- U.S. supports Israel despite war crime claims
- Israeli courts shield military from prosecution
- Torture, collective punishment continue unchecked
For more than nine months, the United States and other close friends of Israel have frequently backed the Israeli army’s actions in Gaza and the West Bank. They have dismissed or ignored claims of genocide, torture, collective punishment, and other war crimes and crimes against humanity despite multiple reports describing atrocities by UN experts and human rights organizations.
Israeli friends frequently mention the possibility of seeking justice for crimes committed in Israeli courts while supporting the Israeli army. In its reaction to International Criminal Court Prosecutor Karim Khan’s request for arrest warrants for Israeli officials, the US State Department, for example, stated that the prosecutor failed to conduct a national investigation first. The Israeli administration has also advanced the same rationale.
However, a closer look at the Israeli legal system suggests that prosecuting Israeli officials for war crimes is unlikely to produce results.
Israel’s legislative and judicial bodies acknowledge international law and conventions. However, legal exceptions allow the Israeli government, security, and military forces to completely flout international law, weakening its limitations on matters of grave importance.
Torture and collective punishment are two examples of crimes that demonstrate the legal conflict between Israeli and international law.
Torture is categorically prohibited under international humanitarian law and international human rights law. This ban stems from the Universal Declaration of Human Rights, the Geneva Conventions and Additional Protocols, the Convention Against Torture, etc.
Torture is forbidden in Israeli law, as stated in paragraph 277 of the 1977 Israeli Penal Code and Israel’s 1991 ratification of the Convention Against Torture. However, the practice of torture has been well documented by Israeli NGOs and Israeli media, and it continues with no legal ramifications. According to human rights groups, this illegal behaviour has worsened over the last nine months.
The Public Committee Against Torture in Israel (PCATI) reports that more than 1,400 claims of torture by Israeli authorities were submitted between 2001 and 2022. Still, only two were examined, and none resulted in indictments.
That is because Shin Bet (internal security services) agents and Israeli soldiers are shielded by a legislative loophole that allows for “necessity” to evaluate if torture can be employed in all so-called “ticking bomb situations”. These circumstances are vaguely defined and justify the use of torture to acquire information from a suspect that will allegedly help avert an impending threat to life and national security. Despite how open to interpretation a “ticking bomb situation” can be, the Israeli Supreme Court upheld this exception twice, in 1999 and again in 2018.
The Israeli authorities have acknowledged the problem with the loophole and vowed to enact an unambiguous law outlawing torture, but nothing has happened. PCATI even forwarded 17 of its cases to the ICC in 2022, realizing that justice for torture victims would be brutal to obtain in Israeli courts. This is because most cases are quickly rejected. After all, “there is no evidence supporting the interrogatees version”.
Collective punishment follows a similar path. It involves imposing sanctions on several citizens based on the actions of one or more persons. Its international ban dates back to the Hague Convention of 1899, which was reiterated by the Geneva Convention and is now considered customary international law.
The Israeli judiciary has often stated its commitment to the prohibition of collective punishment. Furthermore, Section 16 of the Penal Code promotes charges based on international treaties.
However, in actuality, the Israeli army frequently uses large-scale collective punishment. This includes the demolition of accused “terrorists”‘ family homes in the occupied Palestinian land, as well as the 17-year-long siege of the Gaza Strip.
Israeli courts have consistently rejected the argument that these two programs constitute collective punishment.
Regulation 119 (1) of the Israeli Emergency Laws authorizes the demolition of houses as punishment for doing illegal acts or if there is a suspicion that unlawful conduct is taking place in that residence, even if numerous generations live there. This contradicts Article 33 of the Geneva Convention because the approach ignores non-involved people residing in the house, resulting in collective punishment.
Nonetheless, in 1986, an Israeli court ruled that demolitions were not collective punishment, based not on the impact of home demolitions (which do affect entire families) but instead on the odd consideration that it would render Regulation 119 (1) redundant because it would only apply to “terrorists” who allegedly live alone.
Surprisingly, the same court argued that demolitions are a “deterrent” rather than a “punishment” and that the collective impact (of the penalty) increased the deterrent effect.
Judges have also been reluctant to “intervene” because they do not want to infringe on the authority of Israeli field commanders, leaving these choices solely to their discretion, which violates Article 71 of the Geneva Convention. These rulings virtually ended judicial accountability for this crime. So far, no Israeli soldier has been prosecuted for demolishing Palestinian family houses.
In the instance of Israel’s siege of Gaza, which has been universally recognized as a form of collective punishment, Israel has also attempted to skirt international law.
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Before October 7, Israeli officials and legal experts claimed that the siege was a set of economic sanctions. Following October 7, the Israeli authorities implemented a total blockade, cutting off water, electricity, food, and medical supplies. Despite the UN and several human rights organizations pointing out strong evidence of collective punishment, including malnutrition, Israeli officials asserted that their forces are allowing adequate aid “to prevent a humanitarian crisis”. According to Oxfam, the calorie count in Gaza is 245 per day or nearly one-quarter of the minimum required to avoid famine.
Against this backdrop of internationally illegal acts sanctioned by judicially established legal exceptions that contradict international law, the Israeli legal system has consistently failed to hold Israeli officials accountable for violations of international law. In fact, by maintaining loopholes, Israel’s judiciary has systematically allowed torture and collective punishment.
Over the years, Israel has made significant efforts to bridge the chasm between international standards and Israeli army policy, which is aided by a convoluted system of legal exceptions. Now, the House of Cards has collapsed.
