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Membership in a Terrorist Organization

Policy Paper 94

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  • Cover Type: Softcover
  • Number Of Pages: 92 Pages
  • Price: 45 NIS

A policy paper written under the auspices of IDI’s Terror and Democracy project, which explores the question of whether passive membership in a terrorist organization should be considered a criminal offence and analyzes a central section of the proposed Struggle Against Terrorism Law, 5771–2011.

This policy paper, which was written as part of IDI’s Terror and Democracy project, headed by Prof. Mordechai Kremnitzer and Prof. Yuval Shany,  analyzes a central section of the proposed Struggle Against Terrorism Law, 5771–2011.

The proposed law is intended to reformulate Israel’s legal battle against terrorism and to effect a real change in Israeli law in this field. The section defines the criminal offense of “membership in a terrorist organization,” and has an important place in the legislative proposal. The policy paper analyzes the crime, as defined in the proposal, and discusses its justifications and its appropriate scope in a liberal-democratic regime. The paper focuses on the question of whether it is appropriate to criminalize passive membership expressed only in agreement to join the terrorist organization.

The comparison between the criminal offense of membership in a terrorist organization as defined in the legislative proposal and the doctrine that underlines similar provisions found in criminal law—such as criminal conspiracy, preparation for the commission of a crime, and partnership in a crime—leads to the conclusion that this doctrine does not justify criminalizing passive membership in a terrorist organization, as set forth in the proposed legislation. An examination of the legal arrangements in other countries leads to this conclusion as well.

The main conclusions arising from the research are:

  1. A distinction must be made between outright terrorist organizations, including “mixed” organizations (those carrying out both terrorist and civilian activities) and civilian organizations (whose connection to terrorist activity is weaker);
  2. In general, factual-behavioral elements must be added to the definition of the offense, such as behavior that advances or supports terror;
  3. The “mental state” that the definition of the crime requires must be strengthened by adding a requirement that in order to be liable of a criminal offense, a member of a terrorist organization must have providing assistance in carrying out terrorist activities as his or her objective.

Overview

Section 25(a) of the proposed Struggle Against Terrorism Law, 5771–2011, would provide that membership in a terrorist organization is defined as a crime carrying five years imprisonment. The section—which would replace the current scattered and outdated legislation that criminalizes such activity—raises the question of criminalizing mere membership in a terrorist organization, with the justifications for such a step, as well as the appropriate scope for its reach in a liberal democratic regime.

After a brief survey of the current law and the proposed legislation, the study examines the offense of membership from three perspectives: firstly, in view of the protected values and the system of constitutional balances arising from them; secondly, in terms of the theory of similar offenses in criminal law; thirdly, from the comparative law perspective. This three-part examination reveals that the proposed crime of membership in a terrorist organization presents a number of difficulties—particularly in situations in which responsibility will be imposed for subordinate or weak forms of involvement of the defendant in the organization’s activity—in such a manner so as to necessitate a change in the current version of the proposal and the addition of various components in order to deal with these difficulties.

Definition of the Proposed Crime and the Scope of Criminalization that it Enables

The focal point of the discussion is section 25(a) of the proposed legislation, which provides that “a member in a terrorist organization is liable to five years imprisonment” (hereinafter: the membership offense). The definition of the term “member” is the broadest possible definition, according to which even “a person who is counted among the members of a terrorist organization” or “one who expressed his consent to join a terrorist organization” is considered a member. Thus, the proposed law adopts the nominal definition requiring only formal membership or the expression of consent to membership, without any requirement that the defendant perform any further active deed within the purview of the organization.

With respect to the definition of a “terrorist organization,” the legislative proposal takes a broad approach which does not distinguish between a terrorist organization whose activities are all military in nature and an organization of a dual nature, that combines military and civilian activities, and provides that there is no relevance to the question if the organization also carries out legally sanctioned activities. With respect to shell organizations, that have a weaker connection to terrorist organizations, there is a different provision that requires the existence of an actual ministerial declaration pursuant to law that such organization is a terrorist organization in order to criminalize their activities.

