Israel, the death penalty and apartheid

In July 2024, the International Court of Justice (ICJ) issued an advisory opinion on the status of the Occupied Palestinian Territory (OPT).¹ It found Israel’s continuing presence in the OPT was unlawful, its policies and practices including settlements were unlawful.¹ These discriminatory policies and practices were a violation of Article 3 of the Convention on Eliminating Racial Discrimination: the prohibition on Apartheid.¹ Apartheid is in essence the crime of establishing a system of racial domination of one group over another by establishing a system oppression directed towards the victim group by violating their fundamental rights.²

620 days later, Israel’s Knesset (parliament) approved a law whose purpose is to ’establish the death penalty for those who carried out murderous terror attacks, as part of the fight against terrorism’.³ Said law, in practice will not to apply to Israeli’s who kill Palestinians.⁴

The law was described by one of the its champions as an end to the ‘revolving door for terrorists’ and a ‘clear decision, whoever chooses terrorism chooses death’. This man leads a party whose MPs wore noose-shaped pins in support of the bill and shared an bottle of alcohol amongst supporters of the law, following the vote in the Knesset.⁵

His name is Itamar Ben-Gvir. He is Israel’s national security minister and a former lawyer.⁶

He is also a convicted terrorist.⁶

Origins of Apartheid:

The word apartheid comes from the Afrikaans word for ‘apartness’ and was the official name for the system of racial segregation created in South Africa in 1948.⁷ It is not the separation between persons of different races. Nor is it an attempt to separate two equal but different people, as argued by many of the proponents of Jim Crowe in the US south.⁸ It is the crime of denying the fundamental equality of all persons and as a result creating system is designed to designate some people as “children of a lesser god”⁹.

Apartheid in South Africa Began in 1948 and the took four years to bring to an end from 1990 and 1994. There were four categories of people under the system in South Africa: White, Indian, Coloured (meaning mixed-race) and Black, with black people subject to the greatest deprivation of human rights.¹⁰ A subjective judgment based on persons appearance, ancestry, class, and cultural lifestyle was used to determine which category they belonged in.¹⁰

Dora Tamana, an African anti-apartheid activist and long-term resident of Cape Town, described the system of apartheid in South Africa as:¹¹

“African(s) cannot buy land or live outside locations and reserves which are set aside for him. We make up two thirds of the population but only one tenth of the country is set aside for us. Because we have no land for our crops and our cattle we must live and work on the white man’s farms, on the mines, factories and towns”.

“Only in this way can we pay the taxes and school fees, buy food and clothing, and pay our doctors’ bills. Yet, we are not allowed to travel to look for work without a permit… Our country is truly a prison house”

The criminalisation of Apartheid:

During the decades long process of confronting Apartheid South Africa, the international community created a system of law condemning and criminalising apartheid, not merely to assist in bringing South Africa’s regime to an end but also to ensure other nations could not do the same in the future.

The first major step occurred in 1965 with the creation of the International Convention on Eliminating Racial Discrimination.¹² Article 3 clearly prohibits apartheid.¹² Apartheid was later the subject of its own treaty in 1971.³ This convention defined and criminalised apartheid. It was later designated a Crime against Humanity under the ICC (Rome) statute allowing for prosecutions of individuals before the International Criminal Court.¹³

But during the process of creating treaty law about apartheid, a custom of international law prohibiting the crime of apartheid also emerged. A custom is a binding rule of international law that emerges as the result of long-term state practice alongside the belief by states, that the practice is required by international law.¹⁴ Customs of international law bind all states unlike treaties so through persistent rejection of Apartheid, states built an universal international prohibition. This custom has become a pre-emptory (jus cognes) norm of international law meaning it is amongst the most important rules that govern the conduct of states.¹ The norms pre-emptory character prohibits third states from ‘recogniz(ing) as lawful’ a breach of a custom and requires them not to ‘render aid or assistance in maintaining that situation’¹⁵.

Despite this Israel, with the support of numerous third nations including the UK, built a system of a aparthied which remains the recipient of aid and assistance from around the world, over a year since the ICJ made clear such support was unlawful. In continuing their support of Israeli impunity, these states bear responsible for this law, and by extension those who may die because of it.

