Israel’s Counterterrorism Designation Regime: A Process in Need of Reform

Granting the executive broad authority to target entities and individuals on the basis of secret evidence is problematic and the process must be reformed

Israel’s Oct. 19 decision to designate six Palestinian civil society organizations as “terrorist groups” continues to be the focus of much debate and criticism in and outside Israel. Israeli security officials have claimed as recently as Dec. 8, in response to a parliamentary request for information, that the designations were based on solid evidence that the groups constitute an integral part of the Popular Front for the Liberation of Palestine (PFLP). But U.N. human rights experts decried the designations as “a frontal attack on the Palestinian human rights movement, and on human rights everywhere.” Israeli and international human rights organizations also condemned the decision. U.S. and European officials, for their part, demanded clarification from the government of Israel.

This debate raises once again the serious problems posed by counterterrorism designation regimes that grant the executive broad authority to target entities and individuals on the basis of secret evidence. While such regimes have proliferated globally in the two decades following 9/11—and have become an integral part of the international community’s efforts to combat terrorism financing—they have been criticized for allowing governments to label people as terrorists and subject them to sanctions without due process or transparency. In recent years, particular attention has been drawn to the ways in which designation regimes constrain humanitarian work in conflict zones, restrict available civic space and curb the activities of human rights defenders.

To better assess the complexities of the Oct. 19 designations, observers should better understand the process set out in Israel’s 2016 Counter-Terrorism Law. Though the problems with this legislation are sometimes overstated, critics are right to note the law’s limited guarantees of due process and transparency. The case of the six designated civil society organizations illustrates these shortcomings of the law and the need to mitigate them through future legal reform.

Israel’s 2016 Counter-Terrorism Law and the Designation of Civilian Entities

The PFLP has been implicated in deadly attacks on Israeli civilians as recently as 2019, and it has been officially designated as a terrorist entity in Israel since the 1980s. It is also considered a terrorist group by much of the international community, including the United States and the European Union. The recent designations of the six organizations by virtue of their links to the PFLP were based on Israel’s 2016 Counter-Terrorism Law, which grants the minister of defense broad authority to designate an association of persons as a terrorist organization on the basis of a written request submitted by the competent professional officials and approved by the attorney general’s office. In early November, Israel’s military authorities in the West Bank extended the designations to the areas under their control, as per the military legislation that applies there.

In addition to groups engaged directly in violence or in related activities, such as military training or arms dealing designed to bring about the commission of terrorist acts, the 2016 law also allows the minister to designate entities as terrorist organizations if they act purposefully to promote the activities of militant groups in a significant or ongoing manner or through significant association with them—even if the support is directed at nonviolent activities undertaken by designated terrorist organizations. As the government argued during the passage of the law, this provision was intended primarily to target charities and other social institutions that fund Hamas’s “social-economic infrastructure”—the network of social services provided by the organization, which operates alongside its military wing. While these “auxiliary organizations” may not be subject to Hamas’s chain of command, the government asserted, they act to promote its strategy of utilizing social and humanitarian services to garner the public support, funds and recruits it needs to sustain its military activities.

The notion that a terrorist group’s civilian activities should be treated as an integral part of its terrorist infrastructure is rooted in two factual assumptions. First, that money is fungible, and that any funds or assistance given to social activities undertaken by a terrorist organization could be used to fund military activity or, at least, free up existing resources for more nefarious purposes. The second is that terrorist groups use their social activities as a “front” for their military aims. As the Israeli Supreme Court noted in one case: “The separation maintained by Hamas, like other terrorist groups, between a ‘military wing’ and a ‘civilian wing’ is meant to ‘whitewash’ the activities aimed at recruiting [activists and funds …]. As a rule, the court should be wise enough to see past that.” The majority opinion in the U.S. Supreme Court case Holder v. Humanitarian Law Project employed similar logic, holding that even training on how to use humanitarian and international law to peacefully resolve disputes could run afoul of the prohibition on material support to a designated foreign terrorist organization.

