Responding to terrorism: how must a democracy do it? A comparison of Israeli and American law.

• Author: Grebinar, Jonathan

INTRODUCTION

Terrorism has become commonplace in the world today. (1) In the past decade, the United States was, for the first time, the victim of terrorist attacks on its own soil. (2) Conversely, the State of Israel has been engaged in a perpetual struggle with terrorism since the day of its founding in 1948. (3) As democracies, the United States and Israel (4) are subject to a great deal of criticism with respect to legislation used to combat terrorism. Responding to terrorism, a question often arises regarding the measures that a democratic state may legally apply in order to effectively protect its citizens and yet continue to honor human rights. (5) The ability of a democratic state to efficiently defend itself from terror is a difficult task and ultimately reflects the moral integrity of the state. (6) Maintaining the balance between public safety and human rights is presumably harder today, considering recent suicide bombings. (7) For the United States, protecting against terrorism is especially challenging, considering it has seldom been seen throughout American history. (8) Nonetheless, the United States government has taken numerous steps in response to the new issues it faces arising from the September 11th attacks on New York and Washington, D.C. (9)

This Comment compares the Israeli and American laws that sanction controversial responses to terrorism. It discusses criticisms of these laws with respect to human rights violations and how, if at all, the two governments strive to preserve their law's effectiveness without violating international standards. Part I of this comment briefly discusses the origins of terrorism and establishes a universal definition for the word. Part II reviews the history of three Israeli responses to terrorism, including 1) administrative detention, 2) torture, and 3) the demolition of houses; and describes how these tactics are criticized domestically as well as internationally. Part II further illustrates the present status of relevant Israeli statutory and case law. Finally, Part III discusses comparable measures recently taken by the United States (10) and how these responses are criticized. The importance of a democracy's need to "respond appropriately" to terrorism and the difficulty that flows with it will be stressed throughout this comment.

1. THE ORIGIN AND DEFINITION OF TERRORISM

   The word "terrorism" originated during the French Revolution, when the French government instituted the "Reign of Terror" to execute political opponents, seize their property, and force the rest of the population into submission. (11) Today, the word terrorism has taken on a new meaning. Scholars agree that terror cannot be clearly defined. (12) England, however, attempted to define "terrorism" in part 20 of the British Prevention of Terrorism ("Temporary Provisions") Act of 1989. (13) According to the Act, "terrorism means the use of violence for political ends and includes any use of violence for the purpose of putting the public or any section of the public in fear." (14)

   The Fourth Genera Convention, adopted in 1949, similarly provides that an act of violence against the population, against civilians who are not combatants, for political, ethnic, racial or religious reasons, will be regarded as a terrorist act. (15)

   Even with the numerous meanings given to the word terrorism, a majority of the definitions possess a common basis: terrorism is the use of violence against civilians or non-military targets in order to achieve a particular purpose. (16)

2. ISRAELI RESPONSES TO TERRORISM

   1. Administrative Detention

      The literal definition of administrative detention is detention carried out by an administrative power and not by a judicial power or authority. (17) This definition, however, does not make clear the substance and nature of administrative detention. (18) Administrative detention, often referred to as preventative detention, is commonly 0understood as imprisonment without trial. (19) For purposes of this comment, administrative detention is treated as the latter.

      1. International Law on Administrative Detention

         Over the past year and a half, the number of Palestinian detainee residents of the occupied territories (20) has reportedly increased from 12 to 929--an increase of almost 8,000 percent. (21) In a 1999 public report discussing administrative detention, Amnesty International acknowledged that Israel, as a High Contracting Party to the Fourth Geneva Convention, (22) has been in violation of the Convention for more than thirty years. (23) Specifically, Israel is in violation of Article 147 of the Geneva Convention, which labels the "willful[] depriv[ation] of the rights of [a] fair and regular trial" a grave breach of the Convention. (24) To critics, this infringement represents just one of many instances in which Israel has failed to demonstrate a serious commitment to ensure compliance with international humanitarian law. (25)

