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Last month, the Israeli Knesset (Parliament) passed comprehensive legislation overhauling domestic counterterrorism authorities. When it enters into force in November, the new Counterterrorism Law will replace or amend a host of existing criminal and administrative measures, some dating back to the British Mandate.
The new law is the product of a long and thorough legislative process spanning several governments. A previous version was considered by the Israeli legislature as early as 2011. Parties across the political spectrum supported the law, which is remarkable considering that it relates to core aspects of Israel’s national security. The largest opposition party in Israel, the Zionist Union, imposed party discipline to compel its members to vote for the law, and one of the parties’ leaders, MK Tzipi Livni, pushed the legislative process forward as Justice Minister in the previous government. However, others in the political system, like the left-wing Meretz and Joint List parties, have not been as welcoming. The human rights community in Israel has also criticized the law. Critics have argued that the law’s definition of terrorism is too broad, and that it normalizes, perpetuates and expands already wide-ranging government counterterrorism authorities, many of which are currently based on special emergency laws. See, for example, here, here, and the position of the Association for Civil Rights in Israel, here (in Hebrew).
The law attempts to provide a consolidated and up-to-date statutory basis for an array of domestic counterterrorism measures, pulling together elements from different areas of prior law. According to its text and explanatory notes, the purpose of the law is to provide the Israeli government with the civil, administrative and criminal law tools necessary to combat the modern multi-faceted terrorist threat, while taking human rights considerations and Israel’s obligations under international law into account. The new law contains both punitive and preventive measures, designed to curtail and obstruct terrorist activities by blocking financing channels and other forms of support.
Specifically, it defines the terms “terrorist organization,” “member of a terrorist organization,” and “terrorist act,” thus providing an updated legal definition for what constitutes terrorism. It establishes procedures for designating certain groups as terrorist organizations and outlines the implications of such designations. It introduces a set of special criminal offenses for terrorist acts and related activities, and mandates harsher sentences for such offenses. It modifies standard evidentiary rules and other rules of criminal procedure for terrorism-related offenses. It provides for special arrest procedures for suspects in “severe terrorism offenses.” Finally, it places financial and other sanctions at the disposal of the government in combating terrorism.
It is important to note that Israeli legislation generally does not apply in the West Bank, and the new Counterterrorism Law is no exception. However, Israel’s criminal law applies extraterritorially for certain offenses, including offenses against the nation’s security and foreign relations (see section 13 of the Penal Law, 1977). Section 41 of the new law specifically provides that certain terrorism-related offenses under the new law would satisfy the requirements for extraterritorial application under the Penal Law. In other words, the law covers certain terrorist acts perpetrated outside Israeli territory, if there is an Israeli nexus.
There is a lot to say about the specific provisions of the Law and how they balance security considerations with human rights concerns. In this post I focus on the law’s definition of terrorism, and its network approach to designating terrorist organizations, which targets not only those directly involved in terrorism but also their support system.
What is “Terrorism”?
In the absence of a consensus international legal definition of terrorism, the question of what exactly constitutes terrorism has been the subject of considerable debate. The new Counterterrorism Law modifies an earlier definition that appears in section 1 of the Israeli Prohibition on Terrorist Financing Law, 2005 (among the measures the new law replaces). Section 2 of the new law defines an “act of terrorism” as follows (my unofficial translation):
An act [that] constitutes an offense, or threat thereof, if it satisfies all the following:
Committed with a political, religious, nationalist or ideological motive;
Committed with the aim of stirring fear or panic among the public or coercing a government or a governing authority, including the government or a governing authority of a foreign State, or a public international organization, to take action or to refrain from taking action;
The act or threat satisfies one of the following, or creates a substantial risk that one of the following occurs:
Serious injury to a person’s body or freedom;
Serious disturbance to public safety or public health;
Serious damage to property, if there is a substantial possibility that such damage will cause serious injuries and disturbances as provided in a or b, and the damage was inflicted with the purpose of causing such injuries or disturbances;
Serious damage to religious artifacts; for the purposes of this paragraph, “religious artifacts” are places of worship or burial and ceremonial objects;
Serious damage to essential infrastructure, systems or services, or their severe disruption, or severe damage to the nation’s economy or to the environment;
This definition has four principal elements: the conduct at issue must constitute an offense; have a political or ideological motive; aim to intimidate the public or coerce governments; and significantly harm (or risk harming) persons, property or infrastructure. There are special presumptions in the definition for acts involving weapons, from knives to weapons of mass destruction, and acts perpetrated by terrorist organizations or their members. The law’s definition of terrorism is therefore largely similar to the versions countries like the UK, Australia and Canada included in comparable domestic counterterrorism laws, with a few potentially significant differences. Here are the substantive definitions of the term “terrorist act” in each of those three jurisdictions:
The Israeli definition appears to be most similar to the UK version. Like the UK version, and in contrast to the Australian and the Canadian definitions, it does not carve out an explicit exception for speech-based conduct. At first glance, the absence of a speech exception implies that any politically or ideologically motivated speech or protest that aims to intimidate the public or coerce a government and risks inflicting harm will fall within the scope of the definition of a terrorist act. This, however, is not an accurate reading of the definition, which provides that an act must first constitute an offense to be branded a terrorist act. Conduct, including speech, that had not been criminalized, therefore, necessarily falls outside the scope of the definition.
