New Comprehensive Counter-terrorism Memorandum Bill

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In this article, we discuss a new, comprehensive counter-terrorism memorandum bill recently published by the Israeli Ministry of Justice. This memorandum bill aims to consolidate the existing legislation, as well as to provide the authorities with new counter-terrorism tools (including a broad definition of an "act or terrorism").

On 21 April 2010, the Ministry of Justice published a comprehensive counter-terrorism memorandum bill (hereinafter: "the Draft Bill").
  This Draft Bill is intended to provide the authorities with the necessary tools for their counter-terrorism efforts and coordinate the relevant legislation, which is currently dispersed in a number of statutes (some of which originate in the British Mandate over Palestine). A key concept underlying this comprehensive legislation is that the complicated nature of terrorist activity, which employs various methods and has a variety of goals, requires a multi-faceted and robust response.

In this article, we briefly discuss a few of the issues raised by the Draft Bill as part of the IDI's Terrorism and Democracy Newsletter coverage of relevant legislation in the field of counter-terrorism.

Despite Israel's long struggle against terrorism, there is no comprehensive legislation governing the Israeli "war on terror." To date, the Prevention of Terrorism Ordinance 5708-1948 and the Prohibition on Terror Financing Law 5765-2004 constitute the main legislative tools at the authorities' disposal. In order to supplement their counter-terrorism legal arsenal, they have often used provisions of the criminal code and administrative measures, such as the Defense (Emergency) Regulations of 1945, the Incarceration of Unlawful Combatants Law 5762-2002, and the Criminal Procedure (Detainee Suspected of Security Offense) (Temporary Order) Law 2006. <Hebrew> However, these legislative tools have left a few crucial questions unanswered. For example, they have not clearly defined what constitutes "an act of terrorism".

On 21 April 2010, the Ministry of Justice published a long draft bill (the Draft Bill and the explanatory note appended thereto extend over 105 pages). The Draft Bill has been distributed to local NGOs and interest groups for comments, and after obtaining their comments, the Ministry of Justice will finalize the drafting of the bill and submit it to the Knesset.

According to the explanatory notes attached to the Draft Bill, the proposed measures were drafted in order to balance the need to act effectively against the threats posed by terrorists, on one hand, and the obligation to preserve and secure the values of democracy and human rights, on the other hand.

The Draft Bill offers a very broad definition of "terrorist organization":  "a group of people who act to execute an act of terrorism or in order to enable or promote the execution of an act of terrorism." This definition may include organizations that do not execute terrorist acts per se, but rather encourage and promote them directly or indirectly. For example, it appears that the "Dawah" organizations, which function as the community services system of Hamas by providing educational, medical and welfare services to its supporters and to the general Palestinian population, would qualify as terrorist organizations under the proposed bill. The philosophy underlying such a broad definition is that auxiliary organizations are meant to generate public support for terrorist organizations, such as Hamas, through the humanitarian activities they conduct. Moreover, the bill assumes that auxiliary organizations can also be used to channel money for the purpose of financing the terrorist activity of the terrorist organizations and recruiting new members for terrorist activity.

With regard to the issue of membership in a terrorist organization, the Draft Bill suggests that due to the vagueness of this feature (normally, there are no formal procedures for membership in terrorist groups), membership in a terrorist organization should be deduced from a person's general behavior (if he or she is taking part in the organization's activities). Moreover, the Draft Bill creates a rebuttable presumption, which places the burden of proof on a person that was once a member of a terrorist organization to show that his or her participation in the organization's activities has terminated.

One of the innovations of the  Draft Bill is found in its attempt to create a new special crime of holding a senior position in a terrorist organization. It also creates new criminal offenses for individuals who publicly support terrorist organizations, attempt to recruit new members, or incite terrorist acts.

The explanatory note states that the Draft Bill's definition of "act of terrorism," which is partially based on the General Assembly's decision on Measures to Eliminate International Terrorism,  does not distinguish between actions directed against soldiers and actions directed against civilians. The stated justification in the Bill is that terrorism is not a legitimate method to achieve political, ideological, or religious goals regardless of the identity of the victims.

The Draft Bill also attempts to clarify and expand the measures that may be taken against the property of terrorist organizations. In this context, it broadly defines the property of terrorist organizations as including property that is either owned by an organization, or is found in the organization's complete or partial possession or custody.

As part of the  process of codifying existing counter-terrorism legislation, the Draft Bill is intended to replace the current methods for designating terrorist organizations provided by the Prevention of Terrorism Ordinance (declarations by the Minister of Defense) and the Prohibition on Terror Financing Law (foreign declarations). Nevertheless, it should be noted that the Draft Bill does not revoke the procedure for designating an entity as an unlawful association under the Defense (Emergency) Regulations of 1945. Under the Draft Bill, once a terrorist organization has been designated, its status as a terrorist organization will be accepted as a proven fact by the judicial system in any legal procedure (with the exception of petitions brought before the High Court of Justice).

Finally, the Draft Bill is being used to codify an appropriate set of rules that will enable Israel to ratify the International Convention for the Suppression of Acts of Nuclear Terrorism and to implement the obligations set out in the International Convention on the Physical Protection of Nuclear Material.

The attempt to create a comprehensive counter-terrorism law will afford to the Israeli authorities more legal tools that are closely tailored to Israel's counter-terrorism needs. For example, by introducing new terrorist crimes, the new law will allow the state authorities to detain and seek the conviction of a greater number of terrorists. Eventually, it seems that one of the possible outcomes of the increase in the use of criminal proceedings under the proposed law will be a decrease in administrative detentions under other laws.  At the same time, the criminal definitions offered in the proposed law appear to be very sweeping in nature, and it is doubtful whether they strike an acceptable balance between security needs and human rights concerns.

Although the new Draft Bill attempts to consolidate and coordinate all the relevant legislation, it does not revoke the counter-terrorism provisions of the Defense (Emergency) Regulations. One possible explanation for this omission may be the desire to retain the harsh provisions of the Regulations which, unlike new legislation, are shielded from constitutional review pursuant to the 1992 Basic Law: Human Dignity and Liberty (which cannot be applied retroactively). This casts some doubts on the stated desire of the government to strike a constitutionally acceptable balance between security and human rights in the field of counter-terrorism.

The Draft Bill, and some other specific issues it raises - such as its provisions on pre-trial detention, control orders and electronic surveillance - will be subject to further analysis in forthcoming IDI publications.