Israel's new law, known as the 'Death Penalty for Terrorists Law' (DPT), introduces two new criminal offenses related to killings that may be applied in various jurisdictions controlled by Israel.
Territorial Scope of the Law
One of these offenses is enshrined in Israeli municipal legislation and applies to territory that Israel considers its sovereign possession under international law, including the Mandate of Palestine within the 1949 'Green Line' plus East Jerusalem and the Syrian Golan Heights. Municipal legislation may also potentially extend to acts committed outside this zone, such as in the Gaza Strip, occupied parts of Lebanon and Syria (in addition to the Golan Heights).
The second offense exists within the military legal system operating in the so-called 'Zone,' which corresponds to the West Bank outside East Jerusalem. The combined effect of these provisions allows for the introduction of a new death penalty regime across the entire territory under Israeli control concerning the Mandate of Palestine, the Syrian Golan Heights, as well as occupied parts of Lebanon and Syria.
Nature of the New Penal Regime
Since existing death penalty provisions in the municipal and military systems were effectively inactive, the new crimes created by the DPT law essentially form the primary and general death penalty regime in Israel. The state, which previously effectively did not have the death penalty, has now introduced it.
Both offenses stipulate intentional deprivation of life under circumstances corresponding to the definition of 'terrorism' in the Israeli Anti-Terrorism Law of 2016. The municipal law offense has an additional element—the 'aim of denying the existence of the State of Israel.'
Violations of International Law
According to a legal opinion for the Arab Organization for Human Rights in the UK, the existence and potential application of these two offenses constitute a serious violation of two fundamental international legal obligations of Israel. These obligations include respect for the Palestinian right to self-determination and the corresponding right to resistance, as well as the prohibition of racial discrimination.
Right to Resistance and Self-Determination
Regarding the right to resistance, both new offenses are broad enough to cover legitimate acts of resistance possessed by the Palestinian people. Both offenses relate to intentional deprivation of life, which can be lawful within the framework of legitimate resistance provided certain conditions are met, such as necessity, proportionality, status of the person (so that they are not a civilian), etc. The DPT law provides no exceptions on this matter.
However, the definition of terrorism used in both offenses is capable of encompassing legitimate acts of Palestinian resistance. Furthermore, the municipal system includes an additional element—committing an act 'with the aim of denying the existence of the State of Israel.' This concept, undefined in the DPT law or any other Israeli legislation, is potentially broad enough to include the aim of legitimately exercising the Palestinian people's right to self-determination.
Partial exercise of this goal could significantly reduce the 'existence' of the State of Israel from its current scope across all of Palestine to its actual sovereign territory (within the 'Green Line,' excluding West Jerusalem). Moreover, it could lead to the 'existence' of the State of Israel as an exclusively Jewish state being completely refuted, which contradicts the idea of a state where Jews live as equals with everyone else on one land without superiority. Thus, this Israel—a Zionist supremacist Israel—could cease to exist.
The realization of the cessation of all forms of racial discrimination, particularly apartheid, would 'deny' the current State of Israel as a racial, apartheid state. The return of all Palestinian refugees would potentially 'deny' the current demographic composition of Israeli citizens, artificially skewed in favor of Jewish Israelis. Consequently, both offenses criminalize acts of Palestinian resistance to the international illegality of Israel, which are lawful under the Palestinian people's right to self-determination, thereby violating the fundamental right of the Palestinian people to self-determination.
Prohibition of Racial Discrimination
Concerning the prohibition of racial discrimination, the new death penalty regime established by the DPT law is structured in such a way that it will essentially apply only to Palestinians, and not to Jewish Israelis, which entails illegal racial discrimination.
The DPT law adopted a general regime that creates a potentially active penal system with the death penalty in two main operational legal systems, which applies only to Palestinians, not to Jewish Israelis. In the case of a municipal offense, it is formally applicable to all falling under this system—Palestinians and Jewish Israelis. However, one of the necessary elements of the crime—the 'aim of denying the existence of the State of Israel'—is likely to apply only to the non-Jewish Palestinian population and never to Jewish Israelis.
