Is Israel’s New “Death Penalty for Terrorists Law” an Act of Apartheid?

[Gerhard Kemp is professor of criminal law at UWE Bristol and serves on the board of directors and executive committee of the Institute for Justice and Reconciliation in Cape Town]

The recently adopted “Death Penalty for Terrorists Law” (unofficial translation, here) was met with widespread condemnation by governments (e.g., here, here), civil society and human rights groups (e.g., here), the UN High Commissioner for Human Rights, and by legal scholars, including a group of prominent Israeli international law scholars. While many of these statements included general (abolitionist and human rights) concerns, most if not all the statements raised the discriminatory (and what some explicitly called, apartheid) characteristics of the Death Penalty Law. 

The Israeli scholars identified several constitutional and international legal objections to the Death Penalty Law. One of the objections reads as follows:

“In our view, imposing the death penalty in such circumstances [i.e., the new death penalty law expands the legal circumstances in which the penalty would apply, in a manner that effectively applies to Palestinian convicts only] amounts to racial discrimination and, in certain circumstances, even to the crime of apartheid, which may give rise to international criminal liability to anyone involved.”

The statement by the Israeli scholars does not expand on this point. Leaving aside the domestic (constitutional) and international human rights law objections to the Death Penalty Law, is it a plausible proposition to object to the Death Penalty Law because it may be construed as an apartheid law, indeed as an act of apartheid for purposes of this crime under international law? 

The Death Penalty Law and (Racial) Discrimination

The Death Penalty Law provides (in article 3) for the amendment of the security provisions which are enforced by military courts in the occupied West Bank. It is provided that a resident of the West Bank who intentionally causes the death of a person, where the act constitutes an act of terrorism (as defined in the relevant criminal law), shall be sentenced to death (unless the military court finds special circumstances to impose a life sentence instead). This compulsory death sentence provision is applicable to residents of the West Bank, excluding Israeli citizens or Israeli residents. 

The Death Penalty Law clearly provides for differentiated treatment between Israeli citizens/residents and Palestinian non-citizens in the Occupied Palestinian Territory (OPT). As Kai Ambos has noted (with reference to other laws and practices imposed by Israel on the OPT), differentiated treatment in law, and given the racialization of the Palestinian people, does not exclude the possibility of discrimination pursuant to racial grounds; indeed, it may “entail a racial group domination within the meaning of the apartheid crime” (at p. 532). 

Individual Criminal Liability for the Crime Against Humanity of Apartheid

For individual criminal liability, we turn to the Rome Statute of the International Criminal Court (ICC Statute), which defines the crime against humanity of apartheid as

“inhumane acts…committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime”.

The Israeli scholars mention that the imposition of the death penalty under the new law could give rise to individual criminal liability for the crime of apartheid. This is probably a reference to the crime defined in the Rome Statute. Indeed, the situation in Palestine (Occupied Palestinian Territory, including East Jerusalem) falls within the jurisdiction of the ICC and it is therefore the appropriate legal framework to consider in this context. The focus of this comment is therefore restricted to the operation of the Death Penalty Law in Palestine (the occupied West Bank in particular), and not the amendments to the criminal law of Israel and as it applies in the State of Israel (which would fall outside the jurisdiction of the ICC). 

The Prohibition (and Criminalization) of Apartheid Under International Law

The concept of apartheid in the Convention on the Elimination of All Forms of Racial Discrimination (CERD), to which Israel is a party, and in particular the definition of racial discrimination in Article 1, informed the definition of the crime of apartheid in the International Convention on the Suppression and Punishment of the Crime of Apartheid (Apartheid Convention). While the ICC Statute definition of apartheid is textually different from the definition in the Apartheid Convention, one can note that both definitions underscore apartheid’s composite nature. The ILA Draft Articles on State Responsibility describes a “composite act” as “some aggregate of conduct and not individual acts as such”. The ILA commentary on the relevant draft article maintains that examples of “composite acts” include the obligations concerning genocide and apartheid. Judge Tladi, in his Declaration in Legal consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem (ICJ Advisory Opinion on the OPT), described the composite nature of apartheid as “the existence of one or more racial groups, perpetration of one or more inhuman acts against one or more of the racial groups in a systematic manner and the perpetration of those acts with the purpose of establishing and maintaining domination”. Judge Tladi (who referenced his upbringing as a Black man under apartheid in South Africa) noted the similarities between Israel’s policies and practices as imposed on the OPT and apartheid South Africa, including the existence of separate legal systems. As to the intent to dominate, Judge Tladi recalled that the International Criminal Tribunal for the Former Yugoslavia (ICTY) observed, in the context of the crime of genocide, that intent and purpose can be “inferred from a number of facts and circumstances, such as the general context, the perpetration of other culpable acts systematically directed against the named groups”. Thus, Israel’s policies and practices, taken together, reveal the purpose of dominating the Palestinians. Judge Tladi also noted that, for the purpose of establishing the “purpose of domination” element, it is not necessary for domination to be the sole, or even dominant reason, for the discriminatory measures. 

