More often than not, states do not speak in a single voice of law. At times, they divide, subtly but decisively, into parallel regimes of governance, where rights are secured for some and coercion routinised for others. Academician Mahmood Mamdani, in his seminal work, Citizen and Subject, described this as the bifurcated state: a political order in which legality itself is stratified—producing unequal subjects under the same sovereign authority.
It is within this uneasy architecture that Israel’s death penalty law must be situated.
The new law, which enables the death penalty for Palestinians convicted of lethal attacks, was passed in Knesset on 30 March, by a narrow but decisive majority. While the strength of Prime Minister Benjamin Netanyahu's right-wing coalition was demonstrated by a 62-to-48 approval (with one abstention) in the Israeli parliament, the law has sparked widespread debate both domestically and internationally.
At one level, the law is framed as an instrument of justice and deterrence. The right-wing proponents argue that the state must respond with unequivocal force to acts of political violence.
For figures such as National Security Minister Itamar Ben-Gvir, the measure embodies both moral clarity and sovereign resolve: the state must demonstrate that the taking of life will be met with the ultimate sanction.
Yet, beneath this rhetoric lies a more complex and troubling legal architecture.
Law and the Question of Equality
The law specifies the death penalty, and more specifically, hanging, as the normal punishment for Palestinians convicted of terrorist acts. The majority of trials are expected to take place in military courts, with executions scheduled to take place within 90 days of sentencing. Israeli citizens, by contrast, remain within the civilian judicial system.
Although the death penalty has long been authorised in Israel, it has been used extremely infrequently with the last execution occurring in 1962. Thus, the new law represents a transition from symbolic retention to active implementation.
This dual structure raises fundamental concerns about equality before the law, one of the cornerstones of both democratic constitutionalism and international human rights law. The differential treatment of populations under separate legal regimes risks institutionalising a hierarchy of legal subjecthood, in which justice becomes contingent on identity rather than on universally applicable norms.
International Law and the Limits of State Power
From the standpoint of international law, the legislation enters deeply contested terrain. While capital punishment has not been universally abolished, its application is heavily circumscribed under international human rights instruments.
The International Covenant on Civil and Political Rights (ICCPR) permits death penalty only under strict conditions, including fair trial guarantees, proportionality, and non-discrimination. The Second Optional Protocol to the ICCPR, aimed at abolition, reflects an emerging global norm against capital punishment.
More critically, in contexts of occupation or conflict, international humanitarian law imposes additional constraints. The use of military courts for civilians, particularly when procedural protections are limited, has long been scrutinised under the Fourth Geneva Convention. The principle of distinction between combatants and civilians, as well as guarantees of due process, becomes central here.
The accelerated nature of sentencing and execution raises concerns about irreversible miscarriages of justice, an issue that has historically underpinned global opposition to capital punishment.
The Right-Wing Push: Justice and Deterrence
Israel's far-right political leadership, particularly Ben-Gvir, has pushed for the measure. Ben-Gvir and his friends view the law as both a moral and strategic need.
Celebrating the bill’s passage, Ben-Gvir declared, “This is a day of justice for the victims and a day of deterrence for our enemies." He further emphasised a hardline stance during the debate, stating: “Whoever takes a life, the state of Israel will take their life.”
One coalition member regarded it as a manifestation of "true Jewish morality," emphasising the value of life through deterrence. From this standpoint, the bill is consistent with a larger shift in Israeli politics toward emphasising security, even at the expense of strengthening punitive state powers.
Supporters argue that the law closes what they see as a “revolving door” system, where convicted attackers may eventually be released in prisoner exchanges.
Opposition Within Israel and Abroad
Despite its passage, the law has faced strong opposition from within Israel itself.
Opposition leaders, legal experts, and human rights organisations have raised concerns about its ethical and constitutional implications. Israeli opposition figures described the legislation as: “An immoral law that contradicts the foundational values of the State of Israel as a Jewish and democratic state.”
Some argued that the law does little to enhance security and is “an unnecessary piece of legislation.”
Outside Israel, too, European nations cautioned that it may jeopardise Israel's commitment to democratic values, while human rights organisations contended that it would violate international law. Foreign ministers from Germany, France, Italy, and the UK issued a joint statement expressing "deep concern" over the bill's discriminatory nature, warning that its adoption "would risk undermining Israel's commitments with regard to democratic principles."
The UN High Commissioner for Human Rights went even further. Volker Türk explicitly warned that the law's "deeply discriminatory" nature, targeting Palestinians via military courts, constitutes "an additional, particularly egregious violation of international law."
The State of Exception and Its Permanence
To fully grasp the implications of this legislation, one must refer to philosopher Giorgio Agamben’s concept of state of exception. Agamben argues that modern states increasingly govern through exceptional measures. The state justifies legal suspensions justified in the name of security; and these suspensions are then gradually normalised.
Israel’s new law exemplifies this very logic.
First, it is explicitly justified by the necessity to combat terrorism, which is a persistent and serious security threat.
Second, it establishes unusual legal procedures, such as limited appeals and expedited execution schedules.
Third, it functions inside a parallel legal system, with distinct populations subject to varying levels of justice.
This law runs the risk of reducing the Palestinians to what Agamben called ‘bare life’ (homo sacer), a figure stripped of legal protections and exposed to sovereign violence.
Therefore, the contentious issue is not just the law but about the potential of what begins as a temporary response to a crisis evolving into a permanent mode of governance, eroding the distinction between rule and exception.
Democracy at the Crossroads
The passage of this law highlights a fundamental tension that has long defined Israel’s political trajectory i.e. the need to balance between security imperatives and democratic commitments.
At stake is not merely the fate of those who may be subjected to capital punishment, but the character of the state itself.
It signals a larger shift in the relationship between security and democracy. In this sense, the debate over Israel’s death penalty law speaks to a broader question on the usage of exceptionalism in the name of ‘security’.
The answer to that question, though difficult, will shape not only Israel’s future, but the evolving relationship between law, violence, and sovereignty in the 21st century.
(Vyas Muni is an Assistant Professor at GLA University, Mathura. Pulkit Buttan is a PhD scholar at the Tata Institute of Social Sciences, Mumbai. This is an opinion piece and the views expressed are the author's own. The Quint does not endorse or is responsible for them.)