On Friday, Oct. 22, 2021, Israeli Minister of Defense, Benny Gantz, declared six West Bank Palestinian civil society organizations as “terrorist organizations.” Among them are prominent and well-established human rights organizations such as Al-Haq – which has been active in the occupied territories since 1979. The declaration has received sharp rebukes from international and Israeli human rights groups, the UN, and several members of the U.S. Congress. The U.S. State Department requested Israel to provide explanations for this move, and some left wing members of the Israeli cabinet have requested that Gantz suspend the declaration. Israel asserts that the organizations “belong and constitute an arm of the organization[al] leadership” of the Popular Front for the Liberation of Palestine (PFLP) — a small, far-left group designated by Israel, the U.S. and the EU as a terrorist organization — and are used to funnel money to the PFLP’s armed activities, as well as to promote other PFLP activities. The Palestinian organizations, unsurprisingly, deny these allegations vehemently and claim that they are being targeted as part of an ongoing and broadening campaign of political persecution and silencing.
In the balance of this article, we make two arguments. The first is that Israel’s Counterterrorism Law of 2016, which forms the legal basis for Gantz’s declaration, is flawed beyond repair. It reflects the severe danger that inheres in laws of this kind, the recent declaration against Palestinian human rights groups being one radical example.
The second claim goes beyond the problematic nature of this specific law and focuses on the wider context of the Israeli declaration. Taken together, the defective law and the political context must lead the international community, including the United States, to firmly reject this new declaration.
In 2021, it should be clear to everyone that criminalizing human rights groups on the basis of classified intelligence is absolutely unacceptable.
A Defective Law
The Israeli Counterterrorism Law of 2016 was introduced to replace and update older laws, including emergency legislation dating back to the British Mandate, which targeted both Jewish and Arab resistance to British rule. Its stated rationale was to replace antiquated and draconian provisions with those fitting a democracy. Sadly, this is far from what happened. While the law includes many problematic provisions, its dangers are perhaps best reflected in its granting to the Minister of Defense the power to declare a group as a “terrorist organization” (Chapter 2, art. A).
Such a declaration bears severe consequences. The most dramatic of these is the instantaneous subjection of an organization’s employees to criminal penalties going forward, and the authority to seize the organization’s assets. This means that the entire staff of Palestinian human rights organizations — from lawyers to researchers — can be potentially jailed, and that Israeli forces can now enter their premises and seize their property. Moreover, the declaration does not only affect the organization itself. It might criminalize those who assist in its activities. Potentially, this includes Israeli and foreign NGOs and legal and other professionals that are in regular contact with the banned organizations.
Given the human rights interests at stake with such a declaration, one would expect the process for making it to be as exacting and transparent as possible. The Counterterrorism Law, however, does the opposite, leaving those it targets with little to no protection. First, a group almost always learns it was declared as a terrorist organization ex post facto. There is no right to a hearing prior to the decision, and no forum where an organization can present evidence to prevent the declaration. It is only after a decision is made that the organization is invited to rebut the declaration. Yet, it is up to the minister of defense — the same official that made the declaration — to decide whether to uphold the organization’s petition and reverse the ministry’s decision.
Second, although the law gives the organization an ex post “hearing,” the organization is effectively destined to fail in reversing a declaration. The minister’s decision will almost always be based on classified intelligence, and, according to the law, there are no disclosure obligations, including to the target organization. Thus the right to a hearing provided by the law is barely worthy of this name. In short, the organization is formally free to request that the declaration be reversed, but a successful rebuttal is all but completely impossible. How can one refute allegations one does not know and in this setting?
Third, an option remains to petition the Supreme Court to strike down the declaration. But similar problems that haunt the process of a declaration persist here as well. The Court has long allowed the use of secret evidence in its proceedings. In all likelihood, should a petition be made, the state will argue that the declaration was based on classified information, which can be disclosed to the Court only ex parte. At this stage, the organization — like all Palestinians that seek to challenge administrative actions based on classified intelligence — would have to make a Kafkaesque choice: if it refuses the ex parte procedure, it loses, since the state will enjoy the presumption of regularity. If it accepts, it will most likely lose, because it won’t be able to refute the secret evidence of which it has no knowledge — while participation will help legitimize both the process and substantive decision.
