This racist Israeli law should be renamed 'Death Penalty for Palestinians Only'
Israel now has two new capital criminal offences on its books, through the adoption of the "Death Penalty for Terrorists Law" (DPT).
One offence exists in Israeli municipal law, applicable in the territory Israel claims (in certain respects erroneously and illegally as a matter of international law) to be its sovereign territory: the territory of Mandatory Palestine within the 1949 "Green Line" plus East Jerusalem, and the Syrian Golan Heights.
Israeli municipal law can also be potentially enforced within this territorial space to cover acts performed outside it, notably the Palestinian Gaza Strip, and occupied parts of Lebanon and (in addition to the Golan Heights) Syria.
The other offence exists in the military legal system Israel operates (illegally as a matter of international law) in what it calls the "Area", meaning the Palestinian West Bank outside of East Jerusalem.
The combined effect is the potential operation of a new capital offence regime across the entirety of Israel’s dominion over Mandatory Palestine and the Syrian Golan Heights, as well as Israeli occupied parts of Lebanon and (in addition to the Golan Heights) Syria.
Given the effective near-dormancy of the existing capital offences in both the municipal and military legal systems, the new capital offences created in each system by the DPT Law effectively amount to the main, general capital offence regime operated by Israel.
A state that, effectively, did not have the death penalty, has now introduced it.
Both capital offences cover intentional killing taking place in circumstances meeting the definition of "terrorism" in Israel’s 2016 Counter-Terrorism Law.
The offence in municipal law has the additional element of “the aim of negating the existence of the State of Israel”.
As I explain in a new legal opinion for the Arab Organization for Human Rights in the UK, the existence and, if it happens, implementation of these two offences constitute serious breaches of two sets of fundamental legal obligations borne by Israel in international law.
The two obligations are, first, to respect the Palestinian right to self-determination and the cognate legal right to resist, and, second, the prohibition of racial discrimination.
Self-determination and the right to resist
On the right to resist, the two new offences are broad enough to encompass lawful acts of resistance pursuant to a legal right that the Palestinian people have in this respect.
Both offences are concerned with the intentional deprivation of life. This can be lawful pursuant to a lawful act of resistance, if various conditions are met - for example, necessity, proportionality, that the targeted individual has a particular status (and so is not a civilian) and so is a lawful target, etc.
The DPT Law does not provide for any exceptions relevant here.
As indicated, both offences require that the deprivation of life constitutes an act of/takes place in the circumstances of terrorism as defined in Israel’s 2016 Counter-Terrorism Law.
That definition is capable of encompassing lawful acts of Palestinian resistance. As also indicated, the offence operative in the Israeli municipal system in particular has an extra element, that the act is performed “with the aim of negating the existence of the State of Israel”.
This concept, which is not defined in the DPT Law nor anywhere else in Israeli law, is potentially broad enough to encompass the aim of lawfully enabling the realisation of the legal right of self-determination of the Palestinian people.
In the first place, the partial realisation of this aim would mean that the "existence" of the State of Israel, in terms of the extent of its territorial dominion, would be significantly reduced, from the current position of the entirety of Palestine, to only its actual sovereign territory (within the "Green Line", minus West Jerusalem).
In the second place, the partial realisation of this aim would result in the "existence" of the State of Israel as a specifically Jewish state, meaning a state of and for Jewish people exclusively, as opposed to a state where Jewish people live as equals with all others on the same land without any supremacy, would be entirely negated.
This Israel - Zionist supremacist Israel - would, indeed, end. Realising the end of all forms of racial discrimination generally and apartheid in particular would "negate" the current State of Israel as a racist, apartheid state.
Realising the return of all Palestinian refugees would potentially "negate" the current demographic composition of Israel’s citizenry as skewed artificially in favour of Jewish Israelis.
In consequence, both offences criminalise acts of Palestinian resistance to Israel’s own international illegality, acts which are lawful pursuant to the Palestinian people’s right to self-determination.
In doing so, Israel is breaching the fundamental right of self-determination of the Palestinian people. These breaches are of a serious character.
Racial discrimination
On the prohibition of racial discrimination, in different ways, but with the same outcome, the new capital offence regime has been set up by the DPT Law so that it will, in effect, only apply to Palestinians, and not apply to Jewish Israelis. As such, it involves unlawful racial discrimination.
In the case of the new offence in the municipal legal system, this, on its face, applies to everyone subject to that system - Palestinian and Jewish Israeli alike. However, one of the necessary elements of the crime - the “aim of negating the existence of the State of Israel” - is something that is, in all likelihood, only ever going to be applicable to non-Jewish Palestinian people, and never going to be applicable to Jewish Israelis.
