T. Belman. In reading this brief, I get the impression that Israel doesn’t need more stringent legislation. It just needs to apply the designation ruthlessly.
At least according to Adalah
[…]
Severe and Immediate Legal Implications of these Designations and Declarations
The consequences of the designations and declarations are severe, for the organizations, their staff and members, and their supporters. First, the organizations themselves can no longer operate and continue with any of their activities, including, for example, the crucial work the six groups conduct in defending the rights of Palestinians and exposing Israel’s violations of international law.
This consequence not only affects the organizations themselves, but also has immediate ramifications for the Palestinian individuals and communities whom the organizations serve and protect. It also threatens to exacerbate violations of the rights of Palestinian children, prisoners, women, and agricultural workers, among others, and impair efforts to secure justice and accountability for human rights violations and international crimes.
The designations also greatly hamper the ability of the organizations to raise funds from international donors to support their work. Both legal frameworks expand the range of terrorism-related offenses to activities that may be wholly unrelated to “terrorist acts” stricto sensu, and the penalties for the substantive offenses are much more severe than those established under the relevant domestic criminal and military laws. Both the Counter-Terrorism Law and military orders relating to the Emergency Regulations criminalize, inter alia, mere membership in the organizations and the provision of resources and services to these organizations, without any exemptions based on the nature or scope of the provision.
Moreover, the two legal frameworks explicitly proscribe various forms of expression, including exhibiting “praise”, “support”, or “sympathy” with the organizations and/or its actions and objectives. Because these terms are left undefined and have broad application, Israeli authorities have and are likely to continue to selectively enforce expression-related offenses against Palestinians.
One of the immediate, threshold questions is whether Israeli law – specifically, domestic legislation such as the Counter-Terrorism Law – applies to the West Bank,
as the current location of the offices of the six organizations, the residence of most of their staff members, and the site of their principal activities and operations. Under international law, as articulated by the International Court of Justice (ICJ), the West Bank, including East Jerusalem, is occupied territory, notwithstanding Israel’s attempts to alter this status through legislative and administrative actions.
Thus, it is international humanitarian law, together with human rights law, and not Israeli domestic law, that applies to the OPT, a distinction that the Israeli Supreme Court has generally accepted for the West Bank, excluding East Jerusalem, with the exception of Israeli settlements. However, certain provisions of the Counter-Terrorism Law apply extra-territorially, and any person may be charged before Israeli courts for certain offenses, including, inter alia, directing, managing, or being a member of a “terrorist organization” (section 41). Despite this extraterritorial application, Israel would find it difficult to justify using the Counter-Terrorism Law to enforce other penalties against the organizations, such as entering the offices of the Palestinian organizations and seizing their properties, which explains why the Israeli military commander also declared five of these organizations as “unlawful associations”, using the Emergency Regulations applicable to the West Bank.
A. Legal liability under Israeli domestic law
The designation of an organization as a “terrorist organization” under the CounterTerrorism Law has several implications for the organization itself. According to section 56(b)(1) of the Law, the Minister of Defense may issue an order to seize or otherwise restrict the use of a designated organization’s property, if the Minister is convinced that such seizure is necessary to thwart the organization’s activity and reduce its ability to promote its objectives. Under the Law’s definitions in section 2(a), property includes immoveable property, moveable property – such as laptops, electronic devices, documents, and vehicles – money, and rights.
Directors, managers, and staff members of an organization designated as a “terrorist organization” face severe criminal penalties. A person who heads or manages such an organization, or takes part in directing the organization as a whole, is liable to 25 years’ imprisonment (section 20), and a person who manages or takes part in directing the organization’s activity is liable to 10 to 15 years’ imprisonment (section 21). Mere membership in a designated organization carries a penalty of five years’ imprisonment (section 22(a)), while a member who takes part in the organization’s activity is liable to seven years’ imprisonment (section 22(b)). A person who provides services or resources to a designated organization is liable to five years’ imprisonment (section23).
5 See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, ¶ 78 (July 9).
The Counter-Terrorism Law further criminalizes the commission of “an act of identification with a terrorist organization”. Section 24(a) provides that a person who
commits such an act – “including by publishing words of praise, support, or sympathy, waving a flag, displaying or publishing a symbol, or displaying, playing or publishing a slogan or anthem” – is liable to three years’ imprisonment. The Law does not provide a defintion for the broad terms of “praise”, “support”, or “sympathy”, and these terms are not elsewhere defined in Israeli law. Moreover, possession, for the purposes of distribution, of a publication appearing to express identification with a terrorist organization may render a person liable to two years’ imprisonment (section 24(c)).
B. Legal liability under Israel’s military regime in the West Bank
The consequences of an “unlawful association” declaration as defined in the Emergency Regulations include penalties for the organizations, their directors, staff
members, and supporters under the legal regime of Israel’s military occupation. Under the Emergency Regulations, the Israeli military commander may, at their discretion, order the forfeiture of any immoveable or moveable property under the custody or control of an organization declared as an “unlawful association” (regulation 84(2)(b)), and officers have the authority to enter any premise and seize such property (regulation 84(2)(d)).
Regulation 85 of the Emergency Regulations penalizes any person who, inter alia:
(1) is or acts as a member of an “unlawful association”;
(2) manages or holds an office within the association;
(3) knowingly does any work or performs any service for an unlawful association;
(4) attends a meeting of the association or allows any meeting to take place in a house, building, or place belonging to or occupied by them, or under
their control;
(6) has in their possession, custody, or control property that actually or purportedly belongs to, relates to, is issued by, or is in the interests of an unlawful
association;
(7) writes, prepares, reproduces, publishes, sells, distributes, or transmits a publication relating to the organization;
(8) requests or collects donations for such
an association; or
(9) acts on behalf of or otherwise represents an unlawful association. Under the Emergency Regulations, a person convicted of any of the
aforementioned offenses is liable to ten years’ imprisonment.
In addition to the Emergency Regulations, subsequent Israeli military orders establishes offenses related to “unlawful associations” that parallel those under the
Counter-Terrorism Law. Following Military Order No. 1827 (Order Concerning Security Provisions (Amendment No. 67)), 2020, a person who heads or manages, directly or indirectly, an “unlawful association” is liable to 25 years’ imprisonment, while a person who manages or takes part in directing the activity of such an association is liable to 15 years’ imprisonment. Military Order No. 1827 also expands the definition of property to include not just immoveable and moveable property, funds, and rights, but also any subsequent property derived from such property or its profits. This order then proscribes the transfer of property to an “unlawful association” and other “property acts” of “unlawful association”, which include, inter alia, purchasing or receiving ownership or other right in the property as well as holding, converting, banking, investing, importing, and exporting such property. A person who commits these property-related offenses is liable to seven years’ imprisonment.
The military regime further prohibits praise, sympathy, and support for an organization declared as an “unlawful association”. Section 7A of Military Order No. 101 (OrderRegarding the Prohibition of Acts of Incitement and Hostile Propaganda), 1967, proscribes the publication of “praise, sympathy or support for a[n unlawful association], its actions or objectives”, as well as public identification with such an association, its actions or objectives, including, inter alia, “by waving a flag, displaying a symbol or slogan or singing a hymn or sounding a slogan”. Under section 251 of the so-called criminal code promulgated by Military Order No. 1651 (Order Regarding Security Provisions), 2009, such publications and public acts of identification with an unlawful association are punishable by ten years’ imprisonment.
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