To be sure, the power to ban or to designate as terrorist entities groups that provide significant support to terrorist organizations is not unique to Israel. In the United States, derivative sanctions can be imposed by the Treasury Department’s Office of Foreign Assets Control on entities and individuals that provide material support to designated terrorist organizations, and in Canada, the law allows a group to be listed under the Anti-Terrorism Act if it has “knowingly acted on behalf of, at the direction of or in association with an entity” that has participated in terrorism. In 2014, Canada designated the International Relief Fund for the Afflicted and Needy–Canada as a terrorist organization, citing millions of dollars of aid that it had transferred to organizations linked to Hamas. In Germany, too, the Federal Constitutional Court has ruled that, under general legislation governing illegal associations, an organization can be banned for knowingly providing aid to associations belonging to a terrorist group, even if they engage in humanitarian work. However, it held that in order for such a ban to be legitimate, the aid must be objectively capable of assisting the terrorist group in achieving its violent aims, and the organization itself must approve of them. In addition, the problematic activities must define the operations of the association to the point that they cannot be addressed through less restrictive means. The U.N. counterterrorism sanctions list is also directed at a host of individuals and entities associated with al-Qaeda and the Islamic State.

Still, the provision in Israel’s 2016 law allowing for the designation of auxiliary groups was the subject of significant controversy during deliberations on the draft legislation, with critics arguing that such broad discretion—particularly when coupled with the government’s power to base designations on secret evidence—could lead to serious rights infringements. Some former security officials also pointed to the negative national security consequences that could result from conflating social and military activities, arguing that authorities should instead seek to exploit the “fruitful tension” that exists between the conflicting aims of terrorist groups. The Knesset, however, was ultimately persuaded by the government’s argument that, in many cases, auxiliary groups form an integral part of a terrorist group’s overall violent strategy.

As others have already pointed out, a designation under Israel’s Counter-Terrorism Law carries severe consequences. Unlike designation regimes that aim primarily at subjecting listed entities to economic sanctions, the 2016 law broadly criminalizes both passive and active membership in a designated group, as well as public “acts of identification” with it, such as praising or expressing support for it. Assisting a designated group or providing it with any kind of support is also banned. The police have the power to disperse marches or assemblies conducted by designated groups, and all their property can be confiscated without any need for a prior judicial order. In addition, suspicion of activity in a listed organization can trigger the use of special detention powers, including provisions that place limits on client-attorney communications. While individuals can face criminal prosecution for a broad range of offenses in connection with terrorist organizations, Israeli law does not make any provision for the designation of individuals as terrorists, except in the context of adopting foreign designations such as U.N. sanctions committee “blacklists.”

A Flawed Process

Eliav Lieblich and Adam Shinar argue in Just Security that, while the 2016 law provides designated organizations with a formal avenue for challenging their designation, in practice the process is so lacking in safeguards that they are “effectively destined to fail.” We agree that the process is significantly flawed and in need of reform, but we think Lieblich and Shinar somewhat overstate the futility of the remedies granted.

First, they note that an organization is almost always informed of its designation ex post facto. The law, however, stipulates that the minister must first make a tentative designation (valid for three months). This period allows an organization time to request a hearing before the decision becomes final. While a temporary designation carries the same practical consequences as a final one, it serves as a signal to decision-makers that they must consider the organization’s arguments before making a final determination. In addition, the law requires that auxiliary organizations operating in Israel be given a warning when possible before security officials request a temporary designation.

Second, they argue that “it is up to the Minister of Defense—the same official that made the declaration—to decide whether to uphold the organization’s petition and reverse the ministry’s position.” This is accurate, but incomplete. According to the law, when an organization requests a hearing—something that none of the six designated organizations has done so far—the matter is referred to a special advisory committee appointed by the minister of justice and headed by a former senior judge appointed with the advice of the president of the Supreme Court. While the committee includes a security expert appointed with the advice of the minister of defense, two out of three of its members must be legal experts. The committee’s decision is not binding and the minister can decide to finalize a designation even if the committee recommends otherwise, but according to general principles of Israeli administrative law, the minister would need to identify significant considerations for rejecting the committee’s recommendations. Furthermore, a final designation decision can be challenged before Israel’s Supreme Court in judicial review proceedings.

Third, like in many jurisdictions, designations can be based on secret evidence—which seriously undermines the fairness of the process. However, the assertion that “there are no disclosure obligations, including to the organization” lets officials off the hook too easily. According to the law, organizations that request a hearing have the right to review nonprivileged parts of the security agency’s designation request, which must specify the information and facts on which it is based. It is up to the advisory committee, upon request by the government, to decide which parts of the evidence should be recognized as privileged, and the 2016 law states that the committee may approve nondisclosure only where it finds that the “interest in non-disclosure outweighs the need for disclosure to allow discovery of the truth and the discharge of justice.” In addition, the committee is instructed to provide petitioners with a summary of any privileged information, to the extent possible without compromising security. Lieblich and Shinar are, however, right to worry that both the committee and the Supreme Court will be too deferential to security officials in assessing privilege and that organizations may indeed fail to gain access to much of the information necessary for them to conduct an effective defense.

