A new Terrorism Law was recently drafted by Israel’s Attorney General, the State Attorney and senior officials from the shabac (Israel’s secret police, also called the Israel Security Agency), and approved by the Minister of Justice. It is scheduled to be introduced to the Knesset for a vote shortly, but has received little coverage in Israeli media so far.

The Israel Democracy Institute (IDI) has criticized the proposed new law in a recent publication. According to the IDI, “the basic problem with the draft memorandum bill lies in its overly broad definitions …. 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.”

The proposed law seeks to replace other pieces of legislation including the current Israeli law for prevention of terrorism and the law prohibiting funding of terrorism, as well as modifying various existing laws such as the Public Defense Law and extending the provisions of others.

The proposed law significantly extends the definitions of terrorist acts and organisations, for example by introducing the concept of “envelope organisations.” According to Israeli authorities these are groups that provide socio-economic services to the public but are also linked to or support terrorist organisations and should therefore also be defined as “terrorist organisations.”

The explanatory notes to the new version specify explicitly that the new definition of “terrorist acts” does not distinguish between crimes committed against soldiers and those committed against civilians, because “terrorism is an illegitimate method of attaining political, ideological or religious ends irrespective of the identity of its victims.”

The proposed version permits a suspect to be held for up to 96 hours before being brought before a judge, and revises the period of detention of terrorist suspects without charge up to 30 days.

It also enables court hearings to be held in the absence of the suspect and denial of legal counsel for prolonged periods.

The proposed law details three different methods of seizure of property and freezing of assets of suspected organizations and individuals without recourse to fair process. To this end, secret evidence and “inadmissible evidence” may be presented to the court in order to demonstrate connection between the assets and the perpetrator of the act, even if the organization involved is not a declared “terrorist organisation.” The law also grants the authorities extensive search and confiscation rights for purposes of seizure, and the right to close premises.

As an example of the possible impact of these extensive seizure authorities, the IDI cites a situation in which an Israeli medical charity donates money or medical services to another medical charity that provides free health services to Palestinian civilians, but is partly linked to or recognized by the Hamas de-facto Health Ministry in the Gaza Strip. Under the new law, that Israeli charity can be immediately closed down, its property seized and its assets frozen under the new law, all without the possibility of due process, due to “links to a terrorist organization.”

On 3 October the IDI initiated a round-table discussion of the proposed law, seeking to arouse public debate on the subject.

IDI experts warn 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…. Israel must be careful not to overstep the boundaries of criminal law, both in terms of substantive criminal law and criminal procedure.”

In the opinion of the IDI, the law “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.”

Below is a non-exhaustive summary outlining selected aspects of the 105-page proposed law, as published in a memorandum by the Israeli Justice Ministry.

Definition of “terrorism”:
A “terrorist act” means the use or threat of action where-
(a) the use or threat is made from political, ideological or religious motives or out of hostility to the public,

(b) the use or threat is designed to intimidate the public or to persuade a government or governmental organization, including international governmental organizations or public organizations, to act or to refrain from acting in a certain way; in this paragraph, a prior reasonable assumption that the use or threat of such an action will intimidate the public shall be the same as design to intimidate the public,

(c) the use or threat involves one of the following, or poses an actual risk of one of the following:

(1) actual damage to the body or liberty of a person, or danger to a person’s life or risk of serious injury to a person
(2) serious damage to state security or to the health or safety of the public
(3) serious damage to property or damage to property that involves or may involve damage to government institutions or symbols
(4) damage or serious interference with essential infrastructure, systems or services, or serious damage to the state economy or the environment, or damage to the environment that could cause serious financial damage.

Definition of “terrorist organizations”:
The proposed law extends the definition of a “terrorist organization” to include so-called “envelope organizations” - organizations promoting, encouraging, supporting, cooperating or enabling the activities of “terrorist organizations.” Its explanatory notes specify that terrorist organizations are accompanied by support organizations engaged in socio-economic activities, as well as sympathizing organizations, without which they could not function.

The law also extends the definition of a member of a “terrorist organization” to persons participating in meetings or other activities of organizations defined as terrorist, or agreeing in principle to join a “terrorist organization,” even without acting on its behalf. Membership is assumed to remain in place until proven otherwise, and the burden of proof is on the alleged member.

Under the new law, if any crime is committed by a “terrorist organization” or by a member of one, it is assumed that this crime was committed with the intentions of a terrorist act. Crimes by a member of a “terrorist organization” are therefore assumed to be terrorist acts unless proven otherwise.

The Minister of Defense shall be authorized to declare an organization as a “terrorist organization,” but suspects and organizations can be convicted of terrorism or of membership even if the organizations involved have not been officially declared “terrorist organisations.”

The law grants the Minister of Defense the authority to declare organizations or individuals as terrorist, based on similar declarations by authorities overseas.

Suspects’ and detainees’ rights:
The proposed law permits a suspect to be held for up to 96 hours before being brought before a judge, and revises the period of detention of terrorist suspects without charge up to 30 days.

It also enables court hearings to be held in the absence of the suspect and denial of counsel for prolonged periods.

The law extends scope of the law permitting Administrative Detention (internment without trial), enabling the Minister of Defense to also impose “control orders” prohibiting the suspect from leaving a place or area, to impose exit bans from the country, and to ban suspects’ access to certain places, for a period of up to one year. It also enables police and army extensive authority to search persons and premises or carry out “any reasonable act” for the enforcement of these limitations.

Penalties:
Penalties are significantly stricter than in current anti-terrorist legislation. Those convicted of terrorism will serve 40-year minimum prison sentences, instead of 30.

According to the proposed law, criminal offenses should be punished more strictly if by intention, aim and circumstances they fulfill the definition of terrorist acts. Criminal offenses made with the intention of terrorism shall receive a double prison sentence, or 30 years.

In addition the law includes newly defined terrorism-related crimes with severe penalties, such as:
Directing a terrorist organization (25 years); employment by a terrorist organization (15 years); membership in an organization, whether it is an officially declared terrorist organization or not, and without proven participation in its activities (5 years); public expression of sympathy with a terrorist organization (3 years); Incitement to terrorism, including publicly encouraging, lauding or supporting terrorist acts or organizations; holding forbidden publications for dissemination or providing services for preparation, dissemination or publication or forbidden publications (minimum 3 years); providing means or services that can assist terrorist acts (2 years); harboring after terrorist acts (3 years); non-prevention of terrorism (3 years); threatening terrorism (half the sentence of the threatened act or 5 years); training for terrorist acts, for prevention of their discovery or for disruption of their investigation, or for the use or manufacture of weapons (7 years); receiving such training (5 years); trading in arms for terrorism (20-25 years); trading or holding goods belonging to a terrorist organization in order to pre-empt freezing of assets or confiscation (3 years); failing to report assets (1 year); vandalism to property for terrorist ends (7 years); or violation of control orders (2 years).

Freezing of assets:
The proposed law includes a comprehensive chapter detailing extensive authority for three different methods of seizure of property and freezing of assets of suspected organizations and individuals without recourse to fair process. To this end, secret evidence and inadmissible evidence may be presented to the court in order to demonstrate connection between the assets and the perpetrator of the act, even if the organization involved is not a declared “terrorist organisation.” The law also grants the authorities extensive search and confiscation rights for purposes of seizure, and the right to close premises.

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