From the provisions of proposed legislation it transpires that the proposal enables the imposition of criminal liability for a low level of anti-social behavior, such as the one-time expression of consent to join a terrorist organization; the inclusion of one’s name on a membership list of the organization; and irregular activity that is not associated with the organization’s military objectives.

Analysis of the Offense from a Constitutional Perspective

The criminalization of membership in a terrorist organization in the legislative proposal raises for discussion the question of the appropriate balance between the values that the proposed criminal prohibition is intended to protect and conflicting values from the fields of criminal and constitutional law. The offense of membership is an incomplete crime derived from completed crimes of acts of terrorism. It is justified in view of the importance of the values that the laws against terrorism seek to protect, which include the right to life, to physical integrity, to property and protection of property, the general public interest, public security and even state sovereignty and the totality of democracy itself.  

Alongside the need to defend these values, criminalization of simple membership creates a conflict with general constitutional values relating to the scope of the criminal law as well as the right of association. Thus, criminalization of nominal forms of membership, including a low level of activity in the organization, raises difficulties in view of the principle of criminal law as a last resort, which justifies the imposition of criminal liability only in serious cases involving conduct with a significant risk of damage, where the one carrying it out has a negative (anti-social) attitude to the protected value. Additionally, the imposition of broad liability for membership would seem to run counter to the principle of personal culpability and is likely to result in the imposition of liability on an individual due to the deeds of others. The vagueness of the crime in its present formulation and the lack of certainty with respect to types of conduct that would be included in it raise difficulties with respect to the duty of providing a warning in advance and the public’s awareness of the criminality of the activity. It also raises the possibility of selective or abusive use of the prohibition by the enforcement authorities.

Moreover, the offense of membership is in conflict with the right of association. The individual’s right to associate is a founding principle of a democratic society and the power to associate is a condition for the exercise of basic rights, foremost among them the freedom of expression. The freedom to associate, particularly the association of marginal groups, is one of the signs of an open society. Although it is clear that protection of the right to associate is not justified in the case of illegitimate organizations—as in the case of clearly terrorist organizations—the question still arises in cases in which the act of association is an expression of legitimate activity, especially in shell organizations whose connection to the terrorist activity is attenuated. There is particular concern that a sweeping limitation on association by minority groups and marginal sectors of the population will enable security authorities to arbitrarily limit their activity, through aggressive enforcement of the criminal prohibition. Therefore, the scope of the limitation of the freedom of association must be considered within the definition of the scope of the criminal offense.

Analysis of the Offense in View of Similar Offenses in the Criminal Law

An analysis of the offense of membership in relation to incomplete offenses demonstrates that there is a need to make alterations for consistency in the proposed version of the law. The underlying assumption of the analysis in this part is that inchoate offenses that already exist in the criminal law—such as the laws of conspiracy, acts of preparation, and the laws of partnership—reflect an appropriate constitutional balance between the rights of the defendant and the public interest and the more the proposed offense disturbs this balance and includes conduct of a low level of criminality, the more it requires special justifications, and it is doubtful if they exist with respect to the offense of membership.

