Establishing a National Guard Might Result in the Politicization of Policing in Israel

The proposed government resolution fails to explain why a National Guard is needed, how to ensure that it does not target minority groups unjustifiably, and what the division of labor will be with the police. It is also liable to result in the increased militarization of law enforcement in Israel, which could lead to disproportionate infringement of human rights.

MK Itamar Ben Gvir | Flash 90

1. We wish to express our opposition to sections 1 and 2 of the proposed government resolution on the establishment of the “Israel National Guard.” In our opinion, at present- there is an insufficient basis for determining whether there is a need to establish a new Israeli National Guard, particularly in light of the recent definition of the Border Police as Israel’s national guard.

2. Such a factual basis must be established before a decision is made to create a new national guard—for example, via the committee that section 3 of the draft resolution suggests creating. This committee should be charged with formulating various alternatives that would address existing needs as these are presented in the draft resolution, and examining the advantages and disadvantages of each alternative. It should also weigh the potential dangers involved in establishing a new security/policing force distinct from the Israel Police, and should recommend the guiding principles for how such a force should be established and how it should operate, so that it effectively advances law enforcement fairly and legally without resulting in disproportionate infringement of human rights. We believe that for these reasons, no decision should be taken at the current time to establish a new national guard outside the framework of the Israel Police; instead, a thorough examination and analysis should be conducted before any such decision is made.

No evidence as to the need for the establishment of a new national guard

3. Less than a year ago, the Border Police was (re)defined as the national guard of the State of Israel, as part of a decision to significantly expand its deployment, its capabilities, and its resources. To this end, it was also decided to increase the number of Border Police officers, in particular by increasing reserves companies and providing them with more advanced equipment, and to grow the available volunteer forces, both by expanding the existing forces (“Matmid”) and by creating new volunteer forces (“Spearhead Companies”). It is difficult to find any basis for the proposed resolution to establish now-less than a year later-a new body with a similar role, instead of completing the process of strengthening the Border Police. The need for such a step should be determined on the basis of a thorough examination, such as would be undertaken by the committee that section 3 of the proposal suggests creating.

4. The proposed resolution puts the cart before the horse. While the committee that is established may reach the conclusion that there is indeed a need for a new national guard—separate from the Border Police and the Israel Police—this conclusion should be evidence-based and the product of the committee’s work.

Danger of improper political involvement in law enforcement

5. The proposal should be viewed with particular suspicion, given the Minister of National Security’s recent attempts to intervene in the operational decision-making discretion of senior professionals in the Israel Police (see, for example, the High Court of Justice ruling 8987/22 of March 19, 2023). These events highlight the critical need for maintaining the operational independence of the professional echelons of the police. In particular, we should be wary of the establishment of a new force with policing powers which is not equipped with the mechanisms, nor characterized by the organizational culture which currently exist in the Israel Police and which guard against improper political involvement in law enforcement. There is real concern that the proposed government resolution, if passed hastily and without a compelling argument to prove the need for the national guard, might lead to unacceptable political involvement in policing in Israel, in a way that will deal a blow to unbiased and professional, enforcement of the law.

Guiding principles for the establishment of a new national guard

6. In democratic societies, police forces are entrusted with the important public interests of maintaining public order and public safety, and to this end are granted powers that may infringe upon basic rights, such as individual liberty and freedom of expression. However, democratic societies strive to ensure that any such infringements meet the standard of proportionality. Thus, the establishment of any organization with policing powers demands meticulous examination and an in-depth process in order to meet the constitutional demand that any infringement of individual rights will be proportionate with the need.

7. In light of the above, if it is nevertheless decided to establish a new national guard separate from the Border Police, the following fundamental issues must be fully addressed.

a. The mission of the national guard: The draft resolution and its accompanying explanatory text, refer to different missions. Some of these overlap with those of existing organizations (for example, public order or combatting terror), while some are fuzzy and vague (for example, “various emergency scenarios,” “increasing governance”). Deciding to establish a new security or policing body in a democratic state requires, first and foremost, a clear definition of its mission, as well as its relation to other security and policing bodies. This is essential in order to prevent any drift in its activities into areas that might result in disproportionate infringement of human rights.

b. The relation between the national guard and existing security and policing bodies in Israel: Defining this relation is important both for the reason noted above, and in order to ward off tensions and clashes between different security and policing bodies, at both the strategic and tactical levels. Thus, among other things, it is not at all clear from the wording of the draft resolution how the new national guard will differ from the Border Police, and what the planned division of labor will be between the national guard and the Israel Police.

c. Militarization of law enforcement: Consideration must be given to whether the quasi- military character of law enforcement in Israel should be further enhanced, and whether such a step is not liable to result in disproportionate infringement of human rights.

d. Equality in law enforcement: Consideration must be given to ensuring that the new national guard will not be directed inequitably or unequally toward vulnerable populations or minority groups.

8. Effectiveness of law enforcement: Consideration must be given to whether greater decentralization of policing powers will enhance the effectiveness of law enforcement, or whether it is preferable to preserve the unity of command. These fundamental issues lead to the following issues and decisions, which must also to be considered:

a. The powers of the national guard, and how these are anchored in law. There must be an examination of which powers need to be granted to this body, and whether to give the national guard policing powers. If so, it is important to anchor this definition of powers in law.

b. Independent decision-making on operational policing issues: If the new body is granted policing powers that mirror the powers currently afforded by law to the Israel Police, then it is important to ensure that its senior professionals enjoy independence in their operational decision-making with regard to law enforcement and the execution of policy, so that enforcement will remain equal and equitable and in accordance with the law.

c. Recruitment and training: Consideration must be given to the recruitment and training of personnel, especially volunteers.

d. Appointments: Consideration must be given to the process by which senior commanders are appointed in the national guard, so as to ensure their operational independence (in accordance with the powers granted it), their democratic accountability, and their professionalism and suitability for the role.

e. Oversight and monitoring: Consideration must be given to the mechanisms that will need to be created in order to ensure effective government and parliamentary oversight and monitoring of this body.

The opinion was published on March 30, 2023. The government decision was passed on April 2, 2023.
For the full Hebrew opinion