What is a “Palestinian terrorist” for the Israeli Government, Justice, army and institutions? Without a doubt, that is a diffuse concept if you look at the -many of them, children and women- throughout the Israeli occupation of the Palestinian territories. Sometimes you become a terrorist simply by crossing an invisible line, but the judge who ends up passing the sentence is usually a soldier or the explosion of a drone. Nothing new in the land where it is sometimes justified to shoot down children or adolescents for throwing stones.
Beyond the practice on the ground, the Israeli Parliament has given its approval, this Tuesday, in first reading to a draft law that goes further. It would legalize – in terms of Israeli domestic law – the killing of alleged Palestinian “terrorists.” But to those who are inside an Israeli cell serving a sentence. Beyond Netanyahu’s Likud and ultras, the draft has not met with much opposition in the Knesset. There were 39 votes in favor compared to 16 against.
After knowing the results of that vote, it did not take long for the cheers and celebrations to come, personified by the promoter of the norm himself, the Minister of National Security, leader of the Zionist and far-right party Jewish Power (Otzma Yehudit), Ben-Gvir. He walked through the halls of the Israeli legislative chamber carrying a tray of sweets, handing them to the deputies who accepted them and then outside the chamber, while taking selfies. He portrayed him on his official account, under the quite descriptive headline: “Jewish power, on the way to making history.” With dessert in hand.
They say that ‘revenge is a dish that is served cold’ and, precisely, the concept of revenge is very present in the text of what could become the first legal carte blanche to execute Palestinian prisoners. How would it work? To whom could the capital punishment be applied and in what cases? Does it violate international and humanitarian law? These are the keys that accompany a bill that has raised numerous voices against it.
Who could receive the death penalty for “terrorists”?
The first thing to keep in mind about the law that has begun its journey – it must have three more approvals before it becomes a reality – is to whom it would apply in practice. That is, how it would take precedence over Palestinian citizens, while an Israeli terrorist would not be directly and completely affected by this rule. Let’s take as an example a traumatic case in Israel -unfortunately, not for all Israeli political formations-, that of , the author of the assassination of the former president.
In 1995, the far-right took advantage of the end of a demonstration in defense of the historic Oslo Accords by the time he was heading to his limousine, seriously injuring his escort, Yoram Rubin. Since then, a whopping three decades have passed, 30 years that Amir has served in prison as he was sentenced to life in prison. Could the death penalty have been applied? Basically, the text of this bill stipulates a series of key conditions that favor this law primarily affecting Palestinians.
This penalty will be imposed on that “terrorist” who has been convicted of “who intentionally or through indifference causes the death of an Israeli citizen when the act is committed for a racist motive or hatred of a certain group,” in addition to “with the intention of harming the State of Israel and the rebirth of the Jewish people in their homeland.”
This means that only those convicted of the murder of an Israeli citizen can be executed, with a motivation of vague and inconcrete definition, but which would include numerous cases of inmates whom Israel keeps overcrowded in prison. Those that allude to a concept of action contrary to Israel. That brings us to the next question. Who will decide what is harmful to Israel “and the resurrection of the Jewish people”?
Who would make the decision on a capital punishment…retroactive!?
The other big leg of the bill is that it reduces process guarantees. To give you an idea, this is a ruling that could be applied by Israeli military courts in the occupied territories of the Gaza Strip and the West Bank if there is a “simple majority of the judges of the court of first instance.” Not only would it not require unanimity and higher judicial authorities, but it also provides that this “may not be commuted” to another lower sentence.
“There is only guilty or innocent. If guilty, automatic execution,” said Yitzhak Wasserlauf, Minister for the Development of the Negev and Galilee, during his defense of the proposal in the Knesset. That is, the only option if you are convicted is death. Or in other words, if you are not innocent there is only one possibility, the maximum and irreversible penalty.
Let’s return to the case of the Israeli far-right and murderer Yigal Amir. If he were considered a terrorist who met the characteristics described above and if the aforementioned law ended up being a reality, 30 years later he could be executed. Legal madness? How is it possible? Because the text of said bill has a factor that is as key as it is challenging for all the basic precepts of a Rule of Law: retroactivity.
Although in the practice of judicial processes and, more specifically, in Criminal Law, retroactivity is only used for those cases that benefit the inmate, the articles of this bill break with that legal pillar to allow what would be deferred death sentences. That is, those convicted would not be executed after the eventual entry into force, but rather those who were previously convicted could be killed.