At the outset, the analysis presents the significant similarity—historical and analytical—between the offense of membership and the offense of criminal conspiracy (as to which a substantial amount of criticism was voiced in the literature). In spite of the great similarity, the offense of membership in its current formulation is a “crime of conduct” that requires only a state of mind of awareness, whereas in most legal systems the offense of conspiracy is an offense of purpose (a purpose to commit a crime), and therefore its applicability is narrower. The more the offense of membership is viewed as an individual case that is similar—if not identical—in its characteristics to the offense of conspiracy, the greater the justification to consider the addition of a requirement of purpose for such membership. The offense of conspiracy is generally justified on the basis of its being a deed of preparation for criminal activity. In comparison to the doctrine of criminal “preparatory deeds,” it seems that the prohibition on mere membership in a terrorist organization renders conduct that in many cases is far from the carrying out of the completed offense into a criminal offense. Such criminalization does not meet the criteria for criminalization of a punishable “deed of preparation.” The offense of conspiracy is also justified at times on the basis of its being an act of solicitation or assistance for criminal activity. However, in terms of the offense of membership, in the prism of the laws of partnership and the attempt to justify it by extrapolating from these laws, substantial difficulties were raised by the criminalization of various types of conduct that at present are included in the offense. Passive membership in a terrorist organization, without any real connection to those carrying out offenses of terrorism, cannot be considered solicitation or incitement to perform an offense, and it is even difficult to argue that such membership assists deeds of terrorism.

There are those who argue that it is possible to view the offense of membership a completed offense that directly impinges upon the value of state security and public well-being. According to this position, the very membership of a person in a terrorist organization—even without the performance of any act whatsoever infringes the protected value and justifies criminal liability. This is also the position that the legislative proposal adopts. However, it seems that if this position is accepted in cases of membership in a “pure” terrorist organization, then the level of punishment in the proposed legislation is disproportional to the severity of the conduct of the perpetrator and the damage expected from the act, and therefore, it is appropriate to decrease the level of punishment.

The Situation in Comparative Law

A look at comparative law reveals that the picture is complex. However, it may be stated that in most countries there is no criminalization of mere membership and there are additional requirements—in most cases as part of the factual element of the crime, such as a deed beyond mere nominal membership—in order to convict. In some states this is a requirement found in legislation, and in other states it is the result of the development of the case law.

Recommendations

The criminal offense of membership as drafted in the legislative proposal is defined too broadly and includes behaviors with pale criminal characteristics that do not justify the imposition of the punishment set forth in the law. My main recommendation is to add components to the state of mind and the factual element of the offense in order to return it to the accepted boundaries of the criminal law.

The following changes should be made:

  1. A distinction between the types of organizations: Although it is appropriate to criminalize mere membership in clearly terrorist organizations, it is difficult to justify this where speaking of dual-purpose organizations, some of whose activities are carried out in frameworks that have no connection to terrorist activities. I do not accept the approach adopted by the legislative proposal according to which there is no difference between clearly terrorist organizations and organizations with a dual nature. There is place for a distinction between these two types of organizations, especially at the stage of examining the individual’s liability. This distinction may be made through the provision of a defense in cases in which the defendant is able to prove that he was a member of a dual-nature organization and that his activity in the organization focused only on the civil aspect without any connection to terrorist activity.
  2. Addition of components to the state of mind: To the extent that membership in a dual essence organization is criminalized, the survey suggests that at the least the current draft which criminalizes completely nominal-subordinate membership should not be accepted. Therefore, a factual component should be added to the criminal offense which would include a requirement for the existence of a deed or deeds of a sufficiently anti-social nature, carried out under the auspices of the organization, for the purposes of a conviction and there should even be consideration of a significant decrease in the punishment set forth for the offense. One possible route would be to add a factual component of a “material deed,” similar to the existing arrangement under French law. An alternative suggestion would be the repeal of the offense of membership and making do with the criminalization of activity that makes a real contribution to the advancing of terrorist acts regardless of membership, similar to the American law.
  3. Addition of components to the state of mind: A further manner that arises from the theoretical and comparative survey is the addition of an element of purpose to the mental state in order to criminalize only membership in an organization with the purpose of carrying out or assisting in the carrying out of a terrorist act. It is possible to add a rebuttable evidentiary presumption that a person who is a member of a clearly terrorist organization identifies with its objectives, enabling the defendant to rebut this presumption.

Dr. Liat Levanon is a lecturer at the Brunel University Law School in England. She is engaged in research in the field of criminal and constitutional law and served in the past as an assistant researcher at the Israel Democracy Institute.