In Israeli Residency Case, Individual Responsibility vs. Collective Punishment

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At the peak of a wave of stabbing attacks by Palestinian youth, mainly in Jerusalem, in October 2015, 17-year-old Mustafa al-Khatib stabbed a member of the Israeli Border Police. The officer was slightly wounded, and security forces killed the assailant during the incident. But the ramifications of the teenager’s attack continue to affect his family.

Al-Khatib’s mother, originally a resident of the West Bank, married an Israeli permanent resident in 1996. The Israeli spouse requested in 1999 to include his wife in the family unification program under which Palestinian spouses receive a renewable temporary permit to reside in Israel. The request was granted in 2001, and the mother's temporary permit was renewed every year—until 2016. The couple have two children in addition to the teenager who was killed.

After the attack, Israel’s Interior Ministry decided not to renew the permit. It explained (what follows is the author’s translation):

The appellant is the natural guardian of the assailant and as such bears responsibility for his actions by virtue of her duty to watch out and oversee her minor children. One cannot disconnect the son from the family surroundings in which he was raised and educated and [that] contributed to the forming of his personality. More serious than that, the Appellant felt no responsibility for her son's actions and in an interview held after the attack denied his actions and asserted unequivocally that she is sure her son did not commit the attack. This attack has been a part of a wave of attacks by 'lone wolves.' Study by the security authorities as to the phenomenon of 'lone wolves' showed that part of the reason for the attacks are family ties, even if indirect, to the West Bank, alongside other factors. We cannot treat lightly granting permits to stay in Israel to a person that under whose parental guidance and responsibility a hate crime against the State of Israel was committed.

Last month, however, the Israeli appeals tribunal overturned the Interior Ministry’s decision. The tribunal held that while the interior minister has broad general discretion regarding residency permits, that does not allow the denial of a permit for "parental responsibility" over offenses against state security. Such a denial is an infringement upon the right to family life, which is part of the Israeli spouse’s basic right to dignity. Such an infringement requires a preliminary and explicit basis in statute, it held—which does not exist in this case.

Notably, the tribunal dissected with scalpel-like precision the concept of "parental responsibility" used by the Interior Ministry. No one disputes that parents have duties toward their children, the tribunal reasoned. But Israel’s penal law and torts law do not impose an absolute liability on parents for the deeds of their children. In this case, the ministry did not claim that the assailant had acted under the direction of his mother or with her encouragement. Nor did it suggest that the mother assisted in commission of the offense or gave tacit consent before or after the act. In other words, there was no submission that al-Khatib’s mother committed an offense herself. The tribunal was willing to assume that she, like every parent residing in Israel, has made an unspoken commitment to ensure that persons under her responsibility will not infringe upon the security of the state, its citizens or its sovereignty. There was no proof, however, that al-Khatib’s mother violated this commitment. That she did not take responsibility for her son's offense and denied that he committed the attack cannot be grounds for revoking her residency status, the tribunal said. Further, the tribunal stipulated that the Interior Ministry cannot consider an applicant’s "morality": whether she is indifferent or even feels satisfied that acts of terrorism were committed, and her position as to the Israeli-Palestinian conflict. Unlike an offense, such as incitement to terrorism, an opinion cannot be the foundation for denial of residency status.

A security risk, however, may be cause for annulling a resident’s status. This includes not merely a direct risk from applicants but also an indirect risk derived from the security threat posed by the relative of an applicant. A valid concern might be that a relative will use the applicant against state security in ways unknown even to the applicant. It was not alleged that such a security risk, even an indirect one, existed in this case. The tribunal said that had the assailant survived, there perhaps would have been grounds for annulling the mother's status due to a security risk.

The Interior Ministry tried to support its decision in more general security concerns, elaborated in an ex-parte hearing in camera. It cited data showing that Arabs residing in Israel with one Palestinian parent also in Israel were disproportionately likely to engage in terrorism: members of this group made up a proportion of terrorists three times larger than their share of the general population (and 12 times greater when focusing on residents of Jerusalem). Against this backdrop of increased risk, the Interior Ministry claimed in another case that annulling the Israeli citizenship of terrorists may create significant deterrence. It was implied in al-Khatib’s case that annulling the residency status of terrorists' relatives with the same profile may have a similar deterrent effect.

The tribunal ruled that general deterrence considerations, not based on a concrete security risk, direct or indirect, could not justify the denial of a residency permit. Furthermore, it held that the challenged decision was based not on deterrence but an effort to punish the mother for her son’s actions. The tribunal rejected the parental-responsibility grounds as justification for the refusal and ordered a new permit to be issued to al-Khatib’s mother, valid for a year under regular procedures.

Evaluating the decision – the limits of collective punishment

The nongovernmental organization that represented the mother in these proceedings (HaMoked: Center for the Defense of the Individual) described the rejected practice as a new form of collective punishment. Can an attempt to deny residency to the mother of a terrorist fairly be described in such terms?

