The Counter-Terrorism Memorandum Bill
An analysis of the proposed comprehensive counter-terrorism bill that was prepared by IDI's Terrorism and Democracy research team and submitted to the Ministry of Justice.
On April 21, 2010, the Israeli Ministry of Justice published a draft of a comprehensive counter-terrorism bill that is intended to consolidate current counter-terrorism legislation, which is currently found in a number of statutes, some of which date back to the British Mandate over Palestine. (For an overview of this bill, see the article New Comprehensive Counter-Terrorism Memorandum Bill in Issue 17 of IDI's Terror and Democracy Newsletter.)
The draft bill, which is 105 pages long (including an explanatory note), was distributed to Israeli NGOs and research institutes for review. After obtaining feedback from these bodies, the Israeli Ministry of Justice will consider revising its draft and will submit the proposed bill to the Knesset.
In response to receipt of the draft bill from the Ministry of Justice, a team of researchers from IDI's Democracy and Terrorism project reviewed the proposed legislation and prepared a detailed analysis. Headed by IDI Vice President Prof. Mordechai Kremnitzer and IDI Senior Fellow Prof. Yuval Shany, the team included Mr. Amir Fuchs, Attorney Shiri Krebs, Attorney Lina Saba, Ms. Yael Cohen, Attorney Ido Rosenzweig, and Attorney Doron Goldbarsht.
Following, you will find a brief English summary of the 63-page Hebrew review paper that emerged from the process of analysis.
At the outset, the review paper clarifies a number of points. First, the IDI researchers welcome the initiative to consolidate Israel's legislation on terrorism into one piece of coherent and modern legislation. Second, the review paper focuses on the most problematic sections of the proposed legislation, rather than systematically reviewing each and every article of the law, some of which are worthy and useful. This is in part a function of the short time-line for conducting the study.
The general picture that emerges from the proposed counter-terrorism memorandum bill is quite alarming. The law includes a number of truly revolutionary points regarding all levels through which the legal system deals with terrorism. These range from the bill's definition of terrorism (which also includes organizations with limited affiliation to terrorist acts), through changes in substantive law (incitement, identification with a terrorist agenda, and conveyance of terrorist threats), through changes in the applicable legal procedures (for example, deeming statements of witnesses who are not present to be admissible in judicial hearings or re-issuing legislation restricting access by detainees to judicial review that was already struck down by the Supreme Court), to a dramatic increase in the severity of punishment following convictions. The proposed law also creates three overlapping confiscation procedures that allow severe damage to personal property without due process.
It would be appropriate to devote in-depth research and serious public debate to each of the changes described above; hopefully, it is not too late.
The review paper contains a brief presentation of the main arguments against certain aspects of the law, and is intended to serve as a platform for further discussion and deep analysis of these issues.
In the opinion of the IDI researchers, the basic problem with the draft memorandum bill lies in its overly broad definitions of terrorist organizations, acts of terrorism, and membership in terrorist organizations. As a result of the breadth of these definitions, legal tools that raise the level of punishment, compromise due process, and violate rights of suspects and defendants are deployed in far too many cases, causing serious violations of rights. Arguably, these broad definitions dilute the term "terror" and, as such, miss the point of the proposed legislation. Instead of differentiating between terrorism and other violent crimes that are worthy of less stringent responses, the memorandum bill puts a variety of actions and behaviors all in one ‘basket,’ when each warrants separate consideration.
An additional problem is that the law, which is ostensibly new and modern, relies too heavily on pre-existing local legislation that is archaic in nature, as well as on new legislation from other countries, which was adopted in the post 9/11 hysteria. Israel should not embrace comparative laws that reflect a short-term response to an unexpected emergency situation; rather, the situation in Israel is an ongoing problem, which merits a more careful and increasingly sensitive act of balancing between security interests and human rights concerns.
One should also bear in mind that when legislation of this nature is enacted with regard to terrorism, there is the danger of radiation to other areas. Practices for dealing with terrorism that become routine are liable to spill over to other areas such as organized crime and other types of serious crimes. The draft memorandum bill itself exemplifies this phenomenon, since its broad definitions of terror include acts that are not classic examples of terrorism. Given that this is the case, Israel must be careful not to overstep the boundaries of criminal law, both in terms of substantive criminal law and criminal procedure.