by Emanuel Gross. Charlottesville: University of Virginia Press, 2006. 320pp. Hardback. $35.00. ISBN: 0813925312.
Reviewed by Clive Walker, Centre for Criminal Justice Studies, School of Law, University of Leeds. Email: law6cw [at] leeds.ac.uk.
Comparative research has great allure. Given that terrorism has become a universal concern for all jurisdictions since 9/11, one is tempted to enquire whether one’s neighbour might have developed some innovative solutions to the problems of human security which now beset us all. A comparative approach might be especially profitable in connection with terrorism since, for many countries, 9/11 marked the effective starting point of their legal journey towards comprehensive legal counter-terrorism. Nevertheless, some countries started on that journey well before that date and have full and sometimes didactic stories to tell.
The two with some of the longest and most complex yarns are Israel and the United Kingdom (mostly described, for unaccountable reasons, as ‘Great Britain’ in this book by Emanuel Gross). There seems to be a competition between them, with the author, in the Israeli corner, claiming that Israel has the most experience of terrorism amongst democracies, the remainder of which are said only to have began to grasp terrorism after 9/11 (p.2). This sweeping statement is not an accurate portrayal of the United States’ position. With waypoints such as the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132), there was a legislative pre-history even in the USA, though the cataclysmic events of 9/11 have indeed so traumatised the polity that reflection upon its own prior learning or that of neighbours and friends hardly figured in the rush both to new legislation and to Presidential law-making. Gross’ claim of Israeli pre-eminence also underplays considerably United Kingdom efforts. The United Kingdom not only bequeathed much of Israel’s current legislation (in the form of the Defence (General) Regulations 1945) but also has contended with colonial and Irish campaigns of political violence stretching over three centuries, and even the political machinations of foreign anarchists and dissidents in the nineteenth century, with a huge legal back-catalogue to match. There is also misrepresentation of the current nature of the UK’s response to terrorism which is certainly not to transform its strategy into ‘a third world war’ nor to expect a military ‘decisive and absolute victory’ over terrorism (pp.248, 258). No matter which of Israel and the United Kingdom should be viewed as enduring the most terrorism or producing the most laws, both are rich sources for comparison. Therefore, one should not unduly cavil at the primacy of the description and analysis of the Israeli legal experiences of terrorism since 1948 as the preferred core of this book. It is clearly a further worthwhile undertaking to reflect upon [*388] that experience and to draw comparisons with the United Kingdom and United States. At the same time, this alluring comparative work brings its dangers. Perhaps the ambitious attempt to draw together disparate jurisdictions will result in partial selection or inadequate explanation of one’s own jurisdiction. Perhaps, the descriptions of other jurisdictions will be shallow, or the comparisons drawn inappropriate. This review will assess THE STRUGGLE OF DEMOCRACY AGAINST TERRORISM on both grounds.
On the core tasks of description and analysis of Israeli laws against terrorism, there is much to admire and value. Despite the longevity of conflict in Israel and Palestine (or even Ersatz Israel, as Gross generally and more controversially terms it), there has been no other English language text since Harold Rudolph’s book in 1984 (SECURITY, TERRORISM AND TORTURE: DETAINEES’ RIGHTS IN SOUTH AFRICA AND ISRAEL: A COMPARATIVE STUDY) which recounts so exhaustively how Israel has responded in law to the conflict it has faced with Palestinians and most of its neighbouring states since its founding in 1948. The book is an excellently accurate and rich source of materials, with especially valuable and cogent descriptions of key court decisions which were hitherto available only in Hebrew. Likewise, the trawl through relevant legislation and explanations of the separate codes for Israel and occupied territories is indispensable, though it would have helped to have provided a table of all these cases and statutes.
