When two Jewish arsonists torched a Jewish-Arab school in Jerusalem, Supreme Court Justice Neal Hendel railed against the dangers of arson and the severity of the crime. Although no injuries were sustained in the Hand in Hand school attack in November 2014, “there is no way of knowing how a fire will spread, who or what it will hurt, and with what force. A person who sets a fire cannot keep it from spreading, and the dangers involved are great: one knows how it starts, but not how it ends,” he wrote in the March indictment.
That observation – which preceded by six months the deadly arson attack in the West Bank village of Duma, in which three members of the Dawabsha family were killed, and the arson attack on the Church of Loaves and Fishes by three months – is cited in a footnote of Knesset legislation on new sweeping counterterrorism measures which passed its first reading two weeks ago and which for the first time anchors in law that attacks on religious sites and arson constitute acts of “terror.”
In its current draft (which will likely be tweaked by the Knesset’s Constitution, Justice and Law committee before its next readings), the controversial laws do not distinguish between Palestinian and Jewish terror, nor between attacks on soldiers and those on civilians. It doubles jail time for terrorists, broadens the definition of “terror” considerably, and gives the Shin Bet leeway in holding suspects without charges.
The 100 pages of legislation have been floating around the Knesset since 2011, drafted and redrafted, and approved several years ago for a first reading, but never brought to the second and third readings needed to pass it into law. The bill would entirely overhaul the legal system’s treatment of terror suspects, supplanting the British mandate-era laws adapted into Israeli law in 1948 with the establishment of the State of Israel.
With both coalition and opposition support, the bill’s first reading was approved 45-14, amid fierce objections by some rights groups and members of Meretz and the Joint (Arab) List. The vote, held early in a special summer recess session after the Duma attack, came after a year that saw an unremitting stretch of stabbings, car-ramming attacks, shootings, firebombings, stone-throwing, and vandalism, primarily in Jerusalem and the West Bank, which left 18 people dead and dozens injured.
(As of Thursday, it was not immediately clear whether Prime Minister Benjamin Netanyahu’s plan to advance legislation permitting the use of live fire against rioters and harsher penalties against stone-throwers was set to be incorporated into the sweeping anti-terror bill or presented to the Knesset as a separate proposal. The Prime Minister’s Office did not respond to a request for comment).
Below are some of the main elements of the proposed laws:
1. It expands the definition of terror. Under the proposed legislation, terrorism is “an action or a threat” that meets all three of these criteria: First, it is done “out of a political, religious, nationalistic or ideological motive.” Second, it is aimed at “sowing fear or panic in the public, or to pressure governments, governing bodies” or public international organizations, to do or refrain from certain actions. Third, it causes “serious harm” to: people, “the safety and well-being of the public,” property, infrastructure, the economy, religious sites, or the environment.
2. It does not distinguish between attacks against civilians and attacks against soldiers. The bill dismisses any differentiation between attacks on soldiers or civilians: “It should be noted that the proposed definition [of terror] does not distinguish between acts against soldiers and acts against civilians. This is based on the concept that terror is an illegitimate way to achieve political, ideological, or religious goals, regardless of the identity of the victims,” a footnote explains.
3. It specifically classifies attacks on religious sites and arson as terror: Referring to the incorporation of attacks on holy sites as “terror,” the explanatory text reads: “It should be noted that this sub-clause includes arson, even if only property was damaged or the structure was empty of people, since with regard to arson, as a rule, there is a real possibility that serious harm will be caused, including to people or the public safety.” This clause was not featured in earlier drafts of the legislation, and appears to be a direct response to the Duma attack and church arson.
4. It broadens the definition of “terror organization.” The proposed legislation outlines a lengthy process by which terror organizations are designated as such, which includes input from the defense minister, approval by a special committee set up for this purpose, and the backing of the attorney general. However, it also maintains that groups that carry out terror attacks, in accordance with the proposed definition of terror, be branded terror groups and treated accordingly even prior to designation. “[For] an organization of this kind, the very nature of its actions, with its goals of advancing terror attacks, defines it as a terror organization even if it hasn’t yet been designated, and all the legal instructions related to ‘terror organizations’ apply to it,” the explanatory notes said.
