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Documents 1  מאמרים משפטיים - משפט פלילי

death 2024663 640Death Penalty  / sharonit Ben Hamou, Jurist


When Cain slew his brother, God said to him, “The blood [plural in Hebrew ] of your brother cries out to Me from the ground” (Genesis 4:10).

The Sages use this verse when admonishing witnesses in capital crimes, warning them that whereas in non-capital cases a man may pay monetary compensation.

In capital cases the suspect is accountable not only for the blood of the victim but for the blood of his posterity as well, hence the use of the Hebrew plural for "blood." Scripture indicates that all mankind arose from the creation of a single man, Adam. Therefore, according to the Sages, one who has caused the death of a single man is regarded as having led a whole world to perish. Conversely, one who saves a single person is considered to have saved a whole world. These remarkable declarations about the infinite worth of man are based on the Mishnah (Sanhedrin 4:5).

The importance of human life, deduced from the same basic principles in the Torah, is expressed in the authoritative edict found in TB Sanhedrin 74A:

 that the only time Jews are required to sacrifice their lives is when they are ordered to commit idolatry, murder or adultery, or during a time of religious persecution (“shemad”) when violating a basic commandment is publicly enforced.

The Torah, the Written Law, prescribes the death penalty for a variety of crimes, yet the Sages of the Talmud were most reluctant to implement such death sentences.

Judaism does believe in the death penalty in certain extreme cases, The Torah mandates the death penalty for certain cases of murder, kidnapping, Idolatrous behavior, and certain forbidden relationships;  adultery, incest etc  (Exodus/Shemot  Chapters 20-21).

”…Life for Life, Eye for Eye, Tooth for Tooth”,( Exodus 21;23-24)

“ A man who spills human blood, his own blood shall be spilled by man because God made man in his own image….” (Genesis 9;6)

Although they seem clear these texts are commonly misunderstood.

To really understand Jewish law one must not only read the Torah but consult the Talmud, an elaboration and interpretation by rabbinical scholars of the laws and commandments of the Torah.

The rabbis who wrote the Talmud created such a forest of barriers to actually using the death penalty that in practical terms it was almost impossible to punish anyone by death.

The rabbis did this with various devices:

  • interpreting texts in the context of Judaism's general respect for the sanctity of human life
  • emphasizing anti-death texts such as the commandment 'Thou shalt not kill'
  • interpreting texts to make them very narrow in their application
  • refusing to accept any but the most explicit Torah texts proposing the death penalty
  • finding alternative punishments, or schemes of compensation for victims' families
  • imposing procedural and evidential barriers that made the death penalty practically unenforceable

The result of this is that there are very few examples of people being executed by Jewish law in rabbinic times.

However, Jewish law mandates many caveats to actually securing an execution. First of all, there have to be two witnesses to the actual crime. Even strong circumstantial evidence is inadmissible for the purposes of capital punishment. Secondly, the witnesses need to give an official ‘warning’ to the perpetrator that if he commits the offense he is liable to the death penalty. The perpetrator needs to clearly accept this warning and commit the crime within a few seconds of the warning, thus distinguishing the act as utterly premeditated and the sinner completely aware of the consequences. Even if all the above conditions are satisfied there is still no certainty of conviction as the witnesses are subject to very aggressive cross-examination. If certain details of the witnesses testimonies do not correspond or if they are inaccurate in describing the full circumstances surrounding the event they can be disqualified and the conviction will not be secured.

Furthermore, according to the Talmud, “any doubts in a capital crime should always be for the benefit of the accused” (Baba Batra 50B, Sanhedrin 79A).

A judge who had argued initially for condemnation can subsequently argue for acquittal, but one who had argued for acquittal cannot later argue for condemnation. Acquittal in capital cases required only a simple majority of one vote, condemnation required a majority of two.

A ‘guilty’ verdict can be reversed to acquittal if errors are revealed, but new evidence to reverse an ‘innocent’ decision to ‘gulity’ is not accepted.

Still, there were exceptional periods in Jewish history that required radical action. According to Rambam: One who murders without clear proof that he is the murderer, i.e. there were not two witnesses, or without warning having been administered by two witnesses, the king has authority to execute him and to perfect the world in accordance with what the hour requires…. The king is empowered to take the measures necessary to inspire fear and to break the hands of the world’s evil people. (Rambam; Mishneh Torah, Laws).

Rabbinic attitudes concerning the death penalty are, as expected diverse:

“A Sanhedrin that effects an execution once in seven years is branded ‘a destructive Court’” Rabbi Elazar Ben Azariah said, “Once in seventy years.” Rabbi Tarfon and Rabbi Akiva said, “If we were members of a Sanhedrin, nobody would ever be put to death.” ( Masechet Makot 7A).

