"Anti-Terror" (Counter-Terrorism) Law

The Counter-Terrorism Law replaced various criminal and administrative measures, laws and regulations, and incorporated numerous provisions that date back to the British Mandate era, including the 1945 Emergency Regulations. The Law expands the authority of Israeli law enforcement authorities, imposes stricter penalties for criminal offenses specified in the Law, sets out a procedure for designating an organization as a “terrorist organization”, and expands the range of offenses labeled as “acts of terrorism”.

The Counter-Terrorism Law authorizes Israeli law enforcement authorities to delay bringing a detainee before a judge for up to 96 hours; to hold detention hearings, reviews, and appeal proceedings in the absence of the detainee; and to refrain from informing the detainee of decisions made in his/her case. The Law also permits the extension of suspects’ detention for longer periods of time than in regular detention laws. Prior to the Law’s enactment, some of these procedures appeared in temporary measures; now they are enshrined in permanent legislation.

The Law authorizes the Defense Minister to designate an association as a “terrorist organization”. The definitions provided by the law, specifically for “terrorist organization” and “terrorist act”, are overly broad and vague, and may include otherwise lawful organizations and legal activities. Such broad definitions have resulted in an arbitrary and discriminatory enforcement policy.

The Law expands the range of offenses perceived as terrorism and includes explicit expression-related offenses (e.g. §24). This violates the constitutional right to freedom of speech and is used to muzzle legitimate political expression. The Law also diminishes related legal proceedings, such that they violate the fundamental right to due process – including the use of secret evidence – and provides disproportionately severe penalties for security offenses defined under the Law.

Main provisions:

The Law (Article 2A) defines a “Terrorist Act” as an act that: constitutes an offense, or a threat to carry out such an act, which meets all of the following conditions:

(1)  It was carried out with a political, religious, nationalistic or ideological motive;

(2)  It was carried out with the intention of provoking fear or panic among the public or with the intention of compelling a government or other governmental authority, including a government or other governmental authority of a foreign country, or a public international organization, to carry out or to abstain from carrying out any act;

(3)  The act carried out or threatened to be carried out involved one of the following, or posed an actual risk of one of the following:

(a)  Serious harm to a person’s body or freedom;

(b)  Serious harm to public safety or health;

(c)  Serious harm to property, when in the circumstances in which it was caused there was an actual possibility that it would cause the serious harm mentioned in subparagraphs (a) or (b) and that was carried out with the intention of causing such harm;

(d)  Serious harm to religious objects; here, “religious objects” means places of worship or burial and holy objects;

(e)  Serious harm to infrastructure, systems or essential services, or their severe disruption, or serious harm to the State’s economy or the environment.

The law defines a “terrorist organization” as any of the following:

(1) A body of persons within an organized and integral structure that commits terrorist acts or that operates with the intention that terrorist acts will be committed — including an aforementioned body of persons that is engaged in training or instruction for the commission of terrorist acts, or that carries out an act involving weapons or performs a weapons transaction in order to carry out terrorist acts — whether or not it has been designated as a terrorist organization pursuant to Part B [of this law];

(2) A body of persons within an organized and integral structure that acts, directly or indirectly, to assist an organization as mentioned in paragraph (1), or that acts with the intention of promoting the activity of such an organization, including by financing it – and all of this is done in a manner capable of making a substantial or ongoing contribution to the activity of the organization, or [where such body of persons] has a substantial affiliation to [the organization], provided that the body of persons [as defined in this paragraph] has been designated as a terrorist organization pursuant to Part B [of this law].

3)(a) Pursuant to this Article, the Minister of Defense may designate, by order, a body of persons as a terrorist organization, once he is convinced that paragraph (1) or (2) of the definition “terrorist organization” applies (emphasis added).