Yet, even with this qualification, the new law’s definition does potentially expose a range of speech-based activities to classification as terrorist acts. Section 24 criminalizes, subject to certain conditions, identification with terrorist organizations (including, for example, public praise or support, display of flags or symbols, and display or utterance of slogans and anthems) as well as incitement to terrorism. Conduct criminalized by this provision could theoretically fit the definition of a terrorist act under the law, provided that the other elements of the definition are satisfied. Groups of individuals engaging in speech covered by section 24 in an organized and continuous manner could in turn be designated as “terrorist organizations” under the new law, a label that carries significant ramifications, as will be explained below.
Another point to highlight about the new Israeli definition of terrorism is that it does not limit itself to civilian victims. The explanatory notes make clear that acts or threats against military personnel could also constitute terrorism, provided that they satisfy the other elements of the definition. This is because “terrorism is an illegitimate means of achieving political, ideological or religious goals, the identity of the victim not withstanding.” In contrast to the Canadian definition cited in the table above, the Israeli one does not exempt “an act or omission that is committed during an armed conflict… in accordance with” applicable international law.
Designation of Terrorist Organizations
Section 2 of the new Counterterrorism Law also defines what constitutes a “terrorist organization.” The legal definition of a terrorist organization plays a central role in the new law, because groups classified as terrorist organizations and those associated with them are exposed to a long list of enhanced criminal and other sanctions under chapters C, E and F of the law. To mention only a few, the label “terrorist organization” triggers special terrorism offenses with increased sentences. For instance, simply being a member of a terrorist organization, even without actually participating in its activity, is a criminal offense that carries a sentence of up to five years in prison. Heads of terrorist organizations or others in leadership positions face 25 to life and 10-to-15 years in prison, respectively. Providing services or other assistance to terrorist organizations is punishable by up to five years in prison (sections 20-23 of the new law). In addition, the property of a terrorist organization can be administratively seized and confiscated (section 56(b)(1), section 60). A senior police officer may ban specific activities of terrorist organizations, including rallies, protests and other activities deemed to support those organizations (section 69).
The new law’s definition applies a network approach to classifying groups as terrorist organizations. It targets both groups directly engaged in terrorist activity and supporting organizations that enable those groups, directly or indirectly, including through financing. Groups that belong to the former category satisfy the definition of a terrorist organization whether they have been formally designated as such or not, while those belonging to the latter category must first be designated as terrorist organizations in accordance with the procedures outlined in the law. The substantive test for designating a supporting organization is twofold: First, the organization in question must act with the aim of assisting a terrorist organization or advancing its activities. The purpose of this requirement is to make sure the support is deliberate. Second, that organization must substantially or continuously contribute to the activities of a terrorist organization (section 2(a)(2)).
It is clear, then, that the legal threshold for designating supporting organizations as terrorist organizations is higher than the threshold for those directly involved in terrorist activity, both substantively and procedurally. This is because the status of organizations in this category is ambiguous, as they might engage in legitimate activities alongside activities that could be construed as support for terrorism under the relatively broad definition of that concept in the new law. One example of such dual-purpose organizations that came up often in the explanatory notes and in the parliamentary committee deliberations was Hamas’s network of charity and education organizations (see, for example, p. 8 of the October 19, 2015 Constitution, Law and Justice Committee meeting transcript, available here in Hebrew). The additional substantive and procedural requirements where supporting organizations are concerned were put in place to constrain the government’s ability to go after organizations that are not terrorist organizations in the “classic” sense. The fact that the act of designation is constitutive in those cases also serves to remove any ambiguity regarding the legal status of supporting organizations.
