Taj Hussain & Laurent A. Lambert
Al-Jazeera / July 16, 2024
The Israeli judiciary’s dismal track record on torture and collective punishment of Palestinians proves as much.
For over nine months now, the United States and other close allies of Israel have repeatedly defended the conduct of the Israeli army in Gaza and the West Bank. They have rejected or ignored accusations of genocide, torture, collective punishment and other war crimes and crimes against humanity, despite numerous reports by UN experts and human rights organizations detailing various atrocities.
In defending the Israeli army, Israeli allies often refer to the opportunity to seek justice for crimes in Israeli courts. In its response to International Criminal Court’s Prosecutor Karim Khan seeking arrest warrants for Israeli officials, the US State Department, for example, has claimed that the prosecutor did not defer to a national investigation first. The Israeli government has also made the same argument.
But a closer look at the Israeli judicial system reveals that such prosecution of justice for war crimes committed by Israeli officials is unlikely to yield results.
Israel’s legislative and judicial authorities do recognize international law and conventions. However, through legal exceptions, they also create spaces for the total disregard of international law by Israeli officials and security and military forces. This erodes the prohibitions from international law on matters of grave importance.
Two examples of crimes that illustrate this legal contradiction between Israeli jurisprudence and international law are torture and collective punishment.
Torture is unequivocally illegal under international humanitarian law and international human rights law. This prohibition derives from the Universal Declaration of Human Rights, the Geneva Conventions and its Additional Protocols, the Convention against Torture, etc.
Based on paragraph 277 of the 1977 Israeli Penal Code and the 1991 Israeli ratification of the Convention Against Torture, the Israeli legal system recognizes torture as illegal. But in reality, the practice of torture has been extensively documented by Israeli NGOs and Israeli media, and it remains without any legal repercussions. In the past nine months, this illegal practice has even intensified, according to human rights activists.
The Public Committee Against Torture in Israel (PCATI) has documented that between 2001 and 2022, more than 1,400 claims of torture by Israeli authorities were made, but only two were investigated and none resulted in indictments.
That is because agents of the Shin Bet (internal security services) and Israeli soldiers are protected by a legal loophole which allows for “necessity” to determine if torture can be used in all so-called “ticking bomb situations”. These scenarios are loosely defined and justify the use of torture to extract information from a suspect that can supposedly help avert imminent danger to life and national security. Despite how open to interpretation a “ticking bomb situation” can be, this exception was upheld by two rulings by the Israeli Supreme Court in 1999 and then again in 2018.
The loophole has actually been recognized as problematic by the Israeli authorities who have promised to create an explicit law against torture, but nothing has materialized. PCATI even referred 17 of its cases to the ICC in 2022 as it realized that any justice for torture victims would be impossible in Israeli courts. This is because most cases are rapidly dismissed on the grounds that, supposedly, “there is no evidential basis supporting the interrogatees version”.
The matter of collective punishment shows a similar pattern. Collective punishment is the infliction of penalties on multiple civilians based on the acts of one or several individuals. Its international prohibition dates back to The Hague Convention in 1899, reaffirmed by the Geneva Convention and has become customary international law.
The Israeli judiciary has repeatedly affirmed its commitment to the ban on collective punishment. Furthermore, section 16 of the Penal Code facilitates prosecutions based on international agreements.
However, in practice, the Israeli army regularly exercises collective punishment on a large scale. This includes the demolition of family homes of suspected “terrorists” in the occupied Palestinian territory and the 17-year-long siege on the Gaza Strip.
Israeli courts have consistently rejected the claim that these two policies amount to collective punishment.
Regulation 119 (1) of the Israeli Emergency Laws allows for the demolition of houses as punishment for committing illegal actions or if there is a suspicion that an illegal action is taking place in that home, even if multiple generations live in it. This is directly contradictory to Article 33 of the Geneva Convention as the policy disregards any non-involved people living in the house and therefore constitutes collective punishment.
Nevertheless, in 1986, an Israeli court ruled that demolitions were not collective punishment, based not on the impact of home demolitions (which do affect whole families), but instead based on the odd consideration that it would make Regulation 119 (1) redundant as it would only be applied to “terrorists” who supposedly live alone.
More surprisingly, the same court argued that demolitions are a “deterrent” rather than a “punishment”, and that the collective impact (of the punishment) actually enhanced the deterring effect.
Judges have also been unwilling to “intervene”, as they are reluctant to infringe on the authority of Israeli field commanders, leaving these decisions entirely to their discretion, in violation of Article 71 of the Geneva Convention. These rulings have effectively closed the door on judicial accountability for this crime. To this day, no Israeli soldier has been prosecuted for the demolition of Palestinian family homes.
In the case of the Israeli siege on Gaza – which has been widely recognized as a form of collective punishment – Israel has also sought to dodge international law provisions.
Before October 7, Israeli officials and legal pundits argued that the siege was a set of economic sanctions. After October 7, the Israeli government imposed a total blockade, cutting off water, electricity, food and medical supplies. Despite the UN and various human rights organisations pointing out the clear evidence of collective punishment, including starvation, Israeli officials claimed that its forces are allowing enough aid “to prevent a humanitarian crisis”. According to Oxfam, the calorie count in Gaza currently stands at 245 per day, roughly a quarter of the bare minimum needed to avoid starvation.
Against this background of internationally prohibited practices, authorized by judicially created legal exceptions that contradict international law, the Israeli legal system has consistently failed to hold the Israeli authorities accountable for violations of international law. In fact, by upholding loopholes, Israel’s judiciary has systematically enabled torture and authorized instances of collective punishment.
Over the years, Israel has put a lot of effort into covering up the abyssal gap between international standards and Israeli army policies, facilitated by a convoluted system of legal exceptions. Now, the house of cards has come tumbling down.
Taj Hussain is a lawyer and researcher working in the field of international humanitarian law at the Center for Conflict and Humanitarian Studies (CHS)
Laurent A Lambert is an Associate Professor of public policy at the Doha Institute for Graduate Studies and the Head of the Humanitarian and Refugee Studies Unit at the Center for Conflicts and Humanitarian Studies (CHS)
