The government’s reforms risk politicizing the Israel Police

By Shaul Gordon

Over recent weeks we have witnessed bitter arguments in the Israeli media and in public discourse over reforms demanded by the new public security minister Itamar Ben-Gvir, who has renamed his position to national security minister.

Before assessing the value and possible ramifications of these reforms – among them are the powers to govern the Israel Police and outline its general principles of action – we should first examine the status quo.

According to Clause 8A of the Police Ordinance, 1971, the commissioner of police is appointed by the government following the recommendation of the public security minister.

According to Clause 9 of the ordinance, which can be traced back to the British Mandate period, the role of the commissioner is to “supervise the Israel Police, its management orders, activation and all of the expenses tied to it, and the supplies at its disposal.”

In both practice and theory, the minister recommends to the government his or her preferred candidate for commissioner and the government accepts the recommendation. There is no precedent for the recommendation being rejected.

The minister also authorizes all of the appointments of senior police officers – officers from the rank of deputy commander and up – after examining their professional and ethical suitability to their proposed positions. The minister can reject the appointment of a specific officer but cannot decide to appoint an officer who has not been recommended by the police chief.

On all matters pertaining to ongoing police activities, up until now, no public security minister has ever intervened in the commissioner’s work by issuing orders on how and where to deploy and operate the various police units. The minister’s involvement has usually been limited to the general guidance of the police.

Thus, for example, the minister can instruct the commissioner to prepare for certain events but cannot instruct him on how to deploy forces, in which locations or how many offices to deploy.

The role of the minister and the ministry is to represent the police to the government and to secure suitable budgets and personnel. The internal distribution of the police budget is presented to the minister but it is not subject to his approval.

How will Ben-Gvir change Israel's police?

Ben-Gvir’s coalition agreement with the Likud involves far-reaching changes to the law. These changes will enable him to determine policies that will govern the police and which will in effect subordinate the police to the minister, including the ability to alter the police’s rules of engagement.

In addition, the Border Police in Judea and Samaria, today, subordinate to the IDF’s Central Command but will be subordinate to Ben-Gvir.

To justify these steps, the new minister has sought to give the police equal standing to that of the IDF. Ben-Gvir has claimed that just as the IDF is subordinate to the defense minister and his policies, so too should the police be subordinate to the national security minister and his policies.

At face value, this argument is appealing since the minister has been voted in by the public in democratic elections to promote certain agendas. If the minister cannot determine the policies and priorities that guide the police and only the commissioner can decide in these areas, then how can the minister fulfill his obligations to the public?

YET THESE demands not only create significant legal and constitutional difficulties, they could also lead directly to the politicization of the police, to severe harm to human rights and potentially, to violent incidents that could claim lives, as well as harm the international status of Israel.

The claim that the police’s stance needs to be equal to the IDF is baseless since the legal basis governing the military – Clause 2 (A) of the Basic Law: The Military states that “the military is subject to the authority of the government,” and not to the defense minister.

According to Clause 3(B) of the aforementioned Basic Law, “the chief of the general staff is subject to the authority of the government and subordinate to the defense minister.” – means that the military cannot be ordered by the defense minister on his own and without a government decision, to go to war. As such, there is no basis for the claim that the military is subordinate to the defense minister and no basis for the claim that the police should be subordinate to the public security minister.

Beyond legal arguments, the comparison of the police to the military is wrong for reasons of substance, too. Unlike the IDF, the police is designed to serve and protect the Israeli public from domestic threats. The police must act on the basis of equality without the victim of the crime or the offender’s religion, race or gender playing any part in its actions.

Therefore, the decision to place the minister – not just Ben-Gvir, but any minister – as being in charge of police policies in dealing with offenses or rioting is an opening for the politicization of the police and could lead to the alarming scenario of over or under-policing of one sector or another depending on its identity.

Imagine a situation in which a minority seeks to protest against the prime minister or a public body and that the decision on whether to allow the protest is taken by a political element. Could the minister truly ignore his political beliefs and the political affiliation of the protesters? Those pushing the reforms seek to calm critics by saying that the minister will have no ability to intervene in investigations and that the police will remain sovereign in its ability to investigate any individual on suspicion of any offense.

While this position is important and necessary, it is not sufficient. The minister can, under the reforms, set budgets for investigating units whose activities he does not view in a favorable light.

In addition, the minister will, under the reforms, be able to dictate how police respond to disturbances, as well as set policies in classic policing missions among the various sectors of Israeli society, including minorities. This represents a slippery slope that could easily lead to drastic future changes.

Similarly, Ben-Gvir’s demand to command Border Police forces in Judea and Samaria is extremely problematic. From the perspective of international law, Judea and Samaria are classed as zones under belligerent control, meaning that a military commander – in this case the head of the IDF’s Central Command – is sovereign there. Subordinating them to the minister is not only contrary to international law and could be interpreted as an act of annexation but could create chaos on the ground by creating multiple chains of command in the same area.

These steps appear, therefore, to form a real revolution and can lead to disturbing consequences on Israel’s standing, image and values, which have been shaped by generations.

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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.

Dealing with asymmetrical enemies, Israel’s legal toolkit is limited

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.

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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.

The status quo is the key to Jerusalem’s stability

By Shaul gordon

When it comes to policing a city as complex as Jerusalem, the mission of guarding the status quo is of supreme importance. The importance of the status quo in Jerusalem cannot be overstated, and any deviation can ignite not only the city, but the entire Middle East.