What has been the response of Palestinians and human rights organizations?
Logically, the same proposed law that garnered rejection from NGOs and groups in defense of human rights when it only had the support of the Jewish Power party, continues to do so even though Netanyahu and his people have pulled back and toughened their speech. Regarding this change of mind, everything became clear with the intervention in Parliament by the Israeli coordinator for hostage affairs, Gal Hirsch. He defended that they did not previously support this capital punishment because of what Hamas could do with the hostages left alive in Gaza, already released under Trump’s ceasefire and peace plan: “Since they are already here [los rehenes israelíes]”We are in a different situation.”
Knowing the position of the Netanyahu Government on what Washington assures is a peace process, the response of the Palestinian Islamist group Hamas was soon heard from the Strip. They consider that this law is nothing more than “an attempt to legitimize the mass murder of Palestinians under occupation” and that “it represents a flagrant disregard for international laws and conventions, including International Humanitarian Law and Human Rights.”
In fact, the armed group has raised its voice in its umpteenth call to the international community to act against Tel Aviv in the form of sanctions. “We ask the international community, the United Nations and all Human Rights organizations to condemn this dangerous law of racist occupation and to impose dissuasive sanctions against the rogue Zionist entity to pressure it to withdraw it,” Hamas demanded, which has also asked “international investigative committees” to enter Israeli prisons to “examine the conditions of Palestinian prisoners, subjected to systematic torture and abuse, which has caused the death of dozens of them.”
Beyond the statements of the group that perpetrated the brutal 7-O attacks, various NGOs have spoken out, such as the Palestinian Center for Human Rights and the Independent Human Rights Commission. They condemn the key legal factors mentioned above, such as “its retroactive application”, to denounce that “the main objective of the proposed legislation is to satisfy a desire for revenge or retaliation, rather than to deter or prevent future actions.”
Minister Wasserlauf did not hide that there is some revenge in the rule: “I am not afraid to use the word revenge. It has a very important value. Whoever kills us, we will harm him, we will kill him, yes.” He also concluded that “the best way to ensure there are no kidnappings is for there to be no terrorists,” arguing that the death penalty would prevent the practice of kidnapping in Palestinian attacks because these are used as bargaining chips for Palestinian prisoners in prison. Indeed, the logic of the Netanyahu Executive is that if the prisoners have been executed, there is no longer anyone to try to free.
They have called on Israel to back down. “There is no way to soften this matter; a majority made up of 39 members of the Knesset (Israeli Parliament) approved in first reading a bill that in practice forces the courts to impose the death penalty only on Palestinians,” reads the statement from Erika Guevara Rosas, general director of Research, Advocacy, Policy and Campaigns of the organization.
“Although the text of the bill does not specifically point out the Palestinian population, the mental element required for the crime in question indicates that its main victims will be Palestinian people, including those who had committed the punishable crimes before the promulgation of the law,” Guevara added.
What could the entry into force of this death penalty mean in the short term? Why now?
In this sense, the main fears are for those who, precisely, have not been able to be a bargaining chip during the last exchanges of Palestinian hostages and prisoners. It was a recurring and common point of friction in the conversations between Hamas and Tel Aviv, the Israeli refusal to release any person linked to the 7-O attacks, who have been sentenced to life imprisonment and who are regularly mentioned as targets of this law. The armed wing of Hamas or the militiamen with whom it carried out the attack.
Since the 7-O attack occurred, thousands of members – and alleged members, of course – of the Al Qasam Brigades were imprisoned and subsequently sentenced to life imprisonment. Although express measures have been approved to act against this profile of prisoner, such as the demolition of their homes – regardless of whether their family was involved or not – the truth is that the NGOs believe that an entry into force of the law as it is written would start a chain of executions, retroactively, in which their participation in the attacks would be alleged.
It should be remembered that capital punishment regardless of terrorists or non-terrorists already exists in Israel. A vestige from the time of the British protectorate that was never extracted from the legislation that the Jewish State adopted during its creation. In fact, almost all attempts to use this law have always ended in challenges in the Israeli Supreme Court, with two exceptions. The only two executions took place in 1948 and 1962. They were Meir Tobianski, a Jew who had been convicted of espionage, and , one of the former senior officials of Adolf Hitler’s II Reich and ideologist of the ‘final solution’, after being located and captured by the Mossad in Buenos Aires.
