Israel: IBAHRI condemns law establishing a special military tribunal empowered to impose death penalty
The International Bar Association’s Human Rights Institute (IBAHRI) expresses grave concern regarding a law passed by the Israeli government establishing a special military tribunal – with the power to impose the death penalty – to prosecute those suspected of participating in the attacks of 7 October 2023. The final reading of the Prosecution of Participants in the October 7, 2023 Massacre Events Bill, 5786–2026, was approved by 93 votes to none in the 120-seat Knesset on 11 May 2026. The remaining 27 legislators were absent or abstained.
While justice and accountability are imperative for the victims of the 7 October attacks and their loved ones, the IBAHRI echoes the words of the UN High Commissioner for Human Rights that this cannot be achieved through trials that fall short of international standards.
The approval of the Prosecution of Participants Bill comes shortly after the Knesset approved the Penal Law Bill (Amendment No. 159) (Death Penalty for Terrorists), 2025 on 30 March 2026. The latter allows for the imposition of the death penalty for certain convictions that apply primarily to Palestinian suspects and explicitly excludes Israeli citizens or residents in its application in the occupied West Bank. According to reports, on 17 May 2026, the Commander of the Israeli Military Forces in the West Bank issued a military order purporting to implement the Death Penalty for Terrorists Law in the occupied West Bank that expands the definition of death penalty-eligible crimes and shifts the burden of proof to the defendant by introducing legal presumptions for certain elements of the crimes.
Both the Prosecution of Participants Law and the Death Penalty for Terrorists Law place Israel in direct opposition to its binding obligations under international law and the international trend towards the abolition of the death penalty. The IBAHRI condemns both laws and urges Israel to repeal them in line with its obligations under international law and the global trend towards abolition.
About the Prosecution of Participants Law
Initially, the Prosecution of Participants Bill presented the court as a sui generis hybrid tribunal with a mixed domestic and international composition. However, as legislative revisions were made, the court evolved into a military tribunal with judges drawn from civilian and military ranks. Section 1 of the Law states its purpose to ‘regulate the prosecution of the perpetrators of the acts of hostility, murder, sexual crimes, abductions and looting […] within the framework of the murderous terrorist attack, which began on […] October 7 2023 […]’. Section 3(b) authorises the military court to adjudicate offences according to any law, including under the Counter-Terrorism Law, 5776–2016; the Genocide (Prevention and Punishment) Law, 5710–1950, which carries the death penalty; and the harming of state sovereignty or integrity, causing war and assisting the enemy in war under sections 97 to 99 of the Penal Law, which carry the death penalty when committed intentionally ‘in a period in which armed hostilities were carried on by or against Israel’. Reportedly, 300–400 Palestinians suspected of involvement remain in Israeli custody without charge or trial, to whom this exceptional legal framework is expected to apply.
Fair trial and due process concerns
Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR) holds that everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Article 14(3) provides for minimum guarantees in the determination of criminal charges. As emphasised by the UN Special Rapporteur on counter-terrorism and human rights, the prosecution of acts of terrorism should be undertaken with the same degree of respect for the established rigours of criminal law applicable to ordinary offences.
The Prosecution of Participants Law raises significant concerns from an international human rights law perspective, including, among others, fair trial rights and due process guarantees. For example:
- Section 5 governs judicial appointments, granting the Israeli Army Chief of Staff and the President of the Military Court of Appeals a central role in selecting judges. This, inter alia, raises concerns regarding the independence and impartiality of the military tribunal (Article 14(1), ICCPR).
- Section 17(b) states that the military tribunal may deviate from rules of procedure and evidence, ‘including from provisions regarding access to investigative materials, chain of custody and transfer of evidence, making a decision on the basis of written submissions, and arrangements for witness testimony, if satisfied, for reasons to be recorded, that this is necessary for the clarification of the truth and for the performance of justice and that it does not substantially harm the fairness of the proceedings […]’. This raises concerns regarding, inter alia, the principle of equality of arms, which is guaranteed by the right to equality before courts and tribunals (Article 14(1), ICCPR) and the right to adequate time and facilities to prepare a defence (Article 14(3)(b), ICCPR).
- Section 18 allows for ‘multiple defendants’ to be charged in a single indictment. This raises concerns about the possibility of collective or ‘mass’ trials, which – depending on the number of defendants – risks, inter alia, violating the presumption of innocence (Article 14(2), ICCPR) and inhibiting the ability to guarantee fair trial guarantees in practice (Article 14(3), ICCPR).
- Under Section 18(a), where several defendants are charged in a single indictment and a defendant notifies their intention to refrain from testifying in their own defence, the prosecutor shall be entitled to call the defendant as a witness as if they were included in the list of prosecution witnesses. In such cases, Section 18(b) holds that the defendant’s testimony shall not serve as evidence against them. This raises concerns regarding the right not to be compelled to testify against oneself or to confess guilt (Article 14(3)(g), ICCPR) and how the implementation of the right against self-incrimination would be ensured in practice.
