Despite the carnage and loss of life which it has suffered as a result of terrorist activity, the State of Israel has refrained from imposing the death penalty upon convicted terrorists. In yet another in an intriguing series of articles dealing with the halakhic ramifications of policies adopted by the Israeli government, Rabbi Judah Gershuni, Or ha-Mizraḥ, Tevet 5733, seeks to clarify whether this policy is compatible with Halakhah or whether it is a violation of Jewish law.
It is obligatory upon the Bet Din to sit in judgment upon Jews accused of infractions of the law and to impose the death penalty upon those convicted of a capital crime (Rambam, Sefer ha-Mizvot, Aseh, nos. 226–229; Sefer ha-Hinukh, nos. 47, 50, 261 and 555). In our day, in the absence of a Sanhedrin, this obligation cannot be fulfilled. The point which is obscure is whether or not a similar obligation exists with regard to the punishment of non-Jews as well. If such an obligation does in fact exist, it may be fulfilled in our day as well since a Sanhedrin is not required for the sentencing of a non-Jew.
Rambam, Hilkhot Melakhim 9:14, numbers the imposition of the death penalty for violation of the provisions of the Noachide Code among the seven commandments incumbent upon the "sons of Noah." In explaining the biblical narrative concerning the carnage of the inhabitants of the city of Shechem, Rambam declares that the people of Shechem incurred the death penalty as a result of their culpability in not meting out punishment to Shechem for his transgression of the Noachide Code. Nevertheless, points out Rabbi Gershuni, Rambam's discussion is limited to the obligation of non-Jews with regard to the punishment of their fellow men but does not indicate that a Jew is under obligation to bring a non-Jew to justice. (Although Tosafot, Avodah Zarah 64b, indicates that once a death penalty has been pronounced, all persons, including Jews, are under an obligation to carry out the sentence.)
Rabbi Gershuni cites another ruling of Rambam which indicates that a Jew is obligated to impose the death penalty upon a non-Jewish transgressor. Rambam, Hilkhot Milah 1:6, declares that a gentile slave who refuses to accept the seven Noachide commandments is to be put to death. Rabbi Gershuni points out that according to this ruling the slave is, in effect, being executed for transgressing these laws and concludes that, according to Rambam, Jewish courts are indeed obligated to impose the death penalty upon non-Jewish transgressors.
Rabad disagrees with Rambam regarding the above case and states that the slave is to be sold to a non-Jew but is not to be executed. Rabbi Joseph Rosen, in his commentary on the Rambam, Ẓafnat Pa'aneaḥ, explains Rabad's position in the following manner: with the lapse of the Sanhedrin and the abrogation of capital punishment among Jews, Jews can no longer impose capital punishment upon non-Jews, even though the latter remain obligated to do so in administering their own system of law. Moreover, Ramban, in his commentary on Genesis 34:13, disagrees with Rambam and states that there is no statutory obligation requiring non-Jews to impose punishment upon transgressors. Imposition of capital punishment, he maintains, is discretionary under the Noachide Code. The injunction, "Thou shall not stand in fear of a man," does forbid a member of the Bet Din to refuse to sit in judgment; however this admonition applies only to instances when the defendant is a Jew. Since in Ramban's opinion a non-Jew, if he so desires, may decline to sit in judgment, it follows, according to this view, that Jewish courts have the same prerogative.
Whether or not Israeli courts are under an obligation to impose the death penalty for transgressions which are capital crimes under the Noachide Code is thus a subject of dispute among the authorities. According to both Ramban and Rabad, the Israeli courts are under no obligation to do so, and hence are at liberty to impose a prison sentence upon terrorists in lieu of capital punishment. Rabbi Gershuni concludes that the current Israeli practice is in consonance with halakhic norms.
Rav Bleich