In truth, the law should be entitled the 'Death Penalty for Palestinians Law'
In the case of the new capital offence in the military legal system operative in the "Area" - the West Bank outside of East Jerusalem - here, the exclusion of Jewish Israelis is effected not through one of the elements of the crime - the key element of the new municipal law crime referred to above is not included in the new military law crime - but in the way that this crime does not even apply to all people in the "Area" to begin with: citizens and residents of Israel are expressly excluded.
Most people in the "Area" are either Jewish citizen soldiers and/or settlers, who are excluded from the offence by virtue of this citizenship, or Palestinians who are neither citizens nor residents of Israel, and who are, in consequence of lacking such citizenship or residency, included in the offence.
The law therefore uses Israeli citizenship and residency as the tool to distinguish between Jewish people and non-Jewish Palestinian people, by creating a new capital offence that operates in the "Area" where both are located, but only applies to the latter (unless they are the tiny minority who do have Israeli citizenship or residency), and not also the former.
Since, as indicated, this is effectively the only Israeli-run capital penal regime in operation and, more specifically, the only capital penal regime in operation in the case of intentional killing in circumstances that meet the definition of "terrorism" in Israeli law - there are no other equivalent legal arrangements in play, providing for capital punishment, for any crimes, and, in particular, intentional killing meeting the definition of "terrorism" by Jewish Israelis.
In consequence, in the case of the municipal legal system, people who commit intentional killing meeting the definition of "terrorism" will never face the death penalty unless they are deemed to have done this “with the aim of negating the existence of the State of Israel”.
As in all probability this extra factor will only ever be relevant to Palestinian people, and never Jewish Israelis, requiring it effectively means that the death penalty has been introduced for intentional killing meeting the definition of "terrorism", but only for Palestinians, and not for Jewish Israelis.
Likewise, in the case of the new crime in the military legal system, Israeli citizens in the "Area" - mostly Jewish Israeli settlers and soldiers - who commit intentional killing meeting the definition of "terrorism" will never face the death penalty (nor, as indicated, will they face the new crime in the municipal legal system on the basis of the personal/individual application of the municipal legal system to them), whereas Palestinians there (other than the tiny minority who have Israeli citizenship or residency) will face the death penalty.
The overall consequence is that through the DPT Law, Israel has adopted a general regime whereby it has a potentially active penal system with the death penalty in its two main operative legal systems which only applies to Palestinians and not to Jewish Israelis.
This is not an accident. It was the intention of the law, as evidenced by how it was justified by those who proposed and supported it, and more generally how it has been understood within Jewish Israeli society.
The law calls itself the "Death Penalty for Terrorists" law, but it is, actually, a law that effectively (in the case of the municipal offence) or directly (in the case of the military law regime offence) excludes Jewish Israelis who commit intentional killing meeting the definition of terrorism - Jewish settlers doing this in the West Bank, for example - from its coverage. If, then, one word is to be attached to this law, as far as the law’s own terms are concerned, that word cannot be "terrorists".
In truth, the law should be entitled the "Death Penalty for Palestinians Law".
Effectively applying the death penalty to one racial group, and excluding another racial group from this application, on the basis of the racial difference between the two groups, is a paradigmatic case of unlawful racial discrimination, and, as such, constitutes a serious breach of Israel’s fundamental obligations in international law.
Other violations
The right of Palestinian self-determination and the cognate Palestinian right to resist, and the prohibition of racial discrimination, are not the only areas of international law violated by the creation of the new offences and their potential implementation.
The analysis provided herein, concerning these two violations, should be taken together with a consideration of the other violations, notably of international human rights law standards of fair trial/due process, and the prohibition of torture and cruel, inhuman or degrading treatment; how the racially discriminatory nature of the law, which is covered herein, forms part of the broader illegal system of apartheid; and how the law and its implementation form part of the genocide perpetrated against the Palestinian people.
It is also important to account for the relevance of the broader illegal nature of Israel’s presence in a significant area of territory where the offences will apply, thereby rendering this application illegal as forming part of an exercise of authority that is itself illegal.
Broader context - Jewish racial privilege
To fully appreciate the nature and international illegality of the DPT Law, it is necessary to account for the broader context.
It is the Israeli raison d’etre that Israel, as a Zionist State - a state for Jewish people exclusively - exists in and is the exclusive sovereign over the entire land of Mandatory Palestine.
