For more than nine months, the United States and other close allies of Israel have repeatedly defended the Israeli military’s conduct in Gaza and the West Bank. They have dismissed 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 defense of the Israeli military, Israeli allies often raise the possibility of seeking justice for crimes committed in Israeli courts. In its response to International Criminal Court Prosecutor Karim Khan’s request for arrest warrants for Israeli officials, for example, the U.S. State Department claimed that the prosecutor had not previously requested a domestic investigation. The Israeli government has also made the same argument.
But a closer look at the Israeli justice system reveals that such prosecutions for war crimes committed by Israeli officials are unlikely to yield results.
The Israeli legislative and judicial authorities certainly recognize international law and international conventions. However, through legal exceptions, they also create spaces for a complete disregard of international law by Israeli officials and security and military forces. This undermines the prohibitions of international law on issues of paramount importance.
Two examples of crimes that illustrate this legal contradiction between Israeli jurisprudence and international law are torture and collective punishment.
Torture is an absolute criminal offence under international humanitarian law and international human rights law. This prohibition is derived from the Universal Declaration of Human Rights, the Geneva Conventions and their Additional Protocols, the Convention against Torture, etc.
The Israeli legal system recognizes torture as illegal, under Section 277 of the 1977 Israeli Penal Code and Israel’s ratification of the Convention Against Torture in 1991. But in reality, the practice has been widely documented by Israeli NGOs and media and has no 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 allegations of torture by Israeli authorities were made, but only two were investigated and none resulted in indictments.
Indeed, Shin Bet (Internal Security Service) agents and Israeli soldiers are protected by a legal loophole that determines whether torture can be used in all so-called “ticking bomb” situations. These scenarios are vaguely defined and justify the use of torture to extract information from a suspect that can supposedly help prevent imminent danger to life and national security. Despite the freedom of interpretation that a “ticking bomb” situation offers, this exception was upheld by two rulings by the Israeli Supreme Court in 1999 and again in 2018.
Israeli authorities have acknowledged this gap as a problem and promised to create an explicit law against torture, but nothing has been done. PCATI has even referred 17 of its cases to the ICC in 2022, as it realized that it would be impossible to provide justice to torture victims in Israeli courts. Indeed, most cases are quickly dismissed on the grounds that, supposedly, “there is no evidentiary basis to support the version of the interviewees.”
The issue of collective punishment follows a similar trend. Collective punishment is punishment inflicted on several civilians because of the actions of one or more individuals. Their international prohibition dates back to the Hague Convention of 1899, reaffirmed by the Geneva Convention and has become an international custom.
The Israeli judiciary has repeatedly affirmed its commitment to prohibiting collective punishment. In addition, Article 16 of the Penal Code facilitates prosecutions based on international agreements.
In practice, however, the Israeli army regularly resorts to large-scale collective punishments, such as the demolition of homes belonging to families of suspected “terrorists” in the occupied Palestinian territories or the 17-year siege of the Gaza Strip.
Israeli courts have consistently rejected the argument that both policies amount to collective punishment.
Article 119 (1) of the Israeli Emergency Laws allows for the demolition of homes as punishment for illegal acts committed or suspected illegal acts committed in that home, even if several generations live there. This measure is in direct contradiction with Article 33 of the Geneva Convention, as it does not take into account the unaffected persons living in the home and therefore constitutes collective punishment.
However, in 1986 an Israeli court ruled that the demolitions did not constitute collective punishment, not because of the impact of the house demolitions (which affect entire families), but rather because of the odd consideration that this would render Regulation 119(1) redundant because it would only apply to “terrorists” who supposedly live alone.
Even more surprisingly, the same court held that demolitions are a “deterrent” rather than a “punishment,” and that the collective impact (of the punishment) actually reinforces the deterrent effect.
The judges also did not want to “intervene,” as they are reluctant to encroach on the authority of Israeli commanders on the ground, leaving such decisions entirely to their discretion, in violation of Article 71 of the Geneva Convention. These decisions effectively closed the door to judicial accountability for this crime. To date, no Israeli soldier has been prosecuted for the demolition of Palestinian family homes.
In the case of the Israeli siege of Gaza – which has been widely recognised as a form of collective punishment – Israel has also sought to circumvent the provisions of international law.
Before October 7, Israeli officials and legal experts claimed that the siege was a series of economic sanctions. After October 7, the Israeli government imposed a total blockade, cutting off water, electricity, food and medical supplies. Although the UN and various human rights organizations have pointed to clear evidence of collective punishment, including starvation, Israeli officials have claimed that their forces are allowing in enough aid “to avert a humanitarian crisis.” According to Oxfam, the calorie count in Gaza currently stands at 245 per day, about a quarter of the bare minimum needed to avert starvation.
In this context of internationally prohibited practices authorized by judicially created legal exceptions that are contrary to international law, the Israeli legal system has systematically failed to hold Israeli authorities accountable for violations of international law. In fact, by maintaining loopholes in international law, the Israeli judicial system has systematically permitted torture and authorized cases of collective punishment.
Over the years, Israel has made many efforts to bridge the abysmal gap between international norms and the Israeli military’s policy, relying on a complex system of legal exceptions. Today, the house of cards is collapsing.
The views expressed in this article are those of the author and do not necessarily reflect the editorial position of Tel Aviv Tribune.