The law lays out and defines numerous criminal (terrorism) offenses, including:

• Heading or managing a terrorist organization or partaking in directing a terrorist organization, punishable by 25 years’ imprisonment (§ 20);
• Membership in a terrorist organization,  punishable by five years’ imprisonment (§ 22);
• Providing a service or resources to a terrorist organization, punishable by five years’ imprisonment (§ 23);
• Identifying with a terrorist organization, punishable by three years’ imprisonment (§ 24);
• Incitement to terrorism, punishable by five years’ imprisonment (§ 24);
• Failure to prevent a terrorist act (i.e. failing to convey information raising concrete suspicion that a terrorist act is about to be committed to security authorities at the earliest possible opportunity), punishable by three years' imprisonment (§ 26);
• Issuing a threat to commit a terrorist act, punishable by seven years’ imprisonment (§ 27);
• Making preparations to commit a terrorist act, punishable by 15 years’ imprisonment (§ 28);
• Making a transaction in property for the purpose of terrorism (e.g. a transaction made in order to fund the commission of a terrorist act), punishable by seven years’ imprisonment (§ 31).

Why is it discriminatory?

The law employs terms that are ambiguous, overly broad and exceedingly unclear, and thereby grants the State excessively broad authority, for instance, in deciding whether a specific criminal offense constitutes a “terrorist act”. Such broad definitions could result – and have resulted – in arbitrary and discriminatory enforcement based on unlawful and illegitimate political motives that serve, much like the entire system of security legislation, as a means of suppressing the rights of Palestinian to freedom of expression and the rights to protest and demonstrate.

The law also outlines legal proceedings for such designations that violate the fundamental rights of due process: the Defense Minister is authorized to base an order designating an organization a “terrorist organization” on classified information, and thus to prevent designated organizations and their legal representatives from challenging either the validity of the evidence itself or its interpretation. For this reason alone, the designation process fails to fulfill the minimal requirements of due process.

A designation order may subsequently be used as evidence in criminal proceedings against those accused of being associated with the newly-designated “terrorist organization”, in relation to the offenses detailed above, which carry hefty penalties of up to 25 years’ imprisonment. The law bars defendants in such criminal proceedings from raising arguments challenging the legality or validity of the designation order (§ 19).

The Defense Minister employs the law to criminalize Palestinians’ lawful activities using legal means and to silence criticism against the State of Israel, as evidenced by the designation of six leading Palestinian human rights and civil society organizations in October 2021.^[1] In the aftermath of the May 2021 events, too, Israel used the law extensively to silence legitimate Palestinian political opposition to grave human rights violations committed by the State against Palestinians in East Jerusalem and the OPT. For instance, Israel unjustifiably indicted several Palestinian political leaders for incitement under the Counter-Terrorism Law, including Mohammad Kana’neh of the Abnaa al-Balad extra-parliamentary movement and Islamic leader Sheikh Kamal al-Khatib.^[2]

International criticism

In its Concluding Observations issued in 2022, the UN Human Rights Committee, which monitors states’ compliance with the International Covenant on Civil and Political Rights, noted that, “[It] is concerned that Counter Terrorism Law 5776-2016 contains vague and overbroad definitions of ‘terrorist organization’ and ‘terrorist act’ and may be used to oppress and criminalize legitimate political or humanitarian acts (...) It is further concerned about the use of secret evidence in counter-terrorism proceedings, which is inaccessible to defendants and their lawyers, thereby violating their right to a fair trial.”^[3]

In 2017, the Committee on the Elimination of Discrimination against Women noted that, “Israeli security forces continue to use disproportionate force in response to acts of violence and protest demonstrations and in law enforcement operations in the context of counter-terrorism measures, with a disproportionate impact on women and girls.”^[4]

Numerous international bodies have condemned Israel’s use of the Counter-Terrorism Law to persecute human rights defenders, Palestinian civil society organizations and political leaders. For instance, UN human rights experts denounced Israel for abusing its counter-terrorism laws to target and silence human rights defenders, after an Israeli court found a Gaza aid worker, Mohammed el-Halabi, guilty of financing terrorism.^[5] With regards to the six Palestinian organizations designated as “terrorist organizations” in October 2021, UN special rapporteurs, European Countries, the EU High Representative, the American Bar Association, and others have condemned the designations, noting the lack of due process and use of secret evidence.^[6]

In its 2023 report, the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel noted that “Israeli authorities have passed laws to reduce and restrict civil society activities. These include amendment No. 40 to the Budgets Foundations Law 2011, the 2011 anti-boycott law, the 2016 amendment to the Law of Associations, the 2016 Counter-Terrorism Law and amendment No. 28 of March 2017 to the law on entry into Israel.”