Moreover, for the first time, the legislation allows other organizations – whether NGOs or humanitarian aid groups – that assist terror organizations in any way to be designated as terror organizations, too. Unlike other terror groups, the “envelope” organizations must be formally designated as terror organizations before any action can be taken against them, and given a chance to appeal. This process is “essential” in the fight against terror, the legislation says. Even if the bulk of an organization’s activities are legal, certain actions would be sufficient to brand it a terror group. “For example, an organization that donated a hefty donation to a terror group may be considered a terror organization, even if it hasn’t been proven that this is an offense that will be repeated. In addition, an organization that deals with educating kids and teenagers to identify with a terror group and support it… may be considered a terror organization even if this issue is only a small part of its larger activities.”
5. Threats and identification with a terror group are harshly punished. Threaten to carry out a terror attack, and you will face half the jail sentence for that crime, the legislation says, or five years (whichever is higher). A person who threatens to carry out an attack that carries a life sentence will be imprisoned for 15 years, it says. Threats are also incorporated in the very definition of terror, as seen above. The current penalty for terror threats is a three-year prison sentence.
The legislation also cracks down on individuals identifying with terror groups “including publicizing praise, support, or admiration, waving flags, presenting or publicizing a symbol… a slogan, or anthem.” If done publicly – whether waving a sign at a rally, posting on social media, or wearing a T-shirt – the individual will be liable to serve three years in prison.
With regard to this last clause, a footnote adds: “It should be emphasized that due to the sensitive nature of these prohibitions, which limit of the basic right to freedom of expression, and because of the required cautiousness in setting down the line between permitted and forbidden expressions… an indictment is contingent on the approval of the attorney general.”
Similarly, publicizing support for terror, or calls for violence, can result in a five-year prison term if there is “a distinct possibility that it will lead to a terror attack or violence.”
6. It doubles jail time for terrorists. The law proposes that terrorists serve “double the penalty set for the same crimes, but no more than 30 years,” with some exceptions.
It also lays down jail time for certain terror-related activities. Head a terror organization – 25 years. Serve in an administrative role in a terror group – 15 years. Terror attacks that harmed or were liable to harm a large number of people – life. Terror attacks with chemical, biological, or radioactive materials – life.
Membership in a terror group can result in a five-year sentence, or a seven-year sentence for active members who have carried out attacks in the group’s name. Failure to report an imminent terror attack to the Israeli security forces can result in three years in prison.
7. It enshrines administrative detention into law. The law enables court-approved detention extensions for terror suspects who have not been indicted. Until now, administrative detention has been approved by courts under an “emergency” order by the defense minister. However, the legislation recommends that this “moderate and careful” practice, which it says is “essential” for Israel’s security, be enshrined in law, with revisions. It suggests that interrogators be permitted to hold suspects for 48 hours without bringing them before a judge (the interrogators are also given leeway for additional 24-hour extensions, under certain conditions). Judges will be allowed to extend detention by 15-day increments, “unless they are convinced that if the suspect is held in detention, there is a near certain opportunity to thwart an attack on people’s lives.”
The Supreme Court will be permitted to grant 72-hour extensions without bringing the suspect in for a hearing, if it receives written approval from the Shin Bet chief and attorney general.
While current administrative detention rules apply to all “security suspects,” the legislation proposes that it only apply to those suspected of plotting a terror attack that would carry at least a five-year sentence.
8. It permits some cyberspying. The Shin Bet will be permitted to carry out computer-related operations if the security agency chief receives permission from the prime minister, who must be “convinced that the action is essential in order to thwart or prevent terror, or spying that presents a threat to peoples’ lives, or serious harm to state security, and that the said goal could not be achieved any other way.” The legal provision vaguely refers to “actions related to computers or material on computers,” in a likely reference to hacking or cyberspying.
If the Shin Bet chief feels there is no time to alert the prime minister, he can approve the move, provided he notifies the premier immediately afterward.