HaRav Shlomo Aviner is head of Yeshivat Ateret Yerushalayim in the Old City.
Question:
According to halakhah, is the death penalty permitted for terrorists? After all, we do not have a Sanhedrin.
Answer:
Certainly. A terrorist is a murderer. Although since the Sanhedrin left the Temple Chamber of Hewn Stone we no longer have capital jurisdiction, he nevertheless has the status of a rodef (murderous pursuer). In order to kill a rodef, neither a Sanhedrin, nor a court, nor formal examination and cross-examination are required since the purpose is to save the person being pursued.
A terrorist is not an ordinary pursuer intending to kill a specific individual, which is terrible in itself, but someone who seeks to kill any Jew who happens to cross his path. Experience also shows that 50% of released terrorists become involved again in murder. If he is left alive, he will continue to pursue and murder Jews.
Another factor is deterrence. The death penalty should be imposed on terrorists so that others will see and fear and will not act maliciously. The Rambam writes in Moreh Nevuchim (Guide for the Perplexed) that the punishments of the Torah are not primarily intended to punish the individual - for that, there is the Master of the Universe - but to deter transgression. He lists four criteria for determining the severity of punishment:
-The severity of the crime.
-The prevalence of the crime.
-The ease with which the crime can be committed.
-The strength of the impulses leading to the crime.
Here, all four of these factors exist in their most severe form. If a terrorist knows that he will eventually be released in a prisoner exchange, there is no deterrence at all.
Additionally, also involved is a situation of an Emergency Decree (Hora’at Sha’ah). It is permitted for a prophet, Sanhedrin, or king to enact an emergency decree. Although we do not have a king, Rabbi Kook proves in his responsum “Mishpat Kohen" (response 144) that an authorized and accepted leader of the Jewish people possesses certain powers of a king. One of his proofs is from the Rambam, who states that the Exilarch (Resh Galuta) in Babylonia had the legal status of a king even though he lived in Babylonia and was subject to the Babylonian king.
All the more so does an authorized leader in the Land of Israel have such authority. This refers to general governmental powers, such as levying taxes or conducting war (see further sources cited by Rabbi Tzvi Yehuda Kook at the end of the “Mishpat Kohen"). Therefore, the government has the authority to impose the death penalty on terrorists.
In Igrot Moshe (Choshen Mishpat 2:68), Rabbi Moshe Feinstein wrote to the governor of New York that one of the roles of government is to protect its citizens, even if this requires imposing the death penalty. Similarly, when the Arab who carried out the lynching in Ramallah during the Second Intifada was captured and confessed, Rabbi Ovadia Yosef said that such a person must be given the death penalty (“Rabbeinu," by Rabbi Eliyahu Shitrit, p. 153).
Finally, in wartime, different laws apply. In war, people are killed. From the establishment of the State of Israel until now, we have been in a war of liberation. Enemies who rise up against you are killed. Therefore, war must be conducted as war.