Monday, March 27, 2017

The Legal Response - Amb. Alan Baker




by Amb. Alan Baker

The international community needs to act to criminalize incitement to terror.

The wave of international terror makes no distinction between European and other countries, nor between religions. It cannot be dismissed, justified or addressed through “political correctness” which is interpreted as weakness and encouragement. International law calls for stringent and active measures against terrorists. Today’s massive incitement to terror uses modern technology and means of communication. It is a central component of terror. The international community needs to act to criminalize incitement to terror.

These are key legal principles:
  • International terror, by definition, openly and overtly undermines and abuses international humanitarian law and norms that bind civilized states and by which they act.
  • Whether it targets one particular country, territory or population, or is directed against Western values, religions, and civilization, international terror has to be addressed seriously and practically. It cannot and should not be minimalized or ignored.
  • International terror has evolved into a rapidly growing virus that affects all of humanity. Attempts to dismiss the terror threat against Israel as a “special case” or “unique circumstances” that cannot serve as a lesson to others are utterly misplaced and deny the potential for a substantive and vital contribution by Israel to other states.
  • “Political correctness,” as a result of exaggerated and often naïve sensitivity to, and fear of Islam, and over-sensitivity to humanitarian considerations, is interpreted by the terror elements as weakness and even sympathy, and hence as a license to continue.
  • Western countries can no longer engage in such political correctness and over-sensitivity. They have no choice but to accept that drastic counter-terror legislation, deterrence, and action, even if it may restrict the enjoyment of civil liberties, in the long run, serve to enable wider enjoyment of such civil liberties and the right to life.
  • Since incitement is one of the major components of terror, the international community at all levels and using all means of modern communications technology has to adapt international law with a view to criminalizing such incitement to terror.

Terror and Humanitarian Norms – The Inherent Dilemma

Any discussion of legal considerations inherent in responding to terror may be seen as a contradiction in terms.  It poses an instant dilemma in that terror in and of itself, by definition, defies and undermines all legal norms.

Terror, which is as old as the human willingness to use violence to affect politics, abuses the limitations imposed by international humanitarian law upon states, in the use of their armies and security forces. Terrorists attack civilian centers because that is the nature of terrorism, and that is the aim of terror – to target the civilian population, often indiscriminately – as a means of exerting pressure on governments.

Terrorists hide behind and operate among civilians – whether in homes, schools, hospitals of places of worship, restaurants, stores, places of entertainment, and means of transportation. They do so knowing that any law-abiding state member of the international community will hesitate before responding by force to such attacks and thereby endangering the very civilians that are being used to shield the terrorists.

Israel’s former Chief Justice Aaron Barak summarized this dilemma, faced by Israel constantly, as follows:
While terrorism poses difficult questions for every country, it poses especially challenging questions for democratic countries, because not every effective means is a legal means.
This is the fate of democracy, as not all means are acceptable to it, and not all methods employed by its enemies are open to it. Sometimes, a democracy must fight with one hand tied behind its back.1
…the State of Israel is a State whose values are Jewish and democratic. Here we have established a State that preserves law that achieves its national goals and the vision of generations, and that does so while recognizing and realizing human rights in general and human dignity in particular. Between these two there are harmony and accord, not conflict and estrangement.2
Israel’s constant challenge and dilemma are indeed to act both definitively and intensely against the terror that is a daily phenomenon in Israel, as well as to cope with the ongoing threat and to prevent terror, through the various intelligence and security channels.

Modes of Terror

Terror takes on differing modes:

It may be generated for specific territorial or nationalistic reasons, such as in Ireland, Spain, Canada, or South Africa.

It may be generated out of ideology, without territorial connotation, such as Muslim Jihadist terror carried out by ISIS or the Islamic Brotherhood, directed against the “infidel,” the West, Christians, or Jews in general, anywhere and everywhere, in furtherance of an extreme interpretation of the precepts of Islam.

