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By Taj Hussain and Laurent A Lambert

For over nine months now, the United States and other close allies of
Israel have repeatedly defended the conduct of the Israeli army in
Gaza and the West Bank. They have rejected 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 organisations detailing various atrocities.

In defending the Israeli army, Israeli allies often refer to the
opportunity to seek justice for crimes in Israeli courts. In its
response to International Criminal Court’s Prosecutor Karim Khan
seeking arrest warrants for Israeli officials, the US State
Department, for example, has claimed that the prosecutor did not defer
to a national investigation first. The Israeli government has also
made the same argument.

But a closer look at the Israeli judicial system reveals that such
prosecution of justice for war crimes committed by Israeli officials
is unlikely to yield results.

Israel’s legislative and judicial authorities do recognise
international law and conventions. However, through legal exceptions,
they also create spaces for the total disregard of international law
by Israeli officials and security and military forces. This erodes the prohibitions from international law on matters of grave importance.

Two examples of crimes that illustrate this legal contradiction
between Israeli jurisprudence and international law are torture and
collective punishment.

Torture is unequivocally illegal under international humanitarian law
and international human rights law. This prohibition derives from the
Universal Declaration of Human Rights, the Geneva Conventions and its Additional Protocols, the Convention against Torture, etc.

Based on paragraph 277 of the 1977 Israeli Penal Code and the 1991
Israeli ratification of the Convention Against Torture, the Israeli
legal system recognises torture as illegal. But in reality, the
practice of torture has been extensively documented by Israeli NGOs
and Israeli media, and it remains without any 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 claims of torture by
Israeli authorities were made, but only two were investigated and none
resulted in indictments.

That is because agents of the Shin Bet (internal security services)
and Israeli soldiers are protected by a legal loophole which allows
for “necessity” to determine if torture can be used in all so-called
“ticking bomb situations”. These scenarios are loosely defined and
justify the use of torture to extract information from a suspect that
can supposedly help avert imminent danger to life and national
security. Despite how open to interpretation a “ticking bomb
situation” can be, this exception was upheld by two rulings by the
Israeli Supreme Court in 1999 and then again in 2018.

The loophole has actually been recognised as problematic by the
Israeli authorities who have promised to create an explicit law
against torture, but nothing has materialised. PCATI even referred 17
of its cases to the ICC in 2022 as it realised that any justice for
torture victims would be impossible in Israeli courts. This is because
most cases are rapidly dismissed on the grounds that, supposedly,
“there is no evidential basis supporting the interrogatees version”.

The matter of collective punishment shows a similar pattern.
Collective punishment is the infliction of penalties on multiple
civilians based on the acts of one or several individuals. Its
international prohibition dates back to the Hague Convention in 1899, reaffirmed by the Geneva Convention and has become customary
international law.

The Israeli judiciary has repeatedly affirmed its commitment to the
ban on collective punishment. Furthermore, section 16 of the Penal
Code facilitates prosecutions based on international agreements.

However, in practice, the Israeli army regularly exercises collective punishment on a large scale. This includes the demolition of family
homes of suspected “terrorists” in the occupied Palestinian territory
and the 17-year-long siege on the Gaza Strip.

Israeli courts have consistently rejected the claim that these two
policies amount to collective punishment.

Regulation 119 (1) of the Israeli Emergency Laws allows for the
demolition of houses as punishment for committing illegal actions or
if there is a suspicion that an illegal action is taking place in that
home, even if multiple generations live in it. This is directly
contradictory to Article 33 of the Geneva Convention as the policy
disregards any non-involved people living in the house and therefore constitutes collective punishment.

Nevertheless, in 1986, an Israeli court ruled that demolitions were
not collective punishment, based not on the impact of home demolitions
(which do affect whole families), but instead based on the odd
consideration that it would make Regulation 119 (1) redundant as it
would only be applied to “terrorists” who supposedly live alone.

More surprisingly, the same court argued that demolitions are a
“deterrent” rather than a “punishment”, and that the collective impact
(of the punishment) actually enhanced the deterring effect.

Judges have also been unwilling to “intervene”, as they are reluctant
to infringe on the authority of Israeli field commanders, leaving
these decisions entirely to their discretion, in violation of Article
71 of the Geneva Convention. These rulings have effectively closed the
door on judicial accountability for this crime. To this day, no
Israeli soldier has been prosecuted for the demolition of Palestinian
family homes.

In the case of the Israeli siege on Gaza – which has been widely
recognised as a form of collective punishment – Israel has also sought
to dodge international law provisions.

Before October 7, Israeli officials and legal pundits argued that the
siege was a set of economic sanctions. After October 7, the Israeli
government imposed a total blockade, cutting off water, electricity,
food and medical supplies. Despite the UN and various human rights organisations pointing out the clear evidence of collective
punishment, including starvation, Israeli officials claimed that its
forces are allowing enough aid “to prevent a humanitarian crisis”.
According to Oxfam, the calorie count in Gaza currently stands at 245
per day, roughly a quarter of the bare minimum needed to avoid
starvation.

Against this background of internationally prohibited practices,
authorised by judicially created legal exceptions that contradict
international law, the Israeli legal system has consistently failed to
hold the Israeli authorities accountable for violations of
international law. In fact, by upholding loopholes, Israel’s judiciary
has systematically enabled torture and authorised instances of
collective punishment.

Over the years, Israel has put a lot of effort into covering up the
abyssal gap between international standards and Israeli army policies, facilitated by a convoluted system of legal exceptions. Now, the house
of cards has come tumbling down.

The views expressed in this article are the author’s own and do not
necessarily reflect Al Jazeera’s editorial stance.


https://www.aljazeera.com/opinions/2024/7/16/israeli-courts-cannot-and-will-not-prosecute-israels-war-crimes

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