Terrorism Criminal Law
By Dr. Adv. Sigal Shahav
Israel has made significant and comprehensive reforms in criminal law procedure over the last three decades for adjudication of terror suspects. This study (Shahav, 2016) addresses the reform in procedural criminal legislation which reveals a very unique and distinguish field of criminal law: Anti-terrorism Criminal Law (ATCL). The particular impact in legislation was felt in: preventing meetings between suspects and their attorneys; disregarding the duty to record interrogations; extending detention periods; preventing the suspect from appearing in court hearings; and even concealing court detention decisions from suspects. The roots of procedural ATCL stems back to the Mandate and the establishment of the State of Israel, and remained relatively stable until the 1980s, sustaining almost no changes. Security offenses in the first decades after Israel’s establishment focused mainly on espionage and treason. Due to technological changes in the 1970s, the scope of the use of security legislation dwindled. Since the 1980s, anti-terrorism Procedural law was enacted – the Prevention of Meeting Law and the Investigation Documentation Law. The 9/11 attacks and the increase in global terrorism along with the 2005 disengagement from Gaza Strip prompted the enactment of the temporary order (which extending detention periods; preventing the suspect from appearing in court hearings; and concealing court detention decisions from suspects) and led to additional changes in the detention procedure.
This research examines the manner criminal law in Israel regulates terror and whether it maintains the boundaries and meets the principles supposedly protected in general criminal law and criminal case law. The research is in procedural criminal law and human rights, and the analysis therein, is held within the liberal discussion and the post-liberal discussion. It focuses on the changes in the procedural criminal law to legislate terrorism, especially in the procedural criminal process in matters of suspects of terror offenses, as reflected in legislation over the past three decades. Examples of this unique legislation include more specifically: preventing meetings between suspects and their attorney; the duration of detention, the detention procedure and the exemption documentation of the investigations.
This process by which the legislator distinguishes between general offenses and security offenses in the criminal process is vastly different from the special security offense provisions enacted earlier. In the past, the legislator categorized security offenses as criminal in nature − considering the offenses as severe offenses, enabling criminal assumptions to be made, such as a presumption of dangerousness or even the need for harsher sentencing. Conversely, the legislation in the field of security offenses over the past three decades is characterized by far-reaching procedural changes, which create two procedural systems for prosecution: the criminal-procedural system for the prosecution of general criminal offenders and the criminal-procedural system specific to the prosecution of security suspect offenders – each completely different from the other.
What is clear from the findings is that this is not a classic case of prosecution versus defense (evident in general criminal justice): Rather, intelligence gathering is a very different goal that changes the interaction of the players in the field. It is also clear that most of the cases prosecuted are for light security offenses, which are peripheral to the serious offenses. The logic leading the field is not necessarily the principle of the state of serious emergency (preventing bombs or missiles in a short time), but rather the logic of collecting information and intelligence as a quiet and routine practice. This is an extra-legal expanse, which the law does not directly address, but enables it and the activities within it. Although the general purpose of intelligence is intended to serve the security interest, the routineness of intelligence gathering and permitting it outside of the law is distinctive phenomenon, in which the principle of intelligence is maintained as a central organizing axis.