Restraint, Reaction, and Penal Fantasies: Notes on the Death Penalty in Israel, 1967–2016

Abstract

What role does the death penalty play in contexts of protracted political violence? What does it symbolize for its opponents and proponents in such contexts? Can it survive as a potent topic of political life even without actual executions? Since 1967, the death penalty has been a lawful sanction in Israel's military courts, which have jurisdiction over Palestinians in the Occupied Territories. Though it has never been carried out, it has been intensely debated throughout this period and the topic has retained major political, cultural, and judicial significance. I argue that both sides in these debates use the topic mostly symbolically, rather than as an issue of public policy. For opponents, refraining from using the death penalty has become a symbol of restraint, used in self‐legitimation. For proponents, death penalty advocacy serves as what I term a penal fantasy, an outlet for frustration, symbolizing defiance against the image of restraint.

Symbolic laws, de facto abolitions and path dependence: When death penalty policies remain stable

“…In September 1967, on the eve of the first trial with a potential capital offence in a military court, a newspaper headline read: 'The expected punishment for the accused: death' (Limor, 1967). Yet the military establishment generally opposed using the death penalty, worried, among others, that they will lead to reprisals and place the Israeli military regime under international scrutiny, while not deterring violence (Dudai, 2018). At that crossroads, several options were open.…”

“…With time, the ad hoc 1967 compromise became normalised and permanent. It provided a formula for handling public pressure: refraining from abolishing the death penalty, and the agency implied in the possibility of revising the policy by an always-imminent 'new decision', have been useful in deflating pressures to impose the death penalty (Dudai, 2018).…”

“…When Israel occupied the Palestinian territories in 1967, the death penalty became a possible penalty in the military courts it established there to try Palestinians -but almost immediately the government decided that it will not be sought by prosecutors. Over the past 55 years, with wars, terrorism, uprisings and dramatic changes in government, this policy remained unchanged: the death penalty was neither abolished nor used (Dudai, 2018). 2 The literature on the death penalty tends to overlook such cases of de facto abolition, dismissing the importance of the death penalty in such contexts by portraying it as merely symbolic.…”

The dual penal empire: Emergency powers and military courts in Palestine/Israel and beyond

“…20 Many British laws were replaced over time, but the Regulations continued to be used as a principal legal instrument. One important modification was the de-facto abolition of the death penalty (Lavi, 2005(Lavi, , 2006Dudai, 2018). The Regulations were partially replaced only in 2016 by a new anti-terrorism law, while some of its provisions remain in force to this day (Berda, 2015(Berda, , 2020Mehozay, 2016;Reynolds, 2017: 223-229).…”

“…Thus, his prosecution under the Regulations placed him under an entirely different legal order of enemy penology, where even the meaning of "life sentence" was different. 41 In addition to facing overly broad criminalization and harsher punishments, Palestinians were sentenced under the Regulations to death penalties (later commuted) (Dudai, 2018) and were subject to harsher clemency and parole proceedings. 42 In Hussain's words (2003: 124), it was not just to punish more but to punish out of a different logic, where punishment is the manifestation of state power itself, used to exclude its subjects.…”