International Counterterrorism Laws and Practices

• Date: 01 June 2018
• Published date: 01 June 2018
• DOI: 10.1177/1057567718763249
• Author: Nadav Morag
• Subject Matter: Articles

Article
International Criminal Justice Review
2018, Vol. 28(2) 162-176
International Counterterrorism
ª 2018 Georgia State University
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Laws and Practices: Israel
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DOI: 10.1177/1057567718763249
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and France in Comparison
Nadav Morag1
Abstract
This article focuses on the varying approaches to counterterrorism (CT) laws and practices in Israel
and France and draws some lessons from these practices. The article looks at each country in the
context of their respective legal approaches toward terrorism offenses, their various precharge and/
or preventive detention practices, their investigatory and prosecutory approaches, their judicial
institutions and frameworks, and, finally, the range of national agencies tasked with CT duties. This
article then draws some conclusions regarding similarities and differences between the approaches
employed by Israel and France and suggests some questions for future research.
Keywords
terrorism, counterterrorism, Israel, France, homeland security, policing, comparative
Throughout much of their modern history, Israel and France have experienced terrorism and had
to cope with this ever-evolving phenomenon. In the Israeli case, terrorism predates the creation of
the state in May 1948 and has subsequently been an ongoing phenomenon in the country’s life, albeit
punctuated by periods of comparatively little terrorist activity. France, with the dubious distinction
of having invented the term terrorism during the French revolutionary period, experienced terrorist
campaigns in Algeria and on the mainland during the Algeria War and has subsequently had to cope
with terrorist attacks on its soil by Palestinian, Lebanese, Armenian, Corsican, Leftist, Rightist, and
Jihadist groups.
Each of these countries has evolved a unique strategic approach to counterterrorism (CT) based
on legislation and policy. Their respective experiences and legislative and policy responses to the
challenge of terrorism can form a useful set of alternative modes of thought and process for practi-
tioners and scholars.
This article explores the approach taken by Israel and France in dealing with the challenges of
terrorism. This survey will be undertaken via looking at selected CT laws, methods of restricting the
movement of terrorism suspects, approaches toward investigation and prosecution of terrorism
1 College of Criminal Justice, Sam Houston State University, Huntsville, TX, USA
Corresponding Author:
Nadav Morag, College of Criminal Justice, Sam Houston State University, Huntsville, TX 77341, USA.
Email: morag@shsu.edu

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Morag
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suspects (and the attendant judicial frameworks in which these operate), and CT agencies and their
respective authorities. This article concludes with a comparison of the laws, policies, practices, and
institutions of Israel and France and highlights similarities and differences before moving on to
generate some questions for further research.
Literature Review
There is a relative paucity of comparative literature in the fields of international CT and
homeland security law and policy. There is a slightly larger body of work that focuses on the
CT laws and/or policies of single countries. Finally, there is a substantial body of literature that
consists of country-specific CT laws, policies, and strategies, though the quantity and quality of
this material varies across countries, as some countries are more forthcoming in providing material
than others (Israel and France are among the countries that have limited publicly available mate-
rial on their CT policies).
Comparative Studies
Examples of works that analyze the CT laws and strategies of multiple countries include those
with an exclusive focus on CT (Alati, 2018; Alexander, 2002; Beckman, 2007; Guiora, 2007;
Hellmuth, 2016; Mayali & Yoo, 2016; Roach, 2011; Zimmerman & Wenger, 2007) as well as those
that look at CT within a broader homeland security perspective (Morag, 2011). Overall, though there
are few examples of broad comparativist works that explore strategies, laws, and policies in this area
across multiple countries, there is a substantially larger body of studies that look at specific facets of
CT across a range of countries.
Single-Country-Focused Studies
Single-country-focused CT studies of countries other than the United States include a range of
studies of the United Kingdom (Lowe, 2017; Walker, 2015; Wilkinson, 2007), Israel (Ben Yaakov &
Harel, 2016; Chachko, 2016; Freilich, 2015), Australia (Baldino, 2007; Bergin, 2017; Bronitt, 2015;
Finnane, 2014), France (Duteillet de Lamothe, 2006; Hellmuth, 2015), and other countries. Many
single-country-focused studies do not look at the entire range of a given country’s CT laws, stra-
tegies, and policies but rather focus on specific issues within the CT sphere such as countering
violent extremism, CT law, definitions of terrorism, and so on.
Legal, Policy, and Strategy Documents
The fairly large body of CT laws, policy documents, and strategy documents produced by a range
of governments includes laws such as Canada’s Combatting Terrorism Act (2013), Israel’s Counter
Terrorism Law (2016), the United Kingdom’s Terrorism Act (2006) and Prevention of Terrorism
Act (2005), and France’s Law No. 2012-1432 on Security and the Fight Against Terrorism (2012).
There is also a relative plethora of policy and strategy documents such as the United Kingdom’s
CONTEST strategy (2011), France’s Prevailing Against Terrorism (2007) and its White Paper on
Defense and National Security (2008), Building Resilience Against Terrorism: Canada’s Counter-
Terrorism Strategy (2013), and Australia’s Counter-Terrorism Strategy: Strengthening Our Resi-
lience (2015). Naturally, all of the pieces of legislation, strategy papers, and policy documents
concern themselves with specific subsets of CT law, strategy, and/or policy and they provide a
governmental perspective and lay out governmental objectives without independent analysis.

