 |
| 10-April-2026 |
In 1947, while describing the crimes of the judicial system of Nazi Germany, Telford Taylor, lead prosecutor at the Nuremberg Tribunal, opined, “[t]he dagger of the assassin was concealed beneath the robe of the jurist.”
 |
| Israel’s Death Penalty Law for Palestinians by Seth Tobocman. |
With these words, Taylor laid bare the historical context of where and how a state executed, not on the basis of equal application of law for the most serious of crimes, but adopted an institutional cover for mass slaughter of a concocted enemy, all dressed up in a courtroom pretext.
Long before the Nazi party filled its chambers of death with the ashes of many millions of those of different faith, politics, ethnicity and identity, in 1919, Hitler wrote, “the ultimate goal must definitely be the removal of the Jews altogether.”
To accomplish this end, on August 20, 1942, Hitler appointed Otto Thierack, a fervent Nazi, as Reich Minister of Justice. With this appointment, Hitler ensured the death of any independent fact and law-based judiciary in Germany. Substituting in its stead one that fled from an objective rules-based order to become a rubber stamp, finding verdicts of guilt and imposing sentences according to Nazi principles and ideology. In defining the rule of law and the role of jurists within it, Thierack announced an aim not all that different from the very one which echoes throughout the halls of the Israeli Knesset today:
Those in the administration of justice must recognize that it is their job to destroy traitors and saboteurs on the home front… The home front is responsible for maintaining peace, quiet, and order as support for the war front. This heavy responsibility falls especially to German judges. Every punishment is fundamentally more important in war than in peace.
In his treatise The War Path: Hitler’s Germany 1933-1939 David Irving describes with chilling contemporary familiarity, the construct of the Nazi justice system, one in which findings of guilt and imposition of sentence were determined beforehand not by established evidence or controlling law, but based upon what were considered to be “serious political offenses” seen as an affront to fundamental Nazi faith. Known as the “People’s Courts,”:
its judges were more likely to hand down death penalties to members of the most organised opposition groups, those involved in violent resistance against the state and defendants with characteristics repellent to core Nazi beliefs.
Finding Oswald Rothaug, a Nazi jurist, guilty of crimes against humanity among his many international law violations, the Tribunal cited a case where he imposed the death penalty on a member of a “deviant race” who was accused of “racial defilement”. In another similar case of persecution, Rothaug sentenced a slave laborer to death because “the inferiority of the defendant is clear as he is a part of Polish sub-humanity.”
Writing on the “Jewish Question” long before he became grand executioner of many tens of millions of “deviant” races, Hitler preached:
For us, this is not a problem you can turn a blind eye to–one to be solved by small concessions. For us, it is a problem of whether our nation can ever recover its health, whether the Jewish spirit can ever really be eradicated. Don’t be misled into thinking you can fight a disease without killing the carrier, without destroying the bacillus. Don’t think you can fight racial tuberculosis without taking care to rid the nation of the carrier of that racial tuberculosis. This Jewish contamination will not subside, this poisoning of the nation will not end, until the carrier himself, the Jew, has been banished from our midst.
Tragically, reality dictates a finding that when it comes to attacks on civilians of a different race, religion, culture or identity, Hitler’s deadly vitriol was by no means sui generis. Not even a century later when debating the “Palestinian question,” the words and goals of most Israeli lawmakers are very much a mirror image of those of their counterparts back in the day when they said heil Hitler to the grandparents of the very people who sit in the Knesset today or who carry out their hateful message while attired in black robes or military dress. Against the desperate crafted shout of antisemite, evidence shows that more than a decade ago, Israeli leaders … both political and religious … provided contemporary meaning to Mein Kampf’s deadly vision and voice. As noted by the Institute for Middle East Understanding, Israeli politicians and rabbis alike have spilt venomous verse thought by many, but spoken by few in public:
- “[A] Jew always has a much higher soul than a gentile, even if he’s gay.”[1]
- “Gentile sperm leads to barbaric offspring.”[2]
- “[Most of the] Muslims that arrive here do not even believe that this country belongs to us, to the white man.”[3]
- “Goyim [non- Jews] were born only to serve us. Without that, they have no place in the world; only to serve the People of Israel… Why are gentiles needed? They will work, they will plow, they will reap. We will sit like an effendi and eat… With gentiles, it will be like any person: They need to die, but God will give them longevity. Why? Imagine that one’s donkey would die, they’d lose their money. This is his servant. That’s why he gets a long life, to work well for this Jew.”[4]
- “You can’t teach a monkey to speak and you can’t teach an Arab to be democratic. You’re dealing with a culture of thieves and robbers. Muhammad, their prophet, was a robber and a killer and a liar. The Arab destroys everything he touches.”[5]
- “[Non-Jews are] murderers, thieves and senseless… Today they say there are eight billion people in the world. And what are they all? Murderers, thieves and senseless. Did God create the world for these murderers? The world was created for the righteous people who study Torah. That is the purpose of creation … The nations of the world have no redeeming qualities.”[6]
- “Arab culture is very cruel… Arabs use different codes and violent norms that amount to an ideology.”[7]
- “Racism originated in the Torah… The land of Israel is designated for the people of Israel.”[8]
- “Hurting small [non-Jewish] children makes sense if it’s clear that they’ll grow up to harm us, and in such a situation – the injury will be directed at them of all people.”[9]