In fact, Israel’s case is unique and sui generis in that it is targeted by both these and other forms of terror, including territorial, ideological, and religious. As such, and in light of Israel’s experience, it serves as a unique example of the need for assertiveness in coping with the daily phenomenon and threat of terror. Israel has the experience that can be shared with other states that need to learn how to confront their respective terror challenge.

Since the modus operandi of terror is the same everywhere, irrespective of the ideology that generates it, attempts to dismiss Israel’s situation as a “special case” or  “unique circumstances” that cannot serve as a lesson to others, is utterly misplaced and denies the potential that Israel presents to other states. Israel, for better or for worse, is a laboratory for coping with terror.

Forms of Terror

Terror has different forms, whether state-inspired and encouraged through the arming, financing, encouraging, and enabling of cross-border terror groups; specific movements seeking “national liberation;” quasi-state entities operating their own military forces with their own jihadist ideologies; and the individual terrorist, generally incited to commit individual acts of terror such as stabbing, road terror, suicide bombings, etc.

Terror involves two basic components: ideology and practical implementation. Both are often inter-dependent. Ideology comes through education, brainwashing, and incitement. Implementation comes from the availability, manufacture, supply or easy acquisition of weapons in order to implement the ideology.

Terror in Europe

The current terror situation in the West and in Europe, in particular, is typified by a number of unique dilemmas:
  • Insecurity, exacerbated by the arrival of large numbers of refugees, serves as a feeding ground for polarization among the general public as well as among the refugees themselves.
  • Fanatic religious education, incitement, and radicalization of elements already part of the population.
  • The fear that security measures infringing civil liberties of the individual might also generate, or increase the chance of radicalization.
  • But at the same time, a state has the obligation to protect its citizens.
  • The problem of “political correctness” that typifies western societies relied upon by today’s terrorists, emanating from a hesitation to offend Muslims, and a fear of attributing terror to the sources that actually generate it – mostly extreme Muslim ideology.
  • Feeding on this, the terror groups interpret Western political correctness at best as an inherent weakness, and at worst as an indication of sympathy for their cause and as a license to continue.
Such dilemmas, as relevant, are addressed in one way or another by Israel in maintaining the necessary balance between coping with the threat and the acts of terror while at the same time protecting rights of its citizens and honoring humanitarian norms.

International Law and Terror

The right to life is one of the basic tenets of all international civilization. It is acknowledged in the third article of 1948 Universal Declaration of Human Rights which states:
Everyone has the right to life, liberty and security of person.” This is protected in the final article 30 of the Declaration stating that: “Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.”3
However, international law has not been able to address this dichotomy through the determination of clear and universally agreed norms of behavior for states and societies faced with terrorism.

In most current situations, some states – Russia and Iran, for example – simply flout humanitarian norms, while others try to adapt existing rules of humanitarian law to deal with the threat.

International law condemns all forms of terror and encourages states to act against it. The international community, through the United Nations, has adopted a series of resolutions in which it has resolved to “consistently, unequivocally and strongly condemn terrorism in all its forms and manifestations, committed by whomever, wherever and for whatever purposes, as it constitutes one of the most serious threats to international peace and security”, and “to take urgent action to prevent and combat terrorism in all its forms and manifestations.4

Other resolutions of both the Security Council and the General Assembly reiterate the inherent illegality of terrorism, whatever its causes, and call upon all states to take appropriate measures to deal with it, freeze funding, take criminal action, and prevent incitement.5

In a similar vein, several regional counter-terror treaties define and condemn acts of terror and call upon state members of the respective regions to criminalize and act to prevent terror.6

