Cruel and Unusual: Israel’s “Death Penalty for Terrorists” Law
> Regardless of whether it will be put into effect, the new law alters the existing legal framework in ways that appear to violate international law—as a public statement composed by 25 Israeli international law scholars (including the two of us) suggests. Israel is a party to the International Covenant on Civil and Political Rights (ICCPR), adopted in 1966. The ICCPR is one of the foundational instruments of international human rights law, ratified by the vast majority of the world’s states (175 states parties). Among its core protections, the covenant guarantees the right to life and imposes strict limitations on the continued use of the death penalty. Although Israel has previously contested the application of the covenant to the occupied territories, this legal claim has been rejected by all international bodies that have reviewed it, including the International Court of Justice (ICJ). It is hard to see how such a claim can be made with respect to Knesset legislation, which purports to apply not only in Israel proper but also in the West Bank.
> The Human Rights Committee’s General Comment 36 (2018), which represents a broadly accepted interpretation of state obligations relating to the protection of the right to life under the ICCPR, states (in paragraph 34) that the Article 6 prohibition on reintroducing the death penalty, once abolished, includes a ban on extending the list of crimes to which the death penalty applies or relaxing associated procedural safeguards, even for states that have not formally abolished the death penalty. Furthermore, states are required to put themselves on a path toward the abolition of the death penalty. In any event, legal proceedings relating to its imposition must meet all due process safeguards, including the right to seek commutation of the death sentence (a parallel requirement exists under Article 75 of the Fourth Geneva Convention, governing military trials in occupied territories).
> The Human Rights Committee’s General Comment 36 (2018), which represents a broadly accepted interpretation of state obligations relating to the protection of the right to life under the ICCPR, states (in paragraph 34) that the Article 6 prohibition on reintroducing the death penalty, once abolished, includes a ban on extending the list of crimes to which the death penalty applies or relaxing associated procedural safeguards, even for states that have not formally abolished the death penalty. Furthermore, states are required to put themselves on a path toward the abolition of the death penalty. In any event, legal proceedings relating to its imposition must meet all due process safeguards, including the right to seek commutation of the death sentence (a parallel requirement exists under Article 75 of the Fourth Geneva Convention, governing military trials in occupied territories).