JURIST Guest Columnist Robbie Sabel, of the Hebrew University Jerusalem, discusses the continued violence in Israel …

In recent weeks Israel has been facing a wave of “individual” terrorism and the Israel Authorities are in a dilemma as to how to combat it within existing legal restraints. In the past, terrorism in the West Bank consisted to a large extent of placing explosive devices in cafes, buses, youth-clubs and even in the cafeteria of the Hebrew University, where I teach. This was frequently carried out by suicide bombers acting on behalf of the Gaza based Hamas. Where “successful” they, at times, caused devastating civilian casualties. However to a large extent Israel security managed to thwart this terrorism by employing sophisticated electronic intelligence and human intelligence sources.

The new wave of terrorism in Israel differs from previous episodes in that it is composed to a large extent of young West Bank Palestinians indiscriminately knifing passers-by and Palestinian drivers deliberately running over pedestrians. These attacks have taken place both within Israel and in the West Bank and ironically some of the victims have been Palestinians themselves, presumably because the attackers mistook them for Israelis. Since the attackers are usually not a part of organized groups nor do they receive directions from Hamas in Gaza it is difficult for Israeli intelligence to forestall and prevent such attacks. These young Palestinians are often motivated by economic distress and a feeling of general frustration. Targeting Israelis turns them into local heroes and their photos will be plastered on wall posters. Just recently a teenager who stabbed two Israelis to death had a school football tournament named in his honor “The Ahmad Manasrah Football Tournament” (Al-Hayat Al-Jadida, Nov. 23, 2015). Like their counterparts in ISIS, these youngsters are to a large extent also influenced by radical Islamic Imams who preach hatred of Israelis and Jews and encourage martyrdom in the name of Jihad, holy war. The Palestinian Authority apparently plays no part in instigating such attacks but after the event the official Palestinian press praises the attackers as holy martyrs and the Palestinian authorities pay a monthly stipend to the families.

The dilemma as to how a democracy can deter such attacks and combat terrorism is not unique to Israel and, unhappily, in recent times most democracies have faced this problem. In one of his judgements Aharon Barak, former President of Israel’s Supreme Court, wrote that “Democracies fight with one hand tied behind their backs.” So be it.

Somebody once remarked that Israelis should carry on them a warning sign saying “Be careful these people are dangerous, when attacked they defend themselves.” Israeli police carry firearms as do soldiers on leave and many Israeli civilians are licensed to carry small arms. This means that Palestinian knife wielders are likely to find themselves engaged by people with firearms.

The criminal code in Israel stipulates that there is no criminal liability for use of force in case of self defense however the onus is on a person accused of using force to prove that he acted in self defense and that, in the language of the Criminal Code, “no alternative act was available.” Additionally the police authorities have a very real interest in wanting to interrogate such attackers.

Nevertheless, the reality is that not every person finding himself about to be run over by a speeding car or assaulted by a knife necessarily takes into consideration the wording of the Criminal Code or police interests. There is no doubt that panicked individuals have at times killed attackers where careful deliberation might have allowed a less fatal outcome.

Other than by armed persons defending themselves, the question remains how such attackers can be deterred. Israel unlike all its neighboring states has no death penalty for murder or terrorism and it is not clear whether a death penalty would be an effective deterrent to potential suicide attackers. Since families of “martyrs” receive monthly stipend from Palestinian authorities, some of the attackers feel they are helping their families financially by carrying out such attacks. This economic incentive has led to Israel, very sparingly, using the controversial step of sealing or blowing up the houses of the terrorist. This is permitted in accordance with emergency regulations that were introduced by the British during the time of the British Mandate in Palestine and continue to be part of Israeli law. Israeli courts have limited the government’s authority to seal or destroy houses only to cases where the persons living in the house were aware of and acquiesced with the terrorist’s activity and provided that no neighboring houses would be harmed. The government claims that this has an effective deterrent value and has even reported the case of a father warning the police of his son’s plans to carry out an attack, explaining that he, the father, feared his house would be destroyed or sealed. Nevertheless, this remains highly controversial in Israel as human rights organizations claim that it is a form of collective punishment as the principal sufferers are the family of the terrorist and not the terrorist himself.