Coping with Today’s Terror in National Law

  1. Through Criminal Legislation
    Throughout the 1980s and 1990s, Western states realized the need to find a reasonable balance between democratic acceptability and effectiveness in the struggle against terrorism. On the one hand, they wanted to ensure the safety of their citizens, yet on the other, they were committed to adhering to liberal democratic principles in their response to the threat. Thus, the states “criminalized” internally the phenomenon of terrorism and responded to it through the criminal justice system.
    Thus, in past decades, the traditional ways of dealing with terror have been to treat it as a simple internal criminal act, to be dealt with through the criminal justice system, much the same as theft, rape, or murder.
  2. Through Negotiation and Appeasement
    Alternatively, attempts at negotiating with terror groups and unilateral political reforms intended to assuage them and reduce their motivation to use violence, have been attempted. In this context, Israel has considerable experience in negotiated commitments with the Palestinian leadership setting out counter-terror obligations. Such obligations have been inevitably violated by the Palestinians, who not only fail to prevent terror but in many cases incite and encourage it.
  3. The Need for an Assertive Approach
    However, in light of terrorists rapidly growing and wider international outreach, the ever-increasing and available resources for terror, and its universal dimension, appeal, and modern means of propagating incitement through the Internet, traditional methods of internal criminalization or appeasement can no longer suffice.
The enhanced ideological element of today’s terrorism, seeking in many instances to enhance the rule of Islam throughout the world, defies any logic of negotiation or specific legislative or social change.

This “zero-sum” form of terror knows no means of conciliation or compromise. It cannot be negotiated. It needs to be addressed assertively.

National Counter-terror Legislation

Special counter-terrorism legislation such as that adopted by the United States’ “Patriot Act” 2001,7 Canada’s 2015 Anti-Terrorism Act (Bill C-51),8 Israel, and other states9 might not necessarily meet the liberal, civil rights values associated with the standard tools of the criminal justice system, but are nevertheless considered necessary in order to ensure a government’s capability of protecting its citizens and public institutions.

Such legislation includes laws that limit the rights of suspects involved in terrorist activity, expand the authority of the law enforcement and security agencies, and introduce new legal and security mechanisms to limit the free operation of organizations promoting non-consensual radical ideologies.

Administrative detentions and the establishment of special courts for terrorist offenses are also elements that are often used as part of the expanded criminal justice model.

Israel’s relatively new counter-terror legislation enacted in 201610 replaces a host of existing criminal and administrative measures, some dating back to the British Mandate before the establishment of the state. The new legislation provides the Israeli government with the civil, administrative, and criminal law tools necessary to combat and deter the modern, multi-faceted terrorist threat while seeking to take into account human rights considerations and Israel’s obligations under international law.

The new law contains both punitive and preventive/deterrence measures, designed to curtail and obstruct terrorist activities by blocking financing channels and other forms of support. It increases punishments for organizers of terrorism and enables courts to convict terror cell leaders more easily.