The matter of separate legal systems in the OPT is of particular relevance. For instance, in their report of 3 April 2012, the Committee on the Elimination of Racial Discrimination noted that CERD state party Israel’s implementation in the OPT of separate legal systems for Jewish settlers and Palestinian populations amount to de facto segregation. The Committee also referenced a recommendation dating back to 1995 concerning the “prevention, prohibition and eradication of all policies and practices of racial segregation and apartheid” and that Israel was urged to “take immediate measures to prohibit and eradicate any such policies or practices which severely and disproportionately affect the Palestinian population in the Occupied Palestinian Territory and which violate the provisions of article 3 of [CERD]”. It should be noted that the ICJ, in the Advisory Opinion on the Occupied Territory, found that Israel’s legislation and measures in the OPT constitute a breach of Article 3 of CERD, that is, the prohibition of racial segregation and apartheid (Advisory Opinion at para 229). The ICJ’s finding is open to interpretation: the Court did not explicitly find that Israel is committing the crime of apartheid in the Occupied Territory. However, Victor Kattan argued that a connotative reading of the Advisory Opinion leads one to conclude that the ICJ, in essence, “opted to describe an apartheid system without qualifying it expressly as such”. Indeed, as Kattan noted, to “say Israel imposes a ‘regime of comprehensive restrictions’ that leads to ‘systemic discrimination’ (para 223) comes very close to saying that it is committing the first constituent element of the definition of the crime against humanity of apartheid identified by four of the ICJ judges: that of an institutionalised regime of systematic oppression and domination”. 

For individual criminal liability, the perpetrator must be aware that his/her acts were part of the institutionalized regime (the specific context element of the crime of apartheid). Individuals who promote or participate in such a regime (including leadership and at the operational level) and who act with knowledge regarding the inhumane acts can potentially be seen to act with intent to maintain the institutionalized regime of systematic oppression and domination. Kai Ambos (p. 544) referencing Israel’s regime in the OPT, noted that this regime “has not only existed for decades now, but the relevant policies and practices have also been widely documented, not only by international bodies, but also by Israeli domestic sources”. 

It is plausible to view the Death Penalty Law as an addition to the discriminatory and oppressive regime, and that it was adopted and will apparently be operationalized with full knowledge of the effect of this law: the further oppression and domination of the Palestinians and the suppression of opposition to Israel’s policies and practices in the OPT. 

The Death Penalty in the Paradigmatic Apartheid Case Study: Pre-1994 South Africa

Apartheid South Africa’s criminal laws provided for capital punishment as a sentencing option and followed the colonial-era laws on the death penalty for the crimes of murder, rape, and treason. For certain crimes (notably murder) the death sentence was compulsory. The advent of apartheid (and the concomitant resistance to this system) brought about a proliferation of capital offences, including the crime of sabotage, the undergoing of training abroad for the purpose of furthering communism, the furthering overseas of economic and social change in South Africa by means of violent means, kidnapping, and the participation in terrorism activities. The Criminal Procedure Act of 1977 provided for eleven capital crimes. Although capital punishment was not by law reserved for specific racial groups, the biases in the criminal justice system, the oppressive nature of what can collectively be described as apartheid’s “security laws”, and the abuse of criminal law (including the common purpose doctrine/joint criminal enterprise) to obtain convictions in capital cases, had a disproportionate impact on non-white individuals. Indeed, the death penalty was a central part of the apartheid State’s effort to dominate and oppress the Black majority and to suppress opposition to apartheid. 

The international community, including the UN Security Council, condemned the execution of anti-apartheid activists resulting from their opposition to the policy of apartheid. At the height of the apartheid State’s violent oppression of internal resistance in the 1980s, South Africa had one of the highest execution rates globally. As mentioned, the death penalty was not exclusively reserved for specific racial groups. Historically, a few white prisoners were executed (mostly for common law murder), and there was one case of the execution of a white anti-apartheid activist, but, as submitted to the post-apartheid Truth and Reconciliation Commission, capital punishment was clearly racialized in terms of impact. 

The Constitutional Court of post-apartheid South Africa, in the case of The State v. Makwanyane & Another, declared the death penalty to be unconstitutional, mainly because it violates the rights to life and human dignity. But it is important to note the Court’s recognition of the historic role of capital punishment in the system of apartheid. Several of the judges in their separate, concurring opinions, drew attention to the role of capital punishment as a tool of oppression in the hands of the apartheid State, and as a tool to maintain the apartheid system. For instance, Judge Langa (at para 226) contextualized the right to life and observed that “violence has been perpetrated through the machinery of the State, in order to ensure the perpetuation of a status quo [i.e., apartheid] that was fast running out of time”. And Judge Mokgoro (at para 310) noted that we “cannot view the death penalty as fundamentally inconsistent with our harsh legal heritage [of apartheid]. Indeed, it was an integral part of a system of law enforcement that imposed severe penalties on those who aspired to achieve the values enshrined in our [democratic] Constitution today.” 

Conclusion

The historic first prosecution of individuals for the crime of apartheid in a South African court shows that a key element of the crime is the commission of inhumane acts with the intent to maintain the oppressive regime. The new Death Penalty Law is arguably inhumane and cruel if viewed through a human rights lens, an angle adopted in the petition by human rights groups filed at the Israeli Supreme Court in which it is demanded that the Law be declared null and void on the basis that it violates the right to life and that it imposes cruel and inhuman punishment. But the law is also discriminatory on its face. The Law must furthermore be evaluated in the context of the system of laws and practices designed to oppress and dominate the Palestinians in the OPT. Those who crafted and those who wield this weapon of oppression and domination may very well expose themselves to the risk of criminal responsibility for the crime against humanity of apartheid under the Rome Statute of the ICC.

Photo attribution: “Graffiti of Peace in Bethlehem on Apartheid Wall” by Kis-Lev is licenced under CC BY-SA 4.0