades—principally for crimes such as genocide and treason—even if it has almost never been used in practice. It has executed only one person since its founding—Adolf Eichmann in 1962. This legislation therefore does not introduce capital punishment so much as extend it into a category where it has previously been absent.
The law passed the Knesset by 62–48. That is contested, but it is not marginal. It reflects a real division within Israeli society and politics, one that has been building over time rather than appearing suddenly. That contestation matters. It places the decision within a democratic process rather than presenting it as an uncontested assertion of state power. Even so, the statute itself is not the most interesting part of the story.
In ordinary criminal justice, punishment is meant to close a loop. A life sentence removes an individual from society. It ends their participation in whatever produced the crime. Whatever else one thinks about incarceration, it is designed to separate past action from future possibility. The assumption is simple: once punished, the offender is no longer part of the system that produced the offence. That assumption depends on a condition that is usually invisible because it is normally satisfied—that the punishment will hold. In the Israeli–Palestinian conflict, it often does not.
Traded in negotiations
Prison is not always the end of the story. Perpetrators are exchanged. They are released under pressure. They are traded in negotiations shaped by urgency, public pressure, and asymmetric leverage. They return—sometimes directly, sometimes symbolically—to the same struggle that produced the original act. The most widely cited example is Yahya Sinwar, released in the 2011 Gilad Shalit exchange and later emerging as a central figure in the October 7 attacks. That exchange did not simply free a prisoner; it restored an actor to a system that remained active and capable of absorbing him.
Hostage-taking is not only an act of violence; it is also a bargaining tool. Prisoners are not just detainees. They become part of the negotiation. Their continued presence inside the system creates leverage outside it, and the possibility of their return is built into how these groups think and operate. Once that dynamic is in place, punishment starts to shift in meaning. A life sentence is no longer final. It can be reversed, traded, anticipated, sometimes even factored in from the outset. Prison stops being an endpoint and becomes something more like a stage in a longer cycle: attack, capture, negotiation, release, return.
At that point, the basic function of punishment begins to erode. A sanction that cannot reliably be made to stick loses much of its meaning. It does not remove actors from the system in any durable way.
That erosion is not merely theoretical. If imprisonment is not final, it ceases to be a decisive cost. It becomes a risk, but not necessarily a terminal one. A punishment that can be undone does not function as punishment in any stable sense.
That is the argument for irreversibility. Not that execution is morally clean, but that a system built on reversible penalties struggles to contain actors operating within networks that reward persistence and sacrifice. If punishment can be absorbed and reversed, then it does not perform the role it is intended to perform.
Irreversibility
The move to irreversibility follows from that logic. It is not an elegant move. It is not a morally comfortable one. It is a response to a system that has shown itself capable of neutralising punishment without being meaningfully constrained by it.
But it immediately raises a deeper problem: Under what conditions does a state claim the right to kill?
That question is unavoidable, because the reasoning used to justify execution begins to resemble, at least structurally, the reasoning used by those it is directed against.
A suicide attacker does not regard himself as a murderer in the ordinary sense. He believes he is justified. Under certain conditions, he thinks, killing is permitted, even required. The act is framed as moral rather than criminal.
When states impose the death penalty, they make a related claim. Not the same claim, but one that occupies similar ground: that under certain conditions, killing can be justified. Taken on its own, that collapses too easily into a contest of justifications. The state claims legitimacy. The attacker claims legitimacy. It becomes difficult to say, on what basis, one is permitted and the other is not. The distinction has to be found somewhere else, if it holds at all. It lies in constraint.
The individual or the movement authorises itself. It determines when violence is justified and against whom. That logic tends to expand. The category of permissible violence grows, because there is no external structure to contain it.
The state, at least in principle, attempts to do something different. It defines categories in advance and imposes thresholds, subjects decisions to evidence and procedure, and builds in layers of review. It claims not to expand violence, but to confine it within defined limits.
Not beyond challenge
That claim is not beyond challenge. Legal systems can be uneven, institutions can fail, and bias can enter at multiple points. But the distinction is not empty. A system that attempts to bind itself to rules, however imperfectly, is not identical to one that recognises no constraint beyond its own internal logic.
The Israeli law rests on that distinction. It attempts to confine the death penalty to a specific category: terrorist murder, narrowly defined, adjudicated, and not mandatory in every case. Judges retain discretion, and the executive retains a final check. Whether that constraint holds is the central question.
The law will not operate in an abstract legal space. It will operate in a specific political and territorial reality. Inside Israel, cases proceed through civilian courts. In the West Bank, Palestinian suspects are typically tried in military courts, while Israeli citizens fall under civilian law. The result is predictable: Although the law is framed in offence-based terms, its application will likely fall disproportionately on Palestinians. That is not incidental. It reflects the structure of the conflict itself. The category of terrorism, in this context, is overwhelmingly associated with Palestinian actors.
There have been instances of Jewish extremist violence, including the massacre carried out by Baruch Goldstein in 1994 and the Duma arson attack in 2015. These are comparatively rare, but they exist. A law framed in general terms would, in principle, apply to such cases as well. Whether it would be applied in the same way is a separate question and one that goes directly to the credibility of the constraint the law claims to embody. There are other objections which are harder to resolve.
Risk of error
The most serious is the risk of error. Irreversibility is the point of the policy, but also its greatest danger. A wrongful execution cannot be corrected. Any argument for this kind of punishment depends on an extremely high threshold of certainty.
There is also the question of deterrence. It is not clear that the death penalty deters ideological violence. Some actors are not deterred by the prospect of death. In some cases, it may even reinforce the narratives that sustain them. The claim here has to remain narrow: not that execution ends terrorism, but that it removes one pathway through which participation is sustained: the expectation that imprisonment is temporary.
Then there are second-order effects. If execution becomes a credible outcome, it may alter behaviour in ways that are not immediately obvious. It could reduce the long-term value of prisoners in negotiations. It could also increase short-term incentives for hostage-taking, as groups seek to prevent executions from occurring. It may change how captives are treated. It may shift internal dynamics within militant organisations. Policies that aim to close one loop can, in practice, open others.
Internationally, the law will face sustained opposition. Expansion of the death penalty runs against prevailing human rights norms, particularly in Europe and international legal institutions. That opposition will shape the diplomatic environment in which the policy operates.
There are alternatives, at least in theory. States can refuse prisoner exchanges altogether. But in Israel’s case, that is not a straightforward option. The state places an unusually high value on the return of its citizens, both living and dead. That principle has shaped policy for decades. It makes a blanket refusal politically, culturally, and morally difficult to sustain, even when the strategic costs are understood.
Underlying problem
Other alternatives, including hardened detention regimes and the reduction of prisoner leverage, have been attempted in various forms, but none has resolved the underlying problem.
The argument therefore returns to its starting point: a system in which punishment can be undone struggles to function as punishment in any meaningful sense, because it risks becoming part of the conflict it is supposed to contain rather than a response that stands outside it. The Israeli law is an attempt to break that cycle by making at least some punishments irreversible. It does so at a significant moral cost, but in principle it is justified, not because killing becomes clean or unproblematic, but because the alternative, a system in which punishment is provisional, reversible, and ultimately absorbable, fails to perform the most basic function that punishment is meant to serve.
[Image: Alireza Jalilian on Unsplash]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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