In some cases, the young terrorists are juveniles who cannot be sentenced to prison. A proposed step is to enable courts to fine parents if their juvenile children carry out terrorist attacks. The reasoning is that the parents should have controlled their children. Such a step would require explicit Israeli parliamentary approval and at present it seems highly unlikely that the Israeli parliament would approve such legislation.

Israel emergency regulations allow for administrative detention for security reasons. This is done where the evidence against the person cannot be submitted in open court since it would mean disclosing an intelligence source. Although it is an administrative action such detention however is subject to the government providing convincing evidence to a president of a district court that leaving the individual at liberty presents a real and imminent threat and the evidence cannot be produced in open court. So clearly such detention is no answer to the spontaneous acts of mindless terror that Israel is undergoing.

Israel authorities always have to take into account the very active role the Israeli Supreme Court has taken in supervising administrative action and at times even parliamentary legislation to ensure that they are compatible with human rights. The president of the court has stated that the court will be open to everyone: “Objections based on extraterritoriality, political questions, and non-justiciability will not be heard.”

This Supreme Court supervision was applied in regards to methods of interrogation. The Israel Security Services claimed in court that they never applied torture (such as water boarding) but in a “ticking bomb” situation requested permission to be allowed to apply intensive methods of interrogation such as were used by the British in Northern Ireland (and later prohibited by the European Court of Human Rights). The Israeli court set out the background to the case

A large number of those killed and injured were victims of harrowing suicide bombings in the heart of Israel’s cities. Many attacks—including suicide bombings, attempts to detonate car bombs, kidnappings of citizens and soldiers, attempts to highjack buses, murders and the placing of explosives—were prevented due to daily measures taken by authorities responsible for fighting terrorist activities.

The court then describes the dilemma: “On the one hand, lies the desire to uncover the truth in accord with the public interest in exposing crime and preventing it. On the other hand is the need to protect the dignity and liberty of the individual being interrogated.”

The court however refused to grant such authority, explaining:

A democratic, freedom-loving society does not accept that investigators may use any means for the purpose of uncovering the truth. “The interrogation practices of the police in a given regime,” “are indicative of a regime’s very character.”

An illegal investigation harms the suspect’s human dignity. It equally harms society’s fabric.

A reasonable investigation is necessarily one free of torture, free of cruel, inhuman treatment and free of any degrading conduct whatsoever. There is a prohibition on the use of “brutal or inhuman means” in the course of an investigation. Human dignity also includes the dignity of the suspect being interrogated. This conclusion is in accord with international treaties, to which Israel is a signatory, which prohibit the use of torture, “cruel, inhuman treatment” and “degrading treatment.” These prohibitions are “absolute.”

The court summed up: “We live the life of this country. We are aware of the harsh reality of terrorism in which we are, at times, immersed. The possibility that this decision will hamper the ability to properly deal with terrorists and terrorism disturbs us. We are, however, judges.”

However, the court also added a provison that has been criticized by human rights lawyers whereby “[i]ndeed, we are prepared to accept that, in the appropriate circumstances, GSS investigators may avail themselves of the “necessity defense” if criminally indicted.”

The unhappy conclusion is that Israel like other democracies has no easy answer to terrorism. Israel has been subject to terrorist attacks since its creation and for this reason, perhaps, has been less quick than other democracies to enact draconic legislation in response to recent terrorist attacks. However Israel like other democracies has to find a balance between providing safety to its citizens and preserving human right of all including those of fanatical terrorist.

There is apparently no magic bullet, though perhaps that is not the most felicitous phrase to use in the circumstances.

Professor Robbie Sabel is a professor of international law at the Hebrew University Jerusalem and a former Legal Advisor to the Israel Ministry of Foreign Affairs. Among his publications PROCEDURE IN INTERNATIONAL CONFERENCES (Cambridge University Press, 2nd edition 2006). (The book was awarded the Annual Certificate of Merit of the American Society of International Law.)

Suggested citation: Robbie Sabel, Combating Terrorism in a Democracy-The Israel Experience, JURIST – Academic Commentary, December 4, 2015, http://jurist.org/forum/2015/12/robbie-sabel-israel-terrorism.php.