Israel Should Not Execute Members of Hamas…or Anyone Else
We, the 3,800+ members of the group “L’chaim! Jews Against the Death Penalty” wish to respond respectfully to Rabbi Dr. Jonathan Lieberman’s Feb. 15th Jerusalem Post op-ed entitled “Should Israel execute Hamas terrorists for war crimes on par with the Nazis?” In his thoughtful, powerful and nuanced essay, Rabbi Dr. Lieberman expresses how difficult it has been for him as a rabbi and physician to even ask this question, given the sanctity of life to which he has devoted his laudable career. We profoundly honor Rabbi Dr. Lieberman’s sacred callings, as well as his courage in sharing his feelings so openly and vulnerably in the public square. We also empathize with his suffering and understand and respect his position. Indeed, like Jews everywhere, we too have been shocked beyond belief by the horror and barbarity that continue to unfold in the wake of the Oct. 7th, 2023 pogrom. The mutilated bodies of the youngest members of the Bibas family that Hamas just released are a palpable reminder of this abject abomination. May all the people of Israel be comforted after the revelation of this consummate tragedy that defies any sense of morality and reason.
Reasonable minds can indeed agree to disagree when it comes to a subject as triggering as capital punishment. For many reasons, we firmly believe that Judaism in the 21st century must unconditionally reject the death penalty, including for Nazi perpetrators and Hamas terrorists who have committed the most heinous crimes imaginable. First, purely as a practical matter, imposing a judicial death sentence on terrorists provides them with a platform for their message, and why would we want to give them that? Worse, such defendants then become heroes and potential martyrs, over and above how such terrorists are celebrated currently. Because Israel seeks to be a transparent democracy that follows the rule of law, particularly within its judiciary, a judicial death sentencing scheme will be costly both financially and with public perception. Such terrorists believe in what they are doing, and that they will be rewarded upon their physical death. A far harsher punishment is incarceration. Let them have to think every day about what they have done and why they endure the constrictions of a maximum security prison. Finally, the often cited notion that executing terrorists will save the lives of future hostages that the enemy might capture in order to exchange in a prisoner swap is inherently flawed. Executing Hamas prisoners will only lead to Hamas executing Israeli prisoners, perpetuating an endless cycle of violence and killing.
In the wake of the horrors of the Oct. 7th attacks, we never would claim to be speaking for the loved ones of murder victims, z’l. As a hospital chaplain, I regularly counsel mourners that they should feel permission to experience the full gamut of human emotion while grieving, including rage, and even the desire for vengeance where applicable. Let no one ever judge anyone in such a position. If I myself were to lose a loved one to murder, or if my own children were ripped away like 9-month-old baby Kfir and 4-year-old Ariel Bibas, Z’L, and countless others on Oct. 7th, I could very well find myself desiring — and perhaps even advocating for — the death of my loved one’s killer. A civilized society has a responsibility to protect and honor all such mourners, while also upholding the most basic human rights upon which this world stands. Fundamental to these, of course, is the right to life itself. For this reason alone, 70% of the nations of the world have abolished the death penalty in law and practice.
Let there be no doubt: traditional Jewish law does indeed allow for capital punishment, albeit with prodigious safeguards. Let us recall the words of some of the loftiest figures among Chazal: Rabbi Eliezer ben Azariah, Rabbi Tarfon and Rabbi Akiva, as found in the Talmud, Makkot 7a: “A Sanhedrin [Rabbinic court] that affects an execution once in seven years, is branded a destructive tribunal. Rabbi Eliezer ben Azariah says: once in 70 years. Rabbi Tarfon and Rabbi Akiva say: Were we members of a Sanhedrin, no person would ever be put to death. [Thereupon] Rabban Simeon ben Gamaliel remarked, they would also multiply shedders of blood in Israel!”
Rabban Simeon ben Gamaliel and those supporting his view were citing the notion of deterrence and other now antiquated notions of “justice.” They can be forgiven certainly for their views that reflected the understanding of their times, including when it comes to deterrence, as they were not privy to proof that deterrence is indeed a FALLACY when it comes to the death penalty. Indeed, meta-studies have found no meaningful evidence that use of the death penalty deters crime. For this reason alone, most traditional Jewish arguments for the death penalty no longer apply in our world.
But there is more that all Jews must consider in the wake of the Holocaust and the events of the 20th century…
Many of the members of “L’chaim! Jews Against the Death Penalty,” including this author, are direct descendants of Holocaust victims and survivors. We know more than most that capital punishment is not the same as the Shoah. And yet, for many L’chaim! members, the shadow of the Holocaust is inextricably linked to their rejection of the death penalty in all cases, even that of the infamous Tree of Life shooter.