How does this law, focused on terrorism, violate the prohibition on apartheid:

Despite execution violating of the right to life, it is permitted under several human rights treaties such as the ICCPR.¹⁶ But what international law does not permit is the use of execution as a punishment for persons of one race and excluding those of other races from its application. The definition of apartheid states that the denial of the right to life on the basis of membership of a particular racial group is unlawful.¹⁴ That is the essence of Israel’s new law as it is written to target Palestinians.¹⁷

This is achieved both in the language used in the new law, and via the pre-existing infrastructure of apartheid built up in the OPT over decades. Israeli military law governs the West Bank and therefore Palestinians are unlawfully subject to Israel’s military justice jurisdiction.¹ Under international law, military trials of civilians in are likely to be unlawful.¹⁸ By contrast settlers are subject to Israeli civilian jurisdiction. Palestinians in East Jerusalem are also subject to Israelis civilian jurisdiction despite the city being party of the OPT.¹

In military courts, the law imposes the death penalty for killings that occur as part of terrorism as defined by Israeli law. A death sentence under the law does not require a request from prosecutors and does not require unanimity amongst the judges, only a majority is required.¹⁹ Only in special circumstances can the sentence be commuted.¹⁹ By contrast, in the civilian court system the death penalty is imposed when a person kills another with the intention of negating the existence of the state of Israel.¹⁹ This requirement of negation of Israel, was written to target Palestinians while limiting application to Israeli’s including settlers.

While Israel has not discloses the rate of convictions in military trials involving Palestinians for many years, in 2010, 99.74% of Palestinians tried before Military courts were found guilty.²⁰ More recently, B’tselem has estimated that 96% of trials result in convictions.²¹ They also found that convictions are largely based on confessions extracted under torture and other forms of duress.²¹

There has not been a trial of a settler for killing a Palestinian since 2020 despite the fact such killings remain a regular occurrence.²¹ The conviction rate for settlers found guilty by civilian courts of committing crimes against Palestinians in the West Bank is 3%.²¹ 93.8 percent of investigations into settler violence were closed with no charges filed.²¹

Executions under the new law will take place 90 days after a sentence is issued. 90 days is insufficient time for a proper appeal against conviction,¹⁹ and for Palestinians the available routes of appeal are extremely limited.⁵ Those sentenced under the law will be held in a separate prison, with no visits and video link legal consultations.⁵ For Palestinians there is no possibility of Pardon or Commutation which alongside the mandatory nature of the death penalty is unlawful.¹⁷ The possibility of commutation is available for Israeli’s.⁵

Given that context, it is not surprising that Itamar Ben-Gvir describes the law as justice.⁶ Ben Gvir has eight convictions including incitement to racism against Arabs and possession of propaganda for a terrorist organisation. That organisation was the Kach Political party.⁶ The Kach party was banned as a terrorist organisation in Israel for its statements of support of Baruch Goldstein, who murdered 29 Muslim worshipers in the Ibrahimi Mosque in Hebron.²² Goldstein’s continues to be venerated today, including by Ben Gvir himself who used to display a portrait of Goldstein in his living room before he became a politician.⁶

While in effect the law is deeply racist, the explicit justification in Ben Gvir’s words is the same justification for nearly all crimes that Israel has committed against Palestinians: security from terrorism. The concept has become a common part of narratives around terrorism around the western world since 9/11. It has also been the justification for much of the racism at the wore of the War on Terror.

The right to Security:

Since 9/11 debates about the right to security have occupied a prominent position in Political discourse. But such debates have long been common in Israel. As Professor Edward Said highlighted in 2001, Israel presented itself as a victim of terrorism by Palestinians since 1948 and its Arab enemies as in league with terrorists, therefore its actions are merely a response to the same evil that caused 9/11.[^22] In doing so, Israel sought to justify its actions as necessary to guarantee its own security, just as US actions would, to guarantee its own security.[^22]

There are two major problems with this. The first, is best articulated by Mourid Barghouti in his book, I Saw Ramallah:²³

‘It is easy to blur the truth with a simple linguistic trick: start your story from Secondly. Yes, this is what Rabin did. He simply neglected to speak of what happened first. Start your story with Secondly, and the world will be turned upside-down. Start your story with Secondly, and the arrows of the Red Indians are the original criminals and the guns of the white men are entirely the victims. It is enough to start with Secondly, for the anger of the black man against the white to be barbarous. Start with Secondly, and Gandhi becomes responsible for the tragedies of the British. ‘.