The description and analysis is organised around six chapters. These commence with Chapter 3, ‘Interrogation of Suspects,’ where Israel can offer official inquiries and landmark cases. These are described very fully, though descriptions of UK comparisons are partial and at times garbled (compare Walker 2002). Contrary to Gross’ assertion (p.83), physical force was certainly used in Northern Ireland, as determined by His Honour Judge H. G. Bennett (1979, para.163) and was actually endorsed to some extent by the courts (R v MCCORMICK ). Contrariwise, in what respect the application of control orders under the Prevention of Terrorism Act 2005 amounts to a form of interrogation or involves torture is not explained (p.85). The conclusion that there should be judicial warrants to authorise ‘unusual interrogation means’ (p.91) betrays the moral cravenness of the balancing approach to rights and security, which will be discussed below. One hopes that the judges in a state which is said to vaunt the rule of law would refuse to participate in such an enterprise.
The ‘Administrative Power of Military Commanders in the Struggle against Terrorism’ is dealt with in Chapter 4. Many of the relevant powers are still contained in the Defence (Emergency) Regulations 1945, which were imposed by the then British administration mainly to quell what it viewed as Zionist terrorists such as Menachem Begin, later Prime Minister of Israel. Amongst the drastic powers still in use in Israel are the demolitions of houses (especially of suicide bombers), curfews and the blockades or closures of an area. In each [*389] case, there is a very thorough description of Israeli legislation and case-law, with consideration also of the applicability of international humanitarian law. The issue raised by the latter is often whether the measure amounts to a collective punishment contrary to articles 33 and 53 of the Fourth Geneva Convention. A generous interpretation is accorded both by the Israeli courts and the author, so that there is no finding of breach, for example, in respect of house demolition on the basis that the objective is to make the terrorists ‘aware that . . . they are endangering not only themselves but also the domicile of their families’ (p.107). Given that terrorists are by their nature willing to sacrifice their lives, let alone their property, the main effect of demolition is not, as claimed, the deterrence of terrorists, but a collective punishment so that communities will be stimulated to act against continuing terrorism. Such an interpretation is far from fanciful. It motivated an English magistrate, Timothy Workman, to issue on 10 September 2005 an arrest warrant on charges of war crimes against Major General (retired) Doron Almog in relation to the destruction of 59 houses in Rafah refugee camp on 10 January 2002. Almog landed at Heathrow Airport but did not disembark and returned to Israel on being warned by Israeli officials. Some Israeli organisations, such as the Israeli Committee against House Demolitions, also depict the process as a punishment and fear that it is yet another obstacle to peace. Added to the dubious legality of the process, the Israeli Defence Force has discontinued the policy of house demolitions, following a review in 2005, in view of the uncertain overall effectiveness of the tactic (Israel Ministry of Foreign Affairs, 2005).
Next, Chapter 5 considers ‘Administrative Detentions and the Use of Terrorists as Bargaining Counters.’ The Israeli administrative detention system is given fairly clean bill of health, but comparisons with the UK are again faltering. It is wrongly implied that arrest powers or control orders under the anti-terrorism laws are equivalent (pp.130, 133), and there is no consideration as to whether the UK system of special advocates overcomes the severe weaknesses in the Israeli system of the inability on the part of the defence or even the judge to examine the evidence (p.126). There is also comparison with US detention powers, but while Gross’ description of judicial review is lengthy, the conditions of detention and military commissions are not fully explored.
The idea of holding terrorists as bargaining counters especially arose after the capture of Israeli military pilot, Ron Arad, in 1986. Israeli forces captured Sheik Abdul-Karim Obeid, a member of the Lebanese Hezbollah, in 1989 and Mustafa Dirani, a leading member of the Amal Movement, in 1994. The Israeli government claimed they were being held in order to find out information about Arad, but they were released in 2004. Arad’s treatment was a cruel breach of international law on the part of his captives, but the Supreme Court of Israel (ANONYMOUS, 2000) and many others would disagree that hostage-taking in response can be justified (as is contended by Gross, p.155, and by the Imprisonment of [*390] Illegal Combatants Law 2002) under article 34 of the Fourth Geneva Convention or under the International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on 17 December 1979 (18 I.L.M. 1456).
