The death penalty returns to Israel

0:00This is The Guardian.

0:07Today, mass trials, televised tribunals, and the noose. A new era for Israel's justice system.

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0:58Earlier this month, Israel's far-right security minister, Itamar Ben-Gavir, celebrated a special birthday. There was music, guests and, naturally, a cake. With a very special birthday message. So he had his 50th birthday earlier this month. And his cake, which he proudly shared pictures of on social media, was a noose-themed cake. So there was a big image of a noose. Oh my God. And around it was the sort of caption or the message in icing, congratulations Minister Ben-Gavir, sometimes dreams come true. For decades, Israel was a country that had effectively left the death penalty behind. Now, after the passing of two separate laws in two months, all that has changed.

1:57From The Guardian, I'm Annie Kelly. Today in Focus. Israel brings back the death penalty, but only for Palestinians?

2:14I'm Graham Harrison. You're The Guardian's chief Middle East correspondent based in Jerusalem. Welcome to Today in Focus. Today we're here to talk about this new law that has been passed in Israel that will mean that Palestinian prisoners charged with involvement in the October 7th attacks could now face the death sentence. But this is actually the second piece of legislation about the death penalty passed in Israel in recent months. So can we start by you telling me about the law that was passed by the Knesset in March and how this has laid the groundwork for what we're seeing now? So the law that was passed in March is frankly horrifying.

2:54It's fundamentally racist. It's basically aimed only at Palestinians because it instigates the death penalty for people convicted of deadly terrorism with an intent to deny the existence of the state of Israel. So essentially, it's almost impossible to imagine a scenario in which, for instance, a Jewish Israeli convicted of terrorism against Palestinians would face the death penalty. And then it has provisions that are extremely disturbing. So in occupied Palestine, people will be tried in military courts, they can be convicted and face the death penalty on the decision of a majority of judges, there doesn't have to be unanimity.

3:34It's a default penalty. As a sort of concession to people who were concerned about a mandatory death penalty, there is a provision that it could be commuted to life in prison under special circumstances, but those aren't defined. There's no provision for judges to be able to issue a pardon, and it has to be imposed within 90 days. So, you know, if you think about how long it can take for miscarriages of justice to work their way through any judicial system, this isn't about Israel's judicial system in particular, false convictions take decades to come to light. And then even inside Israel, where it would be applied in civilian courts.

4:13So there would be different provisions. You still have this racist component that it's aimed primarily at Palestinians. And it's still been really heavily criticised. So basically, as soon as it was passed, we saw a whole range of Israeli human rights groups filing suit in the Supreme Court to have it thrown out. Relatives of Palestinian prisoners and activists staged a sit-in in front of the headquarters of the International Committee of the Red Cross. There was also condemnation from the EU and human rights groups who say the punishment discriminates against Palestinians. And it should be said it had a clear majority.

4:53It was supported by 62 lawmakers, which is a very thin majority. 48 voted against it and one abstained. I mean, it did pass, but it was still contentious. When the law was passed, there were also just the most incredible scenes coming out of the Gnesset. The jubilation from the far-right Israeli national security minister, Ben Gavir in particular, who I think at the time the law was passed was wearing a badge with a noose displaying his support for the death penalty for Palestinians. They were so striking, just done so openly. There's one thing to argue for the death penalty as a part of a judicial system to argue that it's a deterrent, although lots of evidence shows it's not.

5:41That is not what Ben Govear is doing. Ben Govear seems to be sort of celebrating really a sort of culture of execution.

6:01so emma on the one hand you've got this law concerning the death penalty passed back in march but then earlier this month israel passed this legislation that looks like it deals specifically with palestinians accused of participating in the october 7th attacks Can you tell me about that? Yeah, so this is a new law that sets up tribunals. So what's new is not the law or the sort of details of the crimes. It's the way in which people accused of taking part on October 7th are going to be put on trial. And it sets up these essentially military tribunals that have raised concern among human rights advocates here because they do away with or scale back a lot of provisions that are considered pretty integral to a fair trial.