A comprehensive study that I conducted on collective punishment and security measures—soon to be published by the Israel Democracy Institute (in Hebrew)—found that the main philosophical argument against collective punishment is its infringement on the right of each individual to be considered as an end in herself, not treated as a means to an end outside of her control. My study defined collective punishment as: taking an action that infringes directly upon a right of a person for a deed for which he is not personally responsible, due to his membership in a collective (such as a family, village or ethnic minority), that one of the other members is responsible for. This format does not permit a detailed discussion of all elements of this definition, but I will explain some aspects relevant to this case.

First, a collective punishment may target a single individual, as in this case—the mother of the assailant. The infringement is based on membership in a collective (in this case, a family) and not on personal responsibility. It is not required that collective punishment will hurt many people.

Second, when a person is punished for personal responsibility, whether for a terror act or for a connected or derivative offense, it is not collective punishment. For instance, if al-Khatib’s mother had encouraged her son to commit the attack or assisted in its execution by equipping him with the knife, annulling her resident status would not be a collective punishment. Even if the mother had publicly expressed encouragement or praise for the attack after the incident, in circumstances that could lead to other acts of terrorism, denying her status on this ground would not be considered collective punishment: Israeli law includes an offence of incitement to terrorism (Article 24 of the Counter-Terrorism Law, 5776-2016). However, a precondition for a punishment to be regarded as reflecting personal liability, and not liability for the actions of a relative, is the ability to show that other people who are not relatives of terrorists and who committed the same crimes are punished similarly. To illustrate this point: If only relatives of terrorists are indicted for incitement or are sentenced more harshly than other people committing similar acts of incitement, or if only the relatives' resident status is invalidated, allegedly because of incitement, one must conclude that the punishment, in whole or in part, is derived from the family connection. Personal responsibility, in such circumstances, is only a hook on which to hang collective punishment.

Third, where an action has a concrete and tangible purpose of preventing an act of terror, it is not a collective punishment. Under this purview fall cases of a security risk that a terrorist's relative will be involved in terrorism in the future. This risk can be direct or indirect. If the risk is direct and originates from a relative's previous actions or personal attributes, one cannot say he is being punished for the terrorist’s deeds. While hindering a person's rights because of a future risk raises serious questions of justice and legal certainty, doing so is not collective punishment. If the risk from a relative is indirect, meaning that the concern is that the terrorist will use his relative to facilitate a future act of terror, even in ways unknown to the relative, the infringement upon the relative's right is not direct but is a form of collateral damage caused by a concrete and tangible prevention measure: reducing the terrorist's access to people who can move freely in Israel. Think about a scenario involving a checkpoint set on a road to catch fleeing terrorists. Ordinary people’s freedom of movement is hindered by the delay in traffic caused by the checkpoint. This infringement is not direct, though, but a side effect of the direct security measure. Again, while such a measure is not collective punishment does not mean that it is necessarily justifiable. One should consider proportionality, too: Is the harm caused to the relative, who has been denied residency, excessive in relation to the security advantage anticipated?

Fourth, the fact that a measure is taken for considerations of general deterrence does not exclude it from being collective punishment. If other elements of the definition exist—the measure infringes directly upon the right of a person not personally responsible for a deed, and only on the grounds of the punished person’s common membership in a collective with the person responsible for the deed—it is still collective punishment, even if the motive is general deterrence. In this case, the collective is families residing in Israel that have one Palestinian parent. Punishing the Palestinian mother for her son's attack is a form of collective punishment even if done to deter other families in this group from committing acts of terror.

Finally, where the action considered does not infringe upon a right but upon a privilege or a benefit, withholding the privilege from people without personal liability is not collective punishment. Recently, Israel’s minister of homeland security instructed that Hamas prisoners would not be allowed to watch broadcasts of the World Cup. The reason given was Hamas’s continued refusal to return Israeli civilians and the bodies of Israeli soldiers it is holding. International law does not bestow on security prisoners a right to watch TV; thus, this may be considered a privilege. In my study, I categorized such actions as collective harm, which can be justified in certain circumstances, in contrast to collective punishment, which cannot be justified in any case. The philosophical argument presented against collective punishment applies to collective harm as well. (Justifications for collective harm need careful assessment. My study suggests a list of parameters for such an assessment.)

In the case of al-Khatib’s mother, the appeals tribunal asserted that denial of her residency permit was an infringement upon the basic right to dignity of the mother’s Israeli spouse, from which a right to family life derives. Had the matter been whether to issue a first permit for residency, rather than reversing a longtime process regarding a family that has resided in Israel for about 20 years, the determination that a right was infringed would perhaps have been less unequivocal.

This case illustrates the importance of having a clear definition of collective punishment and its limits. My study uses this conceptual framework to examine other security measures taken in Israel against acts of terrorism that raise similar questions, including the demolition of terrorists' houses, revoking Israeli work permits from relatives of West Bank terrorists, and imposing closures upon villages and towns from which a terrorist originated. Invalidating the mother's resident status was indeed a collective punishment and the appeals tribunal’s decision to overturn was correct. While collective harm may be justified in some circumstances, collective punishment should never be allowed: one person’s rights should not be taken hostage to influence the behavior of others.

The article was first published in Lawfare.