- “If we go on like we have until now, we will lose the Galilee. Populations that should not mix are spreading there. I don’t think that it is appropriate for [Jews and Arabs] to live together.”[10]
The echo of national socialism surely smiles with perverse pride in seeing what it has passed on to the children and grandchildren of its own victims. Today, an honest look at the “nation state” of Israel, with its poisonous preaching and incessant deadly deeds, proves the venom of Hitler has so seeped its way into the very fabric of Israeli society, as to defy any hint of collective decency or the reality of justice. Given the voice of its leadership and the damning shared silence of its masses, Israel will only grow more toxic in the years ahead, absent a structural crash and a complete rewrite of its existence:
- “[B]eat them up not once but repeatedly, beat them up so it hurts so badly, until its unbearable.”[11]
- “[W]e must defend ourselves against the wild beasts”[12]
- “Palestinians are beasts they are not human.”[13]
- “Those who are against us, there’s nothing to be done- we need to pick up an axe and cut off his head.”[14]
- “I am happy to be a fascist”[15]
- “They should go, as should the physical homes in which they raised the snakes. Otherwise more little snakes will be raised there.”[16]
- “[T]he Palestinian like threat harbors cancer like attributes that have to be severed. There are all kinds of solutions to cancer. Some say it is necessary to amputate organs but at the moments I am applying chemotherapy.”[17]
- “[S]end Gaza back to the Middle Ages”[18]
- “We have crushed them. There are tens of thousands of dead … ‘The dogs and the cats ate them because no one collected them.”[19]
Like its convicted ancestor of the Third Reich, the Israeli justice system of today is by intent and process designed to protect, indeed further, the supremacy of the Jewish state and its Jewish citizenry. That Israel exalts a debauched home-grown screed of Judaism to the exclusion of all other faiths is no myth. To be sure, the messianic cloth of Israeli Judaism provides an additional demonic cover to the usual meaning of theocracy.
That there exist dozens of laws designed to protect and to benefit Israeli Jews to the exclusion of all other non-Jewish citizens is beyond debate; indeed it’s very much settled by the literal verse of its numerous supremacist statutes and regulations. To find tens of thousands of Palestinian political prisoners disappeared through a military “justice” system that detains them indefinitely … with children, the elderly and those in between sitting uncharged, unprosecuted, unconvicted, unsentenced, and battered and bruised, has long been the norm blinked by the Israeli civil society and its courts. Yet, with the Knesset’s most recent execution order, it cannot be denied that Israeli justice, when viewed against that of the Nazis, is not just a difference without distinction, but dispositive evidence that in Israel, once again, the dagger of the assassin is concealed beneath the robe of the jurist.
As almost another national holiday in the making, on the day the Israeli murder bill became law, many members showed up to vote wearing gold nooses to the Knesset session. Following its passage, as he popped open a bottle of champagne, Israeli National Security Minister Itamar Ben Gvir summed up the sentiment of the state’s fascistic political and religious leadership … “[s]oon we will count them one by one … from today, every terrorist will know, and the whole world will know, that whoever takes a life, the state of Israel will take their life.” That is, of course, unless they are Israeli Jews. On its face the plain wording of the statute and its intended reach necessarily excludes all Israeli Jews from the exposure to its penalty.
In the relevant part, the purpose of the Death Penalty for Terrorists Law, 5786–2026:
is to establish a death sentence for terrorists who have carried out murderous terrorist attacks, for the sake of the struggle against terrorism — inter alia, for the protection of the State of Israel, its citizens, and its residents.
Applicable almost exclusively to the Occupied West Bank (referred to in the law as “Judea and Samaria”) and its Palestinian population, the Act continues the double standard that sends Palestinians charged or even suspected of violation of Israeli laws in the West Bank to military tribunals while Israeli Jews accused of the identical conduct in the same venue find their way to civilian courts, with civilian judges and civilian justice.
By its requisite intent clause, Law 5786–2026 is limited to those who kill with the specific aim of negating the existence of the state of Israel. Thus, those Israeli settlers guilty of the recent murder of 19-year-old Palestinian American Nasrallah Abu Siyam in the occupied West Bank, if ever charged, are beyond the reach of the law. The same amnesty applies to the armed Jewish settlers who, earlier this year, murdered several other Palestinians during a raid on their village of Abu Falah in the occupied territory. Core to their ethnic cleansing agenda, settler murders of Palestinians in their local West Bank communities date back many decades.
For example, more than 40 years ago, a mob of settlers murdered an 11-year-old Palestinian girl from Nablus. As justification, the chief rabbi of the Sephardic community at the time apparently cited a Talmudic text justifying the murder of a child who “will grow up to become your enemy.” Under 5786–2026, those rampaging assassins could not be held accountable.
The same immunity from the reach of the law would have applied to the massacre carried out by Israeli-American physician Baruch Goldstein in 1994. Attired in an Israeli military uniform, Goldstein murdered 29 Palestinians during the Jewish festival of Purim in the Cave of the Patriarchs in occupied Hebron. Anything but a challenge to the existence of Israel, before his rampage, Goldstein, quoting from Ecclesiastes, reportedly said “There is a time to kill and a time to heal”. Following the massacre, his supporters described Goldstein as a “saint” and his blood bath as an act of “martyrdom” or a “sanctification of God’s name.”