To sum up this point, the Counterterrorism Law provides a vestige of due process but in fact allows Israel’s security apparatus almost unfettered discretion. This is not a theoretical claim. It has been the case with administrative detention of Palestinians for decades (albeit based on other pieces of legislation), and as we see now, will also be the case with Palestinian human rights groups.
A Disturbing Political Context
While there is much to be said about Israel’s Counterterrorism Law, the real story here is the broader context in which the NGO declaration operates. We have no access to the evidence. The state asks us to believe that well respected Palestinian groups, funded for years by major European states, are actually fronts for the fringe PFLP. To many in the Israeli human rights community, this sounds shockingly ludicrous. But one does not need first hand acquaintance with these organizations to be highly suspicious of this declaration. In a sense this action is but another case – such as the attack on the Gaza media tower during the 2021 hostilities in Gaza – in which the state holds all of the information, refuses to disclose it, yet expects the public to accept versions that seem counterintuitive at best.
The most important, and glaringly obvious, source of skepticism is the fact that Israel is an occupying power, and the organizations seek to expose the human rights abuses which take place under this occupation. There is an inherent conflict of interest here, in which “security considerations” are intermingled with Israel’s now explicitly stated policy to maintain the occupation and to entrench its settlements.
This recent move is also not isolated, as it appears to be a part of a pattern to curtail human rights activities in the occupied territories. In 2019, Israel expelled Human Rights Watch’s Israel and Palestine director for alleged violations of its anti-boycott law (which applies also to boycotting Israeli settlements). In 2020, Israel denied visas to UN human rights officials following the UN’s business and human rights report on corporate activities in West Bank settlements. This took place amidst a campaign by the government against Israeli human rights groups (which has been somewhat put on hold following the fall of the Netanyahu government). While the new Israeli government also includes parties that oppose the occupation, the government was formed on the basis of maintaining the status quo in the occupied territories — which effectively translates to continuing the far right policy of previous governments. Against this backdrop, Friday’s declaration appears to be part of a wider strategy to counter organizations that the government proclaims are engaged in “delegitimization” of the state.
A further point of concern and suspicion arises when comparing Israel’s aggressive move against Palestinian NGOs with its non-response to the alarming increase in settler violence in recent months. IDF forces regularly refrain from interfering in such attacks, sometimes actively protecting the participants from Palestinians, arguing that it is not the IDF’s job to deal with Israeli citizens. Needless to say, no settler group has been declared a terrorist organization, and barely no suspects, for that matter, have been prosecuted or punished for these acts of violence. A firm understanding of this discriminatory background should lead any objective analyst to treat the state’s administrative measure with utmost scrutiny.
The wider legal and political context also pushes toward suspicion and concern. As is well known, the International Criminal Court has recently opened its investigation into the situation in Palestine, and some of the banned Palestinian groups have been actively engaging with the Court. Some of them have also been vocal in advancing allegations that the crime of apartheid is committed against Palestinians – allegations that have been recently adopted by some mainstream international human rights organizations. In parallel, groups like Al-Haq have been increasingly active in calling out human rights abuses by the Palestinian Authority, as part of an outcry which reached a boiling point after the death of activist Nizar Banat in a Palestinian jail. Israel relies on the Palestinian Authority for security coordination. In some respects, there may even be an overlapping interest on the part of the Israeli government and Palestinian Authority to undermine some of these groups; but regardless of that potentially shared interest, the Israeli Defense Ministry’s declaration comes at a time when the human rights organizations are gaining significant traction for their claims against Israel at the international level.
In light of this broader context, it simply cannot be accepted that well-known and widely respected Palestinian human rights groups be designated as “terrorist organizations” by executive fiat and on the basis of classified intelligence. The reasons are too murky, the interests too conflicting, and the stakes are far too high for this extreme action to pass as tolerable. In general, no legal system worthy of its name should provide for the designation of human rights groups as “terrorist organizations” by decree. Failure to reverse the course in Israel will surely undermine efforts to prevent a similar lurch toward closing off dissent and human rights monitors in other countries.