In that same Gemara, however, Rabbi Simeon Ben Gamaliel dissented:

“If  we never condemned anyone to death, we might be considered guilty of promoting violence and bloodshed…. [We] could also multiply shedders of blood in Israel”

The concern for accuracy in capital punishment is by no means foreign to Jewish jurisprudence. Thirty years ago Rabbi Moshe Feinstein was asked by an American government official for an explanation of the Jewish view of capital punishment.

 In his response (Igrot Moshe, Chosen Mishpat, vol. 2, § 68), Rabbi Feinstein emphasized two points. First, unlike secular governments, the Torah does not impose the death penalty as a means of revenge or keeping peace through fear. For that, we trust that God will do as He sees fit. Rather, capital punishment serves an educational purpose: it teaches us which transgressions are the most serious.

Furthermore, explains Rabbi Feinstein, the Torah shows concern for human life by ensuring that capital punishment is only imposed after satisfying numerous procedural safeguards. Some examples of the requirements that must be met before one can be punished with death are:

  • • A Beit Din whose judges have received Semicha (which is only bestowed upon great and wise men);
  • •A quorum of 23 judges;
  • •Three rows of knowledgeable men must sit before the court and offer any arguments in favor of the accused;
  • •Two purely impartial witnesses;
  • •The witnesses must have warned the accused, and he must have acknowledged the warning;
  • •And finally, capital punishment could only be imposed when the Great Sanhedrin of 71 judges sat in the Beit Hamikdash (the Holy Temple). As a result, throughout Jewish history, the death penalty was rarely imposed (see Makkot 7A), not because of any moral opposition to it, but because of a concern for accuracy.

When we examine capital punishment from biblical to present times, we see a radical change in attitudes.

In our circle of nations, only in the United States and Japan is capital punishment still available. The European Constitutional Court has declared our procedures cruel and unacceptable.

The Death Penalty in the Israeli Law:

When the modern state of Israel was established in 1948, it inherited the British Mandate's legal code, with a few adjustments, and thus capital punishment remained on the books. During the Israeli War of Independence, the first execution took place after Meir Tobianski, an Israeli army officer, was falsely accused of espionage, subjected to a drumhead court-martial and found guilty. He was executed by firing squad, but later posthumously exonerated.

The first death sentences imposed by an Israeli civil court, against two Arabs who had been found guilty of murder, were confirmed by an appeals court in November 1949, but the sentences were commuted to life imprisonment by President Chaim Weizmann, due to his opposition to the death penalty.

The Israeli cabinet first considered abolishing the death penalty in July 1949.

In 1950, seven convicted murderers were on death row in Israel. Their executions have stayed until the government made up its mind as to the ultimate fate of the death penalty. In 1951 the Israeli cabinet again proposed that the death penalty is abolished. In 1952, the first death sentence for Nazi war crimes under the Nazi Collaborators' Law was imposed on Yechezkel Ingster, who was convicted of torturing and beating other Jews as a Kapo, but the court also recommended that the death sentence is commuted. The sentence was commuted to two years' imprisonment.

In 1954 the Knesset voted to abolish the death penalty for the crime of murder. The death penalty was retained for war crimes, crimes against humanity, crimes against the Jewish people, treason and certain crimes under military law during wartime.

The Eichmann Trial:

 In May 1960, Adolf Eichmann, the chief of operations of the Nazi murder program during World War II, after he was captured and brought from Argentina to Israel. Adolf Eichmann played an important role in the Nazi regime. He was personally responsible for the extermination of millions of Jews in concentration camps and was in charge of the "final solution" of the Jewish people.

 He was brought to Israel to stand trial under Israel's Nazis and Nazi Collaborators (Punishment Law 1950). 

In the trial, which opened in April 1961, Eichmann was found guilty of crimes against humanity and the Jewish people and sentenced to death. His appeal to the Supreme Court was rejected and he was hanged on May 30th, 1962. This was the only time that the death penalty has been carried out under Israeli law.

Throughout the following decades, death sentences were occasionally handed down to those convicted of terrorist offenses, but these sentences were always commuted.

In 1988 John Demjanjuk, a guard in a Nazi death camp during the war nicknamed "Ivan the Terrible" by inmates for his brutality, was sentenced to death after being convicted of war crimes, but his conviction was later overturned on appeal. In the mid-1990s the practice of seeking the death penalty for those facing terrorism charges ceased.

Nowadays Israel does not apply the death penalty. Even though the laws of Israel, the West Bank, and the Gaza Strip all permit capital punishment in special circumstances, it is never applied. However, in America, and Japan the death penalty is currently utilized.