So, too, the new death penalty could not have been applied to those settlers who burned to death a toddler in his family home in the Nablus village of Duma in 2015. Nor would it today have application to Israeli medic Elor Azaria, who, some six years ago, executed twenty-one-year-old Abdul Fatah al-Sharif while he lay injured and motionless on the ground after stabbing, but not seriously injuring, an Israeli soldier in occupied Hebron. Approaching his semi-conscious victim, Azaria cocked his rifle and executed him with a single shot to his head. For his murder, Azaria served some nine months in prison.
These are but a few of the endless examples of Palestinians executed by settlers/soldiers in the occupied West Bank over the last 15 years alone for little more than their mere presence, or words. Numbering more than 1000 killed in the last several years alone, under the legislative intent of the law, NONE of these assassins (if ever charged) could face execution for their butchery.
Although lacking a dispositive definition under international law, there is a legal consensus that terrorism is criminal violence intended to intimidate a population (or a government) with the specific intention to advance a political, religious, or ideological cause. Although tailor-made to describe generations of West Bank settler terrorists, their statutory exemption from Israel’s latest assault on equal accountability is as palpable as are the massive number of Israeli Jews who find sheer pleasure in the execution of Palestinians in furtherance of their own political, religious, or ideological invective.
In the relevant part, Israel’s definition under its original Counterterrorism Law of 2016 defines a terrorist act as an act that constitutes an offense, or a threat to carry out such an act, which meets the following standards:
Tailor-made for charging the Israeli state as a whole with acts of terrorism in Palestine, Lebanon and Iran, a plain read of this decade-old law with no statutory limit, shows that while thousands of Jewish settlers have been a veritable primer on terrorism, it’s been applied almost exclusively against Palestinians. Against this de facto selective distortion, stands the de jure reality that the Death Penalty for Terrorists Law, 5786–2026 is, on its face, stripped of all pretense. By design, it is intended to find application solely against Palestinians.
That there is a double standard in the application of Israeli law is neither new nor isolated to so-called acts of terrorism. At its core, there is a deliberate double standard of justice, in all things at all times, with Israelis obtaining privileged status in civilian courts decorated with black robes and a gavel and Palestinians guilty, or liable as charged, in all things at all times, in military courts decorated with nothing but battle dress and guns.
As B’Tselem, the Israeli Information Center for Human Rights in the Occupied Territories, recently wrote of the military court system:
Several years earlier, the Office of the High Commissioner of the United Nations Human Rights Office indicted the West Bank military justice system noting that “[s]ince the beginning of the occupation, the Israeli military has either taken part in or failed to protect Palestinians from violent settler attacks in the occupied West Bank, including, extrajudicial killings, forced displacement, property damage, destruction and unlawful appropriation, discrimination, harassment, and threats.” Continuing on, it stated “[i]n the occupied West Bank, the functions of police, investigator, prosecutor, and judge are vested in the same hierarchical institution – the Israeli military” that ultimately sits as judge and jury over Palestinians suspects. This translates into a situation where military judges in military courts consistently provide legal and judicial cover for acts of torture, cruel and degrading treatment against Palestinian detainees carried out by their colleagues in the armed forces and intelligence agencies. It also makes legal defence impossible.”
Putting aside the uniform, bias and cover, from a practical standpoint, the military court system that has controlled “justice” in the occupied territories since 1967 and which will be tasked with likely all death penalty prosecutions, presents a procedural gamut far less protective of the rights of the accused than in civil courts… those set aside solely for cases involving Israeli citizens. Thus, because in civil courts there are higher due process standards arising from “basic laws” and criminal procedures, an accused is provided a stronger guarantee of rights compared to the rules handed down, at times, on a case-by-case basis by military orders. In civil court proceedings, those accused of crimes must be quickly charged and have largely unimpeded access to lawyers and family members. In contrast, those Palestinians swept up by the Military process can be held without charge for longer periods (up to 90 days) and typically face long periods of restricted access to legal counsel.
Civil proceedings are held in Hebrew and, at times Arabic, but, in any event, have available translation protocols. Military court proceedings are held entirely in Hebrew, often without translation support, with prosecutions driven by coerced confessions lacking legal counsel, with signed documents written exclusively in Hebrew, which most defendants do not understand. Under Israeli civil law, the age of majority is 18, while in the military system, 16-year-old Palestinians are treated as adults. In addition, civil law requires specially trained police for juvenile interrogations; no such requirement exists in military prosecutions.
Perhaps most telling of all is that, unlike the civil court system, almost all Palestinians accused of even the most minor breach of law, although “presumed innocent,” are routinely remanded by military judges to custody until the proceedings are concluded. These individuals are not serving a prison sentence, have not even been sentenced, and should be presumed innocent until proven guilty. Yet, other than in cases involving traffic violations, this practice is the rule rather than the exception in the military court system. By its very nature, this coercive linchpin of the military court system induces guilty pleas from even the innocent for no reason other than to gain their freedom.
Summing up the worth and rights of Palestinian children, Defense of Children International Palestine notes: “Israel has the dubious distinction of being the only country in the world that automatically and systematically prosecutes children in military courts that lack fundamental fair trial rights and protections. Israel prosecutes between 500 and 700 Palestinian children in military courts each year.”
