A New Israeli Law Turns Its Arab Citizens Into Enemy Aliens
In practice, the Knesset approved a deeply problematic law that apparently derogates too much from basic rights, such as the right to due process, and to freedom of expression.
The terrorism law that the Knesset passed two weeks ago takes another step towards narrowing the rights of Arabs in Israel. The law employs draconian legal methods found in emergency legislation dating from the British Mandate and in temporary orders, most of which have been applied in the occupied territories for some five decades. The law is adopting them so the state can make use of them against political activity by Arab citizens within Israel proper, and against Palestinians living in East Jerusalem.
A glance at the articles of the law shows that the legislator may have purported to create a law to fight terrorism, even at a global level, but is ultimately relying on a number of the emergency measures and orders that the law is supposed to replace. Furthermore, the law includes temporary orders regarding the interrogation of people suspected of offenses categorized under security – which are supposed to be temporary because of their multiple impairments of the rights of these suspects.
Now these temporary orders, some of which had actually been voided by the High Court of Justice in the past, have now become an integral part of the law in the State of Israel.
The law systematically overlooks constitutional principles, and fundamental principles in criminal law, regarding the process of arrest. Among other things, its provisions allow a delay of 96 hours in bringing suspects before judges; they enable hearings, revisitations and appeals regarding the arrest to take place in the absence of the suspect; they enable the outcome of these not even to be brought to the knowledge of the suspect; suspects can remain in detention for longer periods than allowed under the regular law regarding arrests; and they enable the authorities to prevent suspects from meeting with lawyers, as well as allowing extensive use of confidential material on the case.
Conducting investigations and hearings on arrests in the format of these provisions creates fertile ground for illegal conduct during the investigation, which could culminate in false confessions forced from suspects while subjected to protracted isolation and pressure, far from the eyes of the court.
The law, therefore, sustains a trend that the Knesset has been leading for some time. In recent years the Knesset has created a complicated system of legislation consisting mostly of temporary orders that cast total darkness on what goes down in interrogation rooms under the responsibility of “security forces.”
On May 13, 2016, the UN committee against torture published its concluding report on Israel, listing recommendations on 50 subjects, which stem from the review the committee conducted on Israel’s compliance with the requirements of the UN treaty against torture. The committee recommended that Israel “in law and in practice, assure that anybody whose freedom is denied, irrespective of the nature of the allegations against him and of the applicable law to him or to the place he is, receive all the assurances set forth in the law from the moment his freedom is denied, including the right to legal assistance, and appearing before a judge without delay.”
With its approval of the law, the Knesset has in practice bypassed the ruling of the highest Israeli court, and is utterly ignoring the recommendations of the UN committee against torture. Not only did Israel not void these emergency measures, on the contrary, it has turned temporary orders into permanent ones.
Moreover, the anti-terrorism law gives very broad definitions to the terms related to terror, such as what a “terror organization” is, who a “member of a terror organization” is, and what an “act of terrorism” is. Expanding the definitions in this manner opens the door to overly broad interpretation by the law enforcement authorities when it comes to deciding who is a terrorist and can, consequently, be charged with crimes set forth in the law; the same draconian measures can be used against him, and ultimately, he can be punished with the same heavy punishments set forth in the law.
Broad definitions of these terms can easily wind up criminalizing protesters who would be legitimate in any democracy. For instance, terrorism charges could be leveled against people participating in a demonstration for ideological motives if it turns violent, even slightly so, and this is not a far-fetched example.
At the same time, the law includes various arrangements that badly undermine the basic right of freedom of expression too, especially by the Arab citizens of the state, who by virtue of belonging to the Palestinian people are the first to protest and to identify with the battle of the Palestinians in the occupied territories.
Any type of identification with a “terror organization,” according to the broad definitions of the law, even if via publishing words of praise, waving a flag, expressing support or adulation, displaying a logo or singing an anthem could end in charges that lead to three years behind bars. The articles of this law, which constrain the freedom of expression extremely, will tamp down the public debate and protest against human rights violations in the occupied territories, which is a key issue for Arab citizens of Israel.
The law against terrorism is being presented as a modern law that codifies most of the relevant rules and provisions in place to fight terrorism, while preserving most of the human rights; it is presented as not aspiring to replace most of the Mandate-era rules still in force after Israel’s establishment.
But in practice, the Knesset approved a deeply problematic law that apparently derogates too much from basic rights, such as the right to due process, and to freedom of expression. The upshot is violation of basic tenets of criminal law, and to perpetuate draconian arrangements and procedures.
The author is a lawyer with Adalah – the Legal Center for Arab Minority Rights in Israel.