Related subjects are the ‘Use of Civilians as Human Shields’ (Chapter 7) and ‘Thwarting Terrorist Acts by Targeted Preventive Elimination’ (Chapter 8). If one believes in the spurious balance of rights versus security, then the sacrifice of the innocent in these ways can be contemplated. Certainly, Gross (p.201) does not accept that absolute rights are absolute. It is also remarkably easy to reassess the innocent as guilty. For example, those who refuse to leave an area of fighting are presumed to be providing shelter to fighters (p.207); is it just possible that they are too frightened to move or that they fear that they will never be allowed home again? It is, however, accepted that some Israeli Defence Force practices, such as asking civilians to move suspicious objects or to convey messages to fighters, have breached articles 27 and 51 of the Fourth Geneva Convention (p.209). The issue of ‘preventive elimination’ equally depends on the re-categorisation of civilians, such as Sheikh Ahmad Ismail Yassin who was killed in 2004 by an Israeli helicopter gunship, an action condemned as unlawful by the UK Foreign Secretary. There are also issues of levels of proof in a pre-emptive attack and the proportionality of the response. In years gone by, Israel would go to the ends of the earth to ensure those who had committed grievous crimes against humanity were brought to the doors of the criminal courts, as in the case of Adolf Eichmann in 1961. Nowadays, justice consists of dropping a one ton bomb in the general direction of the suspect, a definitive substitute for judge and jury which befell another HAMAS leader, Salah Shehade, in 2002 and which Gross estimates to have been perhaps excessive (p.238).
The impacts of security laws on the rights to privacy are the subject of Chapter 6. Since the balancing approach is again adopted, it seems that few incursions are off-limits or beyond the moral pale. So, there exists in Israel an array of ‘extremely broad and comprehensive’ powers (p.170) to search vehicles and property, to search persons and to take bodily samples, to intercept communications, and to conduct surveillance. Comparisons with the equally complex catalogue of measures in the UK and the US (not including Presidential Orders on the subject) are relatively brief and patchy. The fair point is made that Israel more proportionately distinguishes security situations from criminal investigations (p.191), and Gross perceptively notes that the security versions often do not grant extra powers but repeat established powers but with fewer safeguards (pp.191, 192). But it is far from evident that Israeli practices, which are not overseen by judicial commissioners or legislative committees, are really as superior as claimed.
While the description and analysis of Israeli law represents the principal strength of the book, there are some limitations and drawbacks in this aspect. [*391]
First, Gross does not shy away from the perennial difficulty of the definition of ‘terrorism’ and in fact dedicates Chapter 1 to ‘What is Terrorism.’ He emphasises that the core of terrorism is ‘the unique amoral qualities of its motives’ (p.13). This contention cannot stand serious examination. For example, the motive of the Irish Republican Army is a united Ireland and the end of the partition which created Northern Ireland. There is no inherent immorality in that motive, and it is one which has from time to time been shared by a majority of the population in Britain. What might be immoral is either to seek to achieve the goal by immoral ends (such as violence or intimidation) or wholly ignoring other rights to human security which may be affected, such as self determination (assuming that the pro-Unionist Northern Ireland Protestants can be treated as a ‘people’ for these purposes). There may be some forms of political motive which are ‘immoral’ per se. For example, the European Court of Human Rights has condemned the pursuit of Sharia Law and other aspects of Islamic fundamentalism (REFAH PARTISI (THE WELFARE PARTY) AND OTHERS v. TURKEY ), so it might be possible to depict as inherently immoral a movement such as al Qa’ida. But the causes of the Palestinians and the neighbouring enemies of Israel are in a different situation under international law with respect not only to their methods as a whole but also to their claims to self-determination. The author does tackle in Chapter 2 the subject of ‘The Laws Of War Waged Between Democratic States And Terrorist Organization,’ though much more of it is couched in terms of the US’ ‘war on terror’ than in terms of Palestinian claims. Gross has sympathy for the US stance on the grounds that current international law does not provide an adequate response to terror (p.58). He has less sympathy for Protocol I to the Geneva Conventions 1977, article 44 of which he calls ‘a mockery of the international law’ (p.50), though, contrary to his assertion, it was endorsed by ratification in 1998 by the UK, albeit accompanied by declarations. Other possible obligations of states to civilians, such as in international human rights law, are not often considered in the book.