A final point to note about the new law’s definition of terrorist organizations is that the label “terrorist organization” automatically extends to any subsidiary or other entity controlled by a terrorist organization, even if they operate under a different name (section 2(a)(3)(c)). In other words, the law casts its net both horizontally to supporting organizations and vertically to subordinate entities.
Alongside the definitions section, another key element of the new law is the process for designating terrorist organizations, which is the same for both core and supporting organizations. The designation tool itself is, of course, not new. The government and the Minister of Defense already possess the authority to designate terrorist organizations under the old legislation (see section 8 of the Prevention of Terrorism Ordinance, 1948, and section 84 of the Defence [Emergency] Regulations, 1945). However, that legislation contains virtually no statutory procedural safeguards. Until now, designation decisions were only subject to the general principles of Israeli administrative law. The new law fills a statutory void in this regard.
In line with the international trend of increased emphasis on due process in blacklisting decisions in the terrorism context, the new law outlines detailed procedures for such designations to streamline the process and protect the rights of the designated entities (see chapter B, part a of the law). The process roughly goes as follows: the designating authority will generally be the Minister of Defense. A designation proposal must be submitted by the head of one of Israel’s major security agencies (or a senior subordinate) and approved by the Attorney General. Designations will take place in two phases: temporary designation and permanent designation. The Minister of Defense may temporarily designate an organization based on the security establishment’s proposal. The designated organization or its members will then be entitled to a written hearing before an advisory committee, comprised of a senior retired judge, a senior lawyer and a national security expert. The committee may ground its recommendation in classified material without sharing it with the designated organization, but it is required to provide a summary of that information to the extent possible. This requirement is similar to the famous ECJ Kadi II holding that designated entities are entitled to the evidence on which their designation was predicated, and that designating authorities should aspire to release at least a summary of that evidence even if it is classified. Finally, the advisory committee will present its recommendation to the Minister of Defense, who will decide whether a permanent designation is in order. A permanent designation can be annulled upon review under certain conditions. The Supreme Court of Israel can review designation decisions in its capacity as the High Court of Justice. The law also incorporates an existing mechanism for designating organizations and individuals based on designations made by foreign authorities or the UN Security Council (chapter B, part b of the Law).
These procedural safeguards seem to be significant, considering the subject matter. What is more, in contrast to what some of the critics have been arguing, it is not clear whether the new law actually expands the scope of existing substantive designation authorities through its provisions on supporting organizations. In fact, during the drafting deliberations in the Knesset’s Constitution, Law and Justice Committee, the legal adviser to the Committee, the Ministry of Justice representative and the Israel Security Agency representative all remarked that in practice, Israel is already designating supporting organizations under the old legislation. Comments were made to the effect that if anything, the new law’s new substantive definition of a supporting organization and the procedures it puts in place will bring order and transparency to the process and constrain the government’s discretion (see pp. 27-29 of the October 19, 2015 Committee meeting transcript, and p. 116 of the October 26, 2015 transcript, available here in Hebrew). More evidence suggests that the concern that the new law will lead to indiscriminate designations of largely innocent organizations may be exaggerated. According to the Ministry of Defense blacklist of entities designated under the old legislation, the Israeli government does not designate terrorist organizations very often. Only seven organizations were designated in 2013; 20 in 2014 (including, for example, ISIS, the Al Nusra front, Al Qaeda in Iraq and Al Shabaab); seven in 2015 and six so far in 2016. Admittedly, this data about the number of designations could be misleading, because the nature and size of the designated organizations matters just as much.
All this notwithstanding, the explicit legislative grounding of the authority to designate supporting organizations, broadly defined, as terrorist organizations in the new law is an innovation. On the face of it, the new law’s vague language on what constitutes terrorist activity, and what amounts to supporting terrorism leaves the government plenty of leeway to act against organizations only tenuously linked to terrorism with the full force of the extraordinary tools the law provides. In the end it will come down to how this language will be interpreted in practice, and whether it will be used to go beyond current practices. One of the main questions looking forward is whether the tightening of designation procedures will in fact constrain the government in this regard.