Israel's death penalty bill robs Palestinians of their right to life

The Israeli government is currently advancing a new bill that seeks to impose a death penalty on Palestinians. According to the bill, which was introduced by MK Limor Son Har-Melech from Otzma Yehudit (“Jewish Power” party), and approved by the majority of the Knesset in a preliminary vote on the 1st of March, Palestinians are under the direct threat of judicially-sanctioned execution.

According to the proposed bill, it will be mandatory for judges to sentence defendants to death if they find that the defendant “willfully or negligently cause[d] the death of an Israeli citizen out of a motive of racism or hostility towards the public”, while aiming to “harm the state of Israel” and “the revival of the Jewish people in its homeland”.

These conditions create a basis for the racist implementation of the law. They introduce a new separate racially-based track for Palestinians under Israeli control, according to which they are excluded as victims, yet executed as defendants.

As discussed in Adalah Legal Centre and the Public Committee Against Torture’s position paper on the law, the text of the bill and its explanatory notes are general, vague, and wide-ranging, which allow its enforcement on countless cases against Palestinians only.

"This track reinforces two different and distinct penal systems that institutionalise ethnic supremacy in the right to life: one system for Jewish-Israelis, that sees life as sacred and protected by law, and another for Palestinians, that legalises the state’s right to deny it"

At the same time, crimes of causing death or murder committed for the same motivations against Palestinians - whether they are citizens and residents of the State of Israel or protected persons in the West Bank, Gaza, and East Jerusalem - are punishable by imprisonment only.

The bill also establishes a sweeping and compulsory punishment. Judges in Israeli civil and military courts would not be allowed to use any discretion when sentencing a defendant convicted of such an offence, and would be obligated to sentence him or her to death, regardless of the individual circumstances of the case.

In this sense, this track reinforces two different and distinct penal systems that institutionalise ethnic supremacy in the right to life: one system for Jewish-Israelis, that sees life as sacred and protected by law, and another for Palestinians, that legalises the state’s right to deny it.

Using terminology that has never been seen before in the Israeli Penal Code, the bill further entrenches the racist enemy penology orchestrated within the State’s criminal system, perceiving Palestinians as a continuous threat to the state that are excluded from the “regular” approach to punishment.

According to the bill and its explanatory notes, Palestinians that are convicted of the crimes outlined in the bill are dehumanised and excluded as “others”, as they are seen as “terrorists” and, therefore, an enemy of the state and society. To that end, killing them is legitimate and acts as a deterrent to anyone who intends to “harm the state of Israel and the revival of the Jewish people in its homeland”.

Moreover, rationalising the death penalty against Palestinians as deriving from a wider societal and political context – one that is intertwined with an exclusive right to self-determination for Jews – is unprecedented in the Israeli Penal Code. It is the first time where a criminal offence – let alone capital punishment – reflects Israel’s apartheid Jewish Nation-State Law that was enacted in 2018.

Through the above mentioned cumulative conditions, the bill criminalises acts that not only endanger the security of the state (as it already exists in numerous offences in the Israeli Criminal Law and the “Counter-Terrorism” Law), but also threaten an undefined and ongoing process of exclusive Jewish self-determination, which, similar to the Jewish Nation State Law, lacks any geopolitical borders or any mention of Palestinian collective rights, or even their existence.

This terminology reflects the enemy doctrine of the bill, but also the colonial social structure behind it that maintains an exclusive self-determination for the Jewish people.

The death penalty is not new to the Israeli legal system; there are several provisions that allow the imposition of capital punishment, which can be applied both in civil and military courts.

However, until now, judges have refrained from enforcing it almost entirely. Apart from the case of the Nazi official Adolf Eichmann, who was executed in 1962, no other person has ever been executed at the behest of an Israeli court.

Moreover, numerous Israeli court decisions have emphasised the supreme value of the right to life that must be protected in all circumstances. Internationally, Israel has voted consistently in favour of abolishing the death penalty at the UN.

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However, reality speaks differently. As a matter of policy, Israeli forces – both the police and the military – extrajudicially execute Palestinians on a regular basis, as they follow vague and undisclosed open fire regulations and are subsequently provided immunity from prosecution.

In 2022 alone, over 200 Palestinians were summarily killed by the Israeli armed forces. In practice, these forces open fire with an intention to kill, perceiving Palestinians as a continuous threat to the public. That is, of course, until they’re dead.

This is evident in the police forces’ understanding of “neutralising” danger, a neutralisation that can only be accomplished through the execution of the person without trial, even when he or she is laying on the ground, posing no objective danger to the forces or to the public.

Even when investigations are made in cases where the evidence of extrajudicial execution is clear, reports show that most, if not all, of these cases are closed with no criminal charges filed (as, for example, in the cases of Eyad el Hallaq, Ahmad Eraqat, Yaqoub Abu el Qe’aan, Shireen Abu Akleh, and most recently, Mohammed al Oseibe).

"The death penalty bill is a grave escalation in Israel’s pre-existing policy and practice of executions. At its core, it is a reflection of immense aggression towards Palestinians"

To make things worse, Israel regularly withholds Palestinians’ bodies – in a procedure that has been upheld by the Supreme Court – punishing them and their families even after their death. According to a report prepared by the Jerusalem Legal Aid and Human Rights Centre in 2019, around 250 Palestinians are still buried in “cemeteries of numbers” (unmarked graves), in addition to almost 50 bodies that are being held as bargaining chips.

Even though Israel acts on the surface as an abolitionist country, it maintains two consistent policies: the extrajudicial execution of Palestinians and the lack of accountability for the perpetrators involved. This new bill exacerbates the dangers of these policies, as it expands the existing legal provision – not only condoning, but indeed mandating, state execution – under the guise of a lawful punishment.

This bill comes at a time when more and more countries are abolishing the death penalty and international bodies are continuously condemning the use of such punishment, due to its inhumane nature and its violation of the right to life, right to a fair trial, and right to be free from torture and other cruel, inhuman, or degrading treatment or punishment.

The death penalty bill is a grave escalation in Israel’s pre-existing policy and practice of executions. At its core, it is a reflection of immense aggression towards Palestinians, one that is orchestrated through a colonial system of power and hatred that is transcribed in society, media, and politics.

It demonstrates the intensity of violence that a state is willing to take on in the name of supremacy in a context where Palestinians, collectively and individually, are dehumanised to the level of murder – and beyond.

Adi Mansour is a lawyer in the Political and Civil Rights Unit in Adalah Legal Centre for Arab Minority Rights in Israel .

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Opinions expressed in this article remain those of the author and do not necessarily represent those of The New Arab, its editorial board or staff.