As summarized in an excellent article by Ms. Elana Chachko, for the “Lawfare” organization, dated July 2016:11
Specifically, it defines the terms “terrorist organization,” “member of a terrorist organization,” and “terrorist act,” thus providing an updated legal definition of what constitutes terrorism. It establishes procedures for designating certain groups as terrorist organizations and outlines the implications of such designations. It introduces a set of special criminal offenses for terrorist acts and related activities and mandates harsher sentences for such offenses. It modifies standard evidentiary rules and other rules of criminal procedure for terrorism-related offenses. It provides for special arrest procedures for suspects in “severe terrorism offenses.” Finally, it places financial and other sanctions at the disposal of the government in combating terrorism.
…Israel’s criminal law applies extraterritorially for certain offenses, including offenses against the nation’s security and foreign relations…. The law specifically provides that certain terrorism-related offenses …would satisfy the requirements for extraterritorial application under the Penal Law. In other words, the law covers certain terrorist acts perpetrated outside Israeli territory, if there is an Israeli nexus.
Regarding the actual definition of terrorism, Israel’s new counterterrorism legislation defines an “act of terrorism” as follows:
An act [that] constitutes an offense, or threat thereof, if it satisfies all the following:
  1. Committed with a political, religious, nationalist or ideological motive;
  2. Committed with the aim of stirring fear or panic among the public or coercing a government or a governing authority, including the government or a governing authority of a foreign State, or a public international organization, to take action or to refrain from taking action;
  3. The act or threat satisfies one of the following, or creates a substantial risk that one of the following occurs:
    1. Serious injury to a person’s body or freedom;
    2. Serious disturbance to public safety or public health;
    3. Serious damage to property, if there is a substantial possibility that such damage will cause serious injuries and disturbances as provided in a or b, and the damage was inflicted with the purpose of causing such injuries or disturbances;
    4. Serious damage to religious artifacts; for the purposes of this paragraph, “religious artifacts” are places of worship or burial and ceremonial objects;
    5. Serious damage to essential infrastructure, systems or services, or their severe disruption, or severe damage to the nation’s economy or to the environment.”
As pointed out in the above-noted article “This definition has four principal elements: the conduct at issue must constitute an offense; have a political or ideological motive; aim to intimidate the public or coerce governments; and significantly harm (or risk harming) persons, property or infrastructure. There are special presumptions in the definition for acts involving weapons, from knives to weapons of mass destruction, and acts perpetrated by terrorist organizations or their members. The law’s definition of terrorism is therefore largely similar to the versions countries like the UK, Australia and Canada included in comparable domestic counterterrorism laws, with a few potentially significant differences.”12
According to this law, direct or indirect involvement in organizing terror cells is punishable by 25 years in prison, while leaders of terror cells would face a mandatory life sentence.

Terrorists who use chemical, biological, or radioactive weapons during attacks would also face mandatory life sentences.

The law also requires that terrorists given life sentences may only become eligible for parole after at least 15 years in jail.

Terrorists who use firearms or deal in weapons used for terror will also face longer jail terms, as will individuals serving in management capacities in terror organizations, who could face up to 10 years in prison.

Individuals who give financial support to terror groups will face nine years in jail, while those who threaten to commit terror attacks could face up to seven years. The law also increases the punishment for those making public statements of support for terror. Public praise of terror attacks or terror organizations could now hand terror supporters a 3-year jail term.

Under the new law, the Prime Minister and Defense Minister may declare groups to be terrorist organizations, based upon the recommendation of the Israeli Security Agency and in consultation with the Attorney General.13

Armed Conflict against Terror

An alternative and more extreme model for coping with terror regards terrorism as an act of extreme aggression or war that poses a strategic threat to a state and is therefore seen as a serious challenge that must be countered with the power of the state’s military apparatus and intelligence services.

While waging war against an offensive and aggressive ideology, rather than a specific identifiable enemy entity or state, does not fall into the standard, traditional, accepted definitions of international armed conflict, it does represent the outcome of the evolving nature and modii operandi of terror as a universal concept and day-to-day occurrence.

This was the case with the U.S. armed activity in the Vietnam War and the American response after the 9/11 attacks when President George W. Bush declared on  September 20, 2001, a “global war on terror”14 (since revoked by President Obama).

In recent years, Israel has found itself obliged to enter into armed conflict after its towns and villages were subjected to concerted attack by thousands of rockets fired from within the Gaza Strip by the Hamas and Islamic Jihad terror groups, and from Lebanese territory by the Hizbullah terror organization, targeting Israel’s civilians and civilian infrastructure.

While Israel’s reactions to rocket attacks and tunneling into its territory were initially acknowledged by the international community as legitimate action in self-defense, within days, cynical political campaigns were waged both in the international media and through groups and organizations hostile to Israel, accusing Israel of violating humanitarian norms and harming civilians during its conduct of this war.

In these conflicts against terror and the groups initiating it, Israel had to confront the massive and institutionalized violations of humanitarian norms by Hamas, Hizbullah, and the other terror groups, through the indiscriminate targeting of Israeli civilians. In the same context, these groups utilized civilian premises, buildings, and other properties, including schools, hospitals, mosques, UN installations and even private homes, as weapons storage facilities, bases for firing rockets, and human shields.