Barghouti refers to speeches given by Israeli prime minister Yitzhak Rabin during the post-Oslo accords period but this phenomenon can be observed all throughout the so called War on Terror. From America ignoring it’s role in funding groups that went onto evolve into Al-Qaeda to the UK ignoring longstanding discrimination and partition as historic causes of the troubles. All political violence, whether it be committed by states or non state actors is the product of its context and to drain the context away is an attempt to flatten history to justify a violent response. To acknowledge history is not to justify political violence, is the first step to understand it.

But it is the second problem that is arguably more concerning, this new law is proof of a awful truth that has become clear since 9/11:

The security versus liberty debate is dead.

No price in liberty, in human rights, is too high for security.

The price of security after 9/11:

Gunther has argued, laws that undermine equality and human rights are often framed as a ‘promise of security to “good” citizens against “evil” ones’ and as a result ‘good’ people assume the rights will remain unaffected.²⁴ This logic is clearly on display across the world any time there is an expansion of state power to guarantee security and it has become increasingly prevalent since 9/11.

In the UK, the law permits citizenship deprivation on the basis it is conducive to the public good.²⁵ This ground affords wide direction to the home secretary in determining whom will be subject to citizenship deprivation. The original language of this law, passed in 1981, was far less broad, it focused in disloyalty to the country, supporting the enemy during war or has been imprisoned abroad within the last 5 years for more than 1 year.¹⁸ Each time the language was changed to broaden the discretion afforded to the Home Secretary, security was the justification. Each time the procedural protections afforded to persons subject to this power, from the loosening to the eventual dispensation of the right to notice to the scope of persons that the power affects from dual citizens to now including naturalised citizens whom may have an entitlement to citizenship abroad,²⁶ security was the justification. Citizenship is in the words of Hannah Ardent,²⁷ is the right to have rights, without it a person has no human rights. The deprivation power can be used against 3 in 5 non white citizens but only 1 in 20 white citizens,²⁸ but despite this, the government continues to use this power. This law is racist in its effect but even this can be justified in their view by security.

In the US, the notorious prison in the US naval base in Guantanamo was split between American citizens and Non American Citizens. James Yee, the former chaplain at Guantanamo bay, discusses his experience of solitary confinement and sensory deprivation when he was detained there as the result of espionage charges that were later dropped.²⁹ The treatment of non-American detainees was far worse as the result of the fact that the rights within the US constitution did not fully apply to them.³⁰ Furthermore, the same situation applies to drone strikes that kill terrorists, as even President Obama accepted that strikes against US citizens raise constitutional issues not present in cases involving non US citizens, despite claiming that the high threshold for the use of drone strikes mean such strikes are legal even if they target US citizens.³¹ Again both the drone strikes and detention and torture of detainees at Guantanamo were justified on the basis of security despite inherently racist interpretations of human rights under the US constitution being at the heart of both.

The logic described by Gunther is similar to Aradau’s discussion of the role of security as legitimising ‘inequality and the unequal relations between sovereign and subjects, state and individual, inside and outside, domestic and international’.³² This is also clearly on display in Israel- it security has been used to legitimise both apartheid and genocide, as seen in Israel’s response to the genocide case brought by South Africa.

