Detention and Human Rights Law

29 Adar 1, 5776 Jerusalem Hanoch Ne’eman (c)

This week, more precious people are being stabbed and shot in Israel.

As a law student, I ask myself what can be done to produce more deterrence? As I said in my letter to Attorney General Mandelblit, governments have a Human Rights Law Obligation to protect their citizens, as well as visiting tourists, from terrorist attacks. We, as a state, are currently not fully living up to this obligation. We are, therefore, in violation of Human Rights Law. This is a situation which needs to be redressed.

Knesset Member Katz says he plans to introduce legislation to allow deporting terrorists. He may really want to do that, I don’t know him and what he really thinks, but this may just be exercise for the sake of looking good to the public. Governments around the world usually react that way to terror activity, they want to appear to be doing something (see A Time of Terror, by J. Bowyer Bell). Here, the Attorney General has said before that he does not think that deportation is legal under International Law. So it may be a PR exercise to speak of deportations. But I hope it isn’t. The Prime Minister recently asked the Attorney General for a formal opinion on the matter, and I am anxious to see his reasons. It was quoted in one article, (which may not be accurate), that he said it was considered transfer and prohibited under the Geneva Conventions.

So what I want to explore here is, what are Israel’s options for enhancing deterrence aside from deportation of terrorists and their families?

Well, as I said in my letter, you do not have to deport them. You can simply detain them. You can give them the option of emigration, if you wish.

Would/Could it be legal to detain (imprison) the family of a terrorist? Let us explore:

One consideration perhaps is the age of the terrorist, minor or adult? Presumably parents have more responsibility for their minor children.

Initially, every terrorist’s family, as every criminal’s family, should be interrogated for information. It should be investigated if the family members knew of, supported, encouraged, his or her actions. If they are shown to have, then they are accomplices and should be tried and imprisoned, for as long as it is suspected they may be dangerous. They can be offered the option of emigration if they don’t like jail.

Many family members of terrorists in recent years were not imprisoned, despite their vocal support of terror, and they went on to kill more of our brothers and sisters. For example, the murderers of the Vogel Family in their home on Shabbat, were the nephews of a convicted killer. Likewise the cousin of the Har Nof shul murderers, continued to work for Bezek Telephone Company, and killed a Jewish man this fall by striking him with his Bezek vehicle. Our police and security forces are idiots in this respect. (Not only in this respect, and not in every respect).

And if evidence is not found that they support and encourage terror? Can they still be legally detained, simply for its deterrent value, in order to protect the human right of the public not to be injured?

I think there is room to say yes, if, the rule is applied to all citizens, Jew or Arab. A simple rule: If you attack people, your family will be held in jail, until such time as the authorities deem it safe to release you, without reducing deterrence. Otherwise, the government is failing in its human rights law obligation to protect the public.

Saying you can not imprison people who did not do a crime yet is like saying an ambulance can’t go through a red light. There are times when a greater good outweighs a lesser evil.

I was in army jail for thirteen days. It is not that bad. It was better than a lot of my other army experiences. The right not to be detained is defined by “arbitrary interference”. You can not detain people for no reason. Deterring terrorism is a reason.







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