      2. History of Israeli Law

         1. Upon The Declaration of Independence

            Israel (Palestine) was under the control of the British Mandate (26) until May 1948, when it declared its independence. (27) Contemporaneously with it's Declaration of Independence, Israel adopted the Defense (Emergency) Regulations of 1945, which the British Mandatory Regime had introduced. (28) Regulations 108 and 111 empowered the High Commissioner and Military Commander to order the detention of a person if either official believed it necessary for maintaining public order or securing public safety or state security. (29)

         2. Reform Achieved in 1979

            Finally, in 1979, after repeated efforts, (30) the detention laws of Israel were reformed and a new Israeli statute was enacted--the Emergency Powers (Detention) Law of 1979 ("Administrative Detention Law"). (31) The new law gave more rights to detainees than did the pre-existing regulations. (32) The following provisions of the Administrative Detention Law comprise the significant modifications of the previous law:

            1) If authorities do not bring the detainee before the President of the District Court within forty-eight hours from the start of detention, the detainee must be released unless some other ground for detaining him exists.

            2) The detainee must be present in court during the hearing of his case.

            3) A detainee has the right to be present in court at the time of confirmation of the detention order and in the legal proceedings thereafter, unless the judge believes that State security requires otherwise.

            4) The orders of the Minister of Defense are limited in time; they are valid for six months only, however, the Minister may extend the order for additional periods of six months.

            5) The Chief of the General Staff has subsidiary power. If the Chief of the General Staff has reasonable cause to believe that conditions exist permitting the Minister of Defense to make an order, the Chief of the General Staff, and only he, may issue a detention order not exceeding forty-eight hours. He has no power to extend the forty-eight-hour period and these powers cannot be delegated. (33)

            The Administrative Detention Law also adds a further level of judicial scrutiny. (34) Detention must be judicially reviewed three months after the district court confirms the order; thereafter, the President of the district court must re-examine the decision to detain every three months. (35)

            Furthermore, the detention order must be the sole available means of achieving the desired result, and if means other than a detention order are available, the judge must declare the order invalid. (36)

            The Administrative Detention Law only applies once the Knesset (37) has declared a state of emergency. (38) This, however, has virtually no substantive implications, since Israel has been in a declared state of emergency since its establishment. (39)

         3. Further Developments in the Administrative Detention Law

            Human Rights organizations continued to criticize Israeli policies on administrative detention despite the new procedural rights afforded to detainees through the Administrative Detention Law. (40) On April 20, 2000, the Supreme Court of Israel called for the "further Hearing" (41) of Anon v. Minister of Defence to deal with this issue. (42)

            Although the question before the bench in Anon was a narrow one with respect to the Administrative Detention Law, (43) the court ruled on the general provisions of the law as well. (44)

            In relevant part, Section 2(a) of the Administrative Detention Law provides:

            Where the Minister of Defence has reasonable cause to believe that reasons of State security or public security require that a particular person be detained, he may be order under his hand, direct that such person be detained for a period, not exceeding six months, stated in the order. (45) In Anon, Chief Justice Barak held that the term "reasons of state security," used in Section 2 "was sufficiently broad to embrace events where the danger to the security of the state or public did not ensue from the particular person himself." (46) He stated that he was not content with a "linguistic" interpretation of "reasons of state security" and that the law had to be interpreted accordingly. (47) Barak definitively held that a democratic society may hold a person in administrative detention only if such person poses a "direct threat and real danger to the State." (48) "In other words, if the detainee were released, he would likely threaten the security of the state and the ordinary course of life." (49)

         4. Present Status of Administrative Detention in Israel

            Those familiar with the progression of the administrative detention laws in Israel acknowledge that the Supreme Court of Israel is more willing to intervene than it used to be when ruling on a security decision. (50) Today, the Court's attitude is that everything is subject to judicial review; Chief Justice Barak has encapsulated this approach in the phrase "everything is justiciable." (51) To this day, many people and...