Faced with such overt violations of humanitarian norms, Israel went to considerable efforts to avoid harming innocent civilians, provide advance warning of potential attacks, and limit its responses to targets that were clearly of a military of otherwise offensive nature.

For a detailed summary of the measures taken by Israel to minimize civilian casualties in the face of such terror, various bodies in Israel, including the Jerusalem Center for Public Affairs, published and submitted to the UN inquiry board examining the 2014 Gaza war detailed responses to the cynical and often willful allegations.15

Attacking the Grassroots of Terror: Incitement

As indicated above, international law has attempted through the counter-terror conventions and UN resolutions to adopt vital measures that would –
  • restrict the practical components of terror,
  • end state support, financing, and assisting terror,
  • restrict the transfer of arms and funding,
  • encourage international cooperation and exchange of information,
  • and encourage extradition or criminal litigation.
However, surprisingly, it has not seriously attempted to deal with the ideological component of terror – the incitement by religious and other elements seeking to influence, brainwash, and manipulate people into committing acts of terror.

There exists no international convention criminalizing such incitement to terror, and, therefore, while hate-speech may have been criminalized by certain individual countries, incitement to terror as such is not recognized or accepted as an international crime. This is due inter alia to fears of invoking first amendment issues such as a limitation on the freedom of speech and fear of limiting democratic liberties.

However, it is widely acknowledged that modern day terror is chiefly influenced by incitement. This is the medium through which the ideology of terror actually materializes into the act of terror itself. Without circulation of the ideology, recruitment of support as a result of incitement, and the availability of weaponry, there would be no act of terror.16

Incitement is no longer merely preaching on street corners, in mosques, through flyers and leaflets or political rallies. As has been amply demonstrated in the recent outbreaks of terror in Europe, the United States and Israel that the use of television, the Internet, social media, the web, “WhatsApp” – all serve to incite and manipulate millions of people at the mere press of a button.

It defies logic that a person who incites others to commit acts of terror – whether such person is a preacher in a center for religious worship, a radio or television personality, a trade-union activist, a teacher in school or college, or a political leader – can go scot-free after having played such a major role in generating the act of terror and advocating and bringing about the murder of thousands of people.

Incitement in religious institutions, through the glorification of terrorists in the education system in kindergartens, schools, colleges and universities, through state and private political machinery and more recently, incitement and manipulation of the general adult community through the electronic media, has become one of the major tactical weapons in the arsenal of certain governments and societies in advocating terror, violence, and hatred. 

A media weapon like Al-Jazeera has the capability to incite millions through televised images and nuanced reporting. Its intention is to rouse anger and hatred and cause riots, violence, and terror among the general public that has the capacity and propensity to turn to violence. All of this is with the ostensible blessing of the religious authorities.

International Law and Incitement

Perhaps the most pertinent international instrument that deals with the scourge of incitement to terror is UN Security Council Resolution 1624 (2005) which may be seen to be indicative of the opinion of the international community.17

This resolution, in its preambular paragraphs, refers to the need to condemn in the strongest terms incitement of terrorist acts and to repudiate attempts at the justification or glorification of terrorist acts that may incite further terrorist acts. It expresses concern that “incitement of terrorist acts motivated by extremism and intolerance poses a serious and growing danger to the enjoyment of human rights, threatens the social and economic development of all States, undermines global stability and prosperity, and must be addressed urgently and proactively by the United Nations and all States.”

More importantly, the resolution emphasizes the need to take all necessary and appropriate measures in accordance with international law at the national and international level to adopt such measures as may be necessary and appropriate, in accordance with their obligations under international law to prohibit by law incitement to commit a terrorist act or acts and to prevent such conduct. Furthermore, the resolution calls to deny safe haven to any persons with respect to whom there is credible and relevant information giving serious reasons for considering that they have been guilty of such conduct.

