Counter Terrorism and Human Rights

An Israeli Perspective

Adv. Ophir Falk

At the recent ICT International Counter Terrorism Conference an important workshop concerning ‘Counter- Terrorism and Human Rights’ was held. The panel was chaired by Advocate Dvorah Chen, who formally served as the Director of the Criminal Security Affairs Department at Israel’s State Attorney’s Office, and consisted of prominent international and domestic legal personas.

Each panelist addressed a number of interesting issues. Advocate Chen shared a few highlights from her career as a prosecutor in key counter terror cases, inter alias, cases heard by Justice (Ret.) Strashnov at the District Court in Tel Aviv. Strashnov in turn explained how times have changed since his service as a judge in the military during the first Intifada, and that the Law in general and international law in particular have not adapted to the times and challenges of terrorism. Strashnov emphasized the need to introduce an international legal policy for counter-terrorism, in the form of an international convention or protocol. Notwithstanding, the clear problem with such an international convention lies with the preliminary predicament of defining “terrorism”, a hurdle that has yet to be overcome. This ambiguity was illustrated in Strashnov’s own words, wherein he explained that “the Intifada was not terror”. I am sure that there are many who would contend with the former Justice on that point.

Advocate Avigdor Feldman provided the most controversial statements of the workshop. Feldman cynically stated that he views his career as a civil rights defense lawyer in Israel to be a failure, due to the fact that out of “hundreds of cases he petitioned only a handful were successful”. Feldman labeled The Association against torture in Israel vs. The State of Israel and others (Bagatz 5100/94) as a “successful” case in which the Supreme Court of Israel “abolished the use of physical pressure in the context of interrogations”. Feldman suggested that Israeli officials who pleaded throughout the years that applying physical pressure on suspects was imperative at times, should implement the Jewish ritual of “sole searching on the upcoming Day of Atonement (Yom Kippur)” because it is now clear that that position was groundless. Moreover, Feldman criticized Israel’s use of ‘Targeted Killing’ by saying that Israel is the only “sovereign country with such a policy” and that “the reason for terror lies in the occupied territories which are in fact the Root of all Evil”. Finally, Feldman insisted that since Israel’s Supreme Court has put one of his client’s petitions against a number of Israeli Ministers and senior IDF officers for alleged war crimes, no less, in the “freezer”, his client, an ultra left wing organization called ‘There is a Limit’ had therefore no alternative other than to petition the allegations abroad, in countries where universal jurisdiction apply.

Commentary by Ophir Falk

In an effort to set the record straight, I would like to note the following:

1.      Human rights should not be limited to the protection of convicted villains but should also protect the well being of potential victims. Subsequent to the said ruling of the Israeli Supreme Court in 1999, abolishing the use of physical pressure in the context of interrogations, more than 1000 Israeli civilians have been murdered by Palestinian terrorists. This is not to imply that had the Supreme Court squashed Feldman’s petition, 1000 Israeli lives would have been spared. However, it is not far-fetched to assert that a few souls might have been saved. This leads one to an old Jewish proverb that states; “One who saves a single sole in Israel, it is as if he has saved an entire universe”;

2.      The policy of ‘Target Killing’ is not an Israeli invention. During the Cold War, the Russians assassinated by use of Ricin, a Hungarian dissident on the streets of London, simply because he was considered a ‘Western sympathizer’. Furthermore, the United Kingdom and/or United States have been reported to use ‘Target Killing’ in Yemen, Afghanistan and/or Iraq on many occasions in the past year alone;

3.      For better and often for the worst, the Israeli Supreme Court is one of the most liberal and active Supreme Courts on earth. All Israeli citizens and occupied territory residents are entitled to petition the Supreme Court after paying a token court fee of approximately one hundred dollars. As a result, the Supreme Court of Israel hears thousands of cases yearly. In comparison, the Supreme Court of the United States is not accessible to all and hears less than a hundred cases per year. Therefore the “in the freezer” excuse raised by Advocate Feldman seems ludicrous;

4.      Terror is a global threat, not limited to a Palestinian campaign of terror. Israel has suffered from terror prior to the 1967 six day war, and will in all likelihood continue to suffer from terror after the “occupied territories” cease to be a factor in the Middle East. Hence, it is not the “occupied territories” but rather the people and organizations of the same ilk that Advocate Feldman represents who may in fact be the true “Root of Evil”.

September 22, 2005