Article Israel: New Comprehensive Counterterrorism Legislation Adopted

(July 15, 2016) On June 15, 2016, the Knesset (Israel’s parliament) passed the Combatting Terrorism Law, 5776-2016.  (Combatting Terrorism Law, 5776-2016, SEFER HAHUKIM [BOOK OF LAWS, the official gazette] 5776 No. 2556, p. 898, available at the Knesset website (last visited July 13, 2016) (in Hebrew).)

The Law gives law enforcement authorities criminal and administrative powers to prevent the establishment, existence, and operation of terrorist organizations and the perpetration of terrorist actions conducted by terrorist organizations or by individuals.  (Id. § 1.) The new provisions introduced by the Law replace a number of counterterrorism laws and regulations, including the Prevention of Terrrorism Ordinance, 5708-1948, the Prevention of Funding of Terrorism Law, 5765-2005, and various regulations under the Defense (Emergency) Regulations, 1945.

Definition

The Law defines a “terrorist action” as an action that:

1. is driven by a political, religious, or ideological motive;
2. is carried out with the goal of instilling in the public fear or anxiety, or of forcing the Israeli government or another governmental agency, including an agency of a foreign country, or an international organization to do or refrain from doing an act; or
3. involves an actual act or a real threat to inflict severe harm on one of the  following:a. a person’s body or liberty;
   b. public security or health;
   c. property, where the circumstances involved entail an intention or a real possibility to inflict severe harm on individuals or public safety and liberty;
   d. religious sites, burial places, and religious paraphernalia; or
   e. infrastructure, public systems or essential services, or the state economy or environment. (Id. § 2.)

Declaration of Terrorist Organizations

The Law authorizes the Minister of Defense to declare that an association is a “terrorist organization” upon being convinced that the association, in a systematic and continuous plan, is:

1. perpetrating or intentionally promoting the perpetration of terrorist acts, including by conducting training or providing guidance for executing terrorist acts, or by performing an act or engaging in a transaction involving a weapon with the goal of perpetrating terrorist acts; or
2. directly or indirectly assisting or acting with the goal of advancing the activities of such an association. (Id. §§ 2 & 3(a).)

A declaration that an association is a “terrorist organization” must be based on a detailed written request issued by the Head of the General Security Service (HGSS), or by heads of other security services via the HGSS, with the approval of the Attorney General. Unless it could hamper law enforcement authorities’ ability to act against such an association, the HGSS may only make the request upon finding that the association continued its activities in spite of a prior warning issued against it. (Id. § 3(b-c).)

The Law further authorizes the Prime Minister, in special circumstances, to determine that the declaration decision will be made by a ministerial committee or the government. (Id. § 3(d).) The Law authorizes the Minister of Defense, after filing a request to declare an association to be a terrorist organization, to issue a temporary declaration to this effect until a final decision on the request is made. (Id. § 4.) An association against which a request for a declaration was issued has the right to be heard and to argue against approval of the request. (Id. § 5.)

The Law authorizes the Ministerial Committee for National Security to declare that a foreign association is a terrorist organization if that association has been subject to a similar declaration by a foreign authority in accordance with powers granted to that authority under the relevant foreign law. (Id. § 11.) The Law provides procedures for periodic reviews of declarations as well as for appeals of declaration decisions. (Id. §§ 12-13.)

Terrorism Offenses and Penalties

Among the terrorism offenses defined by the Law are:

1. leading and directing a terrorist organization, punishable on conviction by 25 years of imprisonment or life imprisonment if the organization’s activity includes murder (§ 20);
2. being a member of or recruiting members for a terrorist organization, punishable by five to seven years’ imprisonment (§ 22);
3. expressing support for or inciting to conduct terrorist acts, punishable by three years’ imprisonment (§ 24);
4. knowingly refraining from preventing a terrorist act, punishable by imprisonment for three years (§ 26);
5. threatening to commit a terrorist act, punishable by seven years’ imprisonment (§ 27);
6. preparing for commission of a terrorist offense, punishable by half of the penalty for committing the given offense, and if the terrorist offense is punishable by a life sentence, 15 years’ imprisonment (§ 28);
7. providing training in and committing offenses involving the use or possession of weapons, punishable by nine years’ imprisonment (§ 29);
8. engaging in an activity involving a weapon with the objective of promoting the activities of a terrorist organization or the perpetration of a terrorist act, punishable by imprisonment for 20 or 25 years if the weapon involved is a chemical, biological, or other harmful weapon, or a fine (§ 30); and
9. using or transferring property to assist, promote, or fund the perpetration of a terrorist offense or providing compensation to a person who either committed or planned on committing a serious terrorist offense, punishable by seven years’ imprisonment or a fine (§ 32).

Terrorism offenses are subject to harsher penalties than the offenses for similar acts that do not involve terrorist motives.  (Id. §§ 37-38.) Perpetrators of acts of mass terrorism are punishable by a life sentence.  Moreover, the terms of persons sentenced to life imprisonment for committing terrorist offenses cannot be commuted during the first 15 years following the conviction or the incarceration. The Law requires that the period of a commuted sentence under such circumstances not be less than 40 years’ imprisonment.  (Id. § 40.)

In addition to imposing other penalties, a court that convicts a person of a certain terrorism offense may also order confiscation of property held by the terrorist organization in connection with which the person was convicted. (Id. §§ 53-55.) Under certain circumstances provided by the Law, the Minister of Defense may similarly order confiscation of property involved in or connected to the operations of a terrorist organization. (Id. §§ 56-68.)

Special Police Powers

The Law empowers regional police commanders to issue decrees to prevent activities by or in support of terrorist organizations, including organizing meetings, marches, or training.  (Id. § 69.)  The General Superintendent of the Israel Police (GSIP) may restrict the use of a place suspected of being used for activities of a terrorist organization after giving its owner the right to be heard by the GSIP.  The decree may apply for three months, extendable for a total of an additional three months. (Id. § 70.)