The most common form of execution used by the US federal government and multiple states – and one that likely would be employed by Israel – is lethal injection. Lethal injection itself is a direct Nazi legacy, first implemented by the Third Reich as part of their infamous Aktion T4 protocol to kill people deemed “unworthy of life.” That program was devised by Dr. Karl Brandt, the personal physician of Adolf Hitler. If this were not enough, across the USA, more and more states are erecting gas chambers, including one in Arizona that uses Zyklon B, the same lethal gas used in Auschwitz. No Jewish argument about the death penalty in the 21st century should ignore these proven, direct Nazi legacies, against which the members of L’chaim! firmly chant “NEVER AGAIN to state-sponsored murder!” For these reasons, L’chaim! members view the death penalty as one of the worst kinds of institutionalized evil that stains the United States, Israel or any nation that employs it.
Rabbi Dr. Lieberman reports that the only Israeli execution to have taken place was that of Eichmann. In fact, when the modern state of Israel was established in 1948, the first execution for the nascent state took place after Meir Tobianski, an Israeli army officer, was falsely accused of espionage. He was subjected to a drumhead court martial, found guilty, and executed by firing squad. He was then posthumously exonerated. His shameful wrongful state murder highlights the need to heed what Maimonides articulated so well nearly a millennium ago. Like Dr. Lieberman, the Rambam (Rabbi Moses ben Maimon, 1135-1204) was also a physician, who likewise was dedicated to the universal notion of doing no harm. One of the most renowned pearls of wisdom among the many that Maimonides imparted to the world was the following: “It is better to acquit a thousand guilty persons than to put a single innocent one to death.”
Even if one believes that the Hippocratic Oath does not apply to those who have “forfeited” their most basic human rights (a stance that we at L’chaim find ethically indefensible), Israel’s execution of Meir Tobianski is a clear reminder that innocent human beings are indeed harmed – and murdered – by any inherently imperfect, unjust and broken “machinery of death.” As the objective Death Penalty Information Center reports, the death penalty carries the inherent risk of executing an innocent person, and since 1973, at least 200 people who were wrongly convicted and sentenced to death in the U.S. have been exonerated.
Finally, regarding Israel’s 1962 execution of Nazi perpetrator Adolf Eichmann that Rabbi Dr. Lieberman cites, it is certainly true that many rabbis did not object. Many other Jewish leaders did, however, vociferously protest. These included renowned Hebrew university philosophers Samuel Hugo Bergmann and Nathan Rotenstreich, scholar of Kabbalah Gershom Scholem, and Jewish theologian and philosopher Martin Buber, who called the execution a great “mistake.” Other Holocaust survivors themselves, such as Nobel-prize winning author, Nelly Sachs voiced their strident opposition to Eichmann’s execution.
More than anyone, it was twentieth-century Jewish human rights icon Elie Wiesel whose words encapsulated the stand of the members of L’chaim! When asked about his feelings on capital punishment, Wiesel resolutely stated “Death is not the answer.” On this, Wiesel made no exception, famously stating the following: “With every cell of my being and with every fiber of my memory I oppose the death penalty in all forms. I do not believe any civilized society should be at the service of death. I don’t think it’s human to become an agent of the angel of death.”
Driven by Wiesel’s prophetic call, L’chaim members – together with their partners at Death Penalty Action – ensure there is a vocal Jewish presence at every execution vigil in the USA. We also are pen pals with all Americans in line for state-murder, letting them know that L’chaim! joins all of civilized humanity in standing with them on the side of life. L’chaim! also makes daily calls to all actively executing governors, signs daily petitions, drafts op-eds like this one, delivers synagogue programs, engages in regular TV, radio and podcast interviews, and advocates unceasingly against the increasing calls for executions in the United States and Israel.
In the wake of the Holocaust and the unparalleled horrors of the twentieth century, seventy percent of the nations of the world have recognized the inviolability of the human right of life and have abolished the death penalty. 21st-century Judaism and the state of Israel, both directly targeted by that unparalleled conflagration, must reflect this evolution and become a Tree of Life whose branches extend as a model across our world. This includes for the so-called “worst of the worst,” from Nazi perpetrators, to the Tree of Life shooter, to the Hamas terrorists who carried out the unspeakable October 7th attacks. Let it be known that to our chant of “L’chaim!,” there are no exceptions. The cycle of violence and killing mustend.
Still, we very much realize the need for constructive dialogue in our world – now more than ever – and we invite others to respectfully respond with their own perspectives to our position. It is only through such machloket l’sheim shamayim (argument for the sake of heaven) that we can deign to begin to move forward as a civilization…
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