In what is very much the mirror image of The Terrorism Act (No. 83 of 1967), a South African statute that allowed for indefinite, no-trial detention based on a very broad definition of terrorism, it is estimated that as many of 800,000 Palestinians have been detained under military orders, including some 13,000 children, without formal charges or trial. Under Israeli “security” provisions, a person, including a child, can be held without formal accusation on the grounds that they plan to break the law in the future. Like the apartheid system of South Africa, because this shackle is crafted as preventive, it has no time limits.
Do not misconstrue any preference for the due process “protections” of the Israeli civil court system over the physical and emotional torture process of the state’s military courts. After all, history is littered with the institutional failures of Israeli civil courts. These courts serve not by virtue of any constitutional edict or independence, for in Israel, there is no such document. Rather, they sit and perform by the whims of the Knesset, which can and does, with regularity, pass laws that convert these jurists into mere messengers of political winds.
Thus, the “necessity defense,” more aptly known as the “ticking time bomb exception,” announced in the case of Abu Ghosh v. Attorney-General, speaks volumes about the blind eye of the Israeli judiciary. In Abu Ghosh, the Israeli High Court approved the use of “exceptional interrogation methods” by state security upon suspicious Palestinians, which not only imposed a high evidentiary burden on those who sought judicial relief for torture, but required a light burden of proof on the state when claiming necessity. As defined by international law, this judicial test violated its prohibition against torture. So, too, once again in violation of settled international law, the Israeli civil courts have endorsed the use of collective punishment … long defined as a war crime under the Fourth Geneva Convention. In case after case, the High Court has upheld or walked away from matters where the military seeks vengeance from families uninvolved in the acts of the few. As noted by the United Nations Special Rapporteur:
The list is endless. Whether it’s forcing Palestinians to pay the cost of the destruction of their own homes and businesses; ignoring the 2004 ICJ finding that the walls/barriers in the Occupied Palestinian Territory violate international law; laughing at Article 49 of the Fourth Geneva Convention which prohibits occupying powers from transferring its population into occupied territory; and a clear finding that the most recent onslaught in Gaza constitutes genocide, Israel and its civilian court system have been wittingly complicit in a steady stream of violations of international law not seen since the days of the Third Reich. And now, with another deadly sweeping mock at international law, Israel says we will execute Palestinians and Palestinians alone.
On its face, with appalling pride, the Knesset has now set the stage for the execution by noose of thousands of Palestinians who have never had a day in court, let alone one overseen by independent jurists who ruled not by a military faith and race-based presumption of guilt, but by due process. Like its predecessor, the ticking time bomb exemption, the murder Palestinian law provides absolute discretion to soldiers dressed up with a gavel not only to say guilty as charged, but to impose a sentence of death to be carried out within 90 days of conviction. This military procedure is akin to the administrative process employed by the Nazis in their People’s Court, which typically had jurisdiction over political offenses, including black marketeering, work slowdowns and “defeatism.” On one such occasion Judge Roland Freisler, who had sentenced more than 5000 people to death, went so far as to send the family of Joseph Muller, a Catholic priest, a bill for his execution by guillotine.
The recently enacted murder of Palestinians is illegal under international law. To be sure that this law oozes with targeted execution of Palestinians, cannot be debated. With its specific intent, it applies solely to those who cause the death of another “with the aim of negating the existence of the State of Israel.” As noted by the Office of the United Nations High Commissioner for Human Rights,
In other respects, the legislation offends settled international law through its palpable attack on essential procedural and substantive safeguards such as notice and specificity as to key elements of an offense, or what can constitute witting complicity in it. Thus, while the law places within its deadly reach co-conspirators who “assist” in lethal attacks, it fails to define with requisite specificity just what to assist means. Is mere proscribed speech, or writing in support of resistance in general a sufficient overt act under the law? Does providing a car, or a weapon or loaning some money to one involved in a lethal act constitute a sufficient overt act in furtherance of the crime to expose a donor to the stretch of the hangman’s noose? Not at all an abstract debate, Israel is, after all, a land where collective punishment of those uninvolved in a crime is very much the norm and not the exception.
Going further, upon conviction, a resident of the West Bank “who is not an Israeli citizen or Israeli resident … his [default] sentence shall be death, and this penalty only.” By design, the law not only removes any and all settler assassins from its substantive reach, but illegally strips the presiding military panel of sentencing discretion other than in undefined “exceptional circumstances” and where limits are placed on evidence of mitigation to meet that vague burden.
And what of the military court itself? Where unanimity of finding was once required of three jurist panels often passing verdict and sentence in far less serious cases involving but a “nominal” penalty, here, where the noose is the mandated punishment, a mere majority consensus of the judges is required. Continuing on, even in the absence of a request from prosecutors (themselves dressed in military uniform), historically, this is a court system with a conviction rate of almost 100%, built largely of coerced admissions/confessions that were presented for signature to long-detained Palestinians entirely in Hebrew. Isolated, intimidated, sleepless, hungry and subjected to physical and mental abuse with regularity, these often child prisoners are told to sign here, and do so without the presence and advice of counsel.
In what is very much a race to the finality of the hangman’s noose, 5786–2026 impermissibly limits rights of appeal, denies the possibility of pardon and no matter how uncertain the evidence, or arbitrary the penalty, sets an execution mandate of no more than 90 days in violation of the 6-month requirement of Article 75 of the Fourth Geneva Convention with its intent to ensure a reasonable opportunity to pursue appeals.