In the case of the new offense in the military legal system operating in the 'Zone' (West Bank outside East Jerusalem), the exclusion of Jewish Israelis is achieved not through a crime element, but because the crime does not initially apply to all people in the 'Zone': Israeli citizens and residents are explicitly excluded. Most residents of the 'Zone' are either Jewish citizens-servicemen and/or settlers, who are excluded by their citizenship, or Palestinians who are not citizens or residents of Israel and, therefore, fall under the purview of this crime.
Thus, the law uses Israeli citizenship and residency as a tool to distinguish between Jews and non-Jewish Palestinians, creating a new capital offense with the death penalty that operates in the 'Zone,' where both groups are present, but applies only to the latter (unless they constitute a tiny minority with Israeli citizenship or residency), and not to the former.
Since this is essentially the only active Israeli criminal punishment system with the death penalty, and generally, and specifically, the only system providing for the death penalty for intentional killing under circumstances corresponding to the definition of 'terrorism' in Israeli law, it is obvious that Jewish Israelis do not have equivalent legal mechanisms. As a result, in the municipal system, people committing intentional killing under terrorist circumstances will never face the death penalty unless it is established that they did so 'with the aim of denying the existence of the State of Israel.' This additional factor is likely to apply only to Palestinians, not to Jewish Israelis, which effectively means that the death penalty has been introduced for intentional killing under terrorist circumstances, but only for Palestinians, not for Jewish Israelis.
Similarly, in the case of the new offense in the military legal system, Israeli citizens in the 'Zone'—mainly Jewish settlers and soldiers—who commit intentional killing under terrorist circumstances will never face the death penalty (and, as noted, will not face the new offense in the municipal system based on individual application of the municipal system to them), whereas Palestinians there (except for a tiny minority with Israeli citizenship or residency) will face the death penalty.
The general conclusion is that through the DPT law, Israel has adopted a general regime in which it has a potentially active penal system with the death penalty in two main operational legal systems that applies only to Palestinians, not to Jewish Israelis. This is not accidental; it was the intention of the law, confirmed by the justification from its proponents and broader understanding in Israeli Jewish society. Although the law is called the 'Death Penalty for Terrorists Law,' it is actually a law that effectively (in the case of the municipal offense) / directly (in the case of the military legal regime) excludes Jewish Israelis who commit intentional killing under terrorist circumstances—for example, Jewish settlers in the West Bank—from its operation. If one word needed to be added to this law, it cannot be 'terrorists.' Essentially, the law should be called the 'Death Penalty for Palestinians Law.'
The actual application of the death penalty to one racial group and the exclusion of another racial group from its application based on racial distinction is a paradigmatic case of illegal racial discrimination and thus constitutes a serious violation of Israel's fundamental obligations under international law.
Other Violations of International Law
The Palestinian right to self-determination and the corresponding right to resistance, as well as the prohibition of racial discrimination, are not the only areas of international law violated by the creation and potential application of the new offenses. An analysis of these two violations should be considered together with other violations, in particular standards of international law regarding fair trial/due process, as well as the prohibition of torture and cruel, inhuman, or degrading treatment; how the racial character of the law, examined here, is part of a broader illegal apartheid system; and how the law and its application are part of genocide committed against the Palestinian people. It is also important to consider the broader illegal nature of Israel's presence in a significant territory where these offenses will be applied, making such application illegal as it is part of the exercise of power that is itself illegal.
Context: Jewish Racial Privilege
To fully understand the nature and international illegality of the DPT law, it is necessary to consider the broader context. The essence of Israel's existence as a Zionist state—a state exclusively for the Jewish people—is that it exists and is the exclusive sovereign over the entire territory of the Mandate of Palestine. The Palestinian people represent a fundamental obstacle to this enterprise, and the Zionist solution to this problem involves three policies and associated practices.