Despite these nuances, the Counter-Terrorism Law’s designation regime remains highly problematic. The combination of the broad designation discretion granted to officials, the limited due process guarantees given to organizations, and the sweeping consequences of a decision to designate create ripe conditions for mistakes and abuse of power. The fact that groups that appear to be involved solely in nonviolent activities—such as political, civil rights advocacy or charity organizations—can be targeted makes the reliance on secret evidence particularly problematic. And the broad criminal prohibitions that attach to designation go far beyond what is necessary to enforce economic sanctions and combat the financing of terrorism.

On a procedural level, the process remains more opaque than it should be. Committee hearings are held in camera, and its protocols and decisions are classified by default—unless the committee makes a determination that specific parts can be published (an organization wishing to appeal has the right to obtain nonprivileged portions of the decision). While there is a procedure in place to request the revocation of designations in certain circumstances, the list is not subject to any sort of periodic review. Furthermore, the law does not provide for procedural safeguard measures, such as the appointment of special advocates, that could mitigate the harm to due process inherent in the reliance on secret evidence.

An Attack on Human Rights?

The opacity of the process makes it difficult to assess the veracity of Israel’s claims against the six designated organizations. In recent weeks, a classified briefing document shown by Israel to European and U.S. officials was leaked and criticized by some press outlets as woefully inadequate. Defenders of the designations, for their part, have asserted that the briefing is just the tip of the iceberg and that Israel possesses more than sufficient classified information to back up the designations.

Human rights and humanitarian groups are not above the law, and one could certainly imagine scenarios in which seemingly benign organizations serve as terrorist fronts. However, to our minds, the circumstances surrounding the current designations impose a particularly heavy burden on Israel to justify its decision.

First, at least some of the groups are long-standing, well-respected human rights organizations with significant track records of bona fide activism. Al-Haq, for example, is perhaps the oldest Palestinian human rights organization, established in 1979; it has won numerous international prizes for its work and participates regularly in U.N. human rights forums. While Israel has accused al-Haq’s general director, Shawan Jabarin, of involvement with the PFLP in the past and subjected him to a travel ban that was upheld by the Supreme Court, the specifics of the government’s claims—based on classified information—were not made public. Particularly weighty reasons would be needed to justify classifying such organizations as "terrorist groups."

Second, as Lieblich and Shinar point out, the political context of the designations is a cause for skepticism and concern. The six groups operate in the West Bank, subject since 1967 to Israel’s military control, and more recently some of them have become involved in two spheres identified by Israel as significant threats: the BDS movement, which seeks to delegitimize Israel and subject it to boycotts, divestment and sanctions, and the recent decision by the International Criminal Court prosecutor at the Hague to open an investigation into Israeli (and Palestinian) actions, including Israel’s settlement policy. This backdrop—as well as other steps taken by Israel in recent years to constrain the activities in the West Bank of groups such Human Rights Watch and the Office of the United Nations High Commissioner for Human Rights—warrants a cautious approach to the decision.

Third, the reality is that all the significant Palestinian political factions in the West Bank—including Fatah, headed by Mahmoud Abbas—remain formally designated as terrorist organizations by Israel. While some of the existing designations appear justified—indeed, the PFLP itself has engaged in violence against civilians in recent years—the 2016 Counter-Terrorism Law would make it theoretically possible for officials to target a broad range of Palestinian associations as being “connected” in some way to a designated group. The complex political situation on the ground requires special care to make sure that only groups that significantly and knowingly contribute to terrorism are caught up in the designation net. Officials should be required to demonstrate not only that the organizations have some loose political affiliation with the PFLP but also that their activities are part of an organizational strategy that seeks to utilize civilian activities to promote violence. Attempts to reduce the complexities of West Bank political life to “support for terrorism” do not serve the cause of preventing terrorism and other forms of violence.

A Need for Reform

While the evidence underlying the designations is not publicly available, the current controversy surrounding the designation of six Palestinian civil society organizations demonstrates that a better and more transparent process is needed both to prevent problematic designations and to instill greater public confidence in the Israeli government’s decisions. Steps should be taken to mitigate the problems inherent in the use of secret evidence, and the Israeli Supreme Court should insist on an interpretation of the designation authority that ensures it is used only when truly necessary to combat terrorism and that it does not generate excessive restrictions, including an excessive chilling effect, on legitimate political, humanitarian or human rights activities. In addition, the consequences of an executive decision to designate should be more narrowly tailored to the specific aim of preventing the financing of terrorism.

The article was published in Lawfare.