Most alarming, while it appears, albeit in ambiguous wording, that the law prohibits a revisit to cases of those already convicted and sentenced for a lethal offense, given the supremacist drive of the Knesset, and the obedient silence of the Israeli High Court, the prospect for an amendment permitting post hoc execution looms large. Moreover, in the absence of any controlling wording to the contrary, there stands the real possibility of a retroactive application of the law to thousands of detained Palestinian prisoners, including hundreds of children awaiting prosecution for allegations that occurred well before its passage. Known as a nunc pro tunc application of a new rule or law, and rejected by legal systems across the globe, historically, Israel has exhibited no hesitancy whatsoever in ignoring settled international norms or law. A more glaring example of a real-world, real-time, real-application by the Knesset of the talisman of blood libel would be hard to find.
Make no mistake about it. The Death Penalty for Terrorists Law is but another accelerated step in the Israeli drive to ethnically cleanse all of Palestine, through any available means. Unwilling to settle for its most recent criminal mass slaughter in which hundreds of thousands of Palestinian civilians were murdered in plain view in Gaza and the West Bank, it now seeks to recast its Reich-like assassin’s face through the pretext of a legislatively-approved military lynching.
In reality, an honest look says all that’s missing from Israeli law 5786–2026 are the prefatory words of an Alabama newspaper editor who, in harkening back to the days of the Ku Klux Klan, when referring to his goal of cleaning out Washington D.C. wrote… “We’ll get the hemp ropes out, loop them over a tall limb and hang all of them”.
Notes
[1] Rabbi Eli Ben Dahan, Deputy Minister for Religious Affairs in the Israeli government of Prime Minister Benjamin Netanyahu, member of the Jewish Home party (December 2013).
[2] Rabbi Dov Lior, Chief rabbi of settlements in Hebron and Kiryat Arba, head of the Council of Rabbis of Judea and Samaria [the occupied West Bank], and leading figure in the religious Zionist movement (January 2011).
[3] Eli Yishai, Then-Minister of the Interior in Prime Minister Netanyahu’s coalition government (June 2012).
[4] Rabbi Ovadia Yosef, the late influential spiritual leader of the Shas party, which was a part of Prime Minister Benjamin Netanyahu’s coalition government from 2009-2012 (September 2010).
[5] Moshe Feiglin, former Deputy Speaker of the Israeli Knesset and member of Prime Minister Netanyahu’s Likud party (2004).
[6] Rabbi Aharon Yehuda Leib Shteinman, Spiritual leader of the United Torah Judaism party, which was then part of Prime Minister Netanyahu’s coalition government (May 2012).
[7] Rabbi Shmuel Eliyahu, Chief rabbi of the city of Safed (2011).
[8] Rabbi Yosef Scheinen, Head of the Ashdod Yeshiva (religious school) (2010).
[9] The King’s Torah, written by Rabbi Yitzhak Shapira and Rabbi Yosef Elitzur, from the Od Yosef Chai Yeshiva in the settlement of Yitzhar (2010).
[10] Ariel Atlas, Then- Minister of Housing in Prime Minister Netanyahu’s coalition government (July 2009).
[11] Prime Minister Benjamin Netanyahu.
[12] Id.
[13] Rabbi Eli Ben Dahan, Israeli Deputy Defense Minister.
[14] Israeli Defense Minister Avigdor Lieberman.
[15] Miri Regev, Israeli Minister of Culture.
[16] Ayelet Shaked, Israeli Minister of Justice.
[17] Moshe Yaalon, Former Israeli defense Minister.
[18] Eli Yishai, Former Israeli Deputy Prime Minister.
[19] Avraham Zarbiv, Rabbinical Judge who served as a bulldozer driver in Gaza.
By its requisite intent clause, Law 5786–2026 is limited to those who kill with the specific aim of negating the existence of the state of Israel. Thus, those Israeli settlers guilty of the recent murder of 19-year-old Palestinian American Nasrallah Abu Siyam in the occupied West Bank, if ever charged, are beyond the reach of the law. The same amnesty applies to the armed Jewish settlers who, earlier this year, murdered several other Palestinians during a raid on their village of Abu Falah in the occupied territory. Core to their ethnic cleansing agenda, settler murders of Palestinians in their local West Bank communities date back many decades.
For example, more than 40 years ago, a mob of settlers murdered an 11-year-old Palestinian girl from Nablus. As justification, the chief rabbi of the Sephardic community at the time apparently cited a Talmudic text justifying the murder of a child who “will grow up to become your enemy.” Under 5786–2026, those rampaging assassins could not be held accountable.
The same immunity from the reach of the law would have applied to the massacre carried out by Israeli-American physician Baruch Goldstein in 1994. Attired in an Israeli military uniform, Goldstein murdered 29 Palestinians during the Jewish festival of Purim in the Cave of the Patriarchs in occupied Hebron. Anything but a challenge to the existence of Israel, before his rampage, Goldstein, quoting from Ecclesiastes, reportedly said “There is a time to kill and a time to heal”. Following the massacre, his supporters described Goldstein as a “saint” and his blood bath as an act of “martyrdom” or a “sanctification of God’s name.”