Jerusalem is a holy city to three religions: Judaism, Christianity, and Islam. Religious sites with huge historical significance are packed next to one another, and highly varied populations live side by side.

This naturally leads to sensitivities and tensions. Jerusalem, central as it is to the three religions, has always been at the center of wars and conflicts, and in this respect, the latest clashes in the city and in its name are nothing new.

Politically, the fact that it is the capital of Israel gives it even more symbolism. The Israeli parliament and state institutions are located in the city. After Israel liberated Jerusalem in the 1967 Six-Day War and annexed the Old City as well as the east of the city, the territory of greater Jerusalem grew dramatically.  

It is no coincidence that terror attacks in the Second Intifada focused on Jerusalem. Cafes and buses were frequently targeted by suicide bombers because the terror organizations too view Jerusalem as special.

The latest incidents are merely a continuation of this special sensitivity.

Demographically, out of every nine Jerusalemites, three are Arab, and the remainder are divided  equally between ultra-orthodox, conservative-religious, and secular Jews.

There have been fierce cultural-religious struggles between ultra-Orthodox and secular Jews, as well as between the ultra-Orthodox and the state. If this wasn’t enough, the ultra-Orthodox themselves are conflicted and divided into various sects.

Demonstrators who want to make their cause known go to Jerusalem, where the government is located.

How should the Israel Police deal with such a city?

 The Israel Police is responsible not only for fighting crime, law enforcement, traffic, and public order, but also for security. This is a fairly unique addition to its mission list, compared to other police forces around the world. 

As recent events have demonstrated, any deviation from the status quo can set the city on fire. Does Damascus Gate have a new barricade or not? The answer to this question can spark international incidents. It is doubtful whether placing an obstacle anywhere else in the world can lead to mass rioting and be cited as a cause for an armed conflict.

One cannot be a police officer or commander in Jerusalem without knowing its history. In Jerusalem, one does not just decide to change or move things. Instead, the first question is: What did my predecessors do?  This is how to avoid stepping into a minefield.

In the latest unrest, the Jerusalem district chief took an operational decision that was correct. Seeking to prevent crowding at Damascus Gate, he placed barricades around the plaza outside the gate. But the consequences were major clashes, because the issue is not the barricades, but rather, the status quo.   

On the flip side of the coin, Jews ascending the Temple Mount are seen in a poor light by Muslims at the site.  The Northern Branch of the Islamic Movement tried to stop such visits,  setting up Murabitoun, male activists, and Murabitat, female activists, to ‘guard’ the Al Aqsa Mosque and prevent Jews from accessing the Temple Mount, which is part of the same compound. The Islamist activists arrived by the busload, and clashes erupted. Israel decided to defend the status quo of Jewish visitations, and banned the Northern Branch using emergency legislation. Soon, quiet returned to the Temple Mount.

 The moral of the story is that it is vital to guard the status quo of Arabs and Jews alike in the city.

A second vital ingredient for successful policing in the capital is the integration of the ‘green’ paramilitary Border Police with the ‘blue’ civilian Israel Police. In Jerusalem, the forces are combined. This gives police an edge when, for example, it must respond to major security or criminal challenges in the Shuafat Refugee Camp.

The issue of cultural competence is no less important. This means knowing the population that police are facing and understanding its cultural codes. It means not placing a checkpoint to examine driving licenses at the entrance to an ultra-Orthodox neighborhood two hours before the Sabbath, or just before the end of a Ramadan fast outside of an Arab village.

Police that know the culture of the people it polices and respects it will prevent unnecessary friction, and only deal with those incidents that it must.

Part of cultural competence means developing daily dialogue with the heads of various communities.

This also facilitates the reporting of crimes in communities that often refrain from turning to the police and prefer to deal with incidents internally.

Jewish, Muslim, and Christian religious leaders attended a ceremony marking the changing of the Jerusalem district police commander, because he is everyone’s district chief.

The chief must not be perceived as being on the side of one community at the expense of another, but as upholding the rule of law, without question. Such ties can also enable police to send messages to community leaders to help calm the atmosphere during tensions and prevent incidents.

In such a heterogeneous and explosive city, these are the tools that police have at their disposal to keep Jerusalem stable. In such a complex city, the Israel Police cannot let up for even one moment, because one small match can set Jerusalem and even the entire Middle East ablaze.

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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.

HEBREW PODCAST: תת ניצב בדימוס שאול גורדון, השתקפות על חיי בשירותי בצה״ל ובמשטרת ישראל, למען מדינת ישראל

דיאלוג על חשיבות החוק למען אזרחי מדינת ישראל

PODCAST: Columbia Law Hosts Fmr. Senior Legal Advisor to Israeli National Police, Brig. Gen. Shaul Gordon

Video: COMBATING DOMESTIC TERROR: THE LEGAL AND POLICY BASIS FOR HOUSE DEMOLITIONS

Senior Legal Advisor To The INP, BG Gordon

VIDEO: Shaul Gordon Addresses I-SAP Tour 2019

In June, 2019, our organization brought forty I-SAP delegates from the U.S. Military Academies to the Israeli Knesset. They were briefed by Brigadier-General Shaul Gordon (Ret.), formerly the Senior Legal Advisor to the Israel National Police. BG Gordon held that position during the wave of stabbings that took place in 2015.