The Palestinian people constitute a fundamental impediment to this enterprise, and the Zionist attempted solution to this impediment involves three policies and associated practices.
Now the existing means of Israeli state-conducted killing of Palestinians - the actions of the armed forces - is supplemented through judicially sanctioned executions
The first policy is the removal of Palestinian people from this land. That policy is furthered through killing, as has reached a genocidal apogee in the Gaza Strip, and forced displacement - something which, in particular, spiked in 1947-8 (the Nakba), 1967 (the Naksa), and 2023 (the Gaza genocide) - entrenched through the denial of refugee return.
The second policy is the subjugation, immiseration, incarceration and systematic abuse of those Palestinian people remaining under Israeli dominion. The third policy is the elimination of Palestinian objection and lawful resistance, on the basis of their international legal right to self-determination, to the Zionist enterprise and its implementation through the two policies.
The foregoing Zionist enterprise necessarily operates through a racialised distinction whereby Jewish people are privileged over non-Jewish Palestinian people.
When it comes to the Palestinian people, it is this racialised distinction - that they are not Jewish - that is the basis for their removal from Palestine through killing, displacement, and non-return, and the subjugation, immiseration, incarceration and systematic abuse of those who remain.
Conversely, when it comes to Jewish people, it is this racialised distinction - that they are Jewish - that is the basis for their ability to live in a State conceived to be of and for them exclusively, and for all Jewish people, anywhere in the world, to have the possibility of this life through emigration and citizenship.
The dialectic between Jewish supremacy and non-Jewish Palestinian subjugation is of its essence racist, requiring Israel to operate as a State, and exercise dominion over the territory and people of Mandatory Palestine, through racial discrimination generally and apartheid in particular.
Moreover, of necessity, it is Jewish Israelis (with crucial external support) who have to engage in the killing, displacement, prevention of return, subjugation, immiseration, incarceration and systematic abuse of the Palestinian people, and the continual conduct of these practices has to be an integral part of their life and the operation of the Israeli state.
Part of the Zionist enterprise
The so-called Death Penalty for Terrorists Law - as suggested, in truth, the Death Penalty for Palestinians Law - is but the latest manifestation of this broader Zionist enterprise and the catastrophic effect of that enterprise on the Palestinian people. As such, it builds on existing features of the enterprise.
It permits Jewish Israelis to intentionally kill Palestinians through acts that would meet the pre-existing Israeli municipal law definition of terrorism, without the risk of facing the death penalty, despite the death penalty now - through this new law - existing for intentional killing meeting such a definition.
This arrangement is rooted in and further extends the aforementioned general concept of Jewish racial privilege: Jewish Israelis, because they are Jewish, being given a lesser penalty for the same crime when compared to that which Palestinian people, because they are not Jewish, would get.
The arrangement also risks incentivising and so enabling race-based killings of Palestinians by Jewish Israelis, supplementing the already-existing opportunity the latter have to do this through military service.
Furthermore, if implemented, the arrangement will potentially mean the Israeli state killing more Palestinians.
Here, then, the existing means of Israeli state-conducted killing of Palestinians - the actions of the armed forces - is supplemented through judicially-sanctioned executions.
Fundamentally serious
Enabling more killing of Palestinians by both individual Israelis outside of military service, and the Israeli state, is, again, rooted in and further extends the aforementioned first policy of the Zionist enterprise - the removal of Palestinians from Palestine - generally, and in particular as a new way of furthering the aforementioned third policy of the Zionist enterprise - eliminating Palestinian resistance - adding new means and methods to the most extreme practice aimed at removing Palestinians from Palestine, viz., killing them.
Just as the DPT Law builds on the existing features of the Zionist enterprise, so too the way it seriously violates fundamental rules of international law - Palestinian self-determination and the cognate right of resistance, and the prohibition of racial discrimination - builds on other serious violations of these and other fundamental rules of international law that are integral to that enterprise.
As I have explained elsewhere, the fundamental rules of international law seriously violated are: the Palestinian right of self-determination more generally; the prohibitions of aggression, genocide, crimes against humanity, racial discrimination more generally, apartheid in particular, torture and cruel, inhuman or degrading treatment generally; and the core rules of international humanitarian law.
Necessarily, then, the nature of the new DPT Law, and how it seriously violates fundamental rules of international law, ultimately have to be understood, and addressed, not in isolation, but as part of something relatively more long-standing, profound, wide-ranging, and fundamentally serious.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Eye.
This article was sourced from Middle East Eye.
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