So, too, the new death penalty could not have been applied to those settlers who burned to death a toddler in his family home in the Nablus village of Duma in 2015. Nor would it today have application to Israeli medic Elor Azaria, who, some six years ago, executed twenty-one-year-old Abdul Fatah al-Sharif while he lay injured and motionless on the ground after stabbing, but not seriously injuring, an Israeli soldier in occupied Hebron. Approaching his semi-conscious victim, Azaria cocked his rifle and executed him with a single shot to his head. For his murder, Azaria served some nine months in prison.
These are but a few of the endless examples of Palestinians executed by settlers/soldiers in the occupied West Bank over the last 15 years alone for little more than their mere presence, or words. Numbering more than 1000 killed in the last several years alone, under the legislative intent of the law, NONE of these assassins (if ever charged) could face execution for their butchery.
Although lacking a dispositive definition under international law, there is a legal consensus that terrorism is criminal violence intended to intimidate a population (or a government) with the specific intention to advance a political, religious, or ideological cause. Although tailor-made to describe generations of West Bank settler terrorists, their statutory exemption from Israel’s latest assault on equal accountability is as palpable as are the massive number of Israeli Jews who find sheer pleasure in the execution of Palestinians in furtherance of their own political, religious, or ideological invective.
In the relevant part, Israel’s definition under its original Counterterrorism Law of 2016 defines a terrorist act as an act that constitutes an offense, or a threat to carry out such an act, which meets the following standards:
It was carried out with a political, religious, nationalistic or ideological motive… It was carried out with the intention of provoking fear or panic among the public or with the intention of compelling a government or other governmental authority, including a government or other governmental authority of a foreign country, or a public international organization, to do or to abstain from doing any act … and the act carried out or threatened to be carried out, involved one of the following, or posed an actual risk of … Serious harm to a person’s body or freedom; Serious harm to public health or safety; [or] Serious harm to property, when in the circumstances in which it was caused, there was an actual possibility that it would cause the serious harm … and that was carried out with the intention of causing such harm.
Tailor-made for charging the Israeli state as a whole with acts of terrorism in Palestine, Lebanon and Iran, a plain read of this decade-old law with no statutory limit, shows that while thousands of Jewish settlers have been a veritable primer on terrorism, it’s been applied almost exclusively against Palestinians. Against this de facto selective distortion, stands the de jure reality that the Death Penalty for Terrorists Law, 5786–2026 is, on its face, stripped of all pretense. By design, it is intended to find application solely against Palestinians.
That there is a double standard in the application of Israeli law is neither new nor isolated to so-called acts of terrorism. At its core, there is a deliberate double standard of justice, in all things at all times, with Israelis obtaining privileged status in civilian courts decorated with black robes and a gavel and Palestinians guilty, or liable as charged, in all things at all times, in military courts decorated with nothing but battle dress and guns.
As B’Tselem, the Israeli Information Center for Human Rights in the Occupied Territories, recently wrote of the military court system:
Israeli military courts have been trying Palestinians in the Territories since the occupation began. While the courts offer an illusion of proper judicial conduct, they mask one of the most injurious apparatuses of the occupation. In these courts, the judges and prosecutors are always Israeli soldiers in uniform. The Palestinians are always either suspects or defendants, and are almost always convicted for violating orders issued by the occupation regime. As such, these courts simply cannot be an impartial, neutral arbitrator. They are firmly entrenched on the Israeli side of the power imbalance, and serve as one of the central systems maintaining its control over the Palestinian people.
Several years earlier, the Office of the High Commissioner of the United Nations Human Rights Office indicted the West Bank military justice system noting that “[s]ince the beginning of the occupation, the Israeli military has either taken part in or failed to protect Palestinians from violent settler attacks in the occupied West Bank, including, extrajudicial killings, forced displacement, property damage, destruction and unlawful appropriation, discrimination, harassment, and threats.” Continuing on, it stated “[i]n the occupied West Bank, the functions of police, investigator, prosecutor, and judge are vested in the same hierarchical institution – the Israeli military” that ultimately sits as judge and jury over Palestinians suspects. This translates into a situation where military judges in military courts consistently provide legal and judicial cover for acts of torture, cruel and degrading treatment against Palestinian detainees carried out by their colleagues in the armed forces and intelligence agencies. It also makes legal defence impossible.”
Putting aside the uniform, bias and cover, from a practical standpoint, the military court system that has controlled “justice” in the occupied territories since 1967 and which will be tasked with likely all death penalty prosecutions, presents a procedural gamut far less protective of the rights of the accused than in civil courts… those set aside solely for cases involving Israeli citizens. Thus, because in civil courts there are higher due process standards arising from “basic laws” and criminal procedures, an accused is provided a stronger guarantee of rights compared to the rules handed down, at times, on a case-by-case basis by military orders. In civil court proceedings, those accused of crimes must be quickly charged and have largely unimpeded access to lawyers and family members. In contrast, those Palestinians swept up by the Military process can be held without charge for longer periods (up to 90 days) and typically face long periods of restricted access to legal counsel.
Civil proceedings are held in Hebrew and, at times Arabic, but, in any event, have available translation protocols. Military court proceedings are held entirely in Hebrew, often without translation support, with prosecutions driven by coerced confessions lacking legal counsel, with signed documents written exclusively in Hebrew, which most defendants do not understand. Under Israeli civil law, the age of majority is 18, while in the military system, 16-year-old Palestinians are treated as adults. In addition, civil law requires specially trained police for juvenile interrogations; no such requirement exists in military prosecutions.