Issues which are examined in more depth are Israeli legal definitions of terrorism, such as those contained in the Prevention of Terrorism Ordinance 1948 and the Prohibition on Financing Terrorism Law 2005, and also in the 1998 Rome Statute of the International Criminal Court. The latter, of course, contains no explicit definition or offence of terrorism. The article 7 offence of crimes against humanity could address some acts of terrorism, but its absence of reference to motive is criticised (p.24) even though an emphasis upon motive and not on the kind of violence which kills 3,000 civilians at a stroke would give a platform in law to those who wish to justify their extremism. Gross concludes that it is not practical to have a single definition, but he then manages to delineate some core characteristics (p.24). These suggest that law can be used to define terrorism, and the more interesting questions concern the biases inherent in any definition and its legitimate uses. [*392]
Second, the range of subjects Gross tackles is very good, but it is not comprehensive. There is scant mention of the West Bank separation/segregation barrier, and neither civil liability nor the disbarment of political candidates is considered (compare Mersel 2006).
Third, Gross’ critical stances sometimes lack depth. A constant theme, already noted, is the notion of balance between the safety of the state and of the citizen set against human liberties (a refrain taken up at the outset in the foreword by Chief Justice Aharon Barak (p.xi) and then repeated by the author (p.27). Yet, there is no clear calibration on this particular balance which enables a judge, a government minister or a military commander to know when an appropriate equilibrium has been reached, nor should one assume that the loss of liberty automatically tips the balance in favour of security. It has been argued elsewhere that this spurious balance should be abandoned in favour of a proportionality test based around the concept of human security, emphasising the interests of individuals – both to security and liberties – rather than those of the state (Walker 2006). It might also bolster the contention that absolute rights are indeed absolute so far as the state is concerned. Other deontic principles for counter-terrorism laws, with emphasis on the rule of law, are likewise not fully explored, nor is it made clear what is entailed by the statement that the state should adopt the role of a ‘defensive democracy’ or ‘militant democracy’ (p.6).
Despite the foregoing criticisms, Gross’ description of Israeli anti-terrorism laws is first rate. However, a lower degree of commendation can be awarded to his descriptions of other jurisdictions or drawing of appropriate comparisons. The comparisons are rather uneven, appearing at length in some chapters (such as Chapter 3) and hardly at all elsewhere (Chapters 7 and 8). Furthermore, like is not always compared to like, as already noted in regard to the confusion between arrest and detention powers.
Finally many of the conclusions of a comparative nature are not well supported by evidence. The High Court of Israel may indeed have a better record of review than the US Supreme Court (p.250). However, the record of the English courts on detention without trial and control orders is equally as impressive if not more so in terms of the depth of scrutiny of security evidence, and recent decisions seem to have extended justiciability in a way which rivals the Israeli experience. There may be a growing willingness to contemplate force in interrogation in US procedures (p.251), but there is little evidence of its official endorsement in the UK, where the trend is much more towards forensic science or surveillance investigation. Furthermore, the UK courts have developed a much stronger stance against discriminatory treatment than is apparent in Israel (contrary to the assertion at p.251).