6:49So these tribunals, they create special military courts to try people accused of committing crimes on October 7th and against hostages who were held in Gaza. Judges will be appointed by the military for fixed terms, which raises concerns about judicial independence. They can change rules of procedure and evidence in order to expedite the trials and protect victims and survivors. Obviously, you can understand the concern that people who've lived through the atrocities on October 7, or through captivity, you know, should be protected. But doing that at the cost of justice is a big concern. There's a default that defendants don't have to be present themselves in court so that they can participate by video, even that can be waived.

7:39So essentially, they're bringing in the death penalty while relaxing the heightened due process that was in place in existing Israeli legislation for any potential case that could end with a death sentence, although the people may well have been involved in atrocities. And you said that it was the military that were appointing the judges. Is that correct? That is correct. Yeah. Right. So essentially, it is the Israeli defence forces, the Israeli military who are effectively deciding who gets to preside over these tribunals. Yeah. And I mean, the argument for that was that it would be more efficient.

8:18And I think, you know, people I've spoken to have said that in itself is worrying because, again, there's huge need and demand for justice, for accountability. People who lost their loved ones, who were injured, who were taken captive nearly three years ago now, want to know what happened, want the people who committed these atrocities to be held accountable. But the worry is that if you do it in a context where the judicial process isn't the priority, you actually won't end up with real justice, with real accountability. Could you just tell us how many people are currently stand accused of crimes related to on October 7th who could be passing through these tribunals?

9:02So there's three to 400 Palestinians from Gaza who are currently being held on suspicion of some involvement in the atrocities on October 7. The law setting up these tribunals specifically allows for mass trials. You know, adding to concerns about the nature of these tribunals is the fact that they're going to be, or at least parts of the proceedings are going to be live streamed. And so there's real concern that that is going to be taken by government to create a national narrative. A criminal trial is meant to provide justice, but it's also meant to clarify what happened on a particular day and who did it.

9:42And the concern of people I've spoken to who very much back the urgent call for accountability for people to be put on trial, their concern is that these aren't going to end up with real accountability, with real justice, that, you know, you might come out to them with people found guilty and even being executed, but they might not be the people who actually committed the crimes. And that's potentially exacerbated by the fact that there's not that much forensic evidence. I mean, for very understandable reasons, you know, the areas where these atrocities were committed were an active war zone, the priority was saving lives, re-establishing control, things like that.

10:20So you have a lot of video evidence, you have sort of signals intelligent that people were in the area at the time. But the question of tying individuals to specific crimes, you know, that's something that potentially is going to be harder to prove. And, you know, if you have defendants not in court, it's also unclear how they're going to be represented, because the government said they won't be able to access the public defender system. So you're going to have people facing the death penalty without defence lawyers. You know, that's another big question, sort of hanging over the prospects of this.

10:52The law for these tribunals was passed unanimously, in the Knesset. 93 votes in favor, none against. Not one objection. 93 Israeli MPs voted in favor of establishing a special military tribunal to prosecute Palestinians from Gaza accused in Hamas's October 7th attacks. An unusual united front among the parliament's 120 members. One of the people I spoke to, who's the head of a leading Israeli human rights organization, called the Public Committee Against Torture, Sari Bashu, who's a lawyer herself, she described these tribunals as basically a new mechanism that will fast-track show trials leading to mass executions and based on confessions extracted under torture.

11:44And that's a pretty devastating prospect. You've done a lot of reporting on conditions for Palestinians inside prison. Can you just tell us a bit about what your reporting discovered? Yeah, so I mean, I should say, first of all, this isn't just my reporting. These horrific conditions have been documented by a broad range of journalists, human rights groups, investigators. The Israeli-Palestinian human rights group, B'Tselem, says that Israel's prisons should be called torture camps, where torture has become systemic, and that includes sexualised violence. I myself have interviewed a man who said he had survived rape.

12:28He gave a very detailed and credible account of what had happened to him. The Israeli prison service denied that. But that is not an isolated account, which is why, you know, B'Tselem and other organisations say that they are credible. We hear these repeated patterns of behaviour and, you know, torture produces false confessions. That's something that's universally known. So conditions in the prisons are horrific. There's complete impunity for abusing Palestinian prisoners. We know of around 100 prisoners who died in detention. The number's probably higher. So people are being tortured. They're emerging from prison emaciated.

