What Should Israel Do With the Captured October 7th Terrorists?

By Rabbi Yair Hoffman

The horrors of October 7^th still reverberate in the minds of all caring individuals.   This past Motzaei Shabbos, National Security Minister Itamar Ben-Gvir announced that the preparation for the first reading of the death penalty law for terrorists will be discussed in the National Security Committee.  “On Monday, the preparation for the first reading of the death penalty law for terrorists of the Otzma Yehudit faction submitted by MK Limor Son Har-Melech will be discussed in the National Security Committee chaired by MK Zvika Fogel,” Ben-Gvir said in a statement. “I expect all members of the Knesset to support this important law.”

Family members of the hostages are countering that Ben-Gvir’s timing will endanger the hostages.  It seems that they are certainly correct, and from a halachic perspective the proposal should be pushed off.  There is an aspect of lo saamod al dam rayacha here.

But in general many have the question, “What should Israel eventually do with captured murderous terrorists?  Should the death penalty be employed, when they are found to be guilty?  Also, many experts believe that death penalties do discourage further terrorism.  What is the Jewish tradition?

Some claim that Jewish tradition is against the death penalty, and others state the exact opposite view.  What follows is a brief look at the topic.  We do find numerous verses in the Bible that indicate that there should be a death penalty.

• The concept of capital punishment was established in Bereishis Genesis 9:6: “Shofaich dam ha’adam b’adam damo yeshafaich – Whoever sheds the blood of man, by man shall his blood be shed.”
• And then in the weekly portion entitled Mishpatim (see Shmos – Exodus 21:12), we find the verse, “Makeh ish vamais – mos yumas – One who strikes a man so that he dies shall surely be put to death.”
• In Sefer Vayikra (Leviticus 24:17) we see, “And he that smites any man mortally shall surely be put to death.
• The Torah in Dvarim Deuteronomy 17:6) decrees that only the testimony of two or more witnesses (together) can result in a person’s death sentence. The clear implication is that the death penalty should exist.

This is not to say that capital punishment should be implemented indiscriminately.  Great care must be employed when implementing it.  The last Mishna in the first chapter of Makkos (1:10) records a debate between the Rabbis about how common or often the death penalty should be implemented.  But let’s delve into understanding this Mishna.

There appear to be four views in this Mishna. The Mishna begins by recording the Tanna Kamma’s view:

1. “A Sanhedrin that puts a man to death once in seven years is called a murderous one.”
2. Rabbi Eliezer ben Azariah said, ‘Or even once in 70 years.’
3. Rabbi Tarfon and Rabbi Akiba said, ‘If we had been in the Sanhedrin, no death sentence would ever have been passed’;
4. Rabban Simeon ben Gamaliel said, ‘If so, they would have multiplied murderers in Israel.”

The first three views are clearly concerned with the possibility of state-sponsored death penalties going awry.  Rabbi Shimon Ben Gamliel’s view is that categorically stating these views is not responsible because it would make murder light in the eyes of society.

The Rishonim from the Rambam down seem to reflect the view of Rabbi Shimon Ben Gamliel.  In contemporary American society the topic seems to be a point of contrast between Rabbi Ahron Soloveitchik zt”l and Rav Moshe Feinstein zt”l.

RABBI SOLOVEITCHIK’S VIEW

In a letter to Dr. David Luchins, cited by Nathan J. Diment on Advocacy.ou.org, Rav Soloveitchik writes:

“..In my humble opinion, from a Halachik point of view, every Jew should be opposed to capital punishment. It is true…that the Torah recognizes capital punishment. However, the Torah delegates the authority to mete out capital punishment only to Sanhedrin, not to anyone else. Even [members of the] Sanhedrin are not able to mete out capital punishment if there is no Beis Hamikdash.

B’zman she’yesh kohen makriv, yesh nefashot, b’zman she’ayn kohen makriv, ayn nefashot. Even capital punishment among B’nei Noach cannot be meted out when there is no kohen makriv. (YH: This point is debatable and seems to contradict other explicit Gemorahs where only Jewish courts are unable to mete out capital punishment when there is no standing Temple).. If a Sanhedrin carried out one execution in seven years it is characterized as a murderous Sanhedrin. Rabbi Akiva and Rabbi Tarfon say that if they had been in Sanhedrin, no person would have ever been executed..

RABBI FEINSTEIN’S VIEW

On the other hand, Rav Moshe Feinstein (Igros Moshe CM II #68) zt”l, in a letter dated March 20th, 1981 to then Governor Hugh Carey begins by restricting capital punishment to specific limitations of during the Temple era, with two kosher reliable witnesses, and with a direct warning, and states that “all of this” only applies… when the prohibition against murder has not been rendered null and void.   But for someone who murders people because for him the prohibition against murder has become meaningless, and similarly when the number of murderers has multiplied so much [due to the prohibition becoming ignored], we apply [capital punishment] in order to deter murder.  For to do so is saving society.

THE MURDER RATE

In the past 3 years alone the murder rate has climbed from 5.07 per 100,000 to 6.52.  This is a a 22% increase.  In Detroit, Michigan, where the death penalty has been banned by the State constitution since 1963 –  the murder rate is over 40.  That means for every 2500 people, one of them is murdered.

In Pirkei Avos, the Mishna discusses the deterrence that the law provides and states that were it not for the fear of punishment – each person would swallow the other whole.

Rav Yeruchem Levovitz zatzal (1873-1936) the Mashgiach of the Mir Yeshiva in Poland in his work entitled, “Daas Torah” (Shmos, p. 201) addresses this issue in such a manner that one might have thought he was talking about contemporary times:

Rav Yeruchem writes: “A person does not appreciate that the only reason that a person can sleep peacefully at night is because there are police in the city.  He is certain that if people would attack him or steal something from him – that the police will pounce upon him.  Nonetheless, he still locks his house door and his store door at night with strong locks, and he is afraid to go out at night because who knows what can happen..”

In regard to such mass murders that Hamas y”s has perpetrated, it is highly likely that even Rav Ahron Soloveitchik would have agreed.  The timing of the proposed bill, however, could, in fact, endanger the lives of the hostages.

The author can be reached at [email protected]