In 1978, a life-changing Terrorist attack occurred on the north of Israel.  The case involved nine terrorists who arrived in Israel by boat not far from Kibbutz Ma'Agan Michael. The terrorists encountered a Jewish-American photographer and asked her where they had landed, expecting to be in Tel Aviv. After she told them where they had actually landed they killed her. Making their way up the beach road, they captured a bus and ordered the driver to take them towards Tel Aviv. They then seized a second bus and held all aboard hostage. Upon their arrival in Tel Aviv, there was a shooting fight between the terrorists and the security services. Thirty-four people were killed, including women and children. Out of the nine terrorists, two were captured and brought to trial before a military court in the city of Lydia.

A pressuring outcry existed in Israel to invoke the death penalty because of the mass killing of innocent people. This case was slightly problematic because one of the terrorists captured was under the age of eighteen. By Israeli law, he could never be given a death sentence. The second defendant, on the other hand, was in his early twenties and was eligible for the death penalty. Political and legal debate transpired between the Prime Minister, the Minister of Defense, the Minister of Justice, and the military prosecutor regarding the imposition of the death penalty in this specific case. To execute one young man and not the other, simply because of a few years, was not consistent with the Israeli sense of justice. In the end, despite the severe tragedy that occurred as a result of brutality against innocent people, the death penalty was still not invoked. It has been over sixty years since the independence of the State of Israel, and except for the case of Adolf Eichman, the death penalty has never been imposed. This policy of not invoking the death penalty in Israel is unlikely to change. Despite the constant struggle against terrorist activity, human rights still prevail over security. The result of this case, and others like it, should be commended and praised.

Another case of Yigal Amir, the murderer of the Prime Minister, Mr. Yitzhak Rabin. For that murder, he was given life imprisonment. A panel of three judges heard the trial of Yigal Amir, his brother, Hagai Amir, and their friend, Dror Adani, for conspiracy to murder Prime Minister Yitzhak Rabin. For the conspiracy charge they received sentences of five, twelve, and seven years of imprisonment, respectively. However, at that time the public was demanding the imposition of the death penalty for Yigal Amir for the assassination of the late Prime Minister. Regardless of public outcry, this murder could never be punished by death under Israeli law. A single murder, even the murder of the Prime Minister, does not fall within the list of crimes punishable by death. By written law, the death penalty could not have been invoked in this case.

The security problems in Israel come from both external and internal threats. On the one hand, these problems are apparent by the threats from the Palestinians in the West Bank and the Gaza Strip. Unfortunately the internal security problems, on the other hand, which are not as obvious, resulted in the tragic death of the  Prime Minister. He was not assassinated by terrorists, or by the enemy, but by a Jewish-Israeli man who served in the army and attended law school. Nobody anticipated the possibility of such an occurrence, and since then Israel has taken stringent measures to create greater security within the State of Israel.

Amnesty international are working for the past 40 years to end executions.

Their approach is that  The death penalty is a symptom of a culture of violence, not a solution to it. The death penalty breaches two essential human rights: the right to life and the right to live free from torture Both rights are protected under the Universal Declaration of Human Rights, adopted by the UN in 1948.

The following international laws explicitly ban the use of the death penalty, except during times of war:

  • The Second Optional Protocol to the International Covenant on Civil and Political Rights
  • Protocol No. 6 to the European Convention on Human Rights
  • The Protocol to the American Convention on Human Rights to Abolish the Death Penalty.

The European Convention on Human Rights (Protocol No. 13) bans the use of the death penalty at all times, even during a war.

Although international law says that the death penalty can be used for the most serious crimes, like murder, Amnesty believes that the death penalty is never the answer.

Execution methods:

There are many and varied types of execution used around the world today, including:

  • •Beheading
    •Lethal injection
  • •Shooting in the back of the head and by firing squad.

Amnesty International defines the problems in the death penalty:

  1. Irreversible mistakes happen. Execution is the ultimate, irrevocable punishment: the risk Of executing an innocent person can never be eliminated
  2. Does not deter crime: countries who execute commonly cite the death penalty as a way to deter people from committing crimes. This claim has been repeatedly discredited, and there is no evidence by amnesty that the death penalty is any more effective in reducing crime then imprisonment.
  3. It is often used within skewed justice systems: some of the countries executing the most people have deeply unfair legal systems according to amnesty international. Many death sentences were issued after ‘confessions’ that have been obtained through torture.
  4. Discriminatory: according to amnesty international you are likely to be sentenced to death if you are poor, or belong to a racial, ethnic or religion minority because of discrimination in the justice system.

We can see that The Jewish law, the Israeli law, the western law and even the international law perspective on the death penalty reveals a tradition struggling with the twin goals of holding people accountable for their crimes and doing so in a just manner that elevates the value of human life. In this struggle, not unlike the one that grips our nation today, the arc bends towards justice and away from the scepter of using court- and state-sanctioned killing to show that killing is wrong.

We shall all hope for better days and that a tragedy and fault will not happen beneath us.

הטיפ הקצר היומי

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