An ultimate dissatisfaction with the analytical and critical aspects of this book arises from some of the broader issues relating to democracy and discrimination. The clear assumption is that Israel is to be counted as a [*393] democracy on a par with the UK and the US. It is indeed commendable that a country so enmeshed in conflict from the time of, and because of, its very foundation should be able to maintain a high degree of vibrancy in its politics. But this democracy has not accorded in equal measure for all under Israeli rule. Others, such as Shahak (1994) have criticised the discriminatory nature of the Israeli occupation of Palestinian territories and have concluded that Israel is consequently not a true democracy. These inequalities have direct impact on security measures. For example, the powers to impose closed or protective areas may be applied with scrupulous due process and may even at a stretch avoid being depicted as a collective punishment contrary to international law (though this interpretation stretches all credulity when the power was applied to close the whole of the West Bank to all refugees after 1967: p.117). However, one might ask whether, if, for example, a few hundred Jewish settlers had not in the first place been allowed into the centre of Hebron (with a population of around 150,000 Palestinians), it would have become necessary to trigger legal powers to close down 42% of Palestinian residential properties and 77% of Palestinian commercial properties in the vicinity (B’Tselem 2007). No doubt, the resultant security response and other such examples contribute to what in another troublesome context was called a ‘Factory of Grievances’ (Buckland 1979).
Finally, one must doubt whether an approach so focused on security has drawn all the lessons available from the UK experience. For sure, that experience includes the grisly Defence (Regulations) 1945. But a more recent version of combating terrorism has also included a Peace Process in Northern Ireland and involves a strategy which emphasises the prevention of conflict by tackling disadvantage, supporting reform and engaging in the battle of ideas, as well as harder-edged policies in pursuit of terrorists (Home Office, 2006). Is not an ability to resolve the political aspects of terrorism as important as an ability to eradicate its violence?
B’Tselem and Association for Civil Rights in Israel. 2007. “Where Silence Reigns: Israel’s Separation Policy and Forced Eviction of Palestinians from the Center of Hebron.” Jerusalem. Available online at: http://www.btselem.org/Download/200705_Hebron_eng.pdf .
Bennett, His Honour Judge H. G. 1979. “Report of the Committee of Inquiry into Police Interrogation Procedures in Northern Ireland” (Cmnd.7497, London).
Buckland, P. 1979. THE FACTORY OF GRIEVANCES: DEVOLVED GOVERNMENT IN NORTHERN IRELAND, 1921-39. Dublin: Gill & MacMillan.
Home Office. 2006. “Countering International Terrorism” (Cm.6888, London). [*394]
Israel Ministry of Foreign Affairs, Continued easing of restrictions for Palestinian population and IDF policy changes, 20 Feb 2005, http://www.mfa.gov.il/MFA/Government/Communiques/2005/Continued%20easing%20of%20restrictions%20for%20Palestinians%20and%20IDF%20policy%2020-Feb-2005)
Mersel, Yigal. 2006. “Judicial Review of Counter-Terrorism Measures.” 38 NEW YORK UNIVERSITY JOURNAL OF INTERNATIONAL LAW & POLITICS 67-120.
Rudolph, Harold. 1984. SECURITY, TERRORISM AND TORTURE: DETAINEES’ RIGHTS IN SOUTH AFRICA AND ISRAEL: A COMPARATIVE STUDY. Cape Town: Juta.
Shahak, Israel. 1994. JEWISH HISTORY, JEWISH RELIGION: THE WEIGHT OF THREE THOUSAND YEARS. London: Pluto Press.
Walker, Clive. 2002. A GUIDE TO THE ANTI-TERRORISM LEGISLATION. Oxford: Oxford University Press.
Walker, Clive. 2006. “Clamping Down on Terrorism in the United Kingdom.” 4 Journal of International Criminal Justice 1137-1151.
ANONYMOUS v. MINISTER OF DEFENSE, 7048/97, 54(1) P.D. 721, 741 (2000)
R v MCCORMICK  NI 105.
REFAH PARTISI (THE WELFARE PARTY) AND OTHERS v. TURKEY, App. nos. 41340/98, 41342/98, 41343/98 and 41344/98, 2003-II).
©Copyright 2007 by the author, Clive Walker.