By Shaul Gordon
Israeli security forces have been actively combating a spike in terrorism and widespread disturbances by Palestinians in the West Bank and East Jerusalem in recent weeks.
However, the asymmetrical nature of the threat means that ultimately, Israel’s legal toolkit is limited, a restriction that often leads to frustrations among the Israeli public.
In defining the enemy in this context, Israel has been dealing with a range of threats, including terrorists who hide their firearms until the moment of attack, meaning they cannot be defined as regular combatants; lone-wolf terrorists; small terror cells made up of civilians who have been incited to commit murderous violence; and gunmen, such as those in Jenin, who loosely fall into the combatant category.
The terror wave has been dominated by attackers who decided on their own to launch indiscriminate attacks on Israelis, rather than organized terrorist infrastructures that directly dispatch suicide bombers or armed assailants.
In response, Israel, acting on precise intelligence, has initiated nightly counter-terror raids aimed at apprehending security suspects in their homes before they reach Israeli streets.
In East Jerusalem and the Old City, these are police raids, but in the West Bank or refugee camps on the outskirts of northern Jerusalem, these become military operations.
In Jenin, and other northern West Bank locations, IDF operations now run into hundreds of gunmen who fire thousands of bullets – a very different reality than a police counter-terror raid that occurs in Israel itself.
Israeli-Arabs arrested by police are brought before a magistrate’s court for hearings -- but Palestinians, who are not residents or citizens of Israel -- appear before military courts.
And here is where Israel’s case becomes complex and unique. When a counter-terror raid is conducted in Germany or France, the forces there operate in clearly-defined sovereign territory where they have full legal authority and face none of the operational difficulties encountered by Israel.
Israeli forces operating in cities in Area A of the West Bank do so in an area legally designated by an intermediate peace agreement between Israel and the Palestinian Authority (PA) as under full PA security and civilian control. Since the PA cannot neutralize such threats on its own, Israel has to, and the status of the intermediate agreement suffers erosion.
The IDF sometimes notifies the PA that it is about to enter an area for a raid, usually at the last moment, but on other occasions, in order to ensure the success of the operation, the Palestinians are not notified. When the coordination mechanism is active, the PA moves aside and lets the IDF conduct its operation.
Operationally, each such arrest raid may turn into an armed exchange with well-armed gunmen, and this creates dangers for Palestinian civilians and journalists around the zone of the raid. The IDF is, of course, fully within its rights under national and international law to fire back at any threat firing at it.
Beyond the raids, Israel employs a set of unique yet limited legal responses in an effort to prevent and deter attacks. A common tool is the use of home demolitions following Palestinian terror attacks. After every significant attack, the IDF enters the terrorist’s home, surveys it, and prepares it for demolition.
The legal basis for this act comes from Article 119 of the emergency regulations enacted by the British Mandate in 1945. Legal challenges to the measure state that it constitutes a type of collective punishment, due to the fact that others live in the same home.
Yet Israel has sound legal counter-arguments. When Israel captured the West Bank during the 1967 Six-Day War, it adhered to international law which states that a new occupying power must implement the same law that was in place prior to its arrival. In this case, this would be Jordan’s law enabling home demolitions, which, like Israel’s emergency regulations, was inherited from the British, and which legalizes the practice.
The separate question of whether home demolitions lead to deterrence does not produce clear-cut answers. In 2005, the Israeli government set up a committee to seek answers to this question, but it was unable to reach firm conclusions. The committee recommended that the practice be used more judiciously, but did not call for its cancellation.
In 2015, at the start of a wave of lone-wolf terrorism, Israel returned to this tactic in a selective way, only in response to major terror attacks, and has stuck to it until this day. The truth is that no one knows how effective it is. We have individual testimonies that support the idea that it can act as a deterrent by causing families to turn in sons plotting terrorist attacks. We have seen police investigations of would-be terrorists result in confessions by the suspect and cases of suspects aborting the attack - due to fears of demolitions and their effect on family members.
On the other hand, only in the last two weeks, we have seen tens of terror attacks – how could this be if the measure is clearly effective in deterrence?
The fact is that when extremist ideology is involved, some will throw concerns about their families to the wind.
This situation is a far cry from the question of the effectiveness of administrative detention. I can personally testify that the placement of persons plotting terrorist attacks in administrative detention has saved thousands of Israeli lives over the years.
Recently, Justice Minister Gideon Sa’ar called for a new measure to be introduced –the expulsion of relatives of terrorists from the West Bank to the Gaza Strip.
However, under international law, this is a problematic measure, since there is a ban on forcibly moving civilians from one location to another. Such a measure would be considered collective punishment and would represent a new opening for Palestinians to legally assault Israel at the International Criminal Court. Israel is not even legally allowed to transfer relatives of terrorists from one West Bank city to another.
Operationally, the measure is also of questionable value, since expulsions of terrorists in the past from the West Bank to Gaza, as occurred following the end of the siege of the Church of Nativity in Bethlehem in 2002, saw terror operatives upgrade their activities and capabilities in Gaza after arriving there.
Ultimately, the above points to a sobering yet important conclusion. Israel’s counter-terror legal toolkit, while critical, is relatively small. The tendency to search for new solutions is understandable, and the idea of ‘sitting around and doing nothing is frustrating, particularly for citizens of a strong state with a powerful military.
Yet this is an inseparable part of the reality of asymmetrical warfare. The IDF, with all of its advanced capabilities, finds itself, in the end, fighting enemies with knives, axes, and assault rifles.
The era of symmetrical clashes has largely passed from our region, and conflicts are growing more complex by the year. The struggle to find new solutions is a symptom of this wider problem.
Brigadier General Shaul Gordon has extensive experience serving in a legal capacity within the Israel National Police (INP) and the Israel Defense Forces, including holding the position of Senior Legal Advisor to the INP from 2006-2016. Read full bio here.