Perhaps most telling of all is that, unlike the civil court system, almost all Palestinians accused of even the most minor breach of law, although “presumed innocent,” are routinely remanded by military judges to custody until the proceedings are concluded. These individuals are not serving a prison sentence, have not even been sentenced, and should be presumed innocent until proven guilty. Yet, other than in cases involving traffic violations, this practice is the rule rather than the exception in the military court system. By its very nature, this coercive linchpin of the military court system induces guilty pleas from even the innocent for no reason other than to gain their freedom.
Summing up the worth and rights of Palestinian children, Defense of Children International Palestine notes: “Israel has the dubious distinction of being the only country in the world that automatically and systematically prosecutes children in military courts that lack fundamental fair trial rights and protections. Israel prosecutes between 500 and 700 Palestinian children in military courts each year.”
In what is very much the mirror image of The Terrorism Act (No. 83 of 1967), a South African statute that allowed for indefinite, no-trial detention based on a very broad definition of terrorism, it is estimated that as many of 800,000 Palestinians have been detained under military orders, including some 13,000 children, without formal charges or trial. Under Israeli “security” provisions, a person, including a child, can be held without formal accusation on the grounds that they plan to break the law in the future. Like the apartheid system of South Africa, because this shackle is crafted as preventive, it has no time limits.
Do not misconstrue any preference for the due process “protections” of the Israeli civil court system over the physical and emotional torture process of the state’s military courts. After all, history is littered with the institutional failures of Israeli civil courts. These courts serve not by virtue of any constitutional edict or independence, for in Israel, there is no such document. Rather, they sit and perform by the whims of the Knesset, which can and does, with regularity, pass laws that convert these jurists into mere messengers of political winds.
Thus, the “necessity defense,” more aptly known as the “ticking time bomb exception,” announced in the case of Abu Ghosh v. Attorney-General, speaks volumes about the blind eye of the Israeli judiciary. In Abu Ghosh, the Israeli High Court approved the use of “exceptional interrogation methods” by state security upon suspicious Palestinians, which not only imposed a high evidentiary burden on those who sought judicial relief for torture, but required a light burden of proof on the state when claiming necessity. As defined by international law, this judicial test violated its prohibition against torture. So, too, once again in violation of settled international law, the Israeli civil courts have endorsed the use of collective punishment … long defined as a war crime under the Fourth Geneva Convention. In case after case, the High Court has upheld or walked away from matters where the military seeks vengeance from families uninvolved in the acts of the few. As noted by the United Nations Special Rapporteur:
Since 1967, Israel has destroyed more than 2,000 Palestinian homes, designed to punish Palestinian families for acts some of their members may have committed, but they themselves did not,” he said. “This practice is in clear violation of Article 53 of the Fourth Geneva Convention.
The list is endless. Whether it’s forcing Palestinians to pay the cost of the destruction of their own homes and businesses; ignoring the 2004 ICJ finding that the walls/barriers in the Occupied Palestinian Territory violate international law; laughing at Article 49 of the Fourth Geneva Convention which prohibits occupying powers from transferring its population into occupied territory; and a clear finding that the most recent onslaught in Gaza constitutes genocide, Israel and its civilian court system have been wittingly complicit in a steady stream of violations of international law not seen since the days of the Third Reich. And now, with another deadly sweeping mock at international law, Israel says we will execute Palestinians and Palestinians alone.
On its face, with appalling pride, the Knesset has now set the stage for the execution by noose of thousands of Palestinians who have never had a day in court, let alone one overseen by independent jurists who ruled not by a military faith and race-based presumption of guilt, but by due process. Like its predecessor, the ticking time bomb exemption, the murder Palestinian law provides absolute discretion to soldiers dressed up with a gavel not only to say guilty as charged, but to impose a sentence of death to be carried out within 90 days of conviction. This military procedure is akin to the administrative process employed by the Nazis in their People’s Court, which typically had jurisdiction over political offenses, including black marketeering, work slowdowns and “defeatism.” On one such occasion Judge Roland Freisler, who had sentenced more than 5000 people to death, went so far as to send the family of Joseph Muller, a Catholic priest, a bill for his execution by guillotine.
The recently enacted murder of Palestinians is illegal under international law. To be sure that this law oozes with targeted execution of Palestinians, cannot be debated. With its specific intent, it applies solely to those who cause the death of another “with the aim of negating the existence of the State of Israel.” As noted by the Office of the United Nations High Commissioner for Human Rights,
The selective application of capital punishment on ethnic or national grounds, or because of one’s political views, constitutes a particularly stark form of discriminatory harm … Any system that permits differential treatment in their justice system or by the imposition of the death penalty undermines the most basic guarantees of equality before the law.
In other respects, the legislation offends settled international law through its palpable attack on essential procedural and substantive safeguards such as notice and specificity as to key elements of an offense, or what can constitute witting complicity in it. Thus, while the law places within its deadly reach co-conspirators who “assist” in lethal attacks, it fails to define with requisite specificity just what to assist means. Is mere proscribed speech, or writing in support of resistance in general a sufficient overt act under the law? Does providing a car, or a weapon or loaning some money to one involved in a lethal act constitute a sufficient overt act in furtherance of the crime to expose a donor to the stretch of the hangman’s noose? Not at all an abstract debate, Israel is, after all, a land where collective punishment of those uninvolved in a crime is very much the norm and not the exception.