Regrettably, the international community, whether out of political correctness or timidity, has not yet succeeded in acting on the international level to criminalize incitement to terror.

Because international law does not have the legal tools to effectively deal with incitement to terror, a proposal for an international convention to criminalize incitement to terror has been widely publicized by the Jerusalem Center for Public Affairs, with a view to possible consideration and adoption by the international community.18 This draft was presented at a conference on incitement to terror in the UN.19

Conclusions

  • International terror, by definition, openly and overtly undermines and abuses humanitarian norms that bind civilized states.
  • Whether it targets one particular country or population or is directed against Western values and civilization, it has to be addressed seriously and practically. It cannot be ignored.
  • International terror has evolved into a rapidly growing virus that affects all of humanity.
  • Western “political correctness” emanating from exaggerated and often naïve sensitivity to, and fear of Islam, and over-sensitivity to humanitarian considerations, is interpreted by the terror elements as weakness and even sympathy, and hence as a license to continue.
  • Western countries can no longer engage in such political correctness and over-sensitivity. They have no choice but to accept that drastic counter-terror legislation, deterrence, and action, even if it may restrict the enjoyment of civil liberties. In the long run, these actions serve to enable wider enjoyment of such civil liberties and the right to life.
  • Since incitement is one of the central and major components of terror, the international community has to adapt international law with a view to criminalizing such incitement to terror.
* * *
Notes
1 Supreme Court Judgments H.C. 5100/94, Pub. Comm. against Torture in Isr. v. Gov’t of Israel, 53(4) P.D. 817, 845.
2 Ibid H.C. 3451/02, Almadani v. IDF Commander in Judea & Samaria, 56(3) P.D. 30, 34-35.
3 http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf
4 UN General Assembly resolution 60/288 dated 20 September 2006 which launched “The United Nations Global Counter-Terrorism Strategy”
5 For resolutions of the Security Council see http://www.un.org/en/sc/ctc/resources/res-sc.html, For resolutions of the General Assembly see http://www.un.org/en/sc/ctc/resources/res-ga.html
6 See http://www.unodc.org/documents/terrorism/Publications/Int_Instruments_Prevention_and_Suppression_Int_Terrorism/Publication_-_English_-_08-25503_text.pdf pp159-336
7 https://www.justice.gov/archive/ll/highlights.htm
8 https://en.wikipedia.org/wiki/Anti-terrorism_Act,_2015
9 http://www.jewishvirtuallibrary.org/jsource/isdf/text/perliger.html
10 http://fs.knesset.gov.il//20/law/20_lsr_343902.pdf
11 https://www.lawfareblog.com/israels-new-counterterrorism-law
12 ibid
13 http://www.israelnationalnews.com/News/News.aspx/213686
14 https://en.wikipedia.org/wiki/War_on_Terror
15 http://jcpa.org/the-gaza-war-2014/
16 For detailed material by the present author on the dangers of Palestinian incitement to terror, see http://jcpa.org/article/palestinian-incitement-to-violence-and-terrornothing-new-but-still-dangerous/ , , http://jcpa.org/article/palestinian-incitement-as-a-violation-of-international-legal-norms/ , http://jcpa.org/article/are-the-palestinians-ready-for-peace-palestinian-incitement-as-a-violation-of-international-legal-norms/
17 http://www.cfr.org/world/un-security-council-resolution-1624-international-peace-security/p24823
18 http://jcpa.org/article/draft-international-convention-for-the-prevention-of-incitement/
19 http://jcpa.org/video/un-conference-incitement-to-terror-and-violence-new-challenges-new-responses-part-1/


Amb. Alan Bakerr is Director of the Institute for Contemporary Affairs at the Jerusalem Center and the head of the Global Law Forum. He participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan, and Lebanon. He served as legal adviser and deputy director-general of Israel’s Ministry of Foreign Affairs and as Israel’s ambassador to Canada.

Source: http://jcpa.org/lessons-israels-response-terrorism/the-legal-response/

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