Israel sought to attempt to justify its apartheid system and other violations of international law against the Palestinian people, from building the wall to the permit system in operation in the West Bank, as measures necessary for security. In doing so the effect on the Palestinian people of such measures were at best deemed a necessary evil or at worse were not considered at all. The ICJ rejects this logic in their advisory opinion.¹

Israel’s defence in the Genocide case filed by South Africa, at this early stage in proceedings focuses on security too.³³ Israel claimed that issuing provisional measures would result in Israel paying a ‘serious political and security price’.¹⁸ Twice in these legal proceedings counsel for Israel claimed that the provisional measures requested by South Africa would not be a shield designed to protect the subject matter of the legal proceedings, but a ‘sword’ directed at the state of Israel.³³ Given the nature of the provisional measures, which entirely focused on saving the lives of Palestinians and preserving evidence for later stages of these proceedings, this argument has no merit. The ICJ again rejected this security argument and issued provisional measures.¹

The only conclusion that can be reached is that Israel views the violation of Palestinian rights as a consequence of their need for security. Given this logic, it is unsurprising that they have passed this law- it is an extension of the logic they have employed before. Any price can be paid for security, particularly if that price is paid in the rights and lives of the people of Palestine or to use Gunther’s metaphor, if the price is paid those deemed to be ’evil’ people. But under the death penalty law, the determination of whom is ’evil’ is driven by racism against Palestinians.

In each country discussed above, the US, UK and Israel it remains questionably whether the laws discussed above actually increase security. The majority of Guantanamo detainees have been released without charge, the drone strike programs has been shown to have radicalised many young people in areas it was active such as Pakistan. It was noted in the high profile deprivation case of Shamima Begum that persons who pose a greater security threat according to the security services have been allowed to return,³⁴ which gives rise to questions about how necessary deprivations are to deal with security risks. The argument put forward in the Knesset that the death penalty law can be justified as a deterrence has no evidence to support it but the data from countries that have abolished the death penalty does not indicate that the death penalty is an effective mechanism of deterrence.³⁵ Laws of this nature are easy for Israeli’s to accept their human rights remain largely unaffected by such laws because it is not their right to life that is being eliminated, it is the right to life of Palestinians that is being eliminated. But as many have pointed out since this law has passed, this law is merely a new step in the judicialisation of the disregard of the value of the right to life of Palestinians that has been on clear display within since October 2023.¹

Such a law is easy for Ben Gvir to advocate for, because the settlers who support him and his party are not tried before military courts when they kill Palestinian’s and their offences do not meet the requirements of this law because it only applies to those to delegitimise Israel. They will not be subject to a mandatory death penalty. Even for those that support the death penalty, this law is unbearably cruel, like all measures that are part of a Apartheid state.

Israel is merely employing the same justification that is used to justify every human rights abuse committed during the Global War on Terror. Those who accepted the necessity of the war on terror, have manufactures consent for Israel’s actions. And while some such nations in Europe have condemned the law, they appear unwilling to take any further action.³⁶ This is despite their participation in building a reality where when lady justice weighs the value of human rights against security, security always wins- even when the right is the right to life. And as a result, each time Israel expands its apartheid system, each time Israel seeks to justify another violation of Palestinian rights, the West do not merely bear responsibility because they support Israel, politically, economically or militarily, they bear responsibility because this is the end point of the fallacy they employed during the war on terror: Security for some can be justified at any price including a price measured human lives and suffering.

It is appropriate to end with the words of Mohammed Moussa, poet, podcast host and founder of the Gaza Poets Society:

‘Just Like that, the Palestinian demands Shrink: a tent instead of a country, an abrupt death instead of a long war and jail forever instead of a rope.’³⁷

Postscript:

This post discussed South Africa’s apartheid system in the context of the law that developed in response. The discussion was limited but for further detail, readers are encouraged to examine the work of the Truth and Reconciliation Committee, set up in the wake of the end of the aparthied system. The final report of the committee can be found here: https://sabctrc.saha.org.za/reports.htm.

It should also be noted that many of the ordinary arguments against the death penalty are not discussed in this post but they naturally are relevant. Israel has executed two persons in its history, the second was Adolf Eichmann a Nazi officer responsible for the Holocaust.³⁸ The first was Meir Tobianski, who was an army officer executed as the result of a false accusation of espionage and a subsequent conviction for for treason. He was exonerated after his death, as is all too common in death penalty cases.³⁸

EDIT 13/082026: Dr Ralph Wilde has written about this law for Middle East Eye. He is a Professor of International Law at University College London and international lawyer. His work has focused on the law of occupation. See his article here: https://www.middleeasteye.net/opinion/make-no-mistake-Israel-death-penalty-terrorists-law-aimed-at-Palestinians