The Role of Jurists in Legalizing Torture: An Assessment of the Israeli System under International Criminal Law

Master Thesis

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The present dissertation examines the role of jurists in the application and legitimisation of torture practices, and assesses their responsibility under international criminal law.

Focusing specifically on the Israeli system, from the analysis of the institutions, as well as of the wider “security” domain that they shaped, two main findings emerged. The first being the systematic use of torture as a tool against security suspects; whilst the second finding refers to an equally systematic identification of security suspects with the Palestinian population of the occupied Palestinian territory. Both these result from the application of strictly judicial mechanisms, in the form of interpretative and procedural elements.

Given that torture constitutes a war crime, a crime against humanity and a relevant conduct for the crime of apartheid, this dissertation hypothesizes the responsibility of Israeli jurists under international criminal law, as complicit in the crime of torture. In particular, the study proposes to adopt the mode of liability of aiding and abetting, based on the scrutiny of the case law and statues of the Nuremberg Military Tribunal, the ad hoc tribunals for the Former Yugoslavia and Rwanda, the Extraordinary Chambers in the Courts of Cambodia, the Special Court for Sierra Leone, the Special Tribunal for Lebanon and the International Criminal Court.

The accountability of these actors could today take place through two main mechanisms, which are critically assessed: the recently opened proceedings at the International Criminal Court, or the domestic proceedings in third States that adopted the principle of universal jurisdiction.

In light of the most recent events in Israel/Palestine, which culminated in intense violent acts and in a further military operation on Gaza, it appears clearly that the practice of torture represents only one of the many facets of a wider system of oppression, that many defined as apartheid or settler colonialism.

From this standpoint, the Israeli system can be defined as a paradigmatic case due to its “hyper-legalised” nature, where acts potentially amounting to international crimes are regularly sanctioned and legitimised by the use of articulated legal arguments. The hypothesised criminal responsibility attributed to Israeli jurists intends to highlight the crucial role they hold, and engage in a more comprehensive debate, by centering the systematic nature of the violence to which we are witnesses, notwithstanding - our even beginning with - the impunity, institutionalisation and legitimisation that the law has provided.