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International Criminal Justice Review 28(2)
Conclusion
Overall then, the literature on comparative CT law, strategy, and policy is still somewhat limited
in contrast to areas that have been studied more intensively and for a longer period.
Theoretical Orientation and Method
This study draws from the discipline of comparative politics via the use of the case-oriented
approach (Ragin, 1987). According to Lijphart (1971) and Collier (1993), case-focused methodologies
can help contribute to theory building when they are placed side by side in a comparative framework
because they can help generate the assessment of hypotheses. Ragin (1987, p. 52) notes that
because [case-oriented methods] are flexible in their approach to the evidence—few simplifying
assumptions are made—they do not restrict the examination of evidence. They do not force investi-
gators to view causal conditions as opponents in the struggle to explain variation. Rather, they provide
a basis for examining how conditions combine in different ways and in different contexts to produce
different outcomes.
While this study is law and policy focused rather than theory focused, the description and analysis of
a number of aspects of Israeli and French CT law and policy presented in a comparative context can
contribute to hypothesis generation and theory building.
Findings
CT legislation. The foundation for CT strategy and policy in all democratic states lies in legislation as
the rule of law is the cornerstone of liberal democracy. Powers and authorities derive from law and
hence it is critical to understand the legal and legislative environment in which countries carry out
their CT efforts.
Logic would suggest that the first step in any legal analysis of Israeli and French CT laws would
require beginning at the beginning via an examination as to how terrorism is defined in each country
and whether terrorism and associated acts (such as the provision of material support, affiliation, etc.)
are treated as unique phenomena under the law, or rather are addressed under statutes that address
other crimes (e.g., murder, attempted murder, and willful destruction of property). In a report to
Parliament in March 2007, the British official tasked with reviewing terrorism legislation noted that
there are four legal frameworks across democratic countries for handling terrorism offenses. The
first option involves consciously avoiding a definition of terrorism (due, at least in part, to the
difficulties involved in defining this phenomenon as well as concerns that creating CT legislation
could lead to a reduction in personal freedoms and otherwise impinge upon democratic principles)
and thus refraining from promulgating legislation specifically focused on terrorism offenses. Coun-
tries following this first approach therefore treat terrorist acts under existing legislation (murder,
assault, etc.). Other countries employ a legal framework which defines terrorism but does not create
special legislation to deal with it. Terrorism offenses are thus treated as aggravated versions of
existing crimes (such as murder, attempted murder, etc.), and judges are often provided latitude to
enhance the punishments due to the qualitatively different nature of terrorism offenses. The
approach taken in this case is similar to that used by a number of countries for hate crimes, which
are treated as qualitatively different from other acts of assault, manslaughter, murder, and so on. The
third legal framework, used by yet another set of countries, involves...