- Section 19 provides the possibility for hearings to be held in abstentia in circumstances where the defendant’s failure to appear is for a ‘justified reason’ but there is ‘a genuine need to advance the proceedings without delay’, following a determination by the court that this ‘would not harm the fairness of the proceedings’. This raises concerns in relation to the principle of equality of arms (Article 14(1), ICCPR) and the right to be tried in one’s presence (Article 14(3)(d), ICCPR).
- Section 21 holds that the military tribunal may permit the prosecutor to commence the presentation of evidence before a decision has been rendered on a request or appeal regarding access to investigative material or a petition for disclosure of classified evidence, ‘if it finds, after hearing the positions of the parties, that this would not harm the defense of the defendant or the fairness of the proceedings’. This raises concerns regarding the principle of equality of arms (Article 14(1), ICCPR) and the right to adequate time and facilities to prepare a defence (Article 14(3)(b), ICCPR).
The Prosecution of Participants Law grants the military tribunal discretion in several of the above provisions, for example to determine that a procedural decision does not harm, inter alia, ‘the fairness of the proceedings’. Concern regarding the above issues and such discretion is heightened in the context of Israeli military courts in the occupied West Bank having been found to systematically fail to meet international fair trial standards.
The mandate of the UN Special Rapporteur on the independence of judges and lawyers has observed that the administration of justice through military tribunals raises serious concerns regarding, inter alia, the independence and impartiality of the judiciary and respect for defendants’ fair trial rights. The UN Special Rapporteur on counter-terrorism and human rights has also expressed concern about lower fair trial guarantees often characterising military and special courts in practice ‘due to prolonged periods of pre-charge and pretrial detention, with inadequate access to counsel, intrusion into the attorney-client confidentiality and strict limitations on the right to appeal and bail’.
Under international standards, the jurisdiction of military tribunals should be limited to offences of a strictly military nature committed by military personnel. In its General Comment No. 32, while stressing that trials of civilians by military courts should be exceptional, the UN Human Rights Committee highlighted that the full guarantees stipulated in Article 14, ICCPR, must be genuinely afforded in military trials. In its General Comment No. 36, the UN Human Rights Committee further emphasised that ‘[a]s a rule, civilians must not be tried for capital crimes before military tribunals’.
Concerns over false confessions, arbitrary death sentences and violations of the right to life
Section 16(d) grants the military tribunal the power to impose the death penalty by a simple majority of judges. The panel will be composed of three judges for both the court of first instance and the court of appeal (Sections 9 and 10). This departs from Section 215(1) of the Military Justice Law, 5715−1955, under which death penalty appeals must be heard by a panel of five judges.
As the UN Human Rights Committee has highlighted, scrupulous respect of fair trial guarantees is particularly important in capital trials. The imposition of the death penalty after a trial in which the fair trial provisions of Article 14, ICCPR, have not been respected renders the sentence arbitrary and a violation of the right to life under Article 6, ICCPR.
This risk is heightened by reports of coercive practices in security-related cases, which can amount to torture or other ill-treatment and lead to unreliable information, false confessions, wrongful convictions and serious miscarriages of justice. However, allegations of such a nature often take considerable time to come to light due to various factors, including psychological trauma, fear of reprisals and legal and procedural barriers. As the UN Human Rights Committee has emphasised, criminal convictions resulting in the death penalty that are based on information procured by torture or cruel, inhuman or degrading treatment violate Articles 7 (prohibition of torture and ill-treatment), 14(3)(g) (right not to be compelled to testify against oneself) and 6 (right to life), ICCPR.
Abolition of the death penalty
According to the World Coalition Against the Death Penalty, of which the IBAHRI is a member, 145 countries have abolished the death penalty in law or in practice. Specifically, 113 countries have abolished it for all crimes, ten have abolished it for ordinary crimes and 22 are considered abolitionist in practice. As of 2025, Israel was classified as abolitionist for ordinary crimes only, with its last execution dating back to 1962.
The IBAHRI reiterates that Israel has an obligation under Article 6(6), ICCPR, to be on an irrevocable path towards complete eradication of the death penalty, de facto and de jure. It is contrary to the object and purpose of Article 6 for State Parties to take steps to increase the rate of use of and the extent to which they resort to the death penalty.
ENDS
Contact: IBAHRI@int-bar.org
Notes to the Editor
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Related material:
- The International Bar Association’s Human Rights Institute (IBAHRI), established in 1995 under Founding Honorary President Nelson Mandela, is an autonomous entity working to promote, protect and enforce human rights under a just rule of law, and to preserve the independence of the judiciary and the legal profession worldwide.
- Find the IBAHRI on social media here:
- The International Bar Association (IBA), the global voice of the legal profession, is the foremost organisation for international legal practitioners, bar associations and law societies. Established in 1947, shortly after the creation of the United Nations, with the aim of protecting and promoting the rule of law globally, the IBA was born out of the conviction that an organisation made up of the world’s bar associations could contribute to global stability and peace through the administration of justice.
Website page link for this news release:
Short link: tinyurl.com/3as76zpa
Full link: www.ibanet.org/Israel-IBAHRI-condemns-law-establishing-a-special-military-tribunal-empowered-to-impose-death-penalty