Going further, upon conviction, a resident of the West Bank “who is not an Israeli citizen or Israeli resident … his [default] sentence shall be death, and this penalty only.” By design, the law not only removes any and all settler assassins from its substantive reach, but illegally strips the presiding military panel of sentencing discretion other than in undefined “exceptional circumstances” and where limits are placed on evidence of mitigation to meet that vague burden.
And what of the military court itself? Where unanimity of finding was once required of three jurist panels often passing verdict and sentence in far less serious cases involving but a “nominal” penalty, here, where the noose is the mandated punishment, a mere majority consensus of the judges is required. Continuing on, even in the absence of a request from prosecutors (themselves dressed in military uniform), historically, this is a court system with a conviction rate of almost 100%, built largely of coerced admissions/confessions that were presented for signature to long-detained Palestinians entirely in Hebrew. Isolated, intimidated, sleepless, hungry and subjected to physical and mental abuse with regularity, these often child prisoners are told to sign here, and do so without the presence and advice of counsel.
In what is very much a race to the finality of the hangman’s noose, 5786–2026 impermissibly limits rights of appeal, denies the possibility of pardon and no matter how uncertain the evidence, or arbitrary the penalty, sets an execution mandate of no more than 90 days in violation of the 6-month requirement of Article 75 of the Fourth Geneva Convention with its intent to ensure a reasonable opportunity to pursue appeals.
Most alarming, while it appears, albeit in ambiguous wording, that the law prohibits a revisit to cases of those already convicted and sentenced for a lethal offense, given the supremacist drive of the Knesset, and the obedient silence of the Israeli High Court, the prospect for an amendment permitting post hoc execution looms large. Moreover, in the absence of any controlling wording to the contrary, there stands the real possibility of a retroactive application of the law to thousands of detained Palestinian prisoners, including hundreds of children awaiting prosecution for allegations that occurred well before its passage. Known as a nunc pro tunc application of a new rule or law, and rejected by legal systems across the globe, historically, Israel has exhibited no hesitancy whatsoever in ignoring settled international norms or law. A more glaring example of a real-world, real-time, real-application by the Knesset of the talisman of blood libel would be hard to find.
Make no mistake about it. The Death Penalty for Terrorists Law is but another accelerated step in the Israeli drive to ethnically cleanse all of Palestine, through any available means. Unwilling to settle for its most recent criminal mass slaughter in which hundreds of thousands of Palestinian civilians were murdered in plain view in Gaza and the West Bank, it now seeks to recast its Reich-like assassin’s face through the pretext of a legislatively-approved military lynching.
In reality, an honest look says all that’s missing from Israeli law 5786–2026 are the prefatory words of an Alabama newspaper editor who, in harkening back to the days of the Ku Klux Klan, when referring to his goal of cleaning out Washington D.C. wrote… “We’ll get the hemp ropes out, loop them over a tall limb and hang all of them”.
Notes
[1] Rabbi Eli Ben Dahan, Deputy Minister for Religious Affairs in the Israeli government of Prime Minister Benjamin Netanyahu, member of the Jewish Home party (December 2013).
[2] Rabbi Dov Lior, Chief rabbi of settlements in Hebron and Kiryat Arba, head of the Council of Rabbis of Judea and Samaria [the occupied West Bank], and leading figure in the religious Zionist movement (January 2011).
[3] Eli Yishai, Then-Minister of the Interior in Prime Minister Netanyahu’s coalition government (June 2012).
[4] Rabbi Ovadia Yosef, the late influential spiritual leader of the Shas party, which was a part of Prime Minister Benjamin Netanyahu’s coalition government from 2009-2012 (September 2010).
[5] Moshe Feiglin, former Deputy Speaker of the Israeli Knesset and member of Prime Minister Netanyahu’s Likud party (2004).
[6] Rabbi Aharon Yehuda Leib Shteinman, Spiritual leader of the United Torah Judaism party, which was then part of Prime Minister Netanyahu’s coalition government (May 2012).
[7] Rabbi Shmuel Eliyahu, Chief rabbi of the city of Safed (2011).
[8] Rabbi Yosef Scheinen, Head of the Ashdod Yeshiva (religious school) (2010).
[9] The King’s Torah, written by Rabbi Yitzhak Shapira and Rabbi Yosef Elitzur, from the Od Yosef Chai Yeshiva in the settlement of Yitzhar (2010).
[10] Ariel Atlas, Then- Minister of Housing in Prime Minister Netanyahu’s coalition government (July 2009).
[11] Prime Minister Benjamin Netanyahu.
[12] Id.
[13] Rabbi Eli Ben Dahan, Israeli Deputy Defense Minister.
[14] Israeli Defense Minister Avigdor Lieberman.
[15] Miri Regev, Israeli Minister of Culture.
[16] Ayelet Shaked, Israeli Minister of Justice.
[17] Moshe Yaalon, Former Israeli defense Minister.
[18] Eli Yishai, Former Israeli Deputy Prime Minister.
[19] Avraham Zarbiv, Rabbinical Judge who served as a bulldozer driver in Gaza.
 |
| Stanley L. Cohen is lawyer and activist in New York City. |
