Case Explained: The Guardian view on Israel’s death penalty: capital punishment is always wrong. This new law is doubly so | Editorial – Legal Perspective

The death penalty is morally repugnant. How much more so, then, when it is made the default, must be speedily carried out, cannot be subject to clemency, and is blatantly discriminatory – not merely in practice but inherently. The law passed by Israel’s Knesset on Monday is worded to effectively apply only to Palestinians, entrenching what many – including domestic rights groups, legal scholars and the international court of justice – have identified as practices amounting to apartheid. In setting out law for the illegally occupied West Bank, it is also annexationist. “Its application to residents of the occupied Palestinian territory would constitute a war crime,” said the UN’s human rights chief, Volker Türk.

Execution will be the default for Palestinians found guilty of lethal attacks deemed as terrorist acts in the West Bank’s military courts – which have a conviction rate of around 96%. Amnesty International says that the system routinely relies on evidence extracted through torture and abuse. The death sentence will be imposed even if prosecutors do not seek it. Convictions need no longer be unanimous. There is no possibility of pardon. Executions must take place within 90 days. Within Israeli civilian courts, the new law imposes the death penalty for deliberately killing a person with the intention of “negating the existence of the State of Israel”. Life imprisonment can only substitute in unspecified “special” circumstances.

There could hardly be a more shocking contrast with the near-total impunity of Israelis killing Palestinians in the West Bank, amid increasing – and increasingly systematic – state-backed settler violence. It soared to record levels following the Hamas attacks of 7 October 2023 and the war in Gaza, and has surged again since the Iran war started.

That has prompted unusual criticism within Israel. Yet genuine expressions of concern are accompanied by more cynical acknowledgments that seek to present attacks as an anomaly. In reality, “settler violence is not spiraling out of control; it is operating exactly as designed” in advancing annexation, writes Ziv Stahl, executive director of the Yesh Din NGO. Not one Israeli citizen has been indicted for a Palestinian’s death since 2020, Guardian analysis shows. The former Israeli prime minister Ehud Olmert has urged the international criminal court to intervene.

Even given this government’s maximalist approach, and dehumanisation of Palestinians, the new legislation’s cruelty is stunning. Like most countries, Israel had abandoned executions: the last was of the Nazi war criminal Adolf Eichmann, in 1962. Itamar Ben-Gvir, the far-right national security minister who championed capital punishment’s return, celebrated with champagne and has sported a noose-shaped pin. The law was backed by Benjamin Netanyahu, facing an international criminal court warrant for war crimes and crimes against humanity.

The supreme court could revise or strike down this law. Yet while there are multiple strong grounds for challenge, the embattled judiciary knows that the government will weaponise any adverse ruling against it. Condemnation of the law from the UK, the EU and others is welcome but entirely insufficient. It is bizarre for allies to keep speaking of shared values, but they failed to take substantive action over the annihilation in Gaza, despite the shift in global public opinion. Just as violent Israeli settlers act with impunity, so their government has no reason to pause when it faces no consequences – while Palestinians now face the noose.

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