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Immoral Bill: Proposed Amendment to Counter-Terrorism Law to Confer Powerful Weapon for Political Persecution

>> Read the full position paper

On 15 September 2024, Knesset Constitution, Law, and Justice Committee Chairman Simcha Rothman placed a modified version of a bill to amend the Counter-Terrorism Law (Amendment No. 11), a previous version of which passed its first reading in early July 2024. Based on private bills submitted by Otzma Yehudit and Likud MKs, the modified bill was struck from the committee’s agenda the next day, but is still being prepared for its second and third readings.

Zulat presented its position to the effect that the proposed amendment bodes seriously ill for democracy in Israel. On the heels of Amendment No. 37 to the Police Ordinance-1971, the bill would substitute the State Attorney’s Office (SAO) for the Minister of National Security as the entity setting enforcement policy vis-à-vis the offense of incitement to terrorism, based on his personal and political needs and those of Netanyahu’s extreme right-wing government.

• The proposal to expand the definition of incitement to terrorism and to allow the police to launch a criminal investigation without the SAO’s approval corresponds to similar measures adopted by the authoritarian regimes in Russia, Bangladesh, Vietnam, Hong Kong, Venezuela, and Belarus intended to arbitrarily expand the use of counter-terrorism legislation for the purpose of political persecution.

• The proposal to abolish the requirement of prior SAO approval by the SAO shows that the goal is to enable arbitrary and political investigations even when conviction by the court is known to be unfeasible. Severing the correlation between the entity determining the likelihood of conviction (the SAO) and the entity deciding whether to open a criminal investigation (as proposed, the police alone) lacks any judicial logic and appears to be intended to allow arbitrary and political investigations, even when conviction is known to be unfeasible.

• The proposal to lower the burden of proof to “reasonable probability” along with the abolishment of prior SAO approval requirement would enable any police officer to open a sham investigation about incitement with hardly any restrictions and amid severe damage to Israel’s freedom of expression and freedom of demonstration. Since October 7, MKs, the government, and the Prime Minister have repeatedly claimed that those demonstrating for a deal to free the hostages, for the establishment of a state commission of inquiry, and for ending the war support and assist Hamas. Should the bill be approved, it would be possible to open criminal investigations not only against persons hoisting Palestinian flags or concerned about the lives of civilians in the Gaza Strip and the West Bank, but also against those protesting against the government’s refusal to strike a deal to free the hostages, its refusal to assume responsibility for the October 7 debacle, or its conduct of the war.

• Sham investigations would seriously infringe on freedom of occupation. Various parties, including MKs and government ministers, have for several years now tried to bring about the suspension and firing of civil service and local authority employees, academic lecturers, teachers, doctors, and other professionals on trumped-up charges that they voiced support for terrorism.  These efforts taken on added gravity when it comes to professions that require a license and are subject to disciplinary sanctions, such as lawyers. The mere existence of an open case based on sham suspicions about involvement in terrorism may prevent a person from obtaining a license to practice a profession or see their license suspended.

• Sham investigations would be used to seriously harm access to the courts and due process. They could intimidate lawyers and human rights organizations representing residents of the Occupied Territories before Israel’s courts and seeking compliance with its obligations under international law are terror inciters and sympathizers, and even bring about the suspension of their license, similar to what happened to the lawyers of murdered opposition leader Aleksei Navalny who were added to Russia’s terrorist list and arrested.

• Sham investigations would particularly be used to persecute Israel’s Arab minority and elected officials in order to exclude them from the public sphere.

• The new offense of publishing language in identification with a person who commits an act of terrorism that constitutes murder would enable collective punishment and sham investigations against a person’s family members and friends, as well as against opponents of the death penalty and extrajudicial executions, given that it would not be required to meet a probability test.

• Sham investigations for incitement to terrorism would be used to censor public events, works of art, and cultural performances. The proposed amendment would lead not only to institutional censorship but also to self-censorship, as some artists opt to shun an investigation and be subjected to a delegitimization and harassment campaign.

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Dr. Maha Sabbah Karkabi

 

Senior Lecturer in the Department of Sociology and Anthropology, Ben-Gurion University of the Negev. She holds a Ph.D. in Sociology from Tel Aviv University (2015), a postdoctoral fellowship at the Center for Gender Studies, SOAS, University of London (2015-2016), a postdoctoral fellowship in the Department of Sociology at Tel Aviv University (2016-2017), and a postdoctoral fellowship Ph.D. at the Humphrey Institute for Social Research, Ben-Gurion University of the Negev (2018-2020).
Dr. Maha Karbahi’s areas of interest focus on the connection between social change, family behavior, and gender inequality in societies in the process of change and specifically in Palestinian Arab society in Israel. Her research draws attention to the study of family life and employment, using a combined “ethnic lens” and “gender lens” and paying attention to the perspective of Palestinian Arab women, a group characterized by intersections between multiple marginal locations, which over the years has remained hidden from the research eye. Dr. Karkabi-Sabah’s research is published in professional journals and chapters in scientific books that are considered pioneers in family research, work, and gender equality.

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Prof. Frances Raday

Professor Emeritus in the Lieberman Chair in Labor Law, in the Faculty of Law at the Hebrew University and serves as a full professor in the College of Management’s academic track, where she also serves as chair of the graduate program and as honorary president of the Concord Center for International Law Absorption. Radai was a member of a working group of the UN Human Rights Council on discrimination against women. In addition, she is a prominent and feminist human rights activist.

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Dr. Rawia Aburabia 

Faculty member of Sapir Academic College’s School of Law, received her PhD from the Hebrew University of Jerusalem. Her research deals with the interface between law, gender, minorities, and human rights. Has published in leading journals on the subject of the matrimonial laws pertaining to Muslim women in Israel. Her book Under the Law, Outside Justice: Polygamy, Gendered Citizenship, and Colonialism in Israeli Law is expected to be published as part of the Gender Series of Kibbutz Meuhad Publishing House.

Dr. Aburabia has extensive experience in international human rights and public law. She has worked as a jurist for the Association for Civil Right and has been invited as a specialist to address such international forums as the United Nations and the European Parliament on the subject of indigenous communities and minority rights. She has interned with Human Rights Watch in Washington DC, and has been a member of the executive board of Amnesty International. In 2018, she was selected by the magazine Globes as one of the 40 most promising young persons in Israel under the age of 40.

 

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Ron Kessler

With over two decades of experience in the field of digital content, Ron has participated in numerous political and social campaigns. He helped run the digital activity of senior public officials, and worked in various NGOs. Ron is a fundamentally optimistic man, who believes that Israel can be changed and so can people. Lives in Tel Aviv.