13:08They're on starvation rations. The government has been repeatedly told by the Israeli Supreme Court that it needs to increase rations to prisoners because they aren't being starved and has not done so. The security minister, Ben Gavir, has boasted of keeping people on starvation rations. So, you know, that's just another layer of concern, really, about these trials, that you will be putting people on trial who have been tortured, potentially using confessions extracted under torture. And what has been the reaction from the public to the news of these tribunals? Well, you know, that's a good question, Annie, because I think on the one hand, you know, broadly speaking, people are very keen to see justice done.

13:52But at the same time, you know, we've seen a long sustained campaign by members of the public, survivors, relatives of people who were killed for an independent commission of inquiry into October 7th. And the government's blocking that. They're saying they're going to set up their own commission of inquiry, but it won't have the same independence, it won't have the same power to sum and witnesses. And I think, you know, in a way, the questions about these tribunals go to the same question. You know, the government says this is about justice, but critics would say, actually, this is not about real justice, about real accountability, about truly finding out what happened on October 7th, who committed these crimes against humanity, and who directed them, and the failings on the Israeli side that left so many thousands of Israelis vulnerable.

14:45In some ways, these trials feel to many people long overdue. It's been so long since these things happened now, over two and a half years. It's not been a question that they've been trying to find the suspects. They've been in captivity all this time. But at the same time, there is definitely a feeling among many Israelis that this is a government that's putting its own interests before those of victims, survivors and long term national security, actually, because if you don't understand properly what went wrong, how can you be sure you stop it happening again?

15:29So, right, you've got these two new laws that have been passed recently. One in March that effectively brought in the death penalty in Israel, and this other one in May that set up these tribunals around October the 7th. How are they linked exactly? Well, you know, I mean, in one sense, you could say they're very different. One is looking back at setting up these tribunals under the framework of existing Israeli law. The other is looking forward and setting up a new legal regime, a new set of statutes under which the death penalty can be handed down. But in another way, they're very, very intimately linked as really part of a legal move to essentially re-establish the death penalty inside Israel, but only for Palestinians.

16:19both parts of that are important to sort of think about and understand the first is you know in Israel's entire history there have only been two executions the first was a soldier who was executed very shortly before he was exonerated so that was a wrongful execution I think in 1949 the very beginning of Israel's existence as a state and then in 1962 you had the execution of one of the most prominent Nazis, Eichmann. Hannah Arendt wrote a famous book about the trial, Eichmann, in Jerusalem. And since then, Israel has essentially had a de facto moratorium on the death penalty. And that's not just been a decision not to implement it.

17:08For 60 years, Israel has been in the camp of countries that really don't use capital punishment. So with these two laws, we've seen Israel firstly overturn its own long-standing position, really, of being against capital punishment, of reserving it essentially for this one criminal who was responsible for, you know, what Israeli lawyers have called a sort of historic injustice, you know, the Holocaust. And then also in applying it in a racist way, because, you know, the tribunals for October 7th, those atrocities were carried out by Palestinians from Gaza. So that's only going to be Palestinians on trial.

17:49And then with the law that was passed in March, in a sort of, you could say, legislatively racist way, you have a death penalty, which essentially only applies to Palestinians, because it's for deadly terrorist attacks, but only when the perpetrator is considered to have an intent to deny the existence of the state of Israel.

18:17Coming up, can anything change Israel's culture of impunity?

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19:10What about Israelis accused of crimes against Palestinians? Like, what kind of justice do they face? There's almost a mirror image, right? So what you see is a government that's bringing in the death penalty for Palestinians. And for Israelis who kill Palestinians, effectively total impunity. There has not been an Israeli indicted for killing a Palestinian civilian in the Occupy Bus Bank this decade. The last death of a Palestinian civilian that led to an Israeli being indicted was in 2019. Wow. Since then, we've had, according to UN figures, over 1 ,500 Palestinians have been killed. And, you know, that includes shootings that have been captured on camera.

