The Israeli Legal System and International Law
The United States and other close allies of Israel have been defending the actions of the Israeli army in Gaza and the West Bank for more than nine months. Despite multiple reports describing various atrocities by UN specialists and human rights organizations, they have denied or disregarded claims of genocide, torture, collective punishment, and other war crimes and crimes against humanity.
Israeli allies very often bring to the possibility of pursuing criminal justice in Israeli courts while justifying the existence of the Israeli army. For example, the US State Department has responded to Prosecutor Karim Khan of the International Criminal Court by claiming that the prosecutor did not initially seek an arrest order for Israeli officials. The Israeli government has also advanced a similar argument.
However, a thorough examination of the Israeli legal system shows that it is doubtful that such a prosecution of justice for war crimes perpetrated by Israeli officials can result in any meaningful outcomes.
The legal and legislative branches of Israel do acknowledge international law and conventions. However, they also provide room for Israeli authorities, security personnel, and armed forces to completely disobey international law through the use of legal exceptions. This weakens international law’s prohibitions on important issues.
Torture and collective punishment are two examples of crimes that highlight this legal inconsistency between Israeli jurisprudence and international law.
Both international humanitarian law and international human rights law categorically forbid torture. The Universal Declaration of Human Rights, the Geneva Conventions and their Additional Protocols, the Convention against Torture, and other documents serve as the foundation for this ban.
The Israeli legal system recognizes torture as unlawful, based on paragraph 277 of the 1977 Israeli Penal Code and Israel’s 1991 adoption of the Convention Against Torture. However, in actuality, the use of torture has been well-documented by Israeli media outlets and non-governmental organizations, and it is still legal. Human rights activists claim that this illegal practice has significantly worsened during the last nine months.
As stated by the data from the Public Committee Against Torture in Israel (PCATI), over 1,400 claims of torture by Israeli authorities were given in between 2001 and 2022; however, only two of those accusations were looked into, and none of them led to charges.
Legislative Loopholes and “Ticking Bomb” Situations
This is due to a legislative loophole that shields Israeli soldiers and Shin Bet operatives from prosecution by requiring “necessity” to decide if torture is appropriate in all alleged “ticking bomb situations.” These ill-defined outlines support the use of torture to lean on information from a suspect that may help prevent a near threat to national security or human life. Even though a “ticking bomb situation” is subject to interpretation, the Israeli Supreme Court upheld this exception in two verdicts, one in 1999 and the other in 2018.
The Israeli government has acknowledged the loophole as problematic and has committed to drafting a clear law against torture; but, as of yet, no such law has been created. Due to the finding that torture victims would never be given justice in Israeli courts, PCATI even forwarded 17 of its cases to the International Criminal Court (ICC) in 2022. This is because most cases are quickly let fall under the excuse that “there is no evidential basis supporting the interrogatees version.”
Collective Punishment and Its Legal Inconsistencies
A similar trend can be seen in the case of collective punishment. The imposition of punishments on a group of people due to the actions of one or more individuals is known as collective punishment. Its worldwide ban began with the Hague Convention in 1899, was upheld by the Geneva Convention, and is now established international customary law.
The Israeli judiciary has stated time and time again that it would not allow collective punishment. In addition, charges based on international accords are made easier by Penal Code section 16.
However, the Israeli army frequently uses widespread collective punishment. This includes the 17-year embargo on the Gaza Strip and the demolition of accused “terrorists'” family homes in occupied Palestinian territory.
All these two policies can give thought to collective punishment, but Israeli courts have always rejected this argument.
Home Demolitions as Collective Punishment
Even in a situation where several generations reside in a property, it may still be demolished as punishment for engaging in unlawful activity or if there is reason to believe that illegal activity is occurring there, according to Israeli Emergency Laws Regulation 119 (1). As a result of the policy’s contempt for any non-involved residents of the home, it directly violates Article 33 of the Geneva Convention and amounts to collective punishment.
Even so, in 1986, an Israeli court decided that demolitions did not qualify as collective punishment. This decision was made not because of the effects of home demolitions, which do impact entire families, but rather because it seemed strange to think that Regulation 119 (1) would become unnecessary since it would only apply to “terrorists” who purportedly live alone.
Even more astonishingly, the same court contended that demolitions are a “deterrent” as opposed to a “punishment,” and that the deterrent effect was strengthened by the punishment’s communal impact.
Judiciary Support for Collective Punishment and Torture
Additionally, judges have refrained from “intervening,” fearing that doing so would violate Article 71 of the Geneva Convention by encroaching on the authority of Israeli field commanders and leaving all decision-making up to their discretion. These decisions have essentially shut down the courts’ capacity to hold this crime accountable. No Israeli soldier has ever faced legal action for demolishing Palestinian family houses.
Regarding the Israeli siege of Gaza, which is commonly acknowledged as a form of collective punishment, Israel has also attempted to circumvent the norms of international law.
Legal experts and Israeli officials contended that the siege was merely a series of economic measures before October 7. Following October 7, food, water, electricity, and medical supplies were all cut off by the Israeli government, which enforced a complete blockade. Israeli officials claim that their forces are allowing adequate aid “to prevent a humanitarian crisis,” despite the UN and other human rights organizations pointing out the obvious signs of collective punishment, including malnutrition. As per Oxfam, the daily caloric intake in Gaza is presently 245, which is approximately 25% of the minimum required to prevent famine.
The Israeli legal system has many a time failed to hold the Israeli government accountable for violations of international law against this backdrop of globally illegal behaviors that are permitted by judicially crafted legal exceptions that deny international law. In actuality, Israel’s judiciary has often backed cases of collective punishment and permitted torture by maintaining loopholes.
Israeli Legal System Conclusion: The House of Cards Falls Apart
With the aid of a complex web of legal exclusions, Israel has worked hard over the years to conceal the stark differences between Israeli army policy and international norms. The House of Cards has now fallen apart.