19:57You know, in one case, one of the victims videoed his own murder. You're watching Israeli settler Yunnan Levi harassing Palestinians with a gun in his hand. Filming the assault is Palestinian activist Aouda Hadhalin, who is unaware that he's about to capture his final moments. Aouda collapses. His phone continues recording as he takes his final breaths. There's been not a single indictment. Some people have been arrested, but then they're either released again or the case hasn't proceeded to charges. So, you know, what message does that send? being arrested, but they're never charged. And is anyone in Israel speaking out about this kind of impunity?

20:41We've seen increasingly senior figures speaking out particularly about impunity for violence by settlers in the occupied West Bank. You know, a lot of our reporting, we've focused on the way the lines between the army and civilians are blurred in the occupied West Bank. And I think there's a lot of the establishment figures who have been critical would like to make a clear distinction. But I spoke to Ehud Olmert a couple of months ago, who is the former prime minister of Israel. You know, I think one of the things that to me was most important about what Olmert said, you know, and to be clear, he was speaking specifically about violence by Israeli settler civilians in the Occupy West Bank against Palestinians, not about all violence.

21:32But he called for an ICC intervention to save Palestinians and Israelis. This isn't just about protecting Palestinians from Israeli violence. It's also about, you know, in his view, about protecting Israel and Israel's future as a democratic state with a functioning legal system. He sees this intervention as vital for for both Palestinians and Israelis. And what about, we talked about the military courts, what about IDF personnel who might have been involved in war crimes in Gaza, for instance, there have been, I think, some investigations into very highly publicised events that happened during the war in Gaza.

22:17Has there been any attempt to also investigate any crimes committed by IDF soldiers? I mean, it depends what you mean by investigation, right? These are internal military investigations. There have not been any criminal investigations that I'm aware of. Even the very high profile ones that have involved, for instance, the killing of international aid workers like the World Central Kitchen, the documented killing of medical staff, a group of Palestinian Red Crescent workers who were in their ambulances, video showed that they were in their ambulances answering a Israel initially tried to say that they were not, didn't have their lights on and things.

22:56The punishments that have been handed down have been administrative and within the military justice system. They've been put in prison, military prison for a few days, but there hasn't been any criminal proceedings. So this glaring disparity that you've just laid out between the treatment of Palestinians accused of crimes against Israelis and the treatment of Jewish Israelis accused of crimes against Palestinians. Is that a problem for people in Israel? Is that something that the general population are aware of and have a problem with? I mean, that's an interesting question. And when you say accused, that's even part of the problem, right?

23:34Because nobody's being accused in a court of law or by the legal system. And that is something that seems to have pretty majority support. So perhaps the most high profile case inside Israel since October 7th involving Israeli violence against Palestinians was a alleged violent rape of a Palestinian detainee in a military prison called Seder Tehman in 2024. The attack, which medical records showed included a rape, was caught on camera. So there's video footage of it. And it came to light, it was brought to the attention of the military prosecutor by medical whistleblowers. So when this man was taken to hospital with horrific injuries, doctors in the hospital reported to police that he'd been a victim of a terrible assault.

24:31So it was something that was brought to light within the Israeli system. The military advocate general, who's like the chief prosecutor, then launched a case against these soldiers for assault. And when they were arrested, it prompted mass demonstrations. We saw crowds of people, including members of the Knesset, storming military bases.

24:58not motivated by horror at this violent attack, but motivated by anger that soldiers had been detained. One of the members of Knesset said openly, you know, asked if it's permitted to rape a detainee, and they said if that person is a Nukbar, a member of the elite Hamas force, which sort of led the October 7th attack, anything is permitted. The case was eventually dropped over a year later, And when it was dropped, Netanyahu welcomed the end of, quote, a blood libel. So this attempt to prosecute a very high profile, very well documented case of abuse was essentially attacked by the prime minister.

25:45we've talked about the passing of these two new laws in the last couple of months but i'm thinking that for palestinians in the future what will be the impact for them especially of this death penalty law this new legislation for palestinians in the west bank in particular is immediately and personally terrifying you know this is a law that effectively has a mandatory death sentence. And not just that, but, you know, in military courts, which have at the moment a 97 % conviction rate. And I think that in itself tells you something about the type of justice that's being dispensed there. You know, there just aren't credible courts in the